Morris v. State

Full title: WILLIAM ANTHONY MORRIS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Jan 30, 2003

No. 08-01-00349-CR (Tex. App. Jan. 30, 2003)

Opinion

No. 08-01-00349-CR

January 30, 2003 DO NOT PUBLISH

Appeal from the 238th District Court of Midland County.

Before Panel No. 4: BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

SUSAN LARSEN, Justice

William Anthony Morris appeals his conviction for burglary of a building, with punishment assessed by the trial court. We affirm.

Facts

William Anthony Morris was convicted of burglarizing Burmass Publishing Company in Midland, Texas. Around 4 a.m. on February 13, 2001, Midland Police Department Officers Steven McNeill and Matthew Sowle were on patrol and observed a green Nissan pickup truck creeping from an alley with its headlights off. The truck bed was loaded with furniture, computer equipment, and other items. Officer McNeill told Officer Sowle, who was in another patrol car, that it looked like a possible burglary. As the officers began following, the pickup driver turned his headlights on. When the two police cruisers turned on their overhead lights indicating that the truck should pull over, the driver of the green Nissan made an appearance of pulling over, then accelerated. The officers chased the truck through alleys, all the while furniture, computers, and potted plants falling from the back of the truck. As the truck turned onto a street, it appeared to Officer McNeill that one person exited the vehicle and ran away. The chase ended abruptly as the truck "lost control, went into a full drift, and crashed into a person's yard striking a basketball goal that was cemented into the ground." At that point, the driver and remaining passenger ran from the car. While Officer McNeill remained with the crashed vehicle pursuant to policy, Officer Sowle chased the passenger on foot and tackled her to the ground. The other two people that jumped from the car were not located that night. The young woman caught by Officer Sowle was fifteen-year-old Michelle Diaz, sister of defendant Morris. The testimony of Detective Ben Chavez recounted, over defense objection, interviews with Diaz and her sister Gloria Eli. Initially, Diaz maintained that she did not know the men in the truck and was a runaway hitching a ride from the two men. After a while, Diaz told a different story. Diaz was at the apartment of her sister, Gloria Eli. In the early morning, Gilbert Villareal and Morris arrived with a clock, an answering machine, and several other items. Eli asked if the items were stolen, and the men said they had been given the items by a friend. Villareal, Morris, and Diaz then went to Wal-Mart. Later, for reasons unexplained, the three were back near the scene of the burglary where they were spotted by Officers McNeill and Sowle. Diaz told detectives that during the chase, Morris said, "Man, I can't get locked up." The police recovered a number of items from Eli's apartment, many belonging to Burmass Publishing Company. Eli was charged with the misdemeanor offense of receiving stolen property over $50 but under $500. Villareal reported his truck stolen. The police arrested him while on the investigation for falsely reporting a stolen vehicle and for his involvement in the burglary. Much of the evidence was admitted through the testimony of the police and the detectives, including information they received from Diaz while she was in custody at Culver Youth Home. No accomplice witness testimony instruction was necessary Appellant Morris contends in his first issue that Gilbert Villareal, Gloria Eli, and Michelle Diaz were all accomplices to the burglary for which Morris was convicted. Because evidence from these three individuals was admitted at trial, appellant contends he was entitled to an accomplice testimony instruction pursuant to Texas Code of Criminal Procedure article 38.14. We disagree. An accomplice witness is one who participated with a defendant before, during, or after the commission of a crime. Long v. State, 10 S.W.3d 389, 393 (Tex.App.-Texarkana 2000, pet. ref'd) (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986); Howard v. State 972 S.W.2d 121, 125 (Tex.App.-Austin 1998, no pet.)). A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense committed. Corroboration is not sufficient if it merely shows the commission of the offense. TEX. CODE CRIM. Proc. Ann. art. 38.14 (Vernon 1979); Long, 10 S.W.3d at 393. The "accomplice witness rule" reflects a legislative determination that testimony of an accomplice witness should be viewed cautiously due to the incentive to lie to avoid punishment or to shift blame to another person. Id. (citing Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998)). The rule thus directs the jury to receive testimony and consider that testimony with caution, considering the selfish interests and possible corrupt motives of the witness. Id. (citing Howard, 972 S.W.2d at 125). An out-of-court declaration of an accomplice, repeated in court by a non-accomplice witness under an exception to the hearsay rule, may be considered testimony of an accomplice subject to the requirement for corroboration. Bingham v. State, 915 S.W.2d 9, 9-10 (Tex.Crim.App. 1994). A person is an accomplice if there is sufficient evidence connecting him or her to the criminal offense as a blameworthy participant. Blake, 971 S.W.2d at 455. One who participates with the defendant before, during, or after the commission of the crime for which the defendant is on trial is an accomplice as a matter of fact. Ex parte Zepeda, 819 S.W.2d 874, 875-76 (Tex.Crim.App. 1991) (citing Creel v. State, 754 S.W.2d 205 (Tex.Crim.App. 1988)). Thus, one who is a party to the offense and could be indicted for the offense is an accomplice. Id. at 876; Tucker v. State, 689 S.W.2d 235, 237 (Tex.App.-El Paso 1985, pet. ref'd). One who is indicted for the same offense or a lesser-included offense based upon the alleged participation in commission of the greater offense is an accomplice as a matter of law. Zepeda, 819 S.W.2d at 876. Commission of a different "downstream" offense, even with knowledge of the prior criminal act charged against the defendant, will not suffice. Tucker, 689 S.W.2d at 237 (citing Carillo v. State, 591 S.W.2d 876, 882-83 (Tex.Crim.App. 1979)). When an accomplice witness testifies, it is the jury's task to determine whether the testimony has been sufficiently corroborated. Blake, 971 S.W.2d at 455. If there exists no doubt or the evidence clearly shows that a witness is an accomplice as a matter of law, then the court is under a duty to instruct the jury as to the accomplice testimony rule. Id. (citing DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990)). If the evidence presented by the parties is conflicting, and it is not clear whether the witness is an accomplice, the jury must initially determine whether the witness is an accomplice as a matter of fact. If the evidence is conflicting, it is proper to leave the question of whether the inculpatory witness is an accomplice witness as a matter of fact to the jury under instruction defining the term accomplice.

Id.

Here, where Morris contends that three individuals with different roles in the trial are accomplices, we will consider each individually. First, appellant concedes that the jury charge was not justified by any testimony from Gilbert Villareal since he did not testify. The State and all the witnesses were expressly instructed not to mention anything that he may or may not have said with regard to appellant. Statements attributed to Villareal thus did not mandate an accomplice witness instruction. Gloria Eli did testify at trial. She was granted use immunity by the prosecution for her testimony since at the time she was under indictment for receiving stolen property. Appellant claims that this makes Eli an accomplice as a matter of law and fact. This reflects a fundamental misunderstanding as to the definition of accomplice. It is irrelevant that the prosecutor said, "Your Honor, these are statements of a person who received stolen property, is a party to this offense, and part of the conspiracy," when arguing to the judge that statements made by Eli to Detective Chavez should be allowed as an exception to the hearsay rule. What matters is how the record reflects Eli's relationship to the crime for which Morris is indicted. See Blake, 971 S.W.2d at 455. The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. (citing Morgan v. State, 171 Tex.Crim. 187, 346 S.W.2d 116, 118 (1961)). In Blake, the court explained that to determine whether witnesses were actually accomplices, the court examined the record for evidence of the alleged accomplice's participation in the crime.

Id.

Whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status; what matters is the evidence on the record.

Id.

The record shows that Eli was under indictment for the misdemeanor offense of receiving stolen property at the time that she testified. This is not a lesser-included offense of burglary of a building, even though, as Morris points out in his brief, it is related to the crime. An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

TEX. CODE CRIM. Proc. Ann. art. 37.09 (Vernon 1981); e.g., Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002). The crime of burglary of a building requires an entry into a building without the effective consent of the owner with the intention to commit a felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02 (Vernon 1994 Supp. 2003). Since burglary is complete upon entry with requisite intent, and receipt of stolen property is a downstream offense that has nothing to do with the entry, it is not a lesser-included offense. That theft by receiving is not a lesser-included offense of burglary is well established. Dean v. State, 938 S.W.2d 764, 770 (Tex.App.-Houston [14th Dist.] 1997, no pet.). But this does not end our inquiry. The record does not show any involvement at all of Eli in the burglary. She asked, when given the items in question, if they were stolen. They replied that the items were not. Eli was not found with the two men when the police chase took place. No evidence in the record suggests that Eli participated with Morris before, during, or after the commission of the burglary. We conclude she is neither an accomplice in law nor in fact. Her testimony is, therefore, admissible without triggering the requirement of an accomplice witness testimony instruction to the jury. Finally, although Diaz did not testify at trial, some of her statements did inform the testimony of the detectives. This activates a concern for the rule that an out-of-court declaration of an accomplice, repeated in court by a non-accomplice witness under an exception to the hearsay rule, may be considered testimony of an accomplice subject to the requirement for corroboration. Bingham, 915 S.W.2d at 9-10. Of particular significance is the statement relayed from Diaz to Detective Chavez that, during the chase, Morris said, "Man, I can't get locked up."¹ The court allowed Detective Chavez to testify to what he heard from Diaz under the ruling that it was "admission by a party upon a statement by a co-conspirator." The record reflects that Diaz was at Eli's house when Morris and Villareal arrived with items from Burmass Publishing Company. Like Eli, at this point Diaz had not done any act that furthered the burglary. Although the two men and Diaz did leave for Wal-Mart, and were later spotted near the scene of the burglary, there is no evidence that the three reentered the building or did anything in furtherance of the burglary. The two men may have taken Diaz to the scene to boast or there may have been a second entry, but no evidence exists in the record to even raise a question of fact that could be suggestive of Diaz's involvement as an accomplice in any way. Merely being present at the scene of a crime, or even knowing of the crime without acting in its furtherance, does not make a person an accomplice. Long, 10 S.W.3d at 393-94 (citing Blake, 971 S.W.2d at 454; Kunkle, 771 S.W.2d at 439). The record does not justify considering Diaz to be an accomplice to Morris's burglary of Burmass Publishing Company. In this case, none of the evidence stemming from the three persons claimed to be accomplices justified an instruction concerning accomplice testimony. Villareal did not serve as a witness. Eli was a witness, but is not an accomplice in fact or in law, nor was Diaz. As neither Eli nor Diaz were accomplices, nothing triggered corroboration requirement regarding their testimony. TEX. CODE CRIM. Proc. Ann. art. 38.14 (Vernon 1979). Further, if the evidence is clear that the witnesses are not accomplice witnesses, no instruction need be given to the jury either that the witness is an accomplice as a matter of law, or in the form of a fact issue whether the witness is an accomplice witness. Long, 10 S.W.3d at 394 (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987)). Appellant's first issue is overruled.

Hearsay

Morris's second issue claims that the trial court erroneously admitted hearsay testimony over appellant's timely objection. Much of Morris's claims regarding hearsay are dependent upon findings that Eli and Diaz were accomplices. His arguments are put forth in alternative language in case this Court finds, as we have, that the two witnesses were not accomplices. Thus, the only standing arguments by appellant concerning the admission of hearsay testimony pertain to the testimony of Detective Chavez regarding information he received from Diaz while she was in custody. We review a decision of the trial court to admit hearsay on an abuse of discretion standard. See Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999) (citing Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994)). The State argues that Morris's failure to object to the same testimony elicited through the testimony of Detective Manuel Beltran acts as a waiver of complaint, as the same evidence was admitted elsewhere without objection. Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.-El Paso 1994, pet. ref'd) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984)). We agree that waiver occurred here with one exception. Detective Chavez testified that Diaz reported that during the chase Morris himself said, "Man, I can't get locked up." Detective Beltran's testimony, in contrast, was that Diaz told him, "So while they were getting chased by the police, William Morris and Gilbert Villareal were talking about the fact that they couldn't go back to jail." Whereas the testimony of Detective Chavez attributes an exact statement to Morris, the testimony of Detective Beltran does not; rather, it vaguely states that a very similar conversation was ongoing while the truck was fleeing the police. For this reason, the admission of that one statement through Detective Chavez must be analyzed for an abuse of discretion by the trial court. Appellant correctly recognizes that the chain of hearsay that allows the statement from Morris to Diaz, then from Diaz to Detective Chavez, then from Detective Chavez to the jury, requires that each layer of hearsay must be admissible under an exception to the hearsay rule. TEX. R. EVID. 805; Knox v. Taylor, 992 S.W.2d 40, 64 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Originally, the trial court allowed the statement because "these are admissions by the Defendant against interest." This was allowed after the trial court, several moments earlier allowed Detective Chavez to testify as to statements made by Diaz because any statement by her to the Detective was an "admission by a party upon a statement by a co-conspirator." When Morris said, "Man, I can't get locked up," this was a statement against his interest exposing him to criminal liability. TEX. R. EVID. 803(24). The rule further requires that "In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Id. The chase and Morris's possession of items eventually linked to the burglary are sufficient to show corroborating circumstances. The second layer of hearsay, when Diaz told Detective Chavez of the statement, must also be found admissible. This is more problematic. The trial court found the statements admissible as non-hearsay as defined in rule 801(e)(2)(E). That rule provides that a statement is not hearsay if it is a statement offered against a party and is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Although there is no mention of what crime Diaz conspired to commit, the trial court's finding that she was not an accomplice implies it was not the burglary. In order to avail itself of the co-conspirator exception, the State must show that conspiracy existed, that the statement was made during course and in furtherance of conspiracy, and that both the declarant and the defendant were members of the conspiracy. Deeb v. State, 815 S.W.2d 692, 696 (Tex.Crim.App. 1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992). No such foundation of a conspiracy exists. That Diaz was picked up at the scene of the crime does not prove any such conspiracy, just as it cannot prove that Diaz was an accomplice in the crime for which Morris was indicted. It is also not clear that this statement to Detective Chavez by Diaz was in any way against her interests, so rule 803(24) does not clearly provide for admissibility. Thus, we conclude the trial court abused its discretion in finding that Diaz was a co-conspirator with Morris. Having found error, this Court must determine if that error was harmful. The admission of inadmissible hearsay constitutes non-constitutional error. Lee v. State, 21 S.W.3d 532, 538 (Tex.App.-Tyler 2000, no pet.) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998)). Non-constitutional errors that do not affect substantial rights do not warrant reversal. Id.; TEX.R.APP.P. 44.2(B). This Court must examine the record as a whole to determine whether the error influenced the jury verdict. Lee, 21 S.W.3d at 538-39. An error is harmless if the reviewing court determines that no substantial rights of the defendant were affected because the error did not influence or had only a slight influence on the verdict. Id. at 539 (citing Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App. 1999)). However, a substantial right is affected when the error has a substantial and injurious affect or influence in determining the jury's verdict. Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). If this Court cannot say that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Id. Here we have a conversation in which Morris and Villareal mentioned that they could not go back to jail properly in evidence, with no objection, through the testimony of Detective Beltran. The only difference between that testimony and the testimony of Detective Chavez is that the latter attributes the statement directly to Morris. Is this a difference that creates harm to Morris? We find that, in light of the record as a whole, it does not. Other testimony by Detective Beltran has Diaz placing Morris in the truck as it fled the police. Further, the testimony of Eli places Morris with the property at her apartment early on the morning of February 13, 2001. Hearsay attributing the statement to Morris himself is unlikely to have influenced the jury in their determination that Morris committed burglary. Any conclusions that the jury could have drawn from this information was provided by other evidence in the record. Therefore, we conclude that no harm resulted from the erroneous admission of the hearsay statement. For this reason, the second issue is overruled.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.