Robynn Moody v. State

• Court: Court of Appeals of Texas
• Decided: April 9, 2008
• Docket: 12-07-00249-CR
• Status: Published

Opinion

NO

NO. 12-07-00249-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBYNN MOODY,  §                      APPEAL FROM THE 411TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      TRINITY COUNTY, TEXAS

MEMORANDUM OPINION

            Robynn Moody appeals her conviction for the offense of engaging in organized criminal activity, a state jail felony.  In two issues, she argues that accomplice testimony was insufficiently corroborated to support her conviction, and that the trial court gave an erroneous answer to a question from the jury.  We affirm.

Background

            Appellant, along with her father, Bob Moody, and Anita Chick, was charged with engaging in organized criminal activity.  Essentially the three were charged with running a gambling operation and possessing gambling devices¹

 at a location called The Spot in Trinity County.  At trial, Texas Rangers testified about their undercover investigation leading up to raids on the various gambling establishments in Trinity County.  The two establishments that drew the most attention during the trial were The Spot, also called The Dot, and The Spur or The Silver Spur.  Each establishment used gambling machines and was open to the public.  The focus of the Rangers’ investigation was The Spot, and they conducted a raid on that establishment.

            The trial revolved around Appellant’s connection to The Spot and the gambling machines being offered to the public at that location.  Anita Chick and other accomplices testified that Appellant and her father managed The Spot and that Appellant’s name and telephone number were at the top of a list of people for employees to call if there were problems at the establishment.  Testimony from accomplices also established that Appellant would access the gambling machines with a laptop computer to evaluate the business activity, work shifts for workers, and take the “bank,” the working cash, with her if she closed the establishment.  Marsha Johnson, an employee at The Spot, testified that Appellant had called to tell her that she had been indicted and arranged to have her bond posted.  The State also called Tim Suniga, a general contractor in Trinity County, as a witness.  Suniga testified that he did maintenance on various buildings and businesses owned or managed by Bob Moody and Appellant.  Suniga testified that he installed air conditioning ducts at The Spot, and also performed maintenance on the “money exchanger” on various machines at the business.  Suniga testified that he was working on the air conditioning at The Spot when Appellant came to check on his work.  He said she appeared to be checking on the operation and ensuring that everyone was doing their jobs appropriately.  Suniga also testified that Appellant called him several times to do work at The Spot.

            Appellant testified that she did not run The Spot.  She testified that she ran The Spur.  She conceded that the same kinds of gambling devices were offered at The Spur, but insisted that she was not involved in any businesses with her father or with The Spot.  Appellant admitted that her name, with the unusual spelling of two “n”s, and her mobile telephone number, were first on the list of people to call if there was a problem at The Spot.

            The case was given to the jury after the State and Appellant finished presenting evidence.  During deliberations, the trial court received two notes from the jury.  After receiving each of the notes, the trial  court consulted with the lawyers and gave a written reply to the jury that was approved by both the State and Appellant’s attorney.  The jury found Appellant guilty of engaging in organized criminal activity by keeping a gambling place as charged in the indictment.  The court assessed punishment at confinement for two years and released Appellant to community supervision for two years.

            Appellant filed a motion for new trial, complaining that the trial court erred in its answer to the second of the two jury notes.  The trial court overruled the motion for new trial.  This appeal followed.

Sufficiency of Nonaccomplice Evidence

            In her first issue, Appellant contends the conviction cannot be sustained because insufficient nonaccomplice evidence connects her to the offense.

            A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect a defendant to the offense committed.”  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2007); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App.–Tyler 2005, pet. ref’d).  This other evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense.  Tex. Code Crim. Proc. Ann. art. 38.14; Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).  The corroboration requirement is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense.  Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).  The corroborating evidence may consist of circumstantial evidence.  Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).

            To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense.  Castillo, 221 S.W.3d at 691.  The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that are the basis for the legal and factual sufficiency standards.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

            Ample nonaccomplice evidence “tends to connect” Appellant to the offense.  Appellant admitted she went to The Spot, and that she owned gambling machines.  Tim Suniga, a nonaccomplice, testified that Appellant called him a number of times to make repairs at The Spot, including repairing the gambling machines, and that she appeared to be managing the employees at The Spot.  Further, Appellant’s name was first on the list at The Spot of people to call if there was trouble.  This nonaccomplice evidence tends to connect Appellant to The Spot, to the gambling there, and to the charged offense.  We overrule Appellant’s first issue.

Response to Jury Question

            In her second issue, Appellant argues that the trial court erred in its response to the second note sent out by the jury during its deliberations.  Appellant contends the court’s answer conflicted with the applicable law contained in the court’s charge to the jury.

            The jury’s second note asked if it could render a verdict based only on witness testimony.  The court discussed a response with Appellant’s counsel and the district attorney.  Appellant’s counsel made a suggestion as to how to answer the question.  The court pointed out that the jury asked for a yes or no answer and proposed another slightly different answer.  In response, counsel said “I guess so.”  The court offered further refinement to the answer, to which counsel said, “That may work.”  Finally, the court offered one more revised answer and asked Appellant’s counsel, “Are you okay with that?”  Appellant’s counsel responded “Yes.”  The court then wrote its answer and sent it to the jury room.

            Appellant now contends the court’s response was one

which resulted in the Appellant, Robynn Moody being convicted based on the testimony of an accomplice witness.  There can be no other interpretation of the actions of the jury and the answer presented by the Court. This instruction is contrary to the law and Jury Instructions which correctly stated the law. 

Appellant makes no further argument.  An unfounded conclusion that “there can be no other interpretation” is not a legal argument, and this court will not make Appellant’s arguments for her.  See Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) (citing Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996)).

            Even so, there is no complaint preserved for our review because Appellant failed to object to the trial court’s response to the jury’s question, and Appellant does not argue that she suffered egregious harm.  A trial court’s communication with the jury during deliberations is governed by statute.  See Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon Supp. 2007).  A jury must communicate with the trial court in writing, the court must answer in writing, and the court must submit the question and the court’s proposed answer to the defendant and his counsel for objections before giving a response to the jury.  Word v. State, 206 S.W.3d 646, 648–49 (Tex. Crim. App. 2006).  A defendant must object to a proposed answer to a jury question to preserve the issue for appellate review.  Deblanc v. State, 799 S.W.2d 701, 708–09 (Tex. Crim. App. 1990); see also Word, 206 S.W.3d at 651–52.

            We have reviewed the discussion between the court and counsel before the court gave the jury a written answer to its questions.  The court submitted its proposed answer to the parties before giving it to the jury.  Neither party objected to the court’s proposed answer.  And, although Appellant had suggested alternative wording, Appellant voiced no objection and offered no alternative response when the court offered its final proposed answer.  In fact, counsel said “yes” when asked if he was “okay” with the court’s proposed response.  As such, no issue relating to the trial court’s answer to the jury’s second question is preserved for our review.  We overrule Appellant’s second issue.

Disposition

            Having overruled Appellant’s two issues, we affirm the judgment of the trial court.

                                                                                                    SAM GRIFFITH   

                                                                                                                Justice

Opinion delivered April 9, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The devices in question were slot machines, which are sometimes called “eight–liner machines.”  Texas Penal Code Section 47.01 provides that the term “gambling device” includes electronic or mechanical games that record and award “credits or free games.”  See Tex. Penal Code Ann. § 47.01 (4)(A) (Vernon 2003).  The statute specifically excludes from this definition games that reward the player exclusively with noncash items, or representations redeemable for these items, having wholesale value of not more than ten times the amount charged to play the game or device once or $5, whichever is less.  Tex. Penal Code § 47.01 (4)(B) (Vernon Supp. 2003); see generally Fifty Six (56) Gambling Devices v. State, No. 07-03-00132-CV, 2004 Tex. App. LEXIS 2880 (Tex. App.–Amarillo 2004, no pet.) (mem. op., not designated for publication) (discussion regarding “the fuzzy animal” exception to the gambling statute).  Appellant does not assert that offering these machines to the public was lawful.