No. 10-05-00248-CR
Opinion delivered and filed August 30, 2006. DO NOT PUBLISH.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court No. 03-04633-Crf-85. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
FELIPE REYNA, Justice.
Robert Dwayne Jones appeals from his conviction for theft of property, arguing that the court erred by admitting evidence of an extraneous arrest and incarceration and by failing to submit an accomplice witness instruction to the jury. We affirm.
BACKGROUND
Jones was employed by Brenda Heslip, owner of Hesfree Recording Studio. Marcus Franklin, a friend of Jones, was also one of Heslip's employees. Unlike Jones, Franklin possessed both the alarm code and a set of keys to the studio. During his employment, Jones was arrested in Harris County. Heslip refused to post bond. After Jones's release, Cyril Roberson, another studio employee, discovered some equipment missing from the studio. Because the studio's exterior doors showed no signs of forced entry, Heslip believed the theft to be an "inside job." According to police, the studio alarm had been deactivated at the time of the theft and interior damage to the studio appeared staged. Jones informed Heslip that, on the night of theft, Franklin had unlocked the studio and deactivated the alarm for Jones, Candace Martin and Dreeka Taylor. Jones stated that when he left the studio, he phoned Franklin to come lock the studio. Martin stated that neither she, Taylor or Jones removed any equipment when they left the studio. Kwajuana Johnson testified that Jones borrowed her car on the night of the theft and returned with some items. Johnson also overheard a phone conversation in which Jones mentioned serial numbers. The next day, Jones and Franklin borrowed Johnson's car to travel to Houston. Franklin admitted to unlocking the studio for Jones and later returning to lock the studio. He denied either taking the equipment or assisting Jones in transporting the equipment to Houston. Detective J.J. Jones stated that Franklin was an active suspect and had provided a statement admitting to assisting in transporting the equipment to Houston. Jones pleaded not guilty to theft of property. The jury found Jones guilty and the court assessed punishment at two years in the Texas Department of Criminal Justice, State Jail Division and a $5,000.00 fine. EXTRANEOUS ARREST AND INCARCERATION
In his first point, Jones argues that the court admitted testimony regarding an extraneous arrest and incarceration in violation of Texas Rule of Evidence 404(b). However, Jones failed to preserve a complaint as to this issue. To preserve a complaint for appeal, a party must lodge a timely and specific objection and obtain an adverse ruling. See TEX. R. APP. P. 33.1(a); see also Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). The party must then either "object each time the inadmissible evidence is offered or obtain a running objection." Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim App. 2003). Failure to pursue the objection to an adverse ruling forfeits the right to complain on appeal. See TEX. R. APP. P. 33.1; see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). To preserve a Rule 404 complaint, a party must object "that the evidence was offered to prove an extraneous uncharged offense not within the permissible scope of 404(b) and was offered to show that appellant was a criminal generally." Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993). During the guilt/innocence phase of the trial, the State presented evidence of Jones's prior incarceration. Jones objected on the basis of relevance and Texas Rule of Evidence 403. The court did not specifically rule on Jones's objection, but granted his request for a running objection. By doing so, the court impliedly overruled Jones's objection. However, at no time did Jones object on the basis of Rule 404. Jones did not make the proper objection necessary for preserving a Rule 404 complaint. See Camacho, 864 S.W.2d at 533. His relevancy and Rule 403 objections did not "address the correct evidentiary basis for the exclusion" of the testimony and do not "comport with the point of error raised on appeal," namely his Rule 404 complaint. Id. Jones cannot use one legal theory to "support a different legal theory on appeal." Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Because Jones's trial objections do not comport with his complaint on appeal, his first issue has not been preserved for appellate review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); see also Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App. 1999). We overrule his first point of error. ACCOMPLICE WITNESS INSTRUCTION
In his second point, Jones contends that both Johnson and Franklin are accomplices and the court erred by failing to include an accomplice-witness instruction in the jury charge. An accomplice as a matter of law is indicted for the same crime as the defendant, or a lesser included offense based on "alleged participation" in the "greater offense." Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App. 1991). An accomplice as a matter of fact "participates with the defendant before, during or after commission of the crime" and may be prosecuted for the same crime as the defendant. Id. at 875-876. To be an accomplice, one must perform an affirmative act promoting the crime. See Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004). A person is not an accomplice merely because he: (1) was present at the scene; (2) knew about the crime and either concealed the crime or failed to report it; or (3) was involved with the defendant in another, related offense. See Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998); see also Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987); Gausman v. State, 478 S.W.2d 458, 460 (Tex.Crim.App. 1972); Creel v. State, 754 S.W.2d 205, 213 (Tex.Crim.App. 1988). If a person is an accomplice as a matter of law, the court must so instruct the jury. See Paredes, 129 S.W.3d at 536. If the evidence is conflicting as to whether a person is an accomplice, the court must submit the issue to the jury. See id. Jones first contends that Johnson is an accomplice because she knew the property was taken from the studio, she heard Jones discussing serial numbers, and she loaned her car to Jones. We disagree. First, Johnson was neither indicted for the same offense as Jones nor indicted for a lesser included offense related to her alleged participation in the theft. See Zepeda, 819 S.W.2d at 876. Second, she performed no affirmative act in furtherance of the theft. Johnson testified that she overheard a phone conversation in which Jones mentioned serial numbers. She did not participate in this conversation. When Jones borrowed Johnson's car on the night of the theft and later returned with various items, he told her that the studio was being cleaned. When Jones borrowed the car to travel to Houston, no evidence exists to indicate that Johnson knew Jones stole the equipment or wanted to use the car for criminal purposes. Rather, Johnson knew Jones often traveled to sell CDs. In light of these facts, Johnson was not an accomplice. See Barnes v. State, 56 S.W.3d 221, 230 (Tex.App.-Fort Worth 2001, pet ref'd). She performed no affirmative act promoting the theft. See id. The record does not reflect that she was present during the theft, participated in the theft, or helped plan the theft. See Alanis v. State, 891 S.W.2d 737, 743 (Tex.App.-Houston [1st Dist.] 1994, no writ); see also Barnes, 56 S.W.3d at 230. At most, when Jones returned from Houston and told Johnson that he sold the "stuff," Johnson discovered the theft after its commission and failed to report it. See Barnes, 56 S.W.3d at 230. This fact alone does not make her an accomplice. See Gamez, 737 S.W.2d at 322; see also Gausman, 478 S.W.2d at 460. The evidence does not raise a fact issue as to whether Johnson was an accomplice. Therefore, we hold that Johnson is not an accomplice and the court did not err by failing to include an accomplice-witness instruction in the charge or by failing to submit the issue to the jury. See Paredes, 129 S.W.3d at 536; see also Alanis, 891 S.W.2d at 743; Barnes, 56 S.W.3d at 230. Jones next argues that Franklin is an accomplice because he opened the studio for Jones and accompanied Jones to Houston with the equipment. Like Johnson, Franklin was not indicted for the actual theft or a lesser included offense based on his alleged participation in the theft. See Zepeda, 819 S.W.2d at 876. Nevertheless, because the record contains conflicting evidence as to Franklin's participation in the offense, Franklin may be an accomplice as a matter of fact. According to the evidence, Franklin unlocked the studio and deactivated the alarm for Jones on the night of the theft. Only after receiving a call from Jones did Franklin return to lock the studio. The next day, Franklin and Jones traveled to Houston. Franklin drove, while Jones provided directions. In his statement, Franklin told police that he knew where the "stuff" came from, touched nothing, did not know the "exact places" where the equipment was disposed and denied taking the equipment to pawn shops. At trial, Franklin claimed the statement was incorrectly transcribed. This evidence raises two fact issues: (1) whether Franklin was merely present at the scene or whether his act of providing Jones access to the studio constituted an affirmative act promoting the theft; and (2) whether Franklin acted with the required degree of culpability or lacked any knowledge of Jones's intent to commit the theft. See Paredes, 129 S.W.3d at 536. Franklin may have allowed Jones access with the understanding that Jones only desired to use the studio lounge. Conversely, Franklin may have been involved in planning the theft, having agreed to unlock the studio in order to enable Jones to commit the theft. Either way, the evidence raises a fact issue as to whether Franklin is an accomplice. The court erred by failing to submit the issue of Franklin's status as an accomplice to the jury. See Paredes, 129 S.W.3d at 536. Nevertheless, because Jones failed to object to the court's omission, he must prove that the error caused him egregious harm. See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002). Omission of an accomplice-witness instruction is harmless unless "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. A defendant cannot be convicted on the basis of accomplice testimony unless it is corroborated. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon Supp. 2005); see also Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim App. 1999). Corroboration is insufficient if it "merely shows the commission of the offense," but is sufficient if it tends to connect the defendant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14. Corroborative evidence may be "circumstantial or direct." Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). In deciding the issue of corroboration, we eliminate the accomplice's testimony from consideration and "examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense." McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App. 1997). Examples of corroborating non-accomplice testimony include the defendant's: (1) presence "in the company of the accomplice at or near the time or place of a crime;" (2) presence "at or near the place where the crime occurred at or about the time that it happened;" (3) "guilty demeanor;" (4) possession of the fruits of the crime; and (5) motive. Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App. 1997); Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992); see Lyman v. State, 540 S.W.2d 711, 714 (Tex.Crim.App. 1976); see also Preston v. State, 934 S.W.2d 901, 906 (Tex.App.-Houston [14th Dist.] 1996, pet dism'd); Reed, 744 S.W.2d at 127. The record contains sufficient corroborative non-accomplice testimony tending to connect Jones to the theft. Heslip testified that because she refused to post Jones's bond, he was unable to join a trip to Las Vegas with the studio. According to Heslip and Johnson, the theft occurred only a few days after Jones's release from jail. Officer Blackburn and Detective Jones both testified to the lack of damage to the studio's exterior doors. Detective Jones's testimony suggested an "inside job," in that someone deactivated the alarm and the studio's interior damage appeared staged. Furthermore, Jones told both Heslip and Officer David Blackburn that he was present at the studio, having asked Franklin to unlock the studio. Martin confirmed these facts. Jones also told Johnson that the studio was being cleaned; this too places him at the scene of the crime. In fact, on the night of the theft, Jones instructed Johnson to contact him at a certain time, but to contact Franklin and say "oops" if Jones failed to answer the phone. That same night, Johnson observed Jones carrying "cords and stuff" into her house and overheard Jones mentioning serial numbers. Upon returning from Houston, Jones told Johnson that he sold the "stuff." Jones purchased a new motorcycle shortly after the theft. This non-accomplice testimony establishes that Jones: (1) possessed the opportunity to commit the theft as an employee familiar with the studio and its equipment; (2) possessed a motive for committing the theft because he was angry about Heslip's refusal to post bond for him; (3) was present at the studio on the night of the theft; (4) was in the company of Franklin while present at the studio; (5) exhibited guilty behavior following the theft that indicated his involvement in the theft; and (6) was in possession of the equipment after the theft. See Hernandez, 939 S.W.2d at 178; see also Cox, 830 S.W.2d at 611; Lyman, 540 S.W.2d at 714; Preston, 934 S.W.2d at 906; Reed, 744 S.W.2d at 127. Collectively, these factors constitute sufficient corroboration and tend to connect Jones to the theft; thus, the jury could reasonably conclude that Jones committed the theft. See Hernandez, 939 S.W.2d at 178. Therefore, the evidence was not so weak as to either make the State's case any less persuasive or deprive Jones of a fair trial. See Herron, 86 S.W.3d at 632. Because Jones did not suffer egregious harm, he is not entitled to a reversal. We overrule Jones's second point of error. The judgment is affirmed.