in the Matter of C.M., a Juvenile

• Court: Court of Appeals of Texas
• Decided: March 20, 2003
• Docket: 11-02-00150-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

In the Matter of C.M., a Juvenile

No. 11-02-00150-CV   --  Appeal from Erath County

The jury found that C.M. engaged in delinquent conduct by committing the offense of burglary of a habitation.  The trial court committed C.M. to the Texas Youth Commission for an indeterminate period of time based upon the jury=s finding.  We affirm. 

The State alleged that C.M., a 13-year-old male,  and three other male juveniles burglarized the home of Vera Jo Hill on or about November 29, 2001.  The three other juveniles were brothers ranging in age from 11 to 13.  They lived in a rural area on the other side of a pasture between their home and Hill=s home.  All three of the accomplices testified at trial.  Each admitted to burglarizing Hill=s home.  They also testified that C.M. participated in the burglary with them.             

C.M. argues that the three other juveniles were accomplices as a matter of law, attacks the sufficiency of the evidence to corroborate the accomplices=s testimony, and contends that the trial court erred by not granting his motion for directed verdict based upon this allegation.  There is no dispute that the three other male juveniles were C.M.=s accomplices.   TEX. FAM. CODE ANN. ' 54.03(e) (Vernon 2002) requires corroboration of accomplice testimony in juvenile delinquency proceedings:

An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision;  and the corroboration is not sufficient if it merely shows the commission of the alleged conduct.

The accomplice‑witness language in Section 54.03(e) is identical in substance to TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979).  See In the Matter of M.E.R., 995 S.W.2d 287, 290  (Tex.App. B Waco 1999, no pet=n).  Therefore, we look to the decisions of the Court of Criminal Appeals under Article 38.14 as guidelines for the interpretation of Section 54.03(e).  See In the Matter of M.E.R., supra. 

Article 38.14 provides that a conviction cannot stand on accomplice testimony unless there is other evidence tending to connect the defendant to the offense.  See Vasquez v. State,  67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cathey v. State, 992 S.W.2d 460, 462 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000).  The non‑accomplice evidence need not be sufficient, in itself, to support a conviction; and the accomplice-witness rule is not governed by federal or state constitutional standards. See Vasquez v. State, supra; Cathey v. State, supra.  It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, supra; Reed v. State, 744 S.W.2d 112, 126 (Tex.Cr.App.1988).  If the combined weight of the non‑accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.  Cathey v. State, supra; Gosch v. State, 829 S.W.2d 775, 777 (Tex.Cr.App.1991).  The method for determining whether evidence is sufficient to corroborate accomplice testimony is to first eliminate from consideration the accomplice‑witness=s testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence independently Atends to connect@ the defendant with the offense.  McDuff v. State, 939 S.W.2d 607, 612 (Tex.Cr.App.), cert. den=d, 522 U.S. 844 (1997).   Accordingly, we review the testimony offered by the other witnesses to determine whether the testimony of the three accomplices is adequately corroborated.

R.J.K., a 14-year-old neighbor of Hill, testified that he observed four male juveniles exit the back door of Hill=s home carrying objects which resembled rifles.  R.J.K. further observed the four male juveniles entering the home of the three accomplices after they walked across the pasture separating the two houses.  Sheila K. Filio, the mother of the three accomplices, testified that C.M. was a guest in her home at the time that the burglary occurred.  She also testified that her only other child,  her nine-year-old daughter, did not go outside with her brothers at any time on the day of the burglary.  Deputy Clayton Hollifield with the Erath County Sheriff=s Department responded to a call of gunshots being fired from the home of the three accomplices a few hours after the burglary occurred.   Deputy Hollifield testified that C.M. was present at the accomplices= home during the investigation of the gunshots.^[1]  The foregoing  non‑accomplice evidence tends to connect C.M. to the offense.  Evidence that the accused was in the company of the accomplices at or near the time or place of the offense is proper corroborating evidence.  McDuff v. State, supra at 613.  C.M.=s complaints regarding the sufficiency of the evidence corroborating the testimony of the accomplices are overruled.

C.M. also asserts that the trial court erred in failing to include an accomplice-witness instruction in the court=s charge.  We note that C.M. did not raise this objection in the trial court.  The trial court=s failure to include an instruction on accomplice‑witness testimony in the jury charge was error, regardless of whether an objection was made.  Saunders v. State, 817 S.W.2d 688, 693 (Tex.Cr.App.1991).  When he has failed to bring the improper omission to the trial court=s attention, the accused must show egregious harm.  Herron v. State, 86 S.W.3d 621, 632 (Tex.Cr.App.2002). Under the egregious harm standard, the omission of an accomplice-witness instruction is generally harmless unless the corroborating (non‑accomplice) evidence is Aso unconvincing in fact as to render the State=s overall case for conviction clearly and significantly less persuasive.@  Herron v. State, supra at 632; Saunders v. State, supra at 692.   The corroborating evidence in this case is not unconvincing.   The failure to include the accomplice-witness instruction was, therefore, harmless.  C.M.=s contention is overuled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

March 20, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]The oldest accomplice took Deputy Hollifield to the location where the stolen guns were abandoned by the juveniles.