

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Lowrence Bernal
Appellant
Vs.                   No.
11-00-00361-CR B 
Appeal from Jones County
State of Texas
Appellee
 
The jury
did not convict Lowrence Bernal of capital murder; it did convict him of the
first degree felony offense of murder.[1]  The jury then assessed his punishment at
confinement for 45 years.  We affirm.
                                                                Background
Facts
The State
indicted appellant, one other man, and one woman for the murder of Andrew
Phillip Sorenson (the victim) on August 20, 1999.  The woman negotiated a plea and testified for the State.  Appellant claims in this appeal that the accomplice=s testimony was not sufficiently corroborated
under TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979).  Appellant also argues that the trial court
erred in allowing proof of extraneous offenses and in permitting improper jury
arguments.
                                                                   Points
of Error




Appellant
presents eight points of error.  First,
he argues in Points of Error Nos. 1 and 2 that the trial court erred in
allowing argument during the punishment phase of trial about how the parole
laws would affect him. Then, he argues in Point of Error No. 3 that the Arepetitive argument of the prosecution as to
parole laws@ was so egregious that it could not have been
cured by an instruction and in Point of Error No. 4 that the trial court erred
in allowing, over objection, the prosecution=s argument that Athe jury would be responsible@ if appellant got out of prison and killed again.  Next, he argues in Points of Error Nos. 5
and 6 that the trial court erred in allowing evidence of extraneous offenses
during the punishment phase of trial Abecause the prejudicial effect of the evidence outweighed its probative
value@ and because there was insufficient proof
that appellant participated in those offenses. 
Finally, he argues in Points of Error Nos. 7 and 8 that the trial court
erred in holding the evidence to be sufficient to sustain the conviction because
Athe accomplice testimony was not corroborated
as required@ by Article 38.14 and because Aan accomplice witness was only corroborated
by the testimony of other accomplice witnesses.@
                                                        The
Accomplice=s
Testimony
Lisa
Thomas Jernigan, the accomplice, testified in response to questions by the
district attorney that she had agreed to plead guilty to the offense of Atampering with physical evidence@ with the understanding that she would be
sentenced to a term of 10 years, that she could seek probation, that she would
testify for the State against the two men who had been indicted for the victim=s murder, and that the murder indictment
against her would be dismissed. 
Jernigan  also agreed that: (1)
if the evidence showed that she participated in the murder, the State could try
her for murder; and (2) if she did not tell the truth when she testified, the
State could prosecute her for perjury.
Jernigan
testified that she was from Great Britain; that she came to the United States
in 1996 while she was married; that she is now divorced; and that her former
husband was stationed at Dyess Air Force Base, near Abilene, until he was sent
to Korea in April of 1999.  
Jernigan
met the victim in April of 1999, and they started dating about one week later.[2]  Their on-and-off relationship lasted from
April of 1999 until August of 1999 when the victim was killed.  Jernigan had a house at 734 Lexington Avenue
in Abilene, and the victim moved into the house with her.  They were sleeping together, and she was
pregnant at the time of his death.[3]  She testified that she was not using drugs
before the victim moved into her house, that the victim stole from her to pay
for methamphetamine which he injected with a needle, and that he got some of
his drugs from David Allen Goyne.[4]





Jernigan
testified that she had thrown the victim out of her house Aa couple of times.@  On
one occasion in July, after the victim was Asupposed to have quit doing drugs,@ she caught him Adoing them again@ and threw him out.  There was
another occasion when they broke up; but Ahis clothes kind of stayed,@ and he kept coming back to visit. 
In late July, the victim voluntarily took drug treatments at the
Serenity House in Abilene, but he did not complete the program.  The victim was living with his mom at that
time; but Amost of his stuff@ was still at Jernigan=s house, and he would stay with her some
nights.  Jernigan said that the victim
never hit her, but that he was Adriving [her] crazy@ and that she Awanted
to get rid of him.@  At that time, the victim  Awas constantly using@ drugs, was Aconstantly
high,@ and was Aseeing things, hallucinating.@  Jernigan=s testimony on direct examination by the
district attorney reads in relevant part as shown:
Q:
Okay.  How many times did you talk to
[appellant] about possibly him helping you do something with [the victim]
because [the victim] was all over you, or [the victim] was doing drugs so much?
 
A: I never
asked him to help me.  I just said I
wanted to get rid of [the victim], and that was a couple of times I said that. 
 
Q: Did you
ever talk to David Goyne about that?
 
A: Not
that I=m aware of, unless he overheard - -
 
                                                           *    *   
*
 
Q: Did you
[go into the kitchen at appellant=s house on the night of August 19, 1999, and tell appellant and Goyne]
that you needed to get rid of [the victim] because he was bumping again?
 
A: Yes,
sir.
 
Q: What do
you mean by bumping?
 
A:
Injecting methamphetamines.
 
Q: What
did you mean by get rid of?
 
A: I mean
I wanted him out of the house.
                                                                  
                                                           *    *   
*




Q: [After the four of
them had gone from appellant=s house in Abilene to Jones County] 
So y=all are walking towards the shed and then
what happens?
 
A: [Appellant] grabs
ahold of [the victim].
 
Q: Do you remember where
[appellant] was in relationship to which side of [Goyne] he was?
 
A: [Appellant] was on this
side and [Goyne] was on this side.
 
Q: And so [appellant]
grabs ahold of [the victim].  How did
[appellant] grab ahold of [the victim]?
 
A: In a headlock.
 
                                                           *    *   
*
 
Q: [After the struggle
between the victim, appellant and Goyne], what happened?
 
A: [The victim] was dead.
 
Jernigan described how appellant and Goyne took the shoes, pants, and
watch from the body; used telephone cords to tie cinder blocks to the hands and
feet; and dropped the body into the well. 
Jernigan admitted that she had Agone to bed@ with
appellant once before he killed the victim and three or four times after the
victim was killed. 
During her cross-examination by appellant=s trial counsel, Jernigan testified that she did not mean for the two
men to kill the victim; that she just meant for them to help her throw the
victim out of her house; that she did not want to go to prison; that she was
hoping for probation; and that, when the four of them were in the car, the
victim put his hand on her hand and said: A[Y]ou=re my Angel,  I love you.@  Jernigan also admitted during
cross-examination that she had lied to the victim=s mother several times after her son was killed and that she had lied
to the law officers who had questioned her. 
Jernigan also admitted that, just before she had sex with appellant, she
asked him Ato get rid of@ the victim.  After she
testified that she was Ahappy that she was pregnant with [the victim=s] child,@ Jernigan admitted that she had Atalked about getting an abortion.@ 




                                                Corroboration of Accomplice Testimony
Article
38.14 provides that a conviction based upon the testimony of an accomplice
cannot be affirmed unless that testimony is Acorroborated by other evidence tending to connect the defendant
with the offense committed.@ (Emphasis added)  The Court of
Criminal Appeals discussed this statute in Brown v. State, 672 S.W.2d 487, 488
(Tex.Cr.App.1984):
A
conviction cannot be had upon the testimony of an accomplice witness 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 test
to determine the sufficiency of the corroboration is to eliminate from
consideration the evidence of the accomplice witness and then examine the
testimony of other witnesses to ascertain if there is inculpatory evidence
which tends to link the accused with the commission of the offense.  All the facts and circumstances in evidence
may be looked to for corroboration, and the corroborative evidence may be
circumstantial or direct.  Furthermore,
it is not necessary that the corroboration directly link the accused to
the crime or be sufficient in itself to establish guilt.  (Emphasis in original, Citations omitted)
 
Jernigan=s testimony is corroborated by testimony from
Joel Wayne Hewitt.  Hewitt was in the
Taylor County Jail (charged with two aggravated robberies) when he
testified.  Hewitt said that the State
had not made any plea offers, that he was Akind of at the mercy of the Court,@ and that the district attorney asked him to testify and tell the
truth.  




Hewitt  was 19 years old at the time of trial.  Hewitt testified that he knew about the
victim being killed, that he knew where appellant and his brother lived, and
that Goyne was Astaying with them.@ Hewitt then testified that he was there the
night that the victim was murdered.  After
he got off work, Hewitt went to appellant=s house.  Appellant, Goyne,
Jernigan, and the victim were in the front bedroom with Hewitt.  Appellant and Goyne told Jernigan that they
wanted to talk to her in the kitchen. 
Hewitt stayed in the front bedroom with the victim.  Later, Hewitt went to the kitchen to get a
drink of water, and he heard Jernigan tell appellant and Goyne that Ashe was tired of [the victim]@ and that A[the victim] was driving her up the wall.@  Hewitt then went back to the
bedroom.  Appellant, Goyne, and Jernigan
came back to the bedroom and asked the victim Ato go with them to pick up some guns and some drugs.@ 
Hewitt said that the victim did not want to go and that Goyne gave the
victim Aa syringe and a bump of methamphetamine.@  After
they talked for about 30 minutes, Jernigan and the victim got up and went to
her vehicle.  Appellant got some Atelephone wire@ and stuffed it into his pants. 
Appellant and Goyne then went to Jernigan=s vehicle.  The four of them
left the house about 1:00 a.m., and Hewitt tried to go to sleep.  About 6:00 or 7:00 a.m., appellant, Goyne,
and Jernigan came back to the house. 
The victim was not with them. 
Hewitt said that there was blood on Goyne=s boots and that they had a pair of pants with them.  They put the pants, a wallet, and a watch on
the table.  Hewitt said that he left the
house to play Nintendo with a friend. 
Hewitt then went back to appellant=s house and heard appellant talking to Goyne.  Hewitt testified that: AThey were scared that the cops were going to find out they killed [the
victim].@ 
Hewitt=s testimony tends to connect appellant with
the offense, and Hewitt was not an accomplice to the murder.  Brown v. State, supra.
Points of
Error Nos. 7 and 8 are overruled.
                                                       Jury
Argument on Parole Laws
Appellant=s trial counsel[5]
made a ABill of Exception@ before the closing arguments to the jury on
punishment to show that he wanted to Aexplain to the jury the misconceptions that the general public have@ about how Agood time and parole eligibility@ are concerned.   Appellant=s trial counsel said that he wanted to
explain to the jury that Athe prison system is not a revolving door@ and that appellant would have to Aflat time, that is day for day, 30 years or half his time, whichever is
less, before he would become eligible for parole.@  The prosecutor said that he
did not object to appellant=s trial counsel arguing what the current statistics show.
The jury
then returned to the courtroom, and the trial court read the charge to the
jury.  The prosecutor=s opening jury argument reads in pertinent
part as shown:
[PROSECUTOR]:
May it please the Court....At this time we start discussing with you
punishment.  As you know, the range is
from five to 99 or life in prison or probation.  And I know [that defense counsel] and I are going to do
something unusual because you know in there [in the charge] where it says don=t do probation or don=t do parole and stuff like that? [Defense
counsel] is going to go over that because I think y=all should know that, okay?  And if I agree to it, [defense counsel]
agrees to it, he is going to explain to you that.  If I=ve got any problems with what he says on it then I will handle it in
rebuttal, okay?
 




[After discussing the State=s position that it was a Asenseless killing,@ that the jury should not consider probation,
and that the jury should consider the Aupper range, towards 99 years,@ the prosecutor discussed the statistics which had been furnished by
defense counsel.]
 
                                               *    *   
*
 
[PROSECUTOR]:  If you give him 20 years, then ten years
[later] the parole board can let him out. 
I am not saying that he can, I=m not saying they can=t.  But he gets to consider
parole.  So on the 11th year if he gets
out and he=s back to using drugs and he goes and kills
somebody, guess who is responsible? 
The 12 of you because you could have done something now and that=s what - -
 
[DEFENSE
COUNSEL]: Judge, I object to that as a misstatement.  It is a misstatement of facts, it is a misstatement of the law.  It=s prejudicial and stated for no other reason than to inflame these
people=s minds.
 
THE
COURT:  Okay.  Well, I instructed the jury on what the law is, and
[prosecutor], please argue within the law.
 
[DEFEBSE
COUNSEL]:  Judge, will you make a ruling
on my objection.  That=s not a ruling.
 
THE
COURT:  I overrule the objection.
 
                                               *    *   
*
 
[DEFENSE
COUNSEL]: Good morning....I want you to use your reasoning intelligence like
you did on the capital part of the case. 
Don=t do anything out of anger, rage, or
resentment.
 
                                               *    *   
*
 
And
the judge has given you the full range of punishment, not less than five years
nor more than 99 years or life.  As
[the prosecutor] told you in trying to steal my thunder, 99 or life doesn=t mean anything.  If you wrote life in there, life in effect is 60 years, because
the law says you have to do day for day one half or 30 years, whichever is
less, and day for day means exactly that, day for day.  No good time, no time off, no giving blood,
no going and giving talks to little kids at school about the things to do to
stay out of prison, day for day.
 
                                               *    *   
*
 




I know you are going to go out there and you
are going to honestly evaluate this and look at it and be reasonable, but I
would not give [appellant] one year more than the devil [the 10 years given to
Jernigan]....It=s not a swinging door down there.  It may have been sometime in the past, I won=t tell you that it wasn=t, but it is not now.  3G offenses are doing 95 to 100 percent of
their time, day for day.
 
                                                           *    *   
*
 
I appreciate your attention, and on behalf of
his family, don=t let anger, rage, or resentment do it.  Find some mercy in that room.  Thank you.
 
Points of Error Nos. 1, 2, and 3 are overruled because there was no
objection to those portions of the State=s argument to the jury. 
TEX.R.APP.P. 33.1(a) states the general rule that, as a prerequisite to
presenting a complaint for appellate review, the record must show that the
complaint was made to the trial court Aby a timely request, objection, or motion.@  
Point of Error No. 4 is overruled because TEX.R.APP.P. 44.2(b) provides
that any error, other than constitutional error, Athat does not affect substantial rights must be disregarded.@ Even though the trial court should have
sustained the objection to the argument that the A12 of you@ would
be responsible if appellant gets out of prison on parole and Akills somebody,@ the trial court told the prosecutor to Aplease argue within the law@; and the prosecutor went on to a different subject.  At the conclusion of the arguments, the
court=s written charge to the jury instructed the
jurors:
You may consider the
existence of the parole law and good conduct time.  However, you are not to consider the extent to which good conduct
time may be awarded to or forfeited by this particular defendant.  You are not to consider the manner in which
the parole law may be applied to this particular defendant.
 
                                            Proof
of Extraneous Offenses




Appellant
argues in Point of Error No. 5 that the trial court erred in allowing evidence
of extraneous offenses because Athe prejudicial effect of the evidence outweighed its probative value.@ 
Appellant argues in Point of Error No. 6 that the trial court erred in
allowing proof of these offenses Abecause there was insufficient proof appellant participated therein.@  Both
of these points refer to the same evidence. 
The State=s first witness during the punishment phase
of trial testified that she had seen appellant Achoking@ his girlfriend and that appellant had also
assaulted her.  There was no objection
to this testimony.  The State=s second witness during the punishment phase
of trial testified that he had taken appellant, Goyne, and the victim to a drug
dealer=s house and that it was their intention Ato rob this drug dealer.@ 
There was no objection to this testimony.  The State=s third witness during the punishment phase of trial testified that
appellant came to his house and talked to him Aabout cooking some dope.@  There was no objection to this
testimony.  As noted earlier in this
opinion, Rule 33.1(a) requires a timely objection to preserve a complaint for
appellate review.  Points of Error Nos.
5 and 6 are overruled.
                                                                This
Court=s Ruling
The
judgment of the trial court is affirmed.
 
BOB
DICKENSON
SENIOR
JUSTICE
 
March 14, 2002
Publish.  See TEX.R.APP.P. 47.3(b). 
Panel consists of:  Arnot, C.J., and
McCall, J., and Dickenson, S.J.[6]




[1]Count One of the indictment charged the capital offense
of committing  murder Ain the course@ of
robbery.  The State did not seek the
death penalty.  Count Two of the
indictment charged the first degree felony offense of murder.


[2]Jernigan 
testified that she had been working with the victim=s mother at Montgomery Ward and that the victim=s  mother asked
her to take him to the Cactus Moon to listen to music.


[3]Jernigan also testified that she had a tattoo of the
victim=s name because she loved him and that he had a tattoo
of her name.


[4]Goyne was with appellant and Jernigan when the victim
was killed.


[5]Appellant=s
trial counsel testified that he was a board certified specialist in criminal
law and that, since 1976, he had tried hundreds of criminal cases, both as a
prosecutor and as a defense attorney.


[6]Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment.


