Riggs, DeMario v. State

Opinion

MODIFY and AFFIRM; and Opinion File March 13, 2013.

In The QLnart uf A11ah3 3’iftI Iitritt øf ixa at Oatta No. 05-1 1-01725-CR

I)EMARIO RIGGS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from Criminal District Court No, 7 Dallas County, Texas Trial Court Cause No. F11-33977-Y

MEMORANDUM OPINION Before Justices Bridges. O’Neill, and Murphy Opinion By Justice Murphy

DeMario Riggs appeals from his jury conviction for attempted burglary of a habitation with

intent to commit theft. In three points of error, he asserts the evidence is insufficient to corroborate

the accomplice witness’s testimony, the trial court failed to instruct the jury that the accomplice

witness’s testimony must be corroborated by other evidence, and the judgment should be modified

to reflect the correct prosecuting attorneys’ names. We affirm as modified.

Background

Officer James Ball with the Irving Police Department responded to a 911 call by Tammy

Washington on the morning of March 28, 2011. Washington testified she had been a United States

postal employee since 1996 and she normally worked nights. The morning of March 28, she had been sleeping in her upstairs bedroom of the two-story apartment she shared with her two sons.

Benjamin was nineteen and was home from school, Earnest Jefferson was her twenty-one year-old

son, for whom she had been the guardian since his father died in 2008.

Jefferson came into her bedroom “[viery panicked” and said “I think someone’s trying to

break in.” lie repeated what he had said and Washington jumped up. She heard “a terrible noise,

like somebody was just kicking the door,” and she found her phone and dialed 911. She went to her

window and “saw a black male standing there” and he was “steadily kicking and kicking and

kicking,” She remained at the window while talking to the dispatcher and gave a description of the

man wearing a red hat, jacket, and blue jeans. She saw only one man, She testified that both

Benjamin and Jefferson ran downstairs and, when they did not respond to her, she ran after them.

By the time she got downstairs, the police officers had arrived. Her door “was totally demolished.”

Jefferson testified he first heard someone knocking on the front door that morning, whom

he identified during cross-examination as appellant. He went upstairs to warn Washington and went

back downstairs and heard someone kicking in the back door. He said the man kicking the door had

what looked like a cross tattoo on his forehead, He also said he saw shadows of another person in

the back patio area but was unable to describe anyone other than the person with the tattoo. On

cross-examination he described appellant as someone who had been to the home earlier with his

cousin and Benjamin had let them in. On the morning of March 28, Jefferson did not let appellant

in and had a “sense” that something “was getting ready to go down at [his] apartment.”

Ball, a thirty-year officer with the frying Police Department, was on patrol and was

dispatched to Washington’s apartment. He was “practically around the corner from the apartment

complex” and arrived in less than a minute of receiving the dispatch. Based on the dispatch

information, he was looking for a black male wearing a red baseball cap. Not far from Washington’s

—2— apartment. he saw two men walking with their hacks to him through the walkway between two

buildings in the same apartment complex. Ball got out ol his patrol car, drew his weapon, identified

hinisdi md oi&rul the tnin to the ground lie idcntilicd ippdlant it IL ial is on ot the mcn

Appellant was slower to comply with Ball’s command to show his hands and “kept trying to slowly

brmg his h uRIS h ick un&rnath him ‘ so l3aH pullul Ihisi Fastr intl w unul him not to hidc his

hands. When Ball’s backup arrived and they were able to handcuff the men, he discovered appellant

was wai ing i patti ii surgiLal glovc that appeared to have hccn rippcd olt in a huiry Whcn the othcr

man, later identified as James Jones, finally opened his list, rubber gloves fell to the ground. Ball

returned to Washington’s apartment, where he examined the door and observed mud behind the

apartment area with fresh shoe prints of “two different sets” of shoes. Ball testified he had looked

at appellant’s shoes, which were muddy, hut did not personally compare them to the prints.

Jones, who was the man wearing the red baseball cap, testified for the State at trial. He said

he and appellant decided to go to Irving to “get a TV” from someone. He testified he and appellant

went to The Dollar Store and purchased latex gloves before going to Washington’s apartment. He

said appellant knew the person from whom they were going to take a television. Jones testified he

and appellant arrived at Washington’s apartment, went to the back of the house, and took turns

kicking Ofl the back door. He said they heard a woman call out a name, and they ran. The men were

about three apartments away when police officers arrived. Jones was wearing blue jeans, a white

t-shirt, boots, and a red cap; appellant was wearing a “[hjoody.”

Jones and appellant were both charged with attempted burglary of a habitation. At the time

of appellant’s trial, Jones had already been to court and received his punishment.

Sufficiency of the Evidence

Appellant first challenges the sufficiency of the evidence to corroborate Jones’s accomplice

—3— testimony. The sufficiency of evidence involving accomplice testimony is addressed by article 38.14

of the Texas Code of Criminal Procedure. See TEX. CoDECRIM, PROC. ANN, art. 38.14 (West 2005).

Specifically, accomplice testimony alone is insufficient to support a conviction; “other evidence

tending to connect the defendant with the offense” is required, and that evidence must do more than

merely show the commission of the offense. Id. We must determine, in reviewing appellant’s

challenge to the sufficiency of the non-accomplice evidence, whether the direct and circumstantial

non-accomplice evidence shows that rational jurors could have found the non-accomplice evidence

sufficiently tended to connect appellant to the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex,

Crim. App. 2011). We consider “the combined force of all of the non-accomplice evidence that

tends to connect [appellant j to the offense,” and if there is a conflict in the evidence, we defer to the

jury’s resolution. Id, The non-accomplice evidence need not be sufficient to establish guilt by itself,

McDuffv. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).

Appellant’s presence at or near the scene of the crime at the time of the offense is relevant

corroborating evidence. Id. That evidence may be sufficient corroborating evidence if it is coupled

with other suspicious circumstances that tend to connect him to the offense. Smith, 332 S.W.3d at

443; Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim, App. 1984). Mere presence at the scene,

however, is insufficient corroborating evidence. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim.

App. 2008).

Four witnesses testified at the guilt-innocence stage of the trial: in addition to Jones—the

accomplice—Washington, Jefferson, and Ball testified. Washington heard someone kicking in the

apartment door and “saw a black male standing” by the back patio when she looked out the window.

She described the man to the 911 dispatcher as wearing a red hat, jacket, and blue jeans. Jefferson

testified that appellant was knocking on the front door and, although he knew him because he had

-4- heen to the home earlier, he did not let him in. [Ic went upstairs to warn Washington and then came

back downstairs. lIe saw the same man with what he thought was a cross tattoo on his head kicking

in the back door and saw the shadow of another person in the hack patio area.

Ball Who icspontkd to W ishtngton s 911 call arrivcd within a manutc of the dispatch and

saw a man in a red baseball cap walking with a person later identified as appellant. When Ball

apprehended the two men, appellant had surgical-glove remnants in his right hand, which appeared

to have hccn ripped off hurracdly Joucs dtoppcd iubber glovcs when he opcned his fasts 13a11

testified the gloves were consistent with those used by individuals attempting to avoid leaving

fingerprints at crimc scenes Appellant also had muddy shoes When he returned to Washington s

apartment, Ball observed damage to the back door and two different sets of fresh shoe prints in the

mud by the patio.

This evidence showed appellant was not merely present at the scene Ball discovered

appellant with Jones, who matched the physical description given by Washington, his shoes were

muddy, and both nien had surgical gloves. Additionally, both men attempted to hide the gloves, and

the partial glove in appellant’s right hand appeared to have been ripped oft in a hurry Jefferson also

identified appellant as the man he saw knocking on the door and whom he had seen at the apartment

before. These circumstances provided proof not only of appellant’s presence at the crime scene, but

also that presence was coupled with evidence of suspicious circumstances that tended to connect

appellant to the offense. See Smith, 332 S.W.3d at 443; McDuff, 939 S.W.3d at 613.

Appellant argues that Jefferson’s testimony was untrustworthy and conflicting, especially

regarding whether appellant was the man with the cross tattoo. Any conflict in the evidence,

however, was resolved by the jury, and we defer to that resolution. Smith, 332 S.W.3d at 442. We

overrule appellant’s sufficiency point of error.

—5— Charge Error

Appellant contends in his second point of error that the trial court erred by failing to instruct

the jury that Jones’s testimony must be corroborated by other evidence. When reviewing a claim of

jury-charge error, we first must determine whether error exists. Druerv v. State, 225 S.W.3d 491,

504 (TeL Crim. App. 2007). If error exists, we then address whether the error caused sufficient

harm to require reversal. Id. The degree of harm required depends on whether appellant objected

below. tll,nan:a v. Stare, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). If appellant

objected to the error at trial, reversal is required if the error “is calculated to injure [hisi rights,”

which has been defined to mean that there is “some harm.” Barrios v. Stare, 283 S.W.3d 348, 350

(Tex. Crim, App. 2009) (quotingAlmanza. 686 S.W.2d at 171). In this case, however, appellant did

not object. Therefore, the error must be “fundamental” and reversal is required only if the error was

so egregious and created such harm that appellant did not have a fair and impartial trial. Id.

Regarding non-accomplice testimony under the egregious-harm standard, omission of an

accomplice-witness instruction is generally harmless unless the “corroborating (non-accomplice)

evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and

significantly less persuasive.” lie rron v. State, 86 S .W.3d 621,632 (Tex. Crim. App. 2002) (quoting

Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).

The court’s charge did not include an accomplice-witness instruction. And although the

failure to provide the instruction was error, we conclude such error did not cause appellant egregious

harm. See Cocke v. State, 201 S.W.3d 744, 747—48 (Tex. Crim. App. 2006) (“If a witness is an

accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction

to the jury.”). The non-accomplice evidence described regarding appellant’s sufficiency point

applies to our analysis of appellant’s claim of egregious harm. B all and Jefferson provided evidence

-6- sufficient to connect appellant to the crime scene and the offense based on his identification.

presence, and the state in which he was found at the scene—with muddy shoes and a partial rubber

glove in his hand. Washington also provided the description allowing Ball to apprehend Jones, with

whom appellant was found. This evidence was not so unconvincing or weak that it rendered the

entire case clearly and significantly less persuasive. See Herron, 86 S.W.3d at 632. We overrule

appellant’s second point of error.

Modification of the Judgment

Appellant requests modification of the judgment to identify the names of the prosecuting

attorneys in the case—Schwannah McCarthy and Marc Moffitt. The State agrees the written

judgment incorrectly identifies the “Attorney for [thel State” as “Elaine Evans,” The record provides

the necessary information to correct the judgment, and this Court has the authority to do so. TEX.

R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27—28 (Tex. Crim. App. 1993). We therefore

sustain appellant’s third point of error and modify the judgment accordingly.

As modified, we affirm the trial court’s judgment.

, 4 h MARY MU’HY JUSTICE 1 Do Not Publish TEX. R. App. P.47 11 1725F.U05

11 1725F.U05

—7— Qtuurt *if 41paatz IftI Olatrict øf ixae at Oallaz

JUDGMENT DEMARIO RIGGS, Appellant Appeal from the Criminal District Court No, 7 of Dallas County, Texas. (Tr,Ct.No, Ft 1- No. 05-1 l0[725CR 33977-Y). Opinion delivered by Justice Murphy, THE STATE OF TEXAS, Appellee Justices Bridges and O’Neill participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The “Attorney for State” is modified to read: “Schwannah McCarthy and Marc Moffitt.”

As modified, the judgment is AFFIRMED.

Judgment entered March 13, 2013.

MARY JUSTICE