                                     NO. 07-07-0025-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                   AUGUST 14, 2007
                           ______________________________

                                   DONNY KEVIN DAVIS,

                                                                   Appellant

                                                v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

              FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 53,837-E; HON. ABE LOPEZ, PRESIDING
                         _______________________________

                                 Memorandum Opinion
                           _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Donny Kevin Davis appeals his conviction for burglarizing a habitation via four

issues. He contends 1) the trial court erred in failing to hold a hearing on his motion for

new trial, 2) the trial court erred in failing to include an accomplice witness instruction in the

charge, 3) he received ineffective assistance of counsel because his counsel failed to

request an accomplice witness instruction, and 4) the accomplice witness testimony was
not sufficiently corroborated. We address the fourth issue first for it aids in the disposition

of the others, and, upon doing so, affirm the judgment.

       Corroboration of Accomplice Testimony

        Corroborating evidence need only tend to connect the accused to the offense, not

establish guilt beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex.

Crim. App. 1997). Moreover, there is no exact rule as to the amount of evidence that is

required for corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).

Instead, each case must be decided upon its own facts and circumstances. Martinez v.

State, 163 S.W.3d 92, 94 (Tex. App.–Amarillo 2005, no pet.).

       The following non-accomplice evidence is found in the record before us. Appellant

had a history of soliciting money from individuals, including the burglary victim, at the site

of the burglary. Immediately prior to the burglary, appellant indicated that someone who

lived at the apartment complex (other than the eventual burglary victim) owed him money.

Additionally, appellant was seen by the burglary victim looking into various apartment

windows within twenty-four hours of the time the burglary occurred. He also went to the

apartment complex shortly before the burglary to collect money allegedly owed to him. He

was not only there when the burglary victim left for work but also at or around the time of

the burglary. Next, of the various items stolen, one consisted of a black, thin PlayStation

II. Shortly after the burglary, appellant pawned, at a nearby pawnbroker, a PlayStation II

matching the description of the one stolen. Finally, appellant admitted he was in the

company of the accomplice before and after the burglary; in fact, both were captured

together on video when the item was pawned.



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       While the accused’s presence at the crime scene is by itself insufficient to connect

him to the crime, presence coupled with other circumstances may be enough. Trevino v.

State, 991 S.W.2d 849, 851-52 (Tex. Crim. App. 1999). Here, we have not only presence

at the scene and with the accomplice but also motive (i.e. appellant’s repeated quest for

money from those at the apartment complex), opportunity (presence throughout the

pertinent times), suspicious activity shortly before the burglary (looking into apartment

windows), possession of an item matching the description of one that was stolen,

interaction between appellant and the accomplice, and appellant’s pawning the item for

money. These facts are more than sufficient to tend to connect appellant to the burglary.

See Gill v. State, 873 S.W.2d 45, 48-49 (Tex. Crim. App. 1994) (finding the non-

accomplice evidence sufficient corroboration when it showed 1) that the complainant was

robbed by a person or persons, 2) the defendant had the opportunity to commit the robbery

because he lived nearby, 3) after the robbery, the defendant acted secretively, 4) the

defendant was in the presence of the accomplice after the theft, and 5) the defendant

jointly possessed items matching those stolen). The fact that the complainant did not at

trial positively identify the pawned Playstation device as his own does not mean the jury

could not infer under these facts that it was the same. See Watson v. State, 728 S.W.2d

109, 111-12 (Tex. App.–Houston [14th Dist.] 1987, no pet.) (finding sufficient corroboration

even though no one testified that the dresser in appellant’s possession after the theft was

the one stolen).

       Moreover, the two authorities relied upon by appellant are inapposite. In Ex parte

Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991), the non-accomplice testimony illustrated



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that Zepeda was “near” the murder scene with a group of people that did not include the

decedent, the decedent was shot with a rifle, and Zepeda later tried to sell a rifle to a third

party. The connection between the rifle and the murder was established only through

accomplice testimony which could not be considered. Moreover, nothing discussed in the

opinion suggested that the rifle was of the same make, model or caliber as that used in the

killing. The Court of Criminal Appeals found these circumstances to be less than enough

to connect appellant to the murder. Similarly, the non-accomplice evidence in Howard v.

State, 972 S.W.2d 121 (Tex. App.–Austin 1998, no pet.) was found wanting because it

simply placed Howard in the room wherein drugs were found to be hidden in a light fixture.

Without the accomplice testimony nothing else linked him to those drugs. Like both

Howard and Zepeda, here we have non-accomplice evidence placing appellant near the

crime scene before the crime occurred. Yet, unlike those two cases, we also have non-

accomplice testimony illustrating motive (i.e. appellant’s quest for money), preparation (i.e.

appellant’s looking in windows of various apartments), appellant’s presence with the

accomplice before and after the burglary, appellant’s possession of an item actually

matching the description of something stolen from the apartment soon after the burglary,

and appellant’s pawning of the item in exchange for money. These additional factors

cannot be ignored and suffice to carry the situation before us over the threshold which

could not be cleared in Howard and Zepeda.            Accordingly, we overrule appellant’s

complaint that the non-accomplice evidence was insufficient to connect him to the burglary.

       Failure to Provide Accomplice Instruction or Request It

       Next, appellant asserts that the trial court erred in omitting an accomplice witness

instruction from its charge and that his trial counsel was ineffective because he did not

request it. We overrule the contentions.

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       We acknowledge that the trial court erred in omitting the instruction. It had an

obligation to provide it irrespective of any requests by counsel. Howard v. State, 972

S.W.2d at 126. Similarly, at least one court found it difficult to conceive of a situation

wherein reasonably competent counsel could legitimately forego requesting such an

instruction as part of some trial strategy. See id. Yet, this type of error by the trial court

or deficiency by counsel does not ipso facto warrant reversal. It still must be shown that

harm resulted from the wrong. Id.; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002) (requiring proof of both deficient performance and prejudice before one can succeed

upon a claim of ineffective assistance). Furthermore, the harm emanating from the trial

court’s omission must be egregious due to counsel’s failure to request an instruction,

Howard v. State, 972 S.W.2d at 126-27, while that arising from the deficient performance

must be of a quantum sufficient to create a reasonable probability that the verdict would

have differed had the omission not occurred. Bone v. State, 77 S.W.3d at 833.

       As previously addressed, sufficient non-accomplice evidence existed to connect

appellant to the burglary. Indeed, it alone could have been enough to warrant conviction.

One need only read Poncio v. State, 185 S.W.3d 904 (Tex. Crim. App. 2006) to conclude

this. There, our Court of Criminal Appeals held that the recent possession of stolen

property is enough to support the conviction of the possessor for burglary. Id. at 904-05.

Here, we have that and more.

       Again, the record contained evidence not only placing him at the scene but also

revealing his potential motive, preparing to act, recently possessing a PlayStation matching




                                              5
the description of the stolen PlayStation, hocking the PlayStation, and being in the

presence of another of the thieves before and after the burglary.

       While no one directly testified that the PlayStation which appellant pawned was the

same one that was stolen, we nonetheless have circumstantial evidence sufficient to fill the

void. It consisted of the matching descriptions of the item stolen and the item pawned, the

close geographic proximity between the pawn shop and the burglary scene, the close

temporal proximity between the time of the burglary and the time that appellant pawned

the item, appellant’s effort to spy into windows, and his ongoing search for funds. These

indicia were sufficient to enable one to conclude beyond reasonable doubt that the item

pawned was the item stolen.

       So, while the testimony from the accomplice witness was informative and cited often

by the State, it was not necessarily needed to secure conviction. And, because it was not,

the factfinder could have ignored it in toto and still rendered the verdict it did. And,

because it could have done that, we are unable to say that the trial court’s omission caused

egregious harm or a reasonable probability existed that the outcome would have differed

had the instruction been given. In short, the errors do not warrant reversal.

       Motion for New Trial

       Finally, appellant believes the trial court erred in failing to convene a hearing on his

motion for new trial. Elemental to the contention are the omitted accomplice instruction

and trial counsel’s affidavit wherein he indicated that his failure to request it was not part

of any trial strategy. And, because of trial counsel’s admission, a hearing allegedly was

warranted. We overrule the issue.



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       Whether the trial court erred in failing to conduct an evidentiary hearing depends

upon whether it abused its discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim.

App. 2003).     That occurs when its decision falls outside the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Furthermore, one may be entitled to such a hearing only when the motion and supporting

affidavits raise matters not determinable from the existing record and that could entitle the

movant to relief. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). With these

rules in mind, we return to the evidence of record and our previous discussion of it.

       Despite counsel’s admission, the trial court could have simply reviewed the existing

record and reasonably concluded that the instruction would not have resulted in a different

outcome. Indeed, we acknowledged as much in our discussion of the prior issues. In

short, it could have done much as we did and simply decided that even if there was error

there existed little probability that it affected the jury’s decision. And, because it could have

so decided, we cannot say that it abused its discretion in opting not to hold a hearing on

the motion.

       All issues having been overruled, the judgment is affirmed.



                                                   Brian Quinn
                                                   Chief Justice



Do not publish.




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