Zeigler v. State, No. 10-07-00053-CR (Tex. App. 4/9/2008)

• Decision Date: 09 April 2008
• Docket Number: No. 10-07-00053-CR.,10-07-00053-CR.
• Parties: ANDRE ZEIGLER, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

ANDRE ZEIGLER, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-07-00053-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed April 9, 2008.

Do Not Publish.

Appeal from the 52nd District Court, Coryell County, Texas, Trial Court No. 17836.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA

(Justice VANCE dissents from the judgment with a note)^*

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

In an altercation among Manuel Whisenhut, Willie Hawkins, and Appellant, Andre Zeigler, in 2003, Whisenhut received injuries that resulted in his death. Zeigler and Hawkins were charged with intentionally or knowingly causing serious bodily injury to Whisenhut, an elderly individual. See TEX. PENAL CODE ANN. § 22.04(a)(1), (c)(2) (Vernon Supp. 2007); Penal Code, 73d Leg., R.S., ch. 900, § 1.01, sec. 22.04(e), 1993 Tex. Gen. Laws 3586, 3622 (amended 2005) (current version at TEX. PENAL CODE ANN. § 22.04(e) (Vernon Supp. 2007)); see also TEX. PENAL CODE ANN. § 1.07(a)(46) (Vernon Supp. 2007). In separate trials, juries found Zeigler and Hawkins guilty of the lesser included offense intentionally or knowingly causing bodily injury to an elderly individual. See TEX. PENAL CODE ANN. § 22.04(a)(3) (Vernon Supp. 2007); Penal Code, 73d Leg., R.S., ch. 900, § 1.01, sec. 22.04(f), 1993 Tex. Gen. Laws 3586, 3622 (amended 2005) (current version at TEX. PENAL CODE ANN. § 22.04(f) (Vernon Supp. 2007)); see also TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2007). Zeigler appeals. We affirm.

Charge. In Zeigler's first two issues, he complains of the trial court's charge on guilt or innocence.

Texas Code of Criminal Procedure Article 36.14 provides that "in each felony case . . . tried in a court of record, the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . . ." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). Code of Criminal Procedure Article 36.19, in turn, provides:

Whenever it appears by the record in any criminal action on appeal that any requirement of Article[] 36.14 . . . has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of [the] defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.

TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2007). In Almanza v. Texas, the Texas Court of Criminal Appeals:

concluded that [Article 36.19's] language created two separate harm-analysis standards: the first to be used when a timely objection is made to the charge; the second to be used when no such objection appears in the record.

The first standard dictates that reversal should occur if the defendant made a timely objection and if the error is "calculated to injure the rights of the defendant." [The Court of Criminal Appeals] ha[s] interpreted this to mean that there must be some harm to the defendant from the error. Properly preserved jury-charge error requires reversal unless it is harmless.

If the defendant has not made a timely objection, we apply the second standard, and reversal is not required unless he has not had a fair trial.

Penry v. State, 178 S.W.3d 782, 788 (Tex. Crim. App. 2005) (internal footnotes omitted), cert. denied, 547 U.S. 1200 (2006); see TEX. CODE CRIM. PROC. ANN. art. 36.19; Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App.), cert. denied, 128 S. Ct. 627 (2007); Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Under the second standard, "[i]f the defendant fails to object or request an instruction before the trial court reads the charge to the jury, then error in the charge is reversible only if it causes `egregious harm' to the defendant." Delgado at 249 (quoting Almanza at 171). "Errors that result in egregious harm are those affecting the `"very basis of the case,"' those depriving `the defendant of a "valuable right,"' or those that `"vitally affect a defensive theory."'" Druery at 504 (internal footnote omitted) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (quoting Almanza at 172)).

"The harm is determined by considering the entire charge; the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole." Olivas v. State, 202 S.W.3d 137, 146 (Tex. Crim. App. 2006); accord Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002) (quoting Almanza, 686 S.W.2d at 171); Marvis v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001); Hutch, 922 S.W.2d at 171; see TEX. R. APP. P. 44.2(b).

Zeigler did not object to the charge.

Accomplice Witness. First, Zeigler contends that the trial court erred in not giving an accomplice-witness instruction on Hawkins's testimony.

"An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state." Druery, 225 S.W.3d at 498 (citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986)); accord Jackson v. State, 552 S.W.2d 798, 805 (Tex. Crim. App. 1976) (op. on orig. submission).

Texas Code of Criminal Procedure Article 38.14 provides: "A conviction may not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). "The corroborating evidence under 38.14 need not be sufficient, standing alone, to prove beyond a reasonable doubt that a defendant committed the offense. All that is required is that there is some non-accomplice evidence tending to connect the defendant to the offense." Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (emphasis in orig.), cert. denied, 76 U.S.L.W. 3454 (U.S.

Feb. 25, 2008); accord Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Shrader v. State, 121 Tex. Crim. 623, 627, 51 S.W.2d 607, 609 (1932) (op. on reh'g). "There need be only some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime." Joubert at 731 (citing Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001)); accord Warren v. State, 514 S.W.2d 458, 462-63 (Tex. Crim. App. 1974), overruled in part on other grounds, Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988).

The underlying premise behind th[is] accomplice witness rule is the idea that an accomplice witness is a "discredited witness" and that "the testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have, but because his or her testimony is evidence from a corrupt source."

Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989) (quoting Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. [Panel Op.] 1981) (Onion, P.J., dissenting on orig. submission), op. adopted on reh'g, id. at 847 (1982) (en banc)) (alteration added); see Taylor v. State, 10 S.W.3d 673, 684 (Tex. Crim. App. 2000).

"A prosecution witness who is indicted for the same offense with which the defendant is charged is an accomplice as a matter of law." Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (citing Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991)); see Paredes, 129 S.W.3d at 536; Herrera v. State, 115 Tex. Crim. 526, 527-28, 27 S.W.2d 211, 212 (1930) (op. on reh'g). "If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction to the jury." Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 1832 (2007); see Druery, 225 S.W.3d at 488 (citing Paredes at 536); DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990). The trial court errs in failing to provide the instruction. Herron at 631 (citing Zepeda at 876); see Herrera, 115 Tex. Crim. at 527, 27 S.W.2d at 212 (op. on orig. submission).

The State concedes that the trial court erred in failing to instruct the jury that Hawkins was Zeigler's accomplice as a matter of law. We assume without deciding that the trial court so erred.

However, "non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve." Herron v. State, 86 S.W.3d at 632.

The instruction merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense. Once it is determined that such non-accomplice evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no further role in the factfinder's decision-making.

Herron at 632. "In determining the strength of a particular item of non-accomplice evidence, we examine (1) its reliability or believability and (2) the strength of its tendency to connect the defendant to the crime." Id. "Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is `so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Id. (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). "[T]he reliability inquiry may be satisfied if: (1) there is non-accomplice evidence, and (2) there is no rational and articulable basis for disregarding the non-accomplice evidence or finding that it fails to connect the defendant to the offense." Herron at 633. "[T]he ...