Jimmy R. Neal v. Wisconsin Hard Chrome, Inc., D/B/A Texas Hard Chrome, Inc. and/or Texas Hard Chrome, Inc.

• Court: Court of Appeals of Texas
• Decided: September 29, 2005
• Docket: 06-05-00049-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00049-CV

JIMMY R. NEAL, Appellant

 

V.

WISCONSIN HARD CHROME, INC., d/b/a

TEXAS HARD CHROME, INC. AND/OR

TEXAS HARD CHROME, INC., Appellee

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On Appeal from the 276th Judicial District Court

Morris County, Texas

Trial Court No. 20,677-A

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

Dissenting Opinion by Justice Carter

O P I N I O N

          Jimmy R. Neal appeals from a summary judgment taken against him in his personal injury lawsuit against Wisconsin Hard Chrome, Inc., d/b/a Texas Hard Chrome, Inc. and/or Texas Hard Chrome, Inc. (Chrome). He alleged that Chrome's negligence exposed him to heavy metals, chemicals, and other toxic substances, while Chrome asserted that the action was barred because Chrome was a subscriber under the Workers' Compensation Act, and thus Neal's exclusive remedy was under the Act. Neal contends that Chrome was not his employer and that Chrome was thus subject to tort liability for its negligence in exposing Neal to deadly toxins.

          In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

          The issue in this case is whether the summary judgment evidence establishes as a matter of law that Neal was a joint or dual employee of Scot Industries and Chrome. The evidence shows that in 1976 Scot Industries created a business entity identified as Wisconsin Hard Chrome (which was also d/b/a Texas Hard Chrome, Inc.) and that Chrome leased space inside the Scot Industries manufacturing facility and chrome plated items made by Scot for sale. It is undisputed that both Scot Industries and Chrome were subscribers under the Workers' Compensation Act.

          The Act defines "employee" as "each person in the service of another under a contract of hire, whether express or implied, or oral or written." Tex. Labor Code Ann. § 401.012(a) (Vernon Supp. 2004–2005).

          The summary judgment evidence shows:

          ∙         Two possible employers are involved.    

          ∙         Neal sought worker's compensation benefits through Scot Industries.

          ∙         Chrome contracted for the hire of Neal through Scot Industries—which paid for his labor.

          ∙         Chrome did not directly pay the salary of any employee.

          ∙         In response to requests for admissions, Chrome admitted Neal has never been an employee of Wisconsin Hard Chrome d/b/a Texas Hard Chrome or of Scot Hone Corp.

          The Texas Supreme Court recently addressed in Wingfoot Enterprises v. Alvarado the concept of having more than one employer of an employee. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 139–40 (Tex. 2003). In that opinion, the court recognized the exclusive remedy provision of the Act as providing that, where a worker is an employee of one entity for some purposes, and of another entity for some purposes, neither the statutory definition of "employer" or "employee" forecloses the possibility that there may be more than one employer. This reasoning undoes a prior line of cases suggesting that, because only one employer could exist, any others were necessarily third parties to the act that caused the injury (and thus liable under common-law remedies). After Wingfoot, it is clear that the dual-employment theory has prevailed and that the question of who actually controlled the acts of the employee is not a factor of particular importance—and that an employee can indeed be the servant of two employers in a number of factual scenarios.

          The Texas Supreme Court also held that, based on the provisions of the Act, the injured "employee should be able to pursue workers' compensation benefits from either" and that, "[i]f either has elected not to provide coverage, but still qualifies as an 'employer' under the Act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in section 406.033." Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005) (quoting Wingfoot, 111 S.W.3d at 143).

          It is therefore clear that it is possible for both Chrome and Scot to be Neal's employers for purposes of the Act. It is also clear that, because both entities were covered by workers' compensation, employees (as defined by the Act) of both entities can only recover under the terms of the Act. It is also clear that an employee of one company who is under a contract of hire to the other company, when both have workers' compensation coverage, is as a matter of law restricted to recovery under the Act. Garza, 161 S.W.3d at 473; Wingfoot, 111 S.W.3d at 134.

          The question in this case is whether there is a fact issue on whether Chrome placed itself outside the protection of the Act by affirmatively stating in its responses to requests for admissions that Neal has never been its employee.

          Any matter admitted in response to a request for admissions is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Tex. R. Civ. P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). It constitutes a judicial admission, and the answering party may not then introduce evidence to controvert it. Marshall, 767 S.W.2d at 700; Beasley v. Burns, 7 S.W.3d 768, 769 (Tex. App.—Texarkana 1999, pet. denied). Further, in cases involving summary judgments, the trial court cannot consider affidavits offered by the nonmovant to contradict the deemed admissions. Beasley, 7 S.W.3d at 770; Cherry v. N. Am. Lloyds of Tex., 770 S.W.2d 4, 6 (Tex. App.—Houston [1st Dist.] 1989, writ denied); see Masterson v. Hogue, 842 S.W.2d 696, 697 (Tex. App.—Tyler 1992, no writ). These concepts, however, apply only to answers to a request for admissions about facts. Answers merely constituting admissions of law are not binding on the court. Am. Title Co. v. Smith, 445 S.W.2d 807, 809–10 (Tex. Civ. App.—Houston [1st Dist.] 1969, no writ).

          The term "employee" has a technical meaning as defined by the Labor Code, and that definition is what Neal now seeks to apply to Chrome's admission. However, that definition does not automatically apply to discovery requests, and Neal did not adopt that definition, or any other, in his request. The term "employee" can have different meanings in different contexts. Chrome objected to the request for admissions on the basis that it lacked specificity as to the term and answered the request subject to the objection. Neither party requested a ruling on the objection, and the rules provide that a party need not request a ruling on its own objection to preserve that objection. Tex. R. Civ. P. 193.4(b).

          A question asking whether a person is an employee of a company at a particular time would ordinarily be a request to admit a factual matter. Under Neal's theory of the case as articulated before the trial court and on appeal, however, the request asks Chrome to admit a legal conclusion—that Neal has never been an employee for workers' compensation purposes. Requestors may not compel parties to answer legal conclusions. Credit Car Ctr., Inc. v. Chambers, 969 S.W.2d 459, 464 (Tex. App.—El Paso 1998, no pet.); see Gore v. Cunningham, 297 S.W.2d 287, 291 (Tex. Civ. App.—Beaumont 1956, writ ref'd n.r.e.). And such conclusions do not bind the court. Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d 857, 858–59 (Tex. App.—Texarkana 1992, writ denied). A deemed admission of a purely legal issue is of no effect. Id.

          Under this state of the record, Chrome's admissions had no effect. Thus, Chrome conclusively proved that it was an employer of Neal and that he was covered by workers' compensation insurance while in its employ. Under the authorities cited above, that is sufficient to show that Neal's exclusive remedy was through the workers' compensation system.

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

DISSENTING OPINION

          Wisconsin Hard Chrome admitted Jimmy Neal was never its employee and objected that the term "employee" lacked specificity.

          A request to admit or deny that a particular person was an employee of one of the parties at the time of the accident has routinely been utilized. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 208 n.4 (Tex. 2000); United States Fire Ins. Co. v. Maness, 775 S.W.2d 748, 749–50 (Tex. App.—Houston [1st Dist.] 1989, writ ref'd); Smith v. Univ. of Tex., 664 S.W.2d 180, 189 (Tex. App.—Austin 1984, writ ref'd n.r.e.); Ill. Employers Ins. Co. v. Lewis, 582 S.W.2d 242, 244 (Tex. Civ. App.—Beaumont), writ ref'd n.r.e., 590 S.W.2d 119 (Tex. 1979); Missouri-Kansas-Texas R.R. Co. v. Franks, 399 S.W.2d 905, 907 (Tex. Civ. App.—Dallas 1966, writ dism'd by agr.); Halbert v. Sylestine, 292 S.W.2d 135, 138 (Tex. Civ. App.—Beaumont 1956, no writ). One court even chastised a party for attempting to evade such a question. Sanchez v. Caroland, 274 S.W.2d 114, 115–17 (Tex. Civ. App.—Fort Worth 1954, no writ) (the question as to whether the person operating Sanchez' truck was in the course of Sanchez' employment was a matter about which Sanchez should be fully informed, or at least should have been in a position to ascertain the facts by reasonable inquiry). The majority opinion acknowledges that such a question is ordinarily a request to admit a factual matter. However,without citation to any authority that such an admission is a legal conclusion, the majority concludes that this request calls for a legal conclusion. I disagree.

          The majority opinion states that Neal seeks to use Chrome's admission to lead to the legal conclusion that Neal was never Chrome's employee for the purposes of workers' compensation. The fact that Neal wants to use the admission for that purpose does not make the admission a legal conclusion. The admission is a factual one—Neal never worked for Chrome. A court is presented with facts on which it relies to arrive at legal conclusions. Here, Neal established the fact that he was not an employee of Chrome. It is the Court's function to determine the legal effect of that fact.

          The majority opinion states that Chrome objected to the request on the basis it lacked specificity. While that is true, it has no bearing on whether the question called for a legal conclusion. The relevance of that objection simply is that the term "employee" could be argued to have several definitions and none was specified. If the term "employee" as used in this context is vague or nonspecific, then a very good argument is available that the admission is not specific enough to lead to the conclusion that Neal was not an employee of Chrome for workers' compensation purposes. In fact, Chrome makes such an argument—that its admission concerning Neal's employment status only meant that Chrome did not issue Neal's paychecks.

          In this case, Neal alleged that he suffered exposure to toxic substances on the premises of Chrome and that Chrome was negligent and that negligence was a proximate cause of Neal's injuries. Chrome answered, asserting that Neal's claim was barred and that Neal's exclusive remedy was through the Texas Workers' Compensation Act. In these circumstances, I find that the request was specific. Chrome was defending Neal's claim based on the Workers' Compensation Act, which includes a specific definition of "employee." That definition is not a technical term needing further clarification (each person in the service of another under a contract of hire), but is a term commonly used and understood. Such admissions have been recognized by Texas courts for many years.           I would find that the admission is binding and raises material facts which preclude the granting of summary judgment. I respectfully dissent.

                                                                           Jack Carter

                                                                           Justice

Date Submitted:      July 6, 2005

Date Decided:         September 29, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00031-CR

                                                ______________________________

                                        OLIVER HART, III, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                                                                                  

                                         On Appeal from the 5th Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 06F0380-005

                                                                                                   

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

Oliver Hart, III, pled not guilty to the charge of possession of a controlled substance (methamphetamine), of more than 400 grams.  After a jury trial where Michelle Holmes testified against Hart, he was found guilty, and the trial court sentenced him to forty-five years’ imprisonment.  The trial court also awarded $1,500.00 in attorney’s fees against Hart. 

In a previous case, Hart absconded during his trial, was tried in absentia, found guilty, and assessed a thirty-year sentence.  As a result, the police had an arrest warrant for Hart and     information that he was in Holmes’ apartment with a gun.  When the police arrived, Holmes told them Hart was “in the back room with a gun.”  The police searched the premises and found Hart hiding in a closet.  While searching for Hart and the gun, the police discovered 400 grams of methamphetamine in various places throughout the apartment. 

On appeal, Hart argues that:  (1) he was denied a speedy trial; (2) there was insufficient evidence corroborating Holmes’ testimony; and (3) there was legally and factually insufficient evidence to support the award of attorney’s fees.

We modify the judgment because there is no evidence supporting the award of attorney’s fees, and we affirm the judgment, as modified, because:  (1) Hart was not denied a speedy trial; and (2) there is sufficient evidence that tends to connect Hart to the charged crime.

I.          Speedy Trial

            In his first point of error, Hart contends that his constitutional rights were violated because he did not receive a speedy trial.  

            An accused’s right to a speedy trial is guaranteed by both the Constitutions of the United States and Texas.  U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 10.  In determining whether an accused has been denied his or her right to a speedy trial, a court must use a balancing test “in which the conduct of both the prosecution and the defendant are weighed.”  Barker v. Wingo, 407 U.S. 514, 530 (1972).  The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant’s assertion of his or her speedy trial right, and the prejudice to the defendant resulting from the delay.  Id.  No single factor is necessary or sufficient to establish a violation of the right to a speedy trial.  Id. at 533; Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).  In conducting this balancing test, “the conduct of both the prosecution and the defendant are [to be] weighed.”  Id. at 530.  The defendant’s burden of proof on the latter two Barker factors varies inversely with the State’s degree of culpability for the delay.  Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993)).  “Thus, the greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less [an accused] must show actual prejudice or prove diligence in asserting [the] right to a speedy trial.”  Id. at 280–81.

            As stated in Zamorano v. State, “In reviewing the trial court’s ruling on appellant’s federal constitutional speedy trial claim, we apply a bifurcated standard of review:  an abuse of discretion standard for factual components, and a de novo standard for the legal components.”  84 S.W.3d 643, 648 (Tex. Crim. App. 2002).  Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but “the balancing test as a whole . . . is a purely legal question.”  Cantu, 253 S.W.3d at 282 (quoting Zamorano, 84 S.W.3d at 648 n.19).  “Under the abuse of discretion standard, appellate courts defer not only to a trial judge’s resolution of disputed facts, but also to his right to draw reasonable inferences from those facts.”  Cantu, 253 S.W.3d at 282.

            We examine the four Barker factors separately.

            A.        Length of Delay

            Hart was arrested on May 6, 2005, but was not tried until January 2010.  Four years and eight months elapsed between Hart’s arrest and his trial.  Such a lengthy delay is presumed to be prejudicial.  Doggett v. United States, 505 U.S. 647 (1992) (most delays of eight months or more are considered presumptively unreasonable and prejudicial); Barker, 407 U.S. at 530. Therefore, this factor weighs against the State.

            B.        Reason for the Delay

            When the delay is determined to be presumptively prejudicial, the burden shifts to the State to justify the delay.  Love v. State, 909 S.W.2d 930, 947 (Tex. App.—El Paso 1995, pet. ref’d) (citing Green v. State, 760 S.W.2d 50, 52 (Tex. App.—El Paso 1988, no pet.)); see also Turner v. State, 545 S.W.2d 133, 137–38 (Tex. Crim. App. 1976).  Under Barker, “different weights” should be attributed to this factor depending upon the different reasons for the delay.  407 U.S. at 531; Munoz v. State, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999).  A “deliberate attempt to delay the trial” weighs heavily against the State, whereas a “more neutral reason, such as negligence or overcrowded courts, should be weighed” less heavily against the State.  Munoz, 922 S.W.2d at 822 (quoting Barker, 407 U.S. at 531).  “A valid reason for the delay should not be weighed against the State.”  Id. 

            Here, the State made no effort to try Hart for the charged offense until 2009, and the State offered no explanation for this delay.  However, the record does offer evidence regarding the reasons for the delay from February 2009 to January 2010.  The public defender’s office was appointed to represent Hart in February 2009, but five months later, in July, Hart moved to dismiss his public defender and requested new appointed counsel.  Hart retained Paul Hoover in August 2009, and Hoover requested, and received, a continuance.  Hoover unexpectedly passed away in October 2009, and John Stroud, III, was appointed to take over Hoover’s cases, including Hart’s.  In December, Stroud withdrew from the case, and the court, once again, appointed the public defender’s office to represent Hart on January 7, 2010.  Eight days later, Hart filed a motion to dismiss for denial of a speedy trial.  At most, Hart is responsible for seven of the fifty-six months of the delay in this trial.  Due to the extended delay for which the State offered no explanation, this factor weighs heavily against the State.

            C.        Assertion of the Right to Speedy Trial

            The accused bears the responsibility to assert his or her right to a speedy trial.  Cantu, 253 S.W.3d at 282.  “The more serious the deprivation, the more likely a defendant is to complain.” Id. at 283 (quoting Barker, 407 U.S. at 531).  An accused’s assertion of his or her speedy trial right (or the failure to assert the right) “is entitled to strong evidentiary weight in determining whether the [accused] is being deprived of the right.”  Id.; Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (“[A]ppellant’s lack of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial.”); see Barker, 407 U.S. at 536 (“[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates . . . that the defendant did not want a speedy trial.”).  As the Fifth Circuit stated in United States v. Palmer, “the point at which the defendant asserts his right is important because it may reflect the seriousness of the personal prejudice he is suffering.”  537 F.2d 1287, 1288 (5th Cir.1976).  

            Here, shortly after being appointed in January 2010, Hart’s public defender filed a motion to dismiss for denial of a speedy trial.^[1]  However, Hart failed to seek a speedy trial before moving to dismiss the charges against him.  “Filing for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one.”  Cantu, 253 S.W.3d at 282–83.  If a defendant seeks to dismiss his or her charges prior to seeking a speedy trial, “he should provide cogent reasons” for doing so.  Id. at 283.  “Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to make such requests supports an inference that the defendant does not really want a trial, he wants only a dismissal.”  Id. 

            Hart failed to assert his right to a speedy trial for more than four years.  In January 2010, Hart filed to dismiss the charges against him without having first sought a speedy trial and without providing cogent reasons for such failure.  We conclude these facts weigh against a finding that Hart was denied a speedy trial.

            D.        Prejudice

            “Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the fourth Barker factor examines whether and to what extent the delay had prejudiced the defendant.”  Cantu, 253 S.W.3d at 285 (quoting Doggett, 505 U.S. at 656).  In analyzing the prejudice to the accused, we must do so in light of the accused’s “interests that the speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration[;] (2) to minimize the accused’s anxiety and concern[;] and (3) to limit the possibility that the accused’s defense will be impaired.”  Id. (citing Dragoo, 96 S.W.3d at 315).  Of these three types of prejudice, “the last is the most serious ‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’”  Id. (quoting Dragoo, 96 S.W.3d at 315).  Although “a showing of ‘actual prejudice’ is not required in Texas,” the accused has the burden to make some showing of prejudice that was caused by the delay of the trial.  Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (quoting Courtney v. State, 472 S.W.2d 151, 154 (Tex. Crim. App. 1971)).

            Hart has made no showing that he suffered anxiety or concern that resulted from this case, beyond that associated with any criminal charge or investigation. “[E]vidence of generalized anxiety, though relevant, is not sufficient proof of prejudice under the Barker test, especially when it is no greater anxiety or concern beyond the level normally associated with a criminal charge or investigation.”  Cantu, 253 S.W.3d at 286.

            Hart also failed to show how his defense was impaired, other than making unsupported, general allegations regarding the “lack of reliability of witnesses’ memories from an event that occurred almost five years ago . . . .” and “the difficulty of finding witnesses from almost five years ago.”  While Hart was incarcerated for much of the fifty-six months prior to his trial in this case, the incarceration was not due solely to this charge.  During the pendency of these charges, Hart was incarcerated based on previous criminal convictions.  We conclude this factor weighs against Hart.

            Here, the State failed to provide any explanation of why it waited almost five years to try Hart on this charge.  However, Hart failed to seek a speedy trial or produce evidence that he was prejudiced by the delay.  Based upon the factors discussed above and weighing the evidence in this case, we conclude that the trial court reasonably concluded that Hart was not denied his constitutional right to a speedy trial.

II.        Accomplice Witness Corroboration

            At trial, Holmes testified against Hart, stating that the gun and drugs found in her apartment were his.  Hart argues that there is insufficient evidence to corroborate Holmes’ testimony.^{[2], [3]}  We disagree.

            The test 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 (Tex. Crim. App. 2007).  It needs only to link the accused to the commission of the crime and show 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, 257 (Tex. Crim. App. 2008).  If the State fails to produce any nonaccomplice evidence tending to connect the defendant to the offense, then the defendant is entitled to an acquittal.  See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2000).

            There is no specific amount of nonaccomplice corroboration evidence that is required for sufficiency purposes; “[e]ach case must be judged on its own facts.”  Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).  The Texas Court of Criminal Appeals has stated that “[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984).  However, the “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”  Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993).

            Here, Hart was being sought on a felony arrest warrant based on his prior conviction for manufacturing methamphetamine.  After receiving information that Hart was at Holmes’s apartment, Lance Hall executed the arrest warrant there and searched the apartment.  Hart did not rent the apartment or reside there; however, there was evidence that Hart commonly stayed there, “in and out,” for some time.  During the search of the apartment, Hart was found hiding in a closet, and the officers also discovered methamphetamine, a bag containing the chemicals necessary to manufacture methamphetamine, and a shotgun.  The bag found in the closet contained the shotgun, what appeared to be methamphetamine, and the chemicals and various paraphernalia necessary to manufacture methamphetamine.  In a letter Hart later wrote to Holmes, he indicated that the shotgun (“the heat”) was “in your room in my bag.”  On cross-examination, Hall admitted that the shotgun and the bag were found in the bedroom Hart and Holmes had been sharing, but that Hart was found hiding in a different bedroom. 

            Absent Holmes’ testimony, there is no direct evidence that Hart possessed or controlled the drugs or gun, but there is some circumstantial evidence tending to link him to the charged offense.  The corroborative evidence may be circumstantial, and it is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt.  See Golden, 851 S.W.2d 291; Brown, 672 S.W.2d 487; Reynolds v. State, 489 S.W.2d 866 (Tex. Crim. App. 1972).  The defendant’s presence at or near the scene of the crime, when coupled with other suspicious circumstances, may be sufficient to link the defendant to the crime.  Brown, 672 S.W.2d at 489.  This is not a case where Hart was merely present at the time of the arrest.  Rather, he was on the run from a conviction for manufacturing methamphetamine; he hid in a closet when the police arrived; and a bag containing a gun, methamphetamine, and the chemicals necessary to manufacture methamphetamine were found in the bedroom he and Holmes were sharing.  Hart’s  letter to Holmes about the gun being in his bag has some further tendency to connect him to the crime.   We find sufficient corroborative evidence to support Holmes’ testimony.  Therefore, we overrule this point of error.  

III.       Assessment of Attorney’s Fees

            The judgment against Hart includes an award of $1,500.00 in attorney’s fees to the State against Hart.  In his third and fourth points of error, Hart contends that there is legally and factually insufficient evidence to support the trial court’s award of attorney’s fees against him.^[4]  We agree.

             The Texas Code of Criminal Procedure allows the imposition of attorney’s fees “if the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided.”  Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2010).  Here, the trial court found that Hart was indigent.  There is no evidence supporting a finding that he is able to offset any of the costs of legal services provided.  As the State candidly acknowledges, the assessment of attorney’s fees is erroneous.  

            Accordingly, we find the evidence supporting the court’s award of attorney’s fees is legally insufficient.  We sustain this point of error and modify the judgment to delete the attorney’s fee award.  

            As modified, we affirm the judgment.

                                                                                    Jack Carter

                                                                                    Justice

           

Date Submitted:          September 20, 2010

Date Decided:             October 1, 2010

Do Not Publish

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^[1]In May 2006, Hart sought a speedy trial for trial cause numbers 04F0217-005, 04F0218-005, 04F0555-005, and 04F0556-005, but did not seek a speedy trial for the charges against him in this case, trial cause number 06F0380-005.  In July 2009, Hart filed several pro se motions to dismiss, arguing that the State failed to timely indict him on the charges and serve him with a copy of the indictment.  However, his motions failed to request a speedy trial or otherwise invoke his right to a speedy trial.

^[2]Citing our decision in Cochran v. State, the State contends that by admitting his guilt during the punishment phase of the trial, Hart waived any challenge to the sufficiency of the evidence corroborating Holmes’ testimony.  107 S.W.3d 96, 100 (Tex. App.—Texarkana 2003, no pet.).  However, the defendant in Cochran challenged the sufficiency of the evidence of guilt, rather than the sufficiency of the corroborating evidence; therefore, Cochran is inapplicable.  Id.  Furthermore, the sufficiency of corroborating evidence is not subject to procedural default; therefore, Hart’s admission of guilt in the punishment phase of the trial is irrelevant.  Patterson v. State, 204 S.W.3d 852, 856–58 (Tex. App.—Corpus Christi 2006, pet. ref’d).

^[3]It is undisputed that Holmes was an accomplice to the charged offense.

^[4]Hart also argues that there is insufficient evidence to find that he had financial resources to offset attorney’s fees.