                                   NO. 07-06-0223-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  MARCH 31, 2008
                          ______________________________

                                EDWARD L. MARTINEZ,

                                                               Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2004-405,843; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                                     Opinion
                          _______________________________

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

       Edward L. Martinez was convicted of burglary of a habitation with intent to commit

theft. He challenges that conviction in one issue, through which he contends that the

evidence was insufficient to support his conviction because the accomplice testimony was

not sufficiently corroborated. We affirm the judgment of the trial court.

       Background

       During the night of April 25, 2003, the home insurance office of A. L. Hawkins, an

eighty-one-year-old man, was broken into in an attempt to steal money. Hawkins was
stabbed multiple times and nearly died. Appellant had worked as a roofer on the house

several months earlier and had the opportunity to observe cash being kept in the office.1

He and his friends James Fox, Kenneth Pace, and Seth Stone were accused of having

committed the burglary. They had allegedly obtained a bolt cutter from Fox’s girlfriend,

Margaret Estrada, and then obtained a ride from Michael Johnson and Kelly McGaha to

the location. The latter was across the street from Monterey High School. Fox, Pace, and

Stone all pled guilty to the offense. Based upon their testimony and the testimony of

Johnson and Estrada, appellant was convicted of the offense.

        On the first appeal, we reversed the conviction finding that the trial court erred in

omitting an accomplice witness instruction with respect to Estrada and Johnson because

a rational person could have inferred that they were both accomplices. See Martinez v.

State, 163 S.W.3d 92 (Tex. App.–Amarillo 2005, no pet.). The current appeal results from

the re-trial during which the trial court charged the jury that Fox, Pace, Johnson, Estrada,

and McGaha were accomplices as a matter of law and that it could not convict appellant

on their testimony unless there was other evidence tending to connect him with the

offense.2 The jury found appellant guilty as charged and sentenced him to 99 years

imprisonment.

        Sufficiency of the Evidence

        As previously mentioned, appellant attacks the legal sufficiency of the evidence

underlying his conviction because he believes no evidence other than that of accomplices


        1
         At the tim e of the burglary, Hawkins and his office staff had ceased to accept cash or keep cash on
hand in the office.

        2
            Stone did not testify at the second trial.

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tied him to the crime. See TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005) (stating

that a conviction may not rest upon the testimony of an accomplice unless that testimony

is corroborated by other evidence tending to connect the defendant to the offense). We

overrule the issue.

       We initially note that the trial court charged the jury that witness Fox, Pace,

Johnson, Estrada, and McGaha were accomplices as a matter of law. The State deemed

that instruction erroneous. That is, while Fox and Pace may have been accomplices as

a matter of law, the question remained whether the other three were accomplices at all,

according to the prosecution. Thus, the trial court purportedly was obligated to inform the

jury that if it found Estrada, McGaha, and Johnson to be accomplices, it could not convict

appellant based upon their uncorroborated testimony. That, in effect, would have left the

jury free to determine whether or not the three were in fact accomplices, and if it

determined that they were not, then it could consider their testimony.

       Next, we note that one is an accomplice to a crime when he participates before,

during, or after its commission with the appropriate mental state. Paredes v. State, 129

S.W.3d 530, 536 (Tex. Crim. App. 2004). Additionally, one may be an accomplice either

as a matter of law or fact. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006).

However, he does not fall within either category merely because of his presence at a crime

scene or because he has knowledge of a crime and fails to disclose it. Blake v. State, 971

S.W.2d 451, 454 (Tex. Crim. App. 1998). Instead, he must engage in an affirmative act

or omission to promote the commission of the offense. Id. Moreover, unless the evidence

clearly showed that the witness was an accomplice as a matter of law, whether he was an

accomplice at all is left to the jury. Cocke v. State, 201 S.W.3d at 747-48. In other words,

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if the evidence is conflicting as to a person’s status, the jury must decide the issue. Id. at

748.

       Now, who was to decide whether Estrada, McGaha, and Johnson were accomplices

is of import here. This is so because if one was not an accomplice as a matter of law, then

the trial court should not have instructed the jury that all were. And, if the trial court erred

in charging the jury as it did, then we must assess the sufficiency of the evidence to

warrant conviction against a hypothetically correct charge. See Gollihar v. State, 46

S.W.3d 243, 253 (Tex. Crim. App. 2001) (stating that the sufficiency of evidence is

measured against a hypothetically correct jury charge). With this said, we next address

whether the trial court was correct in charging the jury that each witness mentioned was

an accomplice as a matter of law, and in doing so, we need only focus on the testimony

of Johnson.

       Johnson admitted to giving appellant and his compatriots a ride to the neighborhood

in which the burglary and assault occurred in exchange for gas money. So too did he

concede that he knew appellant possessed bolt cutters. Yet, he denied knowing that

appellant and the others intended to commit any crime. He also testified that he did not

start talking with McGaha about the chance that the group was going to commit burglary

until after appellant and the others exited the car and began walking away. At that point,

Johnson said he drove from the area, and did not wait for the others to return. These

circumstances could be reasonably interpreted as indicating that Johnson unwittingly

helped Martinez commit the crime, that is, that his actions were lacking the applicable

mens rea to make him an accomplice. See Powell v. State, 194 S.W.3d 503, 506 (Tex.

Crim. App. 2006) (discussing the applicable mens rea). So, a fact question existed on the

                                               4
matter, and the trial court should not have concluded that he was an accomplice as a

matter of law. At most, it should have instructed the jury to first determine Johnson’s status

as an accomplice and consider his testimony only if it concluded that he was not. Under

that hypothetically correct charge, the factfinder could well have found him not to be an

accomplice. If the jury so concluded then it was free to also consider his testimony in

assessing whether the evidence warranted his conviction, which in turn frees us to

consider it as well in assessing the legal sufficiency of the evidence supporting the verdict.

More importantly, Johnson’s testimony about appellant carrying the bolt cutters and being

left in the vicinity of the crime would corroborate the accomplice testimony that appellant

used the bolt cutters as means to force entry into the house eventually burglarized. In

other words, Johnson’s testimony would tend to connect appellant to the crime which, in

turn, would free all to consider the accomplice testimony.

       In sum and when weighed against a hypothetically correct charge, the evidence was

sufficient to allow jurors to conclude beyond reasonable doubt that appellant committed

burglary with intent to commit theft. Accordingly, we affirm the judgment.



                                                  Brian Quinn
                                                  Chief Justice

Publish.




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