Opinion
No. 06-20-00029-CR
11-13-2020
RICHAR LANDAVERDE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 19-0248X Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
A Harrison County jury convicted Richar Landaverde of evading arrest or detention with a motor vehicle, a third-degree felony. After the jury found true the State's punishment enhancement allegation, Landaverde was sentenced to eleven years' imprisonment. On appeal, Landaverde argues (1) that the trial court erred in failing to submit an accomplice-witness instruction in the jury charge and (2) that his level of offense was improperly raised to a second-degree felony because there was a fatal variance between the enhancement allegation in the indictment and the proof of the prior conviction.
We find that, even assuming error, Landaverde was not egregiously harmed by the omission of an accomplice-witness instruction. We also find that Landaverde's offense was not raised to a second-degree felony and that there was no fatal variance between the enhancement allegation and proof of the prior conviction used to enhance Landaverde's punishment. As a result, we affirm the trial court's judgment.
I. Assuming Error, Landaverde Was Not Egregiously Harmed by the Omission of An Accomplice-Witness Instruction
A. The Evidence at Trial
The evidence at trial showed that Landaverde was apprehended after he engaged several clearly marked patrol units in a dangerous, fifty-minute, high-speed chase that began in Louisiana and ended in a crash in Marshall, Texas. Brandon Cobb, a trooper with the Louisiana State Police (LSP), testified that he attempted to initiate a traffic stop after a random license plate check confirmed that a vehicle driven by Landaverde was stolen. Cobb testified that the vehicle came towards him during the chase, which enabled him to identify Landaverde as the driver. Colton Derrick, another LSP trooper, testified that he joined the chase and was rammed by the vehicle. Derrick testified that he saw right into the suspect vehicle as it came close to and rammed his patrol unit and clearly identified Landaverde as the driver. Officers also testified that they saw a female, later identified as Yarlei Villela, in the vehicle.
Landaverde continued the chase in Marshall, Texas, which was joined by James McConnell, a patrol supervisor with the Marshall Police Department (MPD). McConnell testified that, after the vehicle crashed, he watched as the driver exited the car, laid on the ground, and submitted to arrest by Mack Fuller of the Harrison County Sheriff's Office. Fuller identified Landaverde as the person he arrested. Sergeant Paul Harris with the LSP testified that he made eye contact with Landaverde during the chase and identified him as the driver of the vehicle. He also testified that Landaverde was the person he saw sitting in the backseat of a MPD patrol car after the arrest. Recordings of the chase captured by several officers were played for the jury. Villela was also arrested.
At trial, Villela testified that she and Landaverde, her boyfriend, had stolen the vehicle from her mother. Villela testified that she was in the backseat sleeping when Landaverde, who was driving, began fleeing from clearly marked patrol units. Villela said that she woke up when Landaverde yelled and said she "saw [an] officer pointing a gun at [Landaverde]." Villela estimated that the pursuit lasted thirty minutes to an hour and admitted that she never told Landaverde to stop and pull over. She testified that she initially told police officers that she was driving because she did not want anything to happen to Landaverde. Villela testified that, due to her arrest after the chase, she was charged in Louisiana for unauthorized use of a vehicle and possession of a stolen vehicle.
The evidence also showed that Landaverde stopped the vehicle briefly "not too long after [the chase] started" to allow an unknown male passenger to jump out of the front passenger seat of the vehicle.
B. Standard of Review and Applicable Law
"We employ a two-step process in our review of alleged jury charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32)).
"The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error." Id. at 555 (citing Abdnor, 871 S.W.2d at 732). Here, because the defendant did not object to the charge, we will not reverse the judgment "unless the record shows the error resulted in egregious harm, Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), such that he did not receive a fair and impartial trial." Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.)). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Id. (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). "In making this determination, we review 'the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record as a whole.'" Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism'd, untimely filed) (citing Almanza, 686 S.W.2d at 171)). "Direct evidence of harm is not required to establish egregious harm." Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
An accomplice is one who participates with a defendant before, during, or after the commission of a crime and who acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). A conviction cannot be based on the testimony of an accomplice witness unless corroborated by evidence tending to connect the defendant with the offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14. "A proper accomplice-witness instruction informs the jury either that a witness is an accomplice as a matter of law or that he is an accomplice as a matter of fact." Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). "Whether a defendant is entitled to an accomplice-witness instruction is a function of the evidence produced at trial." Ash v. State, 533 S.W.3d 878, 884 (Tex. Crim. App. 2017). "If the record contains evidence that a witness may have been an accomplice, the issue should be submitted to the jury to decide whether the witness was an accomplice as a matter of fact." Id.
"If the witness has been charged with the same offense as the defendant or a lesser-included offense, then the witness is an accomplice as a matter of law." Id. "[A] witness is [also] an accomplice as a matter of law if there is 'no doubt or the evidence clearly shows' that the witness is an accomplice." Id. (quoting Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004)). As summarized by Ash,
a witness is an accomplice as a matter of law in the following situations:
Id. at 886.• If the witness has been charged with the same offense as the defendant or a lesser-included offense;
• If the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness's testimony against the defendant; and
• When the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice.
C. Analysis
Here, Villela was never charged with evading arrest or a lesser-included offense of evading arrest. As a result, in determining whether Villela was an accomplice as a matter of law, the only question is whether the evidence was so one-sided that any rational juror would have concluded that Villela was an accomplice. Id. at 886.
"Mere presence during the commission of the crime does not make one an accomplice, nor is one an accomplice for 'knowing about a crime and failing to disclose it, or even concealing it.'" Zamora, 411 S.W.3d at 512 n.4 (quoting Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). Also, "[c]omplicity with the defendant in another offense does not make the witness an accomplice." Id. (quoting Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986)).
The evidence showed that Landaverde and Villela stole the vehicle from Villela's mother, but that Villela was sleeping in the backseat of the vehicle when Landaverde began evading arrest from officers. Even so, Villela awoke during the chase, never told Landaverde to stop and pull over, and initially told officers that she was the driver of the vehicle after the chase ended. Yet, the evidence is not so one-sided to show that Villela acted with intent to flee from a peace officer or that she acted with the intent to promote or assist Landaverde in evading arrest. TEX. PENAL CODE ANN. §§ 7.02(a)(2), 38.04(a). This is because the evidence also permitted a finding that Villela was an unwilling participant in the chase who decided to initially blame herself for the offense not to assist Landaverde in evading arrest, but to protect him from the consequences of the completed offense. See Ash, 533 S.W.3d at 879, 886 (finding that passengers were not accomplices as a matter of law to the possession of cocaine found in a vehicle even though they admitted to using other drugs in the vehicle, which smelled of marihuana, because they testified they had no knowledge of the cocaine); Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007) (merely assisting the disposal of a body and a murder weapon after a murder does not make one an accomplice witness in a prosecution for murder). As a result, we find that Villela was not an accomplice witness as a matter of law and that the trial court was not required to "affirmatively instruct[] the jury that the witness [wa]s an accomplice and that h[er] testimony must be corroborated." Zamora, 411 S.W.3d at 510.
However, we will assume that Villela was an accomplice as a matter of fact because
when the evidence presented by the parties as to the witness's complicity is conflicting or inconclusive, then the accomplice-witness instruction asks the jury to (1) decide whether the witness is an accomplice as a matter of fact, and (2) apply the corroboration requirement, but only if it has first determined that the witness is an accomplice.Id. Because such an instruction was not included in the jury charge and because Landaverde failed to object, we evaluate the record for egregious harm.
With the exception of the assumed error in failing to submit an accomplice-as-a-matter-of-fact instruction, the trial court's jury change contained no other errors. During closing argument, the State pointed out that Villela's testimony was corroborated by the testimony of several officers. Even absent Villela's testimony, the evidence strongly proved, through officer testimony, that Landaverde was the driver of the vehicle that led them on a dangerous high-speed chase through two states. Recordings of the chase were shown to the jury and no other persons besides Landaverde and Villela were found in the car after the crash. In light of the record, which contained strong evidence of Landaverde's guilt, we conclude that Landaverde cannot show that he was egregiously harmed by the omission of the accomplice-witness instruction. As a result, we overrule his first point of error.
II. The Level of Landaverde's Offense Was Not Enhanced and there Was No Fatal Variance Between the Enhancement Allegation and Proof of the Prior Conviction
The State's indictment contained a punishment enhancement allegation that "on the 27th day of July, 2015, in cause number 241028815 in the 241st District Court of Smith County, Texas, the defendant was finally convicted of the felony offense of Theft of Property <$200K." Because the evidence instead established that this prior conviction was for "THEFT PROP>=$200K," Landaverde argues that the trial court improperly enhanced the level of his offense to that of a second-degree felony. This is incorrect. The trial court's judgment correctly reflects that Landaverde was convicted of a third-degree felony.
To the extent that Landaverde also argues that his punishment level was improperly enhanced because the State proved that his prior theft conviction involved more money than the State alleged in the indictment, we find no fatal variance between the allegation in the indictment and proof of the prior conviction.
"It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense." Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); see Williams v. State, 356 S.W.3d 508, 517 (Tex. App.—Texarkana 2011, pet. ref'd)). Variances that do not "mislead the defendant to his prejudice" are immaterial. Freda, 704 S.W.2d at 42-43; see Williams, 365 S.W.3d at 516; Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (citing Barrett v. State, 900 S.W.2d 748, 752 (Tex. App.—Tyler 1995, pet. ref'd) (affirming conviction where the allegation and proof both showed the proper cause number, the date of the conviction, the number and location of the convicting court, and the fact the offense was a felony, although there was a variance in the name of the prior offense)). "Thus, absent proof of prejudicial surprise, a variance between the allegations in an indictment and the proof presented at trial is not material and does not require reversal." Williams, 980 SW.2d at 226 (citing Freda, 704 S.W.2d at 42-43).
Here, the proof at trial showed that, as alleged in the indictment, "in cause number 241028815 in the 241st District Court of Smith County, Texas, the defendant was finally convicted of the felony offense of Theft of Property." The only difference between the indictment and the proof was that Landaverde's theft conviction was for more than $200,000.00, not less than $200,000.00, as alleged in the indictment. Landaverde has failed to show that he was misled to his prejudice in any way by this variance. As a result, we find the variance immaterial and overrule Landaverde's last point of error.
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: October 13, 2020
Date Decided: November 13, 2020 Do Not Publish