                                 NUMBER 13-11-00458-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

AUSTIN ARTZ,                                                                             Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                      Appellee.


                        On appeal from the 19th District Court
                            of McLennan County, Texas.


                             MEMORANDUM OPINION                            1




                   Before Justices Rodriguez, Vela, and Perkes
                   Memorandum Opinion by Justice Rodriguez
        A jury convicted appellant Austin Artz of aggravated robbery, and the trial court

sentenced him to thirty-seven years in the Texas Department of Criminal


        1
          This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
Justice—Institutional Division. See TEX. PENAL CODE ANN. ' 29.03 (West 2003). By two

issues, Artz complains that the trial court erred (1) when it did not instruct the jury

regarding how to consider the testimony of Jessica Krupicka as an accomplice witness,

and (2) when it denied Artz's motion to quash the enhancement paragraph of the

indictment. We affirm.

                                          I. CHARGE ERROR

        By his first issue, Artz contends that Krupicka was an accomplice witness as a

matter of law and, alternatively, as a matter of fact and that the trial court should have

given the requisite accomplice-witness jury instruction pursuant to article 38.14 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West

2005); Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (en banc). Artz

asserts that, as a result, he was egregiously harmed.

A. Background2

        Accomplice Cody Simms testified that he and Artz borrowed Krupicka's car and

then robbed a convenience store.3 According to Simms, Krupicka loaned them her car,

knowing that they were going to rob the store. However, Krupicka testified that she had

been dating Artz for about two weeks when Artz asked to borrow her car to go to his

        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
           It is undisputed that Cody Simms was an accomplice and that he was charged with the same
robbery as Artz. Simms testified that during the robbery he and Artz wore "hoodies" and gloves. They
also covered their faces with bandanas. According to Simms, Artz had a .22 revolver in his hand during
the robbery. Artz took money from the register, and Simms took cigarettes and other "stuff." They ran out
of the store through a residential area to the car. Simms testified that when a police car approached, they
drove off. When they thought the car had a flat tire, both men jumped out and ran. Simms, who was not
located during the search, was arrested two weeks later by a United States Marshal.

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friend's house. Artz and Simms left in her car. The next morning Krupicka was told that

Artz was in jail and that her car had been wrecked.

       Randy Hallman testified that he was working at the convenience store when two

men wearing hooded sweatshirts and bandanas accosted him outside the store. One of

the men had a gun. The three went inside the store. Hallman opened the cash register

and gave the money to the men. They also took cigarettes and lottery tickets. Hallman

called 9-1-1 when the men ran out of the store. At trial, Hallman identified a surveillance

video admitted, as State's Exhibit 2, and testified that the men, as seen in the video, wore

"hoodies" and gloves and had bandanas over their faces during the robbery.

       Waco Police Officer Donald McLaughlin, who had been dispatched on a robbery

call, testified that he saw a car that matched the description of one reported to have been

involved in a robbery the night before. When he approached the vehicle, the driver drove

off. The police officers were pursuing the vehicle when it came to a stop in a yard. The

occupants fled on foot. Officer McLaughlin testified that the police set up a one-block

perimeter to contain the suspects.      A canine unit was called to assist, and Officer

McLaughlin "heard Officer Woodruff say his dog had gotten a hit one house over," about

one block south from where the car had stopped. The police found Artz lying in front of a

vehicle parked in an open garage near that house. They found a blue bandana and a

black glove in a bucket located approximately one foot from Artz. Officer McLaughlin

also testified that they located a loaded gun, admitted as State Exhibit 6, in the driveway

of the house next door to where Artz was found.            On cross-examination, Officer

McLaughlin agreed that he did not know who placed the gun there.


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B. Applicable Law and Standard of Review

       A conviction may be had upon the testimony of an accomplice witness so long as

there is some non-accomplice evidence which tends to connect the accused to the

commission of the offense alleged in the indictment. TEX. CODE CRIM. PROC. ANN. art.

38.14; Hernandez, 939 S.W.2d at 176. The non-accomplice evidence need not be

sufficient to establish guilt or even directly link the accused to the offense. Hernandez,

939 S.W.2d at 176.

       We evaluate jury charge error under the Almanza v. State standard. 686 S.W.2d

157, 171 (Tex. Crim. App. 1984) (en banc); see Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009). "The first step is to determine whether there is error in the

charge." Barrios, 283 S.W.3d at 350. "If there was error and appellant objected to the

error at trial, reversal is required if the error 'is calculated to injure the rights of the

defendant,' which we have defined to mean that there is 'some harm.'" Id. (quoting

Almanza, 686 S.W.2d at 171). "If the error was not objected to, [as in this case,] it must

be 'fundamental' and requires reversal . . . only if it was so egregious and created such

harm that the defendant 'has not had a fair and impartial trial.'" Id. (quoting Almanza,

686 S.W.2d at 171).

C. Discussion

       Assuming, without deciding, that both Simms and Krupicka were accomplices and

that the trial court erred in not providing an accomplice-witness instruction, we disagree

with Artz's contention that the non-accomplice evidence was not sufficient to connect him

to the crime. Non-accomplice testimony placed Artz in the neighborhood where the


                                             4
robbery occurred. After evading arrest, two men fled the vehicle that had reportedly

been used in the robbery and had been pursued by the police. Following a scent picked

up from the vehicle, a dog from the canine unit led officers to a home. The police found

Artz hiding on the floor of an open garage next to that home, approximately one block

from the vehicle. Nearby, the police found a glove and a bandana, items that matched

those worn by the men in the surveillance video of the robbery. The gun used in the

robbery was found in a driveway near where Artz was found.

       Based on our review of the evidence, we conclude that there was some

non-accomplice evidence which tended to connect Artz to the commission of the

aggravated robbery such that Artz's conviction could have been had upon the testimony

of the accomplice witnesses. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Hernandez,

939 S.W.2d at 176. Thus, the error, if any, did not create such harm that Artz did not

have a fair and impartial trial and was therefore not egregious. See Barrios, 283 S.W.3d

at 350; Almanza, 686 S.W.2d at 171. We overrule Artz's first issue.

        II. MOTION TO QUASH THE ENHANCEMENT PARAGRAPH OF THE INDICTMENT

       By his second issue, Artz contends that the trial court erred in denying his motion

to quash the enhancement allegation contained in the indictment because his

burglary-of-a-habitation conviction is void and, therefore, the conviction should not have

been available to enhance his minimum punishment. Artz asserts that his conviction is

void because he was younger than seventeen at the time of the conviction and because

the juvenile court did not waive its jurisdiction and did not certify him to stand trial as an

adult in district court. See TEX. PENAL CODE ANN. ' 8.07(a)-(b) (West Supp. 2010); TEX.


                                              5
FAMILY CODE ANN. ' 54.02 (West Supp. 2010). We disagree.

A. Applicable Law and Standard of Review

       Unless waived, the juvenile court has exclusive jurisdiction over children under

seventeen years of age. TEX. FAMILY CODE ANN. ' 54.02. A person may be prosecuted

for an offense committed before the age of seventeen only if the juvenile court has first

waived jurisdiction under section 54.02 of the family code and certified the minor for

criminal prosecution as an adult. TEX. PENAL CODE ANN. ' 8.07(b).

       In a collateral attack of the validity of a prior judgment, "[o]nce the State properly

introduces a judgment and sentence and identifies appellant with them, we presume

regularity in the judgment." Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App.

1987) (en banc). It is then the burden of the party collaterally attacking the judgment as

void to establish any defect in the judgment. Id. Therefore, in this case, assuming that

Artz was younger than seventeen at the time of his conviction for burglary, Artz would

have to show that the juvenile court did not waive its jurisdiction and did not certify him to

stand trial as an adult in district court. See id.; see also TEX. PENAL CODE ANN. ' 8.07(b);

TEX. FAMILY CODE ANN. ' 54.02.

       An appellate court reviews a trial court's decision to deny a motion to quash an

indictment under a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915

(Tex. Crim. App. 2007).

B. Discussion

       In this case, the State made a prima facie showing of a valid prior conviction

through the admission of Artz's penitentiary packet issued in cause number 2003-1267-C.


                                              6
Included in the packet were the judgment and sentence on Artz's plea of guilty from that

prior felony conviction and fingerprints which were connected to Artz. The judgment

identified Artz as the person who had been charged with and convicted of the 2003

burglary of a habitation. See Johnson, 725 S.W.2d at 247. In addition, at the hearing

on his motion to quash, Artz testified that he was arrested in September of 2003 on the

burglary of a habitation that was being used as an enhancement. On cross-examination

Artz also agreed that he pleaded guilty to that 2003 burglary of a habitation.

       Because the State established a prima facie case of proof of a valid, prior

conviction by introducing copies of the judgment and sentence in the case used for

enhancement and connected it with Artz, the burden shifted to Artz to affirmatively show a

defect which proved the conviction was void as he alleged. See id. Although Artz

asserts that the juvenile court did not waive its jurisdiction and did not certify him to stand

trial as an adult in district court, he provides no record citation for this assertion. See

TEX. R. APP. P. 38.1(i) ("The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to . . . the record."). And we find nothing in

the record that shows Artz offered any proof on the issue of the transfer order.

       Therefore, assuming without determining that Artz was a juvenile at the time of the

burglary conviction, it was Artz's burden to establish that the juvenile court did not waive

its jurisdiction and did not certify him to stand trial as an adult in district court, and he did

not do so. See Johnson, 725 S.W.2d at 247. The trial court did not err when it denied

Artiz's motion to quash the enhancement paragraph of the indictment. See Lawrence,

240 S.W.3d at 915. We overrule Artiz's second issue.


                                               7
                                     III. CONCLUSION

       We affirm the judgment of the trial court.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 8th
day of December, 2011.




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