Howard v. State

• Decision Date: 18 June 1998
• Docket Number: No. 03-97-00053-CR,03-97-00053-CR
• Citation: 972 S.W.2d 121
• Parties: John Eldre HOWARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 121

972 S.W.2d 121

John Eldre HOWARD, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00053-CR.

Court of Appeals of Texas,

Austin.

June 18, 1998.

Stan Schwieger, Waco, for Appellant.

Hollis C. Lewis, Jr., County and Dist. Atty., Charles H. Van Orden, Special Pros., Cameron, for State.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Appellant, John Eldre Howard, appeals from a jury conviction of possession of cocaine with the intent to distribute, a first degree felony. See Tex. Health & Safety Code Ann. § 481.112 (West 1992 & Supp.1998). The court assessed punishment at twenty years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. On appeal Howard claims that (1) the evidence was legally and factually insufficient to support the jury's finding; (2) the district court failed to instruct the jury on the law as to the testimony of an accomplice witness; and (3) his trial counsel rendered ineffective legal assistance by failing to request an accomplice-witness instruction in the charge to the jury. We will reverse the judgment of the district court and remand the cause.

BACKGROUND

In August of 1996, police were summoned to a mobile home in Rockdale, Texas after receiving a complaint of "loud noise." Rockdale police officer Tommy Roach responded and knocked on the door of the mobile home owned by Theresa Morrison. When Morrison opened the door, Roach noticed the smell of marihuana smoke coming from inside the home. As he followed Morrison inside, he saw a female run out the back door. About the same time, Roach noticed Larry Mackie and John Howard enter the living room from one of the bedrooms. Roach left the trailer in an attempt to catch the fleeing woman, but she was never apprehended or identified. Before going back inside the trailer, John Howard approached the officer and asked him "what was going on." Roach instructed Howard to return to the trailer, which he did. A search of the trailer resulted in a seizure of marihuana found in plain view throughout the home and a crack cocaine "cookie" hidden inside a ceiling light fixture in the same bedroom that the appellant and Mackie had been seen leaving. Roach also confiscated a "straight-edged razor with white residue" found in the passenger's side floorboard of one of the cars parked in front of the trailer.

At trial, three witnesses testified for the State. Officer Roach testified to the facts as we have outlined them. Charles Mott, a chemist for the Texas Department of Public Safety, testified as an expert witness and determined that the "cookie" was cocaine and that the other substance taken from the house was marihuana. Larry Mackie testified that he had driven his car from Houston to Rockdale with Howard and that he had witnessed Howard hide the cocaine in the light fixture. Prior to Howard's trial, Mackie pled guilty to charges of aiding and abetting another in the possession of cocaine with intent to distribute. In return for his testimony on behalf of the State, Mackie received a three-year probated sentence. Howard was convicted and sentenced to twenty years' imprisonment.

DISCUSSION

Legal Sufficiency of the Evidence

We first address appellant's claim that the evidence is legally insufficient to "A person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance...." Tex. Health & Safety Code Ann. § 481.112. In this case, the jury was charged to convict Howard if it found beyond a reasonable doubt that he intentionally or knowingly possessed cocaine with an intent to deliver. Appellant's complaint focuses solely on the purported absence of "affirmative links." To sustain a conviction for possession, the State must affirmatively link the accused to the contraband. Travis v. State, 638 S.W.2d 502, 503 (Tex.Crim.App.1982). An affirmative link is established by showing facts and circumstances that indicate the accused's knowledge and control of the contraband. Id.

support his conviction because it failed to affirmatively link him to the cocaine. In reviewing legal sufficiency of the evidence, we must view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex.Crim.App.1984). The legal sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge that is authorized by the indictment. See Malik v. State, 953 S.W.2d 234, 239 (Tex.Crim.App.1997). This is done considering all the evidence that was before the jury--whether proper or improper--so that we can make an assessment from the jury's perspective. See Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App.1996).

At trial, Larry Mackie ¹ testified that he saw Howard remove the crack cocaine from his pocket and place it in a light fixture in one of the bedrooms. He also stated that Howard had a romantic relationship with the owner of the mobile home and that he had regular access--and perhaps a key--to the home. Officer Roach testified that as he entered the mobile home, he saw Howard exit the same bedroom where the cocaine was later found. Roach also mentioned that Howard claimed to own one of the cars parked in front of the home. After searching this car, Officer Roach discovered a razor with a white residue, presumably cocaine, hidden in the floorboard.

Mackie's testimony is sufficient to establish an affirmative link between Howard and his possession of cocaine. Though the evidence may support many conflicting inferences, we presume that the trier of fact resolved any such conflict in favor of the prosecution. Turro v. State, 867 S.W.2d 43 (Tex.Crim.App.1993). The jury had to find that Howard knowingly or intentionally possessed the cocaine and had the intent to distribute. Considering the jury charge that contained the correct elements of the crime charged, and viewing all the foregoing evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found Howard guilty. ² We overrule appellant's first point of error.

Testimony of Accomplice Witness

We next address appellant's claim that the district court failed to instruct the jury as to An accomplice witness is one who has participated with a defendant before, during, or after the commission of a crime and who thereafter testifies against the defendant concerning that same crime. Villarreal v. State, 576 S.W.2d 51, 56 (Tex.Crim.App.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979); Tidrow v. State, 916 S.W.2d 623, 631 (Tex.App.--Fort Worth 1996, no pet.). When an individual is indicted for a lesser included offense based on the same offense as another, he is an accomplice as a matter of law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App.1991) (witness indicted for lesser included offense of voluntary manslaughter based on alleged participation in murder and who testified against defendant was accomplice as a matter of law); see also East v. State, 702 S.W.2d 606, 616 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1000, 106 S.Ct. 418, 88 L.Ed.2d 368 (1985). Accomplice-witness testimony must be corroborated by other evidence connecting the defendant with the offense before a conviction is warranted. Tex.Code Crim. Proc. Ann. art. 38.14 (West 1979). The purpose of this rule is to assure that the jury does not consider the accomplice witness's testimony unless it finds that the accomplice witness is telling the truth and that other evidence corroborates the discredited witness's testimony. See McDuff v. State, 943 S.W.2d 517, 520 (Tex.App.--Austin 1997, pet. ref'd); see also Tran v. State, 870 S.W.2d 654, 658 (Tex.App.--Houston 1994, pet. ref'd). This requires the jury to receive and act upon such testimony with caution, considering the selfish interests and possibly corrupt motives of the witness.

                the effect of accomplice-witness testimony.  Howard claims that this error was so egregious he was denied a fair and impartial trial.  He requests a reversal, despite the fact he neither objected nor requested the appropriate instruction.  He cites us to Almanza v. State.   See 686 S.W.2d 157 (Tex.Crim.App.1984).  The State argues that, absent any objection to the charge or a request for the instruction, any error was waived
                

In this case, Larry Mackie pleaded guilty to aiding and abetting another in the possession of cocaine with intent to distribute. He then testified against Howard at trial, stating that Howard had placed the cocaine in the light fixture. As the court noted in its charge to the jury, a person is criminally responsible as a party to an offense if he assists or aids another in the commission of that offense. Because he was convicted of a lesser included offense based on the same offense for which Howard was indicted, Mackie was an accomplice witness as a matter of law. See Zepeda, 819 S.W.2d at 875. However, no instruction was given to advise the jury of the need for corroborating evidence. Appellant neither requested such an instruction nor objected to its omission as required by articles 36.14 and 36.15. See Tex.Code Crim. Proc. Ann. arts. 36.14, 36.15 (West 1981 & Supp.1998).

A. Error

We must first determine whether the failure to include an instruction on accomplice-witness testimony in the jury charge constitutes error. See Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App.1998); Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App.1985) (op. on reh'g). Normally a defendant must object to errors in the charge before he may be heard to complain on appeal. Id. Nevertheless, the court may concede that an error occurred, even...