Dustin Tuma v. State of Texas ( 2002 )

No. 04-00-00522-CR Dustin TUMA, Appellant v. The STATE of Texas, Appellee From the County Court at Law, Guadalupe County, Texas Trial Court No. CCL-99-1003 Honorable Fred Clark, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 9, 2002

AFFIRMED

Following a jury trial, Dustin Tuma was convicted of and sentenced for possession of marijuana. He appeals, contending the trial court erred in admitting into evidence his driver's license, which had been altered to indicate he was twenty-one years of age, and in failing to properly instruct the jury on the issue of accomplice as a matter of law. The State has not filed a brief. We disagree with Tuma's arguments and affirm the trial court's judgment.

Altered Driver's License

In his first four points of error, Tuma contends the trial court reversibly erred in admitting into evidence his driver's licence, which was altered to indicate he was twenty-one years of age. We disagree. Even if it was error to admit the driver's license, Trooper Sanders testified that Tuma's age on the license had been altered. Tuma has not complained of the admission of this testimony on appeal. Under these circumstances, we hold the error in admitting the altered driver's license, if any, was harmless. See Tex. R. App. P. 44.2 (b) ("Any other error defect, irregularity, or variance that does not affect substantial rights must be disregarded."); see also Schutz v. State, No. 1933-99, 2001 WL 1623303, at *2 (Tex. Crim. App.-Dec. 19, 2001) (court must review entire record in evaluating whether error affected substantial rights.).

Accomplice Witness Instruction

In his final point of error, Tuma contends the trial court reversibly erred in failing to properly instruct the jury on the issue of accomplice as a matter of law.

What follows are the instructions requested by Tuma and given by the trial court:

Requested

The witness, William Richard Turner, II, is an accomplice, if an offense was committed, and you cannot convict the defendant upon Mr. Turner's testimony unless you first believe that his testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Mr. Turner tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.

Given

The witness, William Richard Turner, II, is an accomplice, if an offense was committed, and you cannot convict the defendant upon Mr. Turner's testimony unless you first believe that his testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Mr. Turner tending to connect the defendant with the offense committed, if you find that an offense was committed.

" A conviction cannot 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 1979). However, the Texas Court of Criminal Appeals has held an accomplice witness instruction is sufficient if it instructs the jury that, "before it could find the appellant guilty of the offense ..., it had to find (1) that the offense itself had been committed; (2) that the accomplice witness['s] testimony was truthful; (3) that [the accomplice witness's] testimony itself showed that the appellant was guilty of the offense ...; (4) that there was other evidence, outside of [the accomplice witness's] testimony, that tended to connect the appellant to the commission of the offense ...; and (5) from all of the evidence, including the accomplice witness' testimony, it believed that the appellant was guilty beyond a reasonable doubt of committing the offense ...." Holladay v. State, 709 S.W.2d 194, 201-02 (Tex. Crim. App. 1986). We believe this test is met by the trial court's instruction in this case.

   The judgment is affirmed.

Sarah B. Duncan, Justice

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