Brenton W. Shadden v. State ( 2011 )

NO. 07-10-0331-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 29, 2011

______________________________

BRENTON W. SHADDEN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 140^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-420,688; HONORABLE JIM BOB DARNELL, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER REINSTATING APPEAL

            By opinion and judgment dated May 20, 2011, due to Appellant's counsel's failure to file a brief, this Court abated Appellant's appeal and remanded the matter to the trial court for further proceedings. Pursuant to this Court's order, the trial court was directed to use whatever means necessary to determine why counsel had failed to timely file Appellant's brief and to take such action as was necessary to ensure that the brief was filed with this Court by June 6, 2011.  Our order further specifically provided that if Appellant's brief was not filed by that date, the trial court was directed to conduct a hearing and to file findings of fact and conclusions of law by July 8, 2011, determining the following:

1. whether Appellant desires to prosecute the appeal;

2. whether Appellant=s counsel has effectively abandoned the appeal given his failure to timely file a brief;

3. whether Appellant has been denied effective assistance of counsel and is entitled to new appointed counsel; and

4. whether Appellant's counsel's failure to comply with the Rules of Appellate Procedure and the directives of this Court raises a substantial question as to counsel's honesty, trustworthiness, or fitness as a lawyer.  See Tex. Code Jud. Conduct, Canon 3(D)(1), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. B (West 2005).

            Although Appellant's brief was not timely filed, to date, the Court has not received the trial court's findings of fact and conclusions of law. 

            On June 22, 2011, Appellant's counsel did file a brief, which we have held in abeyance pending receipt of the trial court's findings of fact and conclusions of law.  On July 12, 2011, this Court reminded the trial court of its duty, however, our directives have been ignored.  We see no reason why Appellant's appeal should be delayed any further.  Therefore, in the interest of justice, we reinstate Appellant's appeal and deem his brief filed this date.  The State's briefing deadline will be in accordance with the applicable rules of appellate procedure. See Tex. R. App. P. 38.6.

            It is so ordered.

                                                                                    Per Curiam

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y; line-height: 0.416667in; margin-bottom: 0.104167in">          In assessing the legal sufficiency of the evidence to support a criminal conviction, a reviewing court must consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper, 214 S.W.3d at 13. In our analysis, we must give deference to the responsibility of the jury to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences form that evidence. Id.

          Circumstantial evidence alone is sufficient to establish an element of the offense and the sufficiency standard of review is the same for both direct and circumstantial evidence cases. Hooper, 214 S.W.3d at 13. Each fact need not point directly and independently to the guilt of the accused, so long as the cumulative force of the probative evidence, when coupled with reasonable inferences drawn therefrom, is sufficient to support the conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006).

          B.       Engaging In Organized Criminal Activity

          Texas Penal Code § 71.02 provides, in pertinent part, as follows:

A person commits an offense, if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination . . . he commits or conspires to commit one or more [enumerated offenses including the unlawful manufacture of a controlled substance or dangerous drug] . . . .

Tex. Penal Code Ann. § 71.02(a)(5) (Vernon Supp. 2008).

          To establish participation in a combination, the State must prove “that appellant intended to ‘establish, maintain, or participate in’ a group of three or more, in which the members intend to work together in a continuing course of criminal activities.” Nguyen v. State, 1 S.W.3d 694, 697 (Tex.Crim.App. 1999). These activities need not, individually, be criminal offenses. Id. See Tex. Penal Code Ann. § 71.01(a) (Vernon 2003).

          However, before we compare the essential elements of this crime to the facts adduced at trial while applying the applicable standard of review, we must first determine whether the State offered sufficient non-accomplice evidence during trial to corroborate the testimony of Jimmie Don and Bobbie. If so, then we will test the legal sufficiency of all the evidence including Jimmie Don’s and Bobbie’s accomplice testimony. In making these determinations, we consider the evidence adduced at trial by both the State and Appellant. See Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993).       

          C. Accomplice-Witness Rule & Legal Sufficiency

          Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot stand on accomplice testimony unless there is evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). This rule is a statutorily imposed review and is not derived from federal or state constitutional principles that define legal and factual sufficiency standards. Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 77 USLW 3595, __ U.S. __,129 S. Ct. 2075, 173 L. Ed. 2d 1139 (2009).

          When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001)). To meet the requirements of the rule, the corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself. Brown, 270 S.W.3d at 568; Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). Rather, viewing the evidence in a light most favorable to the verdict; Brown, 270 S.W.3d at 568 (citing Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994), the non-accomplice evidence must simply link the accused in some way to the commission of the crime and show that “a rational factfinder could conclude that the non-accomplice evidence ‘tends to connect’ appellant to the offense.” Simmons v. State, 282 S.W.3d 504, 509 (Tex.Crim.App. 2009); Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex.Crim.App. 1997). The corroborating evidence need not connect the defendant to every element of the crime. Vasquez v. State, 56 S.W.3d 46, 48 (Tex.Crim.App. 2001). There is no set amount of non-accomplice corroboration evidence that is required for sufficiency purposes; “[e]ach case must be judged on its own facts.” Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994).

          Moreover, circumstances that are apparently insignificant may constitute sufficient evidence of corroboration. Trevino, 991 S.W.2d at 852. Although proof that the accused was at or near the scene of the crime is insufficient to corroborate; Golden v. State, 851 S.W.2d 291, 294 (Tex.Crim.App. 1993), “when coupled with other suspicious circumstances, [such evidence] may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.” Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App. 1984).

          The non-accomplice evidence at trial established that Appellant used methamphetamine and bought drugs from Hernandez. He also knew Jimmie Don and Bobbie. This evidence corroborates testimony by Jimmie Don and Bobbie that they knew Appellant in connection with their drug-related activities.

          The physical evidence obtained by Deputy Torres, on September 2, 2004, connecting Hernandez with information that there was going to be a “cook” requiring the theft of anhydrous ammonia corroborates Jimmie Don’s testimony that he “cooked” with Hernandez and a “cook” was anticipated that night. The evidence also corroborates Bobbie’s testimony that Hernandez was involved in the combination to manufacture methamphetamine.

          Deputy Torres’s testimony that, on August 11, he detected a strong odor of ether in, and around, Appellant’s house, coupled with his knowledge that ether was used in the manufacture of methamphetamine, and the presence of Appellant and Hernandez at the residence, corroborates Jimmie Don’s testimony that, prior to the arrival of the police, he was at Appellant’s house “cooking” methamphetamine with Hernandez. This evidence corroborates his testimony that he “cooked” at other locations belonging to Appellant. This evidence also corroborates Bobbie’s testimony that Appellant permitted them to use his house to manufacture methamphetamine, was aware they were “cooking” on August 11, and participated in the “cook.” That he had a police scanner and surveillance cameras at his house to monitor activity outside also corroborates Bobbie’s testimony that Appellant used these devices to monitor police activities and call Hernandez with information. It also corroborates her testimony that Appellant was responsible for surveillance on August 11 while they were “cooking” methamphetamine at his house and warned her of the police officers’ arrival. Appellant’s statement corroborates the testimony of Jimmie Don and Bobbie regarding the events of August 11 as well as testimony related to other participation by Appellant in the combination to manufacture methamphetamine.

          Having reviewed the record in its entirety, we find the testimony of Deputies Torres and Marshall, the physical evidence gathered during the investigation, Appellant’s disputed statement to Deputy Torres, and his testimony at trial, provide sufficient non-accomplice evidence to corroborate the testimony of the accomplice witnesses, Jimmie Don and Bobbie Westbrook.

          Moreover, taking all the evidence together and considering Appellant’s statement that he participated in the manufacture of methamphetamine with the members of the combination, we find legally sufficient evidence from which a jury could reasonably infer Appellant intended to participate in a combination by assisting in the manufacture of methamphetamine with, at least, three members of the combination.

          Contrary to Appellant’s assertion, Shaw v. State, 89 Tex. Crim. 205, 229 S.W. 509 (1921) and Kennedy v. State, 78 Tex. Crim. 24, 180 S.W. 238 (1915) do not require a different result. Like Shaw, here, there is corroborating non-accomplice evidence other than Appellant’s statement to lend corroboration to the accomplice testimony. 180 S.W. at 512. Further, Kennedy stands for the proposition that, although accomplice testimony and an incriminating statement , each apart and on their own, may be insufficient to sustain a conviction, the two together may support one another in sustaining a conviction. 180 S.W. at 239. Appellant’s second issue is overruled.   

Conclusion

          The trial court’s judgment is affirmed.

                                                                          Patrick A. Pirtle

                                                                                  Justice

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