Boozer v. State

• Decision Date: 19 September 1984
• Docket Number: No. 402-82,402-82
• Citation: Boozer v. State, 717 S.W.2d 608 (Tex. Crim. App. 1984)
• Parties: Terry Lynn BOOZER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 608

717 S.W.2d 608

Terry Lynn BOOZER, Appellant, v. The STATE of Texas, Appellee.

No. 402-82.

Court of Criminal Appeals of Texas En Banc.

Sept. 19, 1984.

Leave to File Motion for Rehearing

Denied Sept. 24, 1986.

George W. Morris, Conroe, for appellant.

John B. Holmes, Jr., Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Alfred Walker, First Ass't, Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Before us on appellant's petition for discretionary review is his conviction for burglary, affirmed by the El Paso Court of Appeals in an unpublished opinion.

On direct appeal, appellant asserted the trial court had reversibly erred by denying his motion for instructed verdict of acquittal. Specifically, it was appellant's contention that the State failed to meet its burden of adducing independent evidence corroborative of testimony of the accomplice witness, ¹ which the court's charge required as a matter of law before warranting a conviction.

The court of appeals recounted the evidence, observed that the trial court instructed the jury that the accomplice's testimony was to be corroborated as a matter of law and agreed with appellant that no corroboration was extant, concluding: "Under the standard test, the evidence is insufficient to sustain the conviction, and the State practically concedes the same."

However, the court of appeals was persuaded by the State's argument that appellant was not entitled to the instruction because the evidence did not establish the witness was an accomplice as a matter of law; without further explication, appellant's "claim of insufficient evidence to corroborate an accomplice witness [was] rejected and the point... overruled."

Thus, as we understand it, the court of appeals held the evidence was insufficient to support the jury's verdict that appellant was guilty under the court's instructions, but the insufficiency was "harmless" because appellant was not entitled to have the State prove what the trial court instructed the jury must be proved before a conviction was warranted. We granted review in order to consider the propriety of this holding.

The State Prosecuting Attorney advances the proposition that the trial judge had no authority to submit the instruction regarding the accomplice witness as a matter of law, when the witness' status as an accomplice was a question of fact. This is clearly wrong. Cf. Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980); see Article 36.14, V.A.C.C.P. Next the State Prosecuting Attorney suggests that appellant cannot now be heard to complain because he waived his right to the only charge to which he was entitled, by his failure to request an instruction on the witness' accomplice status as a matter of fact. But what this overlooks is the fact that the appellant has not, and does not now complain of the charge in any fashion; thus, if an error due to waiver exists in this case, it plainly is not against appellant.

Indeed, the State Prosecuting Attorney apparently would fault everyone but the State for what he contends was an "erroneous" instruction to the jury. ² Yet the record contains no indication the State objected to the burden of proof placed on it by the trial court's instructions to the jury. Indeed, in resisting appellant's motion for an instructed verdict the prosecutor argued that testimony of the witness Wilson was corroborated, and proceeded on that theory before the jury. At the outset, he urged the jurors not to be concerned about "what might or might not happen to the accomplice witness," and in beginning to review the evidence stated:

"We have Miss Wilson, who is an accomplice witness. There's no question about that. She has some complicity in this."

The brief filed by the Harris County District Attorney graciously concedes the State has no right to appeal, but then suggests that appellate courts, upon acquiring jurisdiction of a case, may "reform" the trial judge's charge to remedy "errors against the State." But there is no authority for such an action and we decline the opportunity to contrive it.

The district attorney cites Smith v. State, 89 Tex.Cr.R. 145, 229 S.W. 523 (1921) in which the court reversed a conviction for the trial judge's failure to submit the fact issue of accomplice testimony to the jury; the State contends that "except that the sides of the docket were switched, the opinion in [Smith] is in point." However, the sides of the docket cannot be "switched," for, as already conceded by the State, it has no right to appeal; the question of Smith's relevance is therefore ab initio moot. ³

Much ado has been made by the parties as well as the court of appeals, about whether the evidence adduced at trial supported submission of the court's instruction that the witness was an accomplice as a matter of law. We, however, see no occasion to review the evidence for that purpose under appellant's sole ground of error raised originally on appeal.

Because a verdict of "guilty" necessarily means the jury found evidence of that on which it was authorized to convict, the sufficiency of the evidence is measured by the charge that was given. ⁴ It follows that if evidence does not conform to the instruction given, it is insufficient as a matter of law to support the only verdict of "guilty" which was authorized. ⁵ Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982 and 1983).

Under the trial court's charge in the instant case, the only verdict authorized in view of the evidence was "not guilty; " restated, had the jury followed the trial court's instructions, appellant would have been acquitted.

The State contends that at most appellant's conviction should be reversed and remanded because the court's charge constituted "trial error" which does not necessitate an acquittal under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). There are several things wrong with this argument.

First, appellant has never complained of the court's charge and, even if he had and we determined error existed, it would not entitle him to a reversal. See n. 2, ante. Second, we have no other occasion to determine whether the charge submitted was supported by the evidence: the State's acquiescence to its submission indicates that party's belief that it fairly represented to the jury the State's burden of proof. Third, the State could not possibly conjure the argument that the charge is unsupported by the evidence and therefore defective, without first reviewing the evidence as a whole and finding it insufficient, but that party asks this Court to ignore that deficiency and give it a "second bite of the apple." ⁶

And finally, we believe the disposition of this cause made by the court of appeals would patently offend constitutional prohibitions against double jeopardy and due process of law. To find the evidence insufficient to support the jury's determination but harmless, is an unconstitutional result. ⁷ Does the double jeopardy clause contemplate protection from a retrial after a trial proceeding such as the one before us? An observation from Ortega v. State, 668 S.W.2d 701, 705, n. 10 (Tex.Cr.App.1983) (Opinion on Original Submission) bears repeating here:

"But once the phrase is incorporated into the court's instructions to the jury in such a way that the jury must find it before a verdict of guilt is authorized, Article 36.13, V.A.C.C.P., it must be proved, or the verdict will be deemed 'contrary to the law and evidence.' See Article 40.03(9), V.A.C.C.P. In sum, there is no such thing as 'surplusage' in the part of the court's instructions to the jury which authorizes a conviction, and if the prosecutor believes that portion of the charge unnecessarily increases his burden of proof, it behooves him specially to request a charge which correctly allocates the burden placed on him by law. This is nothing more than the course of law which is due before a person may be deprived of liberty. Article 1.04, V.A.C.C.P. And if the record reflects the prosecutor has pursued this course to protect his lawful obligations, but the trial court has nevertheless refused the amendment to the indictment or submission of the requested charge, and the evidence is found insufficient to support the verdict because of the trial court's errors in this regard, those reviewable rulings of the trial court found erroneous by the appellate court constitute 'trial error,' and the State is free to pursue another prosecution. Cf. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) [emphasis original]."

We accordingly hold the State's failure to object to the accomplice witness instruction in the trial court waives any question regarding "trial error" on appeal.

It is clear appellant should have been acquitted by the trial court on his motion; failing that, the jury was authorized only to find appellant "not guilty." Had either the trial court's or the jury's determination been correctly made, the State could not have been heard to complain since it would have no appellate remedy. ⁸ The State--apparently believing at the time of trial that corroboration was required and that it had adduced ample evidence to corroborate the accomplice testimony--may not obtain a result on appeal which the Constitution and laws of this State prohibit it from seeking upon the return of a "not guilty" verdict. ⁹ Benson, supra, (Opinion on State's First Motion for Rehearing).

The judgment of the court of appeals is reversed, the judgment of conviction is reversed and the cause is remanded to the trial court for the entry of a judgment of acquittal. Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979).

It is so ordered.

TEAGUE, Judge, concurring.

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