
NO. 07-01-0271-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 4, 2001

______________________________


GUARDIANSHIP OF CHRISTOPHER TODD TONEY,
AN INCAPACITATED PERSON

_________________________________

FROM THE COUNTY COURT OF RANDALL COUNTY;

NO.  13,674; HONORABLE TED WOOD, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
 Appellant Gloria Toney attempts to appeal an order dated June 21, 2001, removing
her as guardian of Christopher Todd Toney.  Although appellant filed a notice of appeal,
she has never paid the filing fee required pursuant to Rule 5 of the Texas Rules of
Appellate Procedure.  Appellant filed an affidavit of indigence but, by order dated July 18,
2001, this court overruled her motion to prosecute this appeal as an indigent.  
	On August 15, 2001, appellant was notified that if the filing fee was not paid by
Monday, August 27, 2001, this appeal would be subject to dismissal.  See Tex. R. App. P.
42.3.  Neither a response to that letter has been received nor has the filing fee been paid. 
	Accordingly, the appeal is hereby dismissed.  


							Per Curiam
Do not publish.

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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.
 
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.
  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
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,
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
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
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