Bingham v. State

833 S.W.2d 538, 1992 Tex. App. LEXIS 2181, 1992 WL 86328
CourtCourt of Appeals of Texas
DecidedApril 20, 1992
DocketNo. 05-91-01082-CR
StatusPublished
Cited by11 cases

This text of 833 S.W.2d 538 (Bingham v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bingham v. State, 833 S.W.2d 538, 1992 Tex. App. LEXIS 2181, 1992 WL 86328 (Tex. Ct. App. 1992).

Opinion

OPINION

MALONEY, Justice.

A jury convicted Anthony Dwayne Bing-ham of arson and assessed a fifteen year sentence and a $1000 fine. Appellant claims the trial court erred in (1) denying his motion for new trial on jury misconduct; (2) failing to submit jury instructions on accomplice witness testimony; and (3) admitting hearsay statements. Appellant also challenges the sufficiency of the evidence.

We sustain appellant’s second point of error on the trial court’s failure to charge the jury on accomplice witness testimony. We reverse the trial court’s judgment and remand this cause for a new trial.

STATEMENT OF FACTS

Peggy McCallum, appellant’s sister-in-law, lived next door to appellant and his wife, Tammy Bingham. McCallum testified that appellant told her that he planned to burn his trailer home for the insurance money. Appellant and Bingham needed money to pay bills. McCallum’s refrigerator was “running hot” and appellant’s refrigerator was in better condition.1 Before the fire, she exchanged her refrigerator for the refrigerator in appellant and Bingham’s trailer.

Appellant and Bingham’s insurance company investigated the fire. Its investigation revealed two origins of the fire and the use of accelerants. Its claims investigator testified that these were signs of an intentionally set fire.

The city fire marshal also investigated the fire. He found evidence of accelerants and an intentionally set fire. His investigation report listed the cause of the fire as “suspicious.”

Misty Edwards, a former girlfriend of appellant’s brother, testified that she visited appellant and Bingham the afternoon of [541]*541the fire. Appellant, his brother, and Bing-ham were acting secretive. Bingham admitted to Edwards that “they were going to burn down the trailer to get the insurance money.”2 Edwards left the trailer. When she returned about 3:45 that same afternoon, the trailer was on fire.

Paul Raleeh, a McKinney Police Department criminal investigator, also investigated the fire. He found evidence of acceler-ants and multiple fire origins. He interviewed appellant’s mother, the insurance adjuster, Bingham, Edwards, and McCal-lum. Their statements supported his conclusion that the fire was arson.

Raleeh testified that Bingham admitted that she and appellant planned the fire.3 Although Raleeh did not intend to file charges against McCallum and Bingham, he testified that both were parties to the offense and could be charged the same as appellant.

Bingham invoked her Fifth Amendment right not to testify. The record reflects that she filed an affidavit retracting the statement she gave to Raleeh.

SUFFICIENCY OF THE EVIDENCE

In his third point of error, appellant maintains the evidence is insufficient to support his conviction. Specifically, he alleges the State did not sufficiently corroborate the accomplice witnesses’ testimony.

1. Applicable Law

In evaluating the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Marroquin v. State, 746 S.W.2d 747, 750 (Tex.Crim.App.1988). We determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.), cert. denied, — U.S. -, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). The trier of fact is the sole judge of the testimonial weight and witnesses’ credibility. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). The trier of fact may believe or disbelieve any part of a witness’s testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). We measure the sufficiency of the evidence by the charge given to the jury. Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984).

2. Application of Law to Facts

McCallum testified appellant planned to intentionally burn down his trailer home. Raleeh and Edwards testified Bingham admitted she and appellant planned to commit arson. Under the charge given, the evidence supports the verdict of guilty. We overrule appellant’s third point of error.

ACCOMPLICE TESTIMONY

In his second point of error, appellant maintains the trial court erred in denying his requested accomplice witness charge on Bingham. Appellant contends the charge allowed the jury to corroborate the testimony of accomplice McCallum with Bingham’s statements. The State maintains Bingham was not an accomplice witness because she did not testify.

a. Accomplice Witnesses

An “accomplice witness” is one who participates with another before, during, or after the crime. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). One is not an accomplice because he knows of the crime but fails to report it or even conceals it. Id. The test is whether a prosecution will lie against the witness under the accused’s indictment. Id. The term “accomplice witness” should be given [542]*542a broad meaning. Holladay v. State, 709 S.W.2d 194, 196 (Tex.Crim.App.1986).

We consider each case on its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988). The evidence determines which, if any, accomplice witness instruction the court should give the jury. Gamez, 737 S.W.2d at 322. When the evidence clearly shows the witness is an accomplice as a matter of law, the trial court must so instruct the jury. Id.; Arney v. State, 580 S.W.2d 836, 839 (Tex.Crim.App.1979). If the State indicts a witness for the offense on trial or the witness implicates herself while testifying, the witness is an accomplice as a matter of law. Hernandez v. State, 636 S.W.2d 617, 621 (Tex.App.—San Antonio 1982), rev’d on other grounds, 651 S.W.2d 746 (Tex.Crim.App.1983). A co-conspirator is an accomplice. Chapman v. State, 470 S.W.2d 656, 660 (Tex.Crim.App.1971).

If a question exists whether the witness is an accomplice, then the court should submit that fact issue to the jury. Gamez, 737 S.W.2d at 322; Emmett v. State, 654 S.W.2d 48, 50 (Tex.App.—Dallas 1983, no pet.).

b.Corroboration of Accomplice Testimony

An accomplice’s testimony alone is not sufficient for a conviction. Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.

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Bluebook (online)
833 S.W.2d 538, 1992 Tex. App. LEXIS 2181, 1992 WL 86328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bingham-v-state-texapp-1992.