Deborah Jane McGinnis v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-98-080-CR

DEBORAH JANE McGINNIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 31958

O P I N I O N

Deborah Jane McGinnis was convicted of Solicitation of Capital Murder and Conspiracy to Commit Capital Murder. For each charge, the jury assessed her punishment at 25 years confinement in the Texas Department of Criminal Justice Institutional Division. She appeals her convictions on two grounds: (1) that her due process and due course of law rights were violated by the State allowing its witnesses to misrepresent the nature of their relationship with the State; and (2) that, absent accomplice witness testimony, there was insufficient corroborating evidence linking her to the crime. We hold that McGinnis failed to preserve error as to point one and we conclude that the record contains sufficient corroborative evidence of the accomplices testimony. Therefore, we will affirm the judgment of the trial court.

BACKGROUND

On July 25, 1997, McGinnis was indicted for one count of Solicitation of Capital Murder and Conspiracy to Commit Capital Murder. Also indicted as accomplices to the crime were Eddy Dean Chumley and Chris Kevin Gee. The State alleged that McGinnis, Chumley, and Gee had an agreement in which McGinnis would pay $1,000 to have her lover s wife, Helen Crawford, killed. In separate confessions from Gee and Chumley, the State obtained evidence that Chumley had attempted to carry out the plan twice, but in each case was unsuccessful. McGinnis was convicted of both charges and the jury assessed her punishment at 25 years confinement on each charge.

McGinnis appeals both convictions on two grounds: (1) that the State violated her rights of due process and due course of law by failing to correct alleged misrepresentations made by Gee and Chumley regarding any agreements, deals, or consideration offered to them by the State in exchange for their testimony; and (2) that absent accomplice witness testimony, there was insufficient corroborating evidence linking her to the crime.

DISCUSSION

In her first point of error, McGinnis alleges that the State failed to correct misrepresentations made by Chumley and Gee. Each testified that he had been offered no deal in exchange for testifying against McGinnis. She argues that this alleged failure by the State violated her rights of due process and due course of law. However, at trial, she was privy to the statements by the prosecutor that she now claims amounted to an offer by the State to the accomplices in exchange for their testimony. Therefore, at the time that the accomplices testified, she should have known that their testimony misrepresented, arguendo, the actual relationship between themselves and the State. She failed to raise this issue before the trial court.

Even rights secured by due process are usually waived by inaction. See Pondexter v. State, 942 S.W.2d 577, 585 (Tex. Crim. App. 1996); Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995); Rogers v. State, 640 S.W.2d 248, 264-65 (Tex. Crim. App. 1982). We hold that McGinnis has waived any complaint regarding this point on appeal by failing to complain to the trial court. Tex. R. App. P. 33. Consequently, we overrule her first point of error.

McGinnis second point of error complains that there is no evidence to corroborate the accomplice-witness testimony. Therefore we must examine the record to determine if, without any accomplice testimony, some evidence tends to link McGinnis to the crime. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).

McGinnis daughter, Julie Gee, testified that her mother had extreme dislike for Helen Crawford. McGinnis former employer testified that, on several occasions, McGinnis stated that she would have Crawford killed or would kill her herself if she knew she would not get caught. He said that he would respond, You don t mean that, and McGinnis, in reply, would say, I hate her bad enough that I would do it, if I knew I wouldn t get caught.

The record also contains testimony by Catherine Newton, Chris Gee s girlfriend, in which she stated that McGinnis often complained that she wanted Crawford dead. In addition, Newton testified that she and Gee went with McGinnis to make a telephone call regarding the possibility of hiring someone to kill Crawford. According to Newton, she pretended to place the phone call to a would-be hit-man and related to McGinnis, hoping to dissuade her, that the cost would be $2,500. Newton stated that McGinnis replied that she would pay only $1,000 for Crawford s death. She also testified that McGinnis subsequently asked Gee when he was going to have Crawford killed. Furthermore, Newton recalled McGinnis and Gee discussing several ways to accomplish the murder. Finally, Newton testified, several days before Chumley s initial attempt to kill Crawford, McGinnis gave Gee $100 in exchange for the title to his truck.

The record also contains other evidence to corroborate the accomplices testimony. The State established that at the time of her arrest, McGinnis had $901.55 in her purse. In addition, McGinnis identified an exhibit as a photo album belonging to her. She also identified several of the photographs within the album as depicting Crawford s residence.

A conviction cannot be based on accomplice testimony unless the record supports that testimony with some independent evidence that tends to connect the defendant with the crime. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish appellant's guilt beyond a reasonable doubt; rather, the non-accomplice evidence merely has to tend to connect appellant to the offense. Burks v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994). Thus there must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment. McDuff, 939 S.W.2d at 613.

In this case, testimony from non-accomplices along with other evidence contained in the record, absent any accomplice testimony, tends to establish an independent nexus between McGinnis and the crime. First, Newton stated that McGinnis agreed to pay $1,000 to have Crawford killed. She also stated that McGinnis had given Gee $100 just days prior to Chumley s attempts to kill Crawford. Other evidence established that McGinnis was carrying $901.55 at the time of her arrest. Furthermore, several witnesses testified that McGinnis had openly expressed her dislike for Crawford and had stated that she would kill her or have her killed if she thought that she could get away with it. We think that the cumulative effect of this evidence, along with the other non-accomplice evidence referred to, tends to link McGinnis with the crime. Therefore, we overrule McGinnis second point of error.

Because we hold that McGinnis waived her complaints under point one and that there is some evidence which tends to link McGinnis with the crime, we affirm the judgement.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings,

and Justice Vance

(Justice Cummings not participating)

Affirmed

Opinion delivered and filed January 27, 1999

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