Beverly Kelly v. Albertson's--Appeal from County Court at Law No 1 of Jefferson County

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Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2004 » Beverly Kelly v. Albertson's--Appeal from County Court at Law No 1 of Jefferson County

State: Texas

Court: Texas Northern District Court

Docket No: 09-04-00390-CV

Case Date: 12/16/2004

Plaintiff: Terrell Lee Jackman

Defendant: The State of Texas--Appeal from 118th District Court of Howard County

Preview:Terrell Lee Jackman v. The State of Texas--Appeal from 118th District Court of Howard County
11th Court of Appeals Eastland, Texas Opinion Terrell Lee Jackman Appellant Vs. No. 11-03-00180-CR -- Appeal from Howard County State of Texas Appellee The jury convicted Terrell Lee Jackman of murder and assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. The jury also made an affirmative finding that appellant used a deadly weapon during the commission of the offense. Appellant attacks his conviction in a single issue. We affirm. The grand jury indicted three individuals for the murder of Lennon Everett Lane (the victim). In addition to appellant, his younger brother Michael Scott Jackman (Michael), and Pedro Castillo, Jr. were also charged with murdering the victim. The victim died as a result of a severe beating inflicted by appellant, Michael, and Castillo. The victim was 16 years old at the time of his death. Michael (15 years old) and Castillo (16 years old) were also juveniles at the time of the murder. Michael and Castillo were certified to be tried as adults for the commission of the offense. Appellant, Michael, and Castillo were tried together in the same trial. Each defendant entered a plea of Anot guilty@ at the commencement of trial. Michael subsequently changed his plea to Aguilty@ during the trial as a part of a plea agreement he reached with the State. Under the terms of the plea agreement, Michael pleaded guilty to the offense of aggravated assault for which he received a sentence of confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 8 years. The jury also convicted Castillo of murder and sentenced him to a term of confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 22 years.[1]

During the early evening hours of Sunday, August 4, 2002, Castillo drank beer and watched television with his brother-in-law Jimmy Johnson. Johnson dropped Castillo off at Tammy Silen=s house sometime after 10:00 p.m. that night with several cans of beer which Johnson had purchased that evening. The victim came over to Silen=s house sometime after 11:00 p.m., and he and Castillo drank the beer and listened to music. Appellant and Michael subsequently joined the victim and Castillo at Silen=s house. At some point in the evening, a fist fight broke out between the victim and Castillo. Castillo stated that the fight did not last very long and that the victim lost the fight.[2] The victim suffered a cut on his forehead and a swollen eye as a result of this initial fight. What happened after the initial fight between the victim and Castillo was disputed by the three defendants. Castillo stated that appellant instructed him that the victim needed to be knocked out so that he would not remember the initial fight. As per Castillo=s version of the events, both he and appellant hit and kicked the victim several times. Castillo stated that appellant instigated the ultimately fatal beating of the victim and that appellant hit the victim repeatedly

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with a hammer. Appellant testified that Castillo was solely responsible for the fatal beating and that appellant tried to save the victim from the beating but was unable to do so. Michael testified that both appellant and Castillo participated in the beating of the victim.[3] The victim=s severely beaten body was found in a field located near Silen=s house the next day. His injuries consisted of a lower jaw fracture, several broken ribs, and several skull fractures. The medical examiner determined the cause of death to be blunt force trauma to the head. Appellant asserts in his sole issue that the trial court erroneously charged the jury with respect to the accomplice witness rule set out in TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979). Article 38.14 provides: 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.

The trial court is under a duty to instruct the jury on the accomplice witness rule if a prosecution witness is an accomplice. Herron v. State, 86 S.W.3d 621, 631 (Tex.Cr.App.2002). An accomplice participates in an offense, before, during, or after its commission, to the extent that he can be charged with the offense or with a lesser included offense. Herron v. State, supra at 631. 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, supra at 631. Accordingly, Michael and Castillo were accomplices as a matter of law with respect to the charges brought against appellant. The trial court included an accomplice witness instruction in the court=s charge pertaining to appellant=s guilt/innocence which tracked Article 38.14.[4] However, the instruction contained an error with regard to the identity of the accomplices and the defendant: The witnesses, [appellant] and MICHAEL SCOTT JACKMAN are accomplices, if an offense was committed, and you cannot convict the Defendant PEDRO CASTILLO, JR. upon the testimony of such accomplices unless you first believe that their testimony or the testimony of either of them 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 [appellant] or MICHAEL SCOTT CASTILLO, JR. (sic) 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 also 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.

The trial court=s instruction in appellant=s charge misidentified appellant as an accomplice and Castillo as the defendant.[5] Accordingly, the charge submitted in appellant=s case did not expressly apply the accomplice witness rule to the testimony of Michael and Castillo. We presume that this omission constituted error.[6] Therefore, we must determine if this error was harmful. As noted by the Court of Criminal Appeals: The [accomplice witness] instruction does not say that the jury should be skeptical of accomplice witness testimony. Nor does it provide for the jury to give less weight to such testimony than to other evidence. 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. Therefore, 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, supra 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. Herron v.
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State, supra at 632. Appellant did not raise an objection to the erroneous instruction in the trial court. This failure affects our harm analysis. Appellant must show egregious harm in order to obtain a reversal of his conviction. Herron v. State, supra at 632; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr. App.1985). Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating non accomplice evidence is Aso unconvincing in fact as to render the State=s overall case for conviction clearly and significantly less persuasive.@ Herron v. State, supra at 632; Saunders v. State, 817 S.W.2d 688, 689 (Tex.Cr.App. 1991).

From appellant=s perspective, the State presented a great deal of accomplice evidence through the testimony and statements of Michael and Castillo. However, several items of non-accomplice testimony were also offered into evidence. Appellant established in his own testimony that he was present when the crime was committed. The State offered evidence that blood consistent with the victim=s blood was discovered on appellant=s pants and shoes. Castillo=s mother, Patsy Castillo, testified that she overheard conversations between appellant, Michael, and Castillo on the day after the beating took place. She testified that appellant expressed his desire to leave town and that he stated that the victim=s body should have been left in an oil field. She also testified that appellant told Michael and Castillo to claim that they were in possession of appellant=s pants and wallet. Athea Darrow testified that she had a conversation with appellant after the altercation wherein he admitted hitting the victim during the beating. We do not find the non accomplice evidence to be so unconvincing in fact as to render the State=s overall case for conviction clearly and significantly less persuasive. The non-accomplice evidence sufficiently corroborated the accomplice evidence because it served the purpose required by Article 38.14 to connect appellant with the offense committed. Appellant=s sole point of error is overruled. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE October 28, 2004 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.

[1]Castillo has also appealed his conviction to our court. It is docketed as Cause No. 11-03-00181-CR. [2]Castillo executed a lengthy written statement which the State offered into evidence. [3]Michael admitted hitting the victim a few times in the face with his fist. [4]The trial court submitted separate written charges to the jury for appellant and Castillo at the conclusion of the guilt/innocence phase of the trial. [5]A corresponding error is present in Castillo=s charge in that it identified Castillo as an accomplice and appellant as the defendant. As noted above, appellant=s charge misnames Michael as AMichael Scott Castillo, Jr.@ in one instance. This misidentification occurred at the page break between the second and third pages of appellant=s charge. A corresponding misidentification occurs at the page break between the second and third pages of Castillo=s charge wherein it misnames Castillo as APedro Jackman.@ Ap-parently, the respective Asecond@ pages of the court=s
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charges were erroneously included in the wrong charge when the two charges were assembled. [6]As a result of the erroneous assembly of the two charges, the trial court actually submitted an accomplice witness rule instruction which applied the rule to the testimony of Michael and Castillo when considering the evidence of appellant=s guilt/innocence. However, this instruction was included in Castillo=s charge.

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