Elijah Lorenzo Colbert v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2011
• Docket: 06-10-00028-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________

No. 06-10-00028-CR ______________________________

ELIJAH LORENZO COLBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 0820610

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

During the jury trial resulting in the conviction of Elijah Lorenzo Colbert for aggravated

robbery with a deadly weapon,1 the evidence included accomplice testimony and testimony from a

hearsay source.2 In general, the evidence shows that three black males, wearing stocking masks

and brandishing pistols, broke into a house, ordered two older men to the floor, and robbed them at

gunpoint while threatening to shoot them both. After investigation that centered police attention

on certain individuals and resulted in the recovery of many of the stolen items, a participant

admitted involvement and identified Colbert as one of the other robbers.

Colbert complains on appeal that the co-defendant’s testimony was not adequately

corroborated and that other, hearsay, testimony was erroneously admitted over his objection. We

affirm the trial court’s judgment because (1) the accomplice-witness testimony was adequately

corroborated, and (2) the erroneous admission of hearsay testimony was harmless.

(1) The Accomplice-Witness Testimony Was Adequately Corroborated

Testimony from accomplice witnesses must be corroborated. See TEX. CODE CRIM. PROC.

ANN. art. 38.14 (Vernon 2005). The test under the statute as applied is whether, after excluding

the accomplice’s testimony, there is other evidence of an incriminating character which tends to

connect the defendant with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691

1 In a companion appeal, also decided this day, Colbert was also convicted of engaging in organized criminal activity as a result of his participation in a second offense, burglary of a building, and was sentenced to life in prison. 2 Colbert was sentenced to twenty years’ imprisonment.

2 (Tex. Crim. App. 2007). The corroborating testimony needs only to link the accused to the

commission of the crime so that ―rational jurors could conclude that this evidence sufficiently

tended to connect [the accused] to the offense.‖ Malone v. State, 253 S.W.3d 253 (Tex. Crim.

App. 2008).

Colbert does not argue that there is no other evidence tending to connect him with the

offense. Colbert argues, without resort to supporting authority, that other witnesses were in some

way connected with the co-defendant—father, girlfriend, former girlfriend, or cousin—and, for

that reason, their testimony did not provide the needed corroboration.

The statute does not require the corroborating evidence to come from any particular source

or group of sources. It requires only that the corroborating evidence must be from a source other

than the accomplice. Corroborating evidence was presented that did come from other sources

than the accomplice. The requirement of the statute was thus met.

The contention of error is overruled.

(2) The Erroneous Admission of Hearsay Testimony Was Harmless

Colbert also complains that hearsay was improperly admitted into evidence when a police

officer testified that Jermain Dennis (not a defendant) had told the officer during the course of the

investigation that Dennis and others—including Colbert and other defendants connected with

these robberies—were members of the Crips gang.

Counsel lodged a hearsay objection. After a lengthy discussion, the testimony was

3 admitted as a statement made against interest by the declarant, as it tended to subject Dennis to

criminal liability. See TEX. R. EVID. 803(24). When a statement tends to expose the declarant to

criminal liability, it is admissible. Walter v. State, 267 S.W.3d 883, 891 (Tex. Crim. App. 2008).

The voir dire showed that, at the time of the statement, Dennis was also under investigation for the

offenses.3 The State also declared that Dennis was also involved in ―other pending charges, some

other robbery charges as well in different cases not associated with this . . . .‖ Being a member of

a gang is not a criminal act. Admitting evidence of membership in a gang with a history of

involvement in criminal activity would obviously sharpen the investigator’s extant focus more

strongly on Dennis as a suspect. The question is whether this information meets the entrance

requirements of Rule 803(24) of the Texas Rules of Evidence.

A two-step foundation requirement is set out in Rule 803(24) of the Texas Rules of

Evidence. Walter v. State, 293 S.W.3d 886, 890 (Tex. App.—Texarkana 2009, pet. ref’d). First,

the trial court must determine whether the statement, considering all the circumstances, subjects

the declarant to criminal liability and whether the declarant realized such when he or she made the

statement. Id. at 890–91. Second, the trial court must determine whether there are sufficient

corroborating circumstances that clearly indicate the trustworthiness of the statement. Id. at 891.

Thus, the first stage of this review permits admission under the rule only when the statement itself

tends to subject the declarant to criminal liability. See Dewberry v. State, 4 S.W.3d 735, 751

(Tex. Crim. App. 1999). 3 Ultimately, Dennis was not prosecuted for any connection with them.

4 In this instance, it does not. Dennis did not admit commission of a criminal act, or of any

other act that would subject him to criminal liability. The admission is unsupportable on this

basis, and the trial court erred by admitting the testimony over objection on this basis. It is clearly

hearsay, admitted explicitly for the truth of the matter asserted, and as the State has failed to

provide a brief to this Court, no alternative theories to justify admitting the testimony have been

suggested.

Counsel has not specified of what testimony he complains, but because he complains in his

brief about testimony ―in regards to information about Appellant,‖ it appears that the

complained-of hearsay is:

[State’s Attorney]: What did he (Dennis) say he was a member of?

[Officer Linwood Fox, II]: He advised that he was – he, along with Mr. Colbert and Brandon Calhoun, were members of the Crips organized street gang.

Having found error, we now conduct a harm analysis. In our review of nonconstitutional

error, such as this, we are to disregard errors, defects, irregularities, or variances that do not affect

substantial rights of the accused. TEX. R. APP. P. 44.2(b). A ―substantial right‖ is affected when

the error had a substantial and injurious effect or influence in determining the jury’s verdict. King

v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997). We do not overturn a conviction unless, after

examining the record as a whole, we conclude that an error may have had substantial influence on

the outcome of the proceeding. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

5 In this case, there is a substantial quantity of evidence from other sources that also connects

Colbert with the Crips gang. In such a situation, we conclude that, although the court erred by

admitting this testimony, its admission was not such as to have a substantial and injurious effect or

influence on the jury in this instance. This issue is overruled.

We affirm the judgment of the trial court.4

Josh R. Morriss, III Chief Justice

Date Submitted: April 14, 2011 Date Decided: April 15, 2011

Do Not Publish

4 Counsel also states in a single sentence that error existed because he was unable to cross-examine Dennis about the hearsay statement concerning Colbert’s gang association. Because that argument was not presented to the trial court, it was not preserved for our review. TEX. R. APP. P. 33.1.