Long v. State

• Decision Date: 07 January 2000
• Docket Number: No. 06-98-00179-CR,06-98-00179-CR
• Citation: 10 S.W.3d 389
• Parties: (Tex.App.-Texarkana 1999) JAMES R. LONG, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 389

10 S.W.3d 389 (Tex.App.-Texarkana 1999)

JAMES R. LONG, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-98-00179-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Argued June 25, 1999

Decided January 7, 2000

On Appeal from the 410th Judicial District Court Montgomery County, Texas Trial Court No. 97-04-00638-B-CR

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[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Justice ROSS.

James Long appeals his conviction for capital murder, with a sentence of life imprisonment. See TEX. PEN. CODE ANN. 12.31(b) (Vernon 1994).

About 6:00 a.m. on Saturday, September 21, 1996, Robert Madura, the manager of a Walgreens store in Montgomery County, arrived at the store. He noticed that the alarm had not been activated. When he walked into the office, he found one of his assistant managers, John Cedars, lying dead on the floor. The sum of $2,831.46 was missing from the office safe. Cedars' wallet was also missing.

Medical evidence showed that Cedars had died instantly from a gunshot wound to the head. The weapon had been fired from one to two inches away.

Long contends that the trial court erred in refusing his request for jury instructions on accomplice witness testimony regarding two of the State's witnesses, Billy Woodard and Jeremy Scardino.

An accomplice witness is a witness at trial who participated with a defendant before, during, or after the commission of a crime. 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 on 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); Howard, 972 S.W.2d at 125-26. The so-called "accomplice witness rule" is not mandated by the United States Constitution or the common law. Rather, it reflects a legislative determination that accomplice witness testimony implicating another person should be viewed cautiously due to the incentive to lie to avoid punishment or shift blame to another person. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The rule requires the jury to receive and act on such testimony with caution, considering the selfish interests and possibly corrupt motives of the witness. Howard, 972 S.W.2d at 125.

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. The participation necessary to be considered an accomplice must involve an affirmative act or omission by the witness to promote the commission of the offense. Id. at 454; McFarland, 928 S.W.2d at 514. The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Whether the person is actually charged and prosecuted for his or her participation is irrelevant; what matters is the evidence in the record. Blake, 971 S.W.2d at 455. Witnesses may be accomplices as a matter of law. If there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law, the trial court is under a duty to so instruct the jury. Blake, 971 S.W.2d at 455. One who is or may be indicted for the same offense with which a defendant is charged, or for a lesser included offense based on alleged participation in the commission of the greater offense, is considered an accomplice as a matter of law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). If evidence presented by the parties is conflicting, it is proper to leave the question of whether an inculpatory witness is an accomplice witness as a matter of fact to the jury, under instructions defining the term accomplice. Blake, 971 S.W.2d at 455; see Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987).¹

It is also clear who is not an accomplice witness: a person who is merely present at the scene of an offense is not an accomplice. Blake, 971 S.W.2d at 454; one is not an accomplice for knowing about a crime and not disclosing it, or even concealing it. Id.; Kunkle, 771 S.W.2d at 439. If the evidence is clear that the witness is not an accomplice witness, 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. Gamez, 737 S.W.2d at 322.

WITNESS BILLY WOODARD

Billy Woodard was a friend of Long and shared an apartment with him for several months, including the relevant time period. The testimony showed that Woodard overheard Long and Eddie Brown ² discussing the possibility of robbing the Walgreens store but, at the time, Woodard did not believe they were serious. On the evening of the robbery and murder, Long returned to the apartment and told Woodard what had happened, and showed him the money, ski masks, and victim's wallet taken in the robbery. Woodard further testified that Long told him the details of the murder. Later, Woodard met with Long at the home of Jeremy Scardino's grandmother, where Woodard testified that Long gave the money and other items from the robbery to Jeremy Scardino, so Scardino could dispose of them. Woodard said that he did not go to the police earlier because he was raised in a neighborhood and environment which fostered distrust and animosity toward law enforcement.

The evidence in the record does not demonstrate that Woodard could be considered an accomplice or that he assisted Long in the planning or carrying out of the robbery and murder. There was certainly no basis to, and the State did not, charge Woodard with capital murder or any lesser included offense. The record shows that, at most, Woodard was aware of the offense, did not disclose it, and may have concealed it. Under the cited authority, this does not make him an accomplice and would not entitle Long to an instruction on accomplice witness testimony. The trial court did not err in refusing to instruct the jury regarding Woodard as an accomplice witness.

WITNESS JEREMY SCARDINO

At the time of trial, Jeremy Scardino lived in Austin, Texas. He was a good friend of Woodard and knew Long. He also knew Brown, but not well. Scardino went to Woodard and Long's apartment about a week before the robbery and murder, and heard Long discuss the possibility of robbing the place where Brown worked.

Later on the same day of the robbery and murder at Walgreens, Long and Woodard visited Scardino at his grandmother's house in Spring, Texas. Scardino testified that during this visit Long told him that he and Brown had committed the robbery and murder at Walgreens, and that Long asked him to hold the money and dispose of other items from the robbery. Long then gave Scardino the money, along with ski masks, a lock, a wallet, and some pieces of paper. Scardino immediately threw away the masks and the lock while at his grandmother's house. At that time, he was living in an apartment in Houston, where he took the money and wallet. Later, he threw the wallet in the dumpster at Long's apartment.

Long later contacted Scardino and told him to give the money to Brown. Scardino and Brown met at a restaurant near Scardino's apartment. Brown drove up in his car, and Scardino handed the money to him through the car window.

Scardino gave authorities a written statement after he entered into an immunity agreement with the Montgomery County District Attorney's office.

The record does not show that Scardino was an accomplice as that term has been considered in Texas law. Scardino did not assist either Brown or Long in planning the robbery and was not involved in the execution of the plan or the resulting homicide. There was no basis on which the State could charge Scardino with capital murder or with any lesser included offenses arising out of the robbery and murder. As with Woodard, the most that can be said is that Scardino knew about the crime, did not disclose it, and possibly concealed it. Under the authority previously cited, these actions are not sufficient for Scardino to be considered an accomplice. The trial court did not err in refusing Long's request for an accomplice witness instruction with respect to Scardino's testimony.

Long also contends that the trial court erroneously denied his challenges for cause regarding two prospective jurors.

Long's trial counsel made the following request, which was denied by the trial court:

Your Honor, at this time before she calls out the strikes, the defendant would make a motion to the Court to have the Court grant us at least two more strikes for peremptory challenge for the Court denying, in our view improperly, the challenges for cause that we made to several of the jurors; and we would ask the Court to grant us two additional strikes, because we've had to use strikes on jurors that the Court in our mind should have excused for cause.

When the trial court erroneously overrules a challenge against a venireperson, a defendant is harmed only if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of a strike. Error is preserved for review on appeal only if appellant: 1) used all of his peremptory strikes, 2) asked for and was refused additional peremptory strikes, and 3) was then forced to take an identified objectionable juror whom the defendant would not otherwise have accepted. McFarland, 928 S.W.2d at 508; Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993); Garcia v. State, 960 S.W.2d 329, 331 (Tex. App.Corpus Christi 1997, no pet.).

While the record shows that Long requested additional peremptory strikes, the record does not show that Long had used all of...