Paul Author York v. The State of Texas--Appeal from 221st District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-407 CR
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PAUL AUTHOR YORK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 05-03-02592 CR

MEMORANDUM OPINION

A jury convicted Paul Author York of delivery of a controlled substance. See Tex. Health & Safety Code Ann. 481.112(c) (Vernon 2003). York challenges the legal sufficiency of the evidence supporting the conviction and contends the trial court committed fundamental error in failing to instruct the jury pursuant to article 38.141 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005).

Don Likens, narcotics detective with the Montgomery County Sheriff's Department Special Investigations Unit, testified the Conroe Police Department contacted him about working with a confidential informant who had provided information on a location where she could purchase crack cocaine in Willis, Texas. Likens planned the operation and chose Elizabeth Morris, also a detective with the Montgomery County Sheriff's Department Special Investigations Unit, to accompany the confidential informant to the location. Likens was familiar with the location where the "buy" operation was to take place. He had received information on that location for two years. He was aware of the informant's previous history of assaults and assumed she had been involved in drug activity. He had used the informant in prior operations, believed her to be credible, and had no information that the informant was trying to "frame" York.

Detective Likens gave Detective Morris a recording device. Detective Morris gave the recording device to the informant, who placed it in her purse. Detective Morris drove the informant to the location and Detective Likens followed them. Once he saw Detective Morris turn into the driveway, Likens pulled off to the side of the road. Detective Likens' vehicle was equipped with an audio receiving device that allowed him to hear the transaction through the informant's recording device.

After the purchase, Detective Morris drove the informant to a separate location to meet Likens. The informant turned over the tape recording and Detective Likens placed it in a bag and marked the bag with the case number, date, and time. Detective Likens weighed and field-tested the controlled substance the informant purchased; the weight was 1.1 grams. He sealed the controlled substance in an envelope and hand-delivered it to the Montgomery County lab for processing.

Detective Likens conceded no officer witnessed the drug transaction and the audiotape is not of the best quality. When asked whether he was able to identify York's voice on the tape, he responded that "I have personally spoken with Paul York and it sounds to me as if it is the same individual, yes, sir."

Detective Morris testified that prior to driving the informant to the location of the undercover operation, she searched the informant in order to confirm the informant did not have any drugs or money separate from the money law enforcement supplied for the purchase of drugs. She made sure the audio device provided by Detective Likens was working and she recorded preliminary information about the operation on the tape. The informant put the recording device in her purse. Detective Morris drove the informant in an undercover vehicle to the location and parked. The informant went to the back of the house. She left the house after approximately five to seven minutes and returned to the undercover vehicle. Detective Morris did not witness the transaction. As Detective Morris backed the vehicle out, the informant handed her the controlled substance. Detective Morris turned the controlled substance over to Detective Likens at a separate location and then turned off the recording device.

The informant testified she had worked on several cases for law enforcement as a confidential informant. She agreed to act as a confidential informant for an undercover operation to take place where York was living in Willis, Texas. After meeting with Detectives Likens and Morris on the day of the undercover operation and being searched, the informant carried a recording device and entered the house in which York was living. She testified she walked into the home and saw many people were smoking crack. As she was walking towards Paul a couple of people tried to sell her crack. She walked back to Paul's bedroom and told Paul she wanted "a hundred pack of crack cocaine." According to the informant, York sold her five "crack stones." He told her to come back if she needed more and then she left.

The informant admitted she was recently released from jail on a forgery offense and admitted to using crack cocaine. She admitted using crack a month before trial. She stated she stayed several days at York's house and used crack there. She accused York of having sex with her male friend who stayed with her at York's house and of setting up arguments so she would "get ripped off." She testified she never said she was going to get even with York.

Camille Stafford, criminalist with the Texas Department of Public Safety crime laboratory in Houston, Texas, testified for the State. Although she did not perform the testing on the controlled substance for this case, she provided her opinion on the results of the analysis; she based her opinion on the information contained in the chemical analysis report. She testified the analysis report showed the controlled substance contained 1.07 grams of cocaine.

York testified he listened closely to the tape admitted in evidence as the recording of the transaction and he could not hear his voice on the tape. He admitted he is a crack cocaine addict but claims he has never sold crack cocaine. He rented the house for $100 a month. He would allow his friends to stay at the house. He said that before and just after he moved to the house, drugs were often sold in the yard. The police department frequently asked to search his house because of the drug activity. He stated he has never delivered drugs for financial reward.

York testified the informant traded sexual favors for drugs and that she accused him of having sex with her boyfriend. On one occasion when she was drunk, she told York she would get even with him "one way or the other." He believes her motivation is because she "hated [his] guts. . . ." He also testified she was angry at him because of an altercation at York's house where she got hit with a lamp.

Jimmy Lee Creamer testified for the defense. Creamer testified he met York about five years earlier and visited York's house seven or eight times a month. He claimed he visited but did not participate in any drug activity. Creamer explained he was in prison on a state jail felony conviction. According to Creamer, a woman named "Anna" was often on Marlin Street. He stated she was a drug addict who had on occasion offered him sexual favors for drugs. He testified that while people in the house were often selling drugs, York was usually in the back room of the house watching television.

In York's first point of error, he argues the evidence was legally insufficient to support his conviction because it was based on the testimony of a confidential informant, and the State presented no other evidence tending to connect York with the offense of delivery of a controlled substance. Article 38.141 of the Texas Code of Criminal Procedure requires that testimony of a person who is not a licensed police officer or special investigator but is acting covertly on behalf of the police be corroborated by other evidence tending to connect the accused to the offense. See Tex. Code Crim. Proc. Ann. art. 38.141 (a),(b). Testimony of covert witnesses, like accomplice witnesses, is viewed with caution. Brown v. State, 159 S.W.3d 703, 707 (Tex. App.--Texarkana 2004, pet. ref'd); Young v. State, 95 S.W.3d 448, 451 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd).

Because the corroboration language of article 38.141 is substantially identical to article 38.14, which requires corroboration of accomplice witness testimony, courts have adopted the standards for accomplice witness testimony in applying article 38.141. See, e.g., Torres v. State, 137 S.W.3d 191, 196 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 793 n.3 (Tex. App.--Eastland 2003, pet. ref'd); Young, 95 S.W.3d at 451; Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.--Austin 2002, no pet.). Corroboration of the covert witness testimony is a statutory requirement imposed by the Texas Legislature. Brown, 159 S.W.3d at 707 (citing Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 460). Article 38.141 only requires that there be some other evidence that tends to connect the accused to the commission of the offense alleged in the indictment. Brown, 159 S.W.3d at 707 (citing Torres, 137 S.W.3d at 196); see Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997).

To determine the sufficiency of the corroborating evidence, we first eliminate the testimony of the covert witness and ask whether other inculpatory evidence tends to connect the accused to the commission of the offense. See Cantelon, 85 S.W.3d at 461 (citing McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997)). An appellate court reviews the corroborating evidence in the light most favorable to the verdict. Cantelon, 85 S.W.3d at 461 (citing Knox v. State, 934 S.W.2d 678, 686-87 (Tex. Crim. App. 1996)). No precise rule can be formulated regarding the amount of evidence necessary to corroborate testimony. Id. An appellate court is to judge each case on its own facts. Id. The corroborating evidence does not, by itself, have to establish the defendant's guilt beyond a reasonable doubt, but it does have to tend to connect the defendant to the offense. Brown, 159 S.W.3d at 711; Torres, 137 S.W.3d at 196; McDuff, 939 S.W.2d at 613.

The trial court did not instruct the jury that the covert witness testimony must be corroborated. The defense did not request the instruction or object to the charge as written. The house where the transaction occurred was rented by York, and although he denied selling drugs, he admitted to drug use. Detective Likens identified York's voice on the audiotape, and he was listening as the transaction occurred. Although large portions of the audiotape are inaudible, the informant can be heard asking repeatedly for York and then making the drug transaction with a male. York testified at trial, and the jury was able to compare his voice with the voices on the audiotape. Detective Likens testified he had received information on the house for the past two years. York admitted drug activity often occurred inside his house. Sufficient corroborative evidence connected York to the drug transaction.

In his second point of error, York maintains the trial court committed fundamental error in failing to instruct the jury pursuant to article 38.141 of the Texas Code of Criminal Procedure. He concedes no objection was made to the trial court's failure to charge the jury pursuant to article 38.141, but maintains the trial court's error resulted in egregious harm. A trial court commits error when the State relies on testimony that is required by statute to be corroborated and the trial court fails to instruct the jury that there must be corroborating evidence in order to convict the defendant. See, e.g., Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). When a trial court commits error in omitting the corroboration instruction, an appellate court must take into consideration the existence and strength of the corroborating evidence. Id. at 632. In determining the strength of corroborating evidence, an appellate court must examine (1) the reliability or believability of the evidence, and (2) the strength of its tendency to connect the defendant to the offense. Id. Claims of fundamental error in the charge to the jury are reviewed under the "egregious harm" standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). Under the egregious harm standard, the failure to provide the corroboration instruction generally constitutes harmless error unless the corroborating evidence is "'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Herron, 86 S.W.3d at 632 (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). The corroborating evidence on this record is not "so unconvincing in fact" and does not render the State's case less persuasive. We conclude the trial court's failure to instruct the jury pursuant to article 38.141 of the Texas Code of Criminal Procedure did not result in "egregious harm." Appellant's issues are overruled. The judgment is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

 

Submitted on August 29, 2006

Opinion Delivered October 25, 2006

Do Not Publish

 

Before Gaultney, Kreger, and Horton, J.J.