






In the Matter of M.E.R., a Juvenile
















IN THE
TENTH COURT OF APPEALS
 

No. 10-98-175-CV

IN THE MATTER OF M.E.R., A JUVENILE
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From the 52nd District Court
Coryell County, Texas
Trial Court # 1227
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â M.E.R. was charged with delinquent conduct by committing the offense of burglary of a
habitation.  He pled ânot true.â  A jury found that the conduct had occurred and the court placed
him on one yearâs probation, community service hours, and $12,215 in restitution.  He appeals,
asserting three issues for review.  We will affirm the judgment.
FACTS
Â Â Â Â Â Â Sandy Ferrellâs husband met an untimely death in their trailer home.  Not wishing to remain
at the home where he died, Ferrell and her children moved out immediately without taking the
time to move their belongings.  Ferrell intended to get the belongings at a later date.  Paul and
Novia Fisher, Ferrellâs neighbors, agreed to keep an eye on the place.  On May 29, 1997, the
Fishers noticed that the Ferrell home looked as though it had been burglarized, and they called the
police.  Deputy David Dyer responded to the call.  When he arrived, Dyer noticed that several
items were on the ground outside a broken window.  These items included a ball, a bat, and a
âlavaâ lamp.  Dyer testified that these items led him to believe that children had broken into the
home, although he found no other evidence tending to show who committed the crime.
Â Â Â Â Â Â The next day, Paul Fisher called Dyer and told him that Dustin Ferrell, one of the Ferrell
children, had mentioned an abandoned house where kids would often play.  Paul and Dustin had
gone to the house and discovered some of the items that had been taken from the Ferrellâs.  Dyer
went to the house and discovered an asthma inhaler with M.E.R.âs name on it.  At that time,
M.E.R. became a suspect in the burglary.   
Â Â Â Â Â Â A few days later, Dyer was patrolling the neighborhood and saw M.E.R. and J.P.S. walking
down the road.  He stopped them and asked their names.  M.E.R. did not give his true name and
denied knowing M.E.R.  Dyer also asked the boys if they knew of the abandoned building where
M.E.Râs inhaler was found, to which they responded that they did not. 
Â Â Â Â Â Â J.P.S. indicated that he needed to go home because of the lateness of the day, and Dyer
offered to drive him.  Once the three arrived at the home, Dyer spoke with J.P.S.â stepfather,
Charles Walker.  Walker told Dyer that he had found a cooler containing various items in the
wooded area of his yard a couple of days earlier.  Walker told Dyer that he had asked J.P.S. and
M.E.R. about the cooler and that M.E.R. indicated it belonged to him.  Dyer then asked the boys
if the cooler was still around, and J.P.S. said that it was still in the woods.  J.P.S. and M.E.R.
then got the cooler and brought it to Dyer.  Dyer asked the boys if anything else had been found
in the woods, to which they replied that they had found some other things.  M.E.R. told Dyer that
he had a Nintendo game at his house that they had found, so he and Dyer went to his home to
retrieve it.  Once at the home, M.E.R. gave Dyer the game plus some baseball cards and a bike.
 
Â Â Â Â Â Â On June 9, Paul Fisher again contacted Dyer with information about the burglary.  He told
Dyer that his wife, Novia, overheard M.E.R. âbraggingâ that he and J.P.S. had burglarized the
Ferrell home.  It wasnât until December of 1997 that Dyer finally brought J.P.S. into custody and
took a statement from him.  In that statement, J.P.S. admitted that he and M.E.R. committed the
burglary.  J.P.S. and M.E.R. were both charged as juveniles with burglary of the Ferrell home.
ISSUES
Â Â Â Â Â Â In his first issue, M.E.R. challenges the sufficiency of the evidence to corroborate J.P.S.â
testimony.  His second issue complains that the court erred in failing to instruct the jury on
accomplice-witness testimony.  His third issue asserts that trial counsel was ineffective for failing
to request a jury instruction on accomplice-witness testimony.  
ACCOMPLICE-WITNESS TESTIMONY 
Â Â Â Â Â Â In determining whether a witness is an accomplice, we look at the witnessâ participation
before, during or after the commission of the offense.  McFarland v. State, 928 S.W.2d 482, 514
(Tex. Crim. App. 1996) (citing Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986));
Moron v. State, 779 S.W.2d 399 (Tex. Crim. App. 1985).  There must be an affirmative act
committed by the witness to promote the commission of the offense.  McFarland, 928 S.W.2d at
514 (citing Kunkle, 771 S.W.2d at 441).  J.P.S. was charged with the same offense as M.E.R. and
he admitted to the conduct.  Thus, he was an accomplice-witness as a matter of law.
 See
Holladay v. State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986) (witness was accomplice because
he had been charged with committing same offense as appellant).
Â Â Â Â Â Â Section 54.03(e) of the Family Code requires corroboration of accomplice testimony in
juvenile delinquency proceedings:
An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be
had upon the testimony of an accomplice unless corroborated by other evidence tending to
connect the child with the alleged delinquent conduct or conduct indicating a need for
supervision; and the corroboration is not sufficient if it merely shows the commission of the
alleged conduct.

Tex. Fam. Code Ann. Â§ 54.03(e) (Vernon 1996).  The accomplice-witness language in section
54.03(e) is identical in substance to article 38.14 of the Code of Criminal Procedure.  In the matter
of C.M.G., 905 S.W.2d 56, 58 (Tex. App.âAustin 1995, no writ).  Therefore, we look to the
decisions of the Court of Criminal Appeals under article 38.14 as guidelines for the interpretation
of section 54.03(e).  Id. 
Â Â Â Â Â Â Article 38.14 states that a conviction âcannot be had upon the testimony of an accomplice
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.â  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Â Â Â Â Â The rationale behind the
accomplice-witness rule is that the accomplice is a discredited witness, and his testimony is to be
carefully scrutinized because the accomplice may have an interest in the outcome of the trial and
may be a corrupt source.  Beathard v. State, 767 S.W.2d 423, 429 (Tex. Crim. App. 1989); 
Brosky v. State, 915 S.W.2d 120, 137 (Tex. App.âFort Worth 1996, pet. ref'd).
Â Â Â Â Â Â The test for determining whether evidence is sufficient to corroborate accomplice testimony
is to first eliminate from consideration the accomplice-witness' testimony and then examine the
other inculpatory evidence to ascertain whether the remaining evidence independently "tends to
connect" the defendant with the offense.  McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App.
1997); Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994); Ashford v. State, 833
S.W.2d 660, 665 (Tex. App.âHouston [1st Dist] 1992, no pet.).  Accordingly, we will review
the facts to determine whether J.P.S.â testimony is adequately corroborated.
Â Â Â Â Â Â J.P.S. admitted that he and M.E.R. burglarized the Ferrell home.  He identified the cooler
and other items recovered as things that they had taken.  M.E.R. lied about his identity.  He told
Walker that some of the items from the Ferrell burglary belonged to him, yet told Dyer that he
and J.P.S. found the items.  M.E.R.âs asthma inhaler was found in an abandoned building along
with some of the items taken from the house.  Many of the stolen items were located at M.E.R.âs
house.  Novia Fisher overheard M.E.R. bragging that he and J.P.S. broke into the trailer.  This
evidence âtendsâ to connect M.E.R. with the offense.  Thus, the accomplice-witness testimony
is adequately corroborated.  McDuff, 939 S.W.2d at 612.  Issue one is overruled.
THE CHARGE
Â Â Â Â Â Â The court did not instruct the jury that the accomplice-witness testimony must be
corroborated.  M.E.R. did not request the instruction.  Article 38.14 is not worded, however, in
such a way as to require a request for the instructionâits plain meaning disallows any conviction
based upon the uncorroborated testimony of an accomplice.  Howard v. State, 972 S.W.2d 121,
126 (Tex. App.âAustin 1998, no pet.).  Unlike defensive issues such as those described in Posey
v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), jury instructions regarding accomplice-witness
testimony are laws âapplicable to the case.â  Howard, 972 S.W.2d at 126.  Thus, the fact that the
court failed to include an instruction on accomplice-witness testimony in the jury charge was error,
regardless of whether an objection was made.  Saunders v. State, 817 S.W.2d 688, 693 (Tex.
Crim. App. 1991) (court's failure to instruct jury of need to corroborate accomplice testimony in
arson prosecution was critical to trial's outcome and effectively denied defendant fair trial); Solis
v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Howard, 972 S.W.2d at 126 (citing Posey,
966 S.W.2d at 60); see also Moore v. State, 984 S.W.2d 783, 787 (Tex. App.âWaco 1999, no
pet.) (When the evidence clearly shows that the witness is an accomplice as a matter of law, the
trial court must so instruct the jury.).  The fact that defense counsel failed to object to the omission
of an instruction is only relevant in determining which standard of harm to apply.  See Saunders,
817 S.W.2d at 693; Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on
reh'g)).  Almanza sets forth the appropriate standard of review and is applicable to juvenile cases. 
See In re E.F., 986 S.W.2d 806, 810 (Tex. App.âAustin 1999, no pet. h.); Matter of K.W.G.,
953 S.W.2d 483, 488 (Tex. App.âTexarkana 1997, no pet.).
HARM
Â Â Â Â Â Â Having found error, we must determine whether the error in this circumstance caused
âegregious harm.â Almanza, 686 S.W.2d at 172.  In Saunders v. State, the Court of Criminal
Appeals assessed the degree of harm resulting from a trial court's failure to instruct the jury that
accomplice-witness testimony must be corroborated before it may be used as a basis for
conviction.  817 S.W.2d at 692.  In determining whether there was egregious harm, the Court
focused on whether the corroborating evidence was so "weak and unconvincing" that the State's
case for conviction would have been clearly and significantly less persuasive had the jury been
properly instructed.  Id.  As outlined above, there was substantial evidence to corroborate J.P.S.â
testimony.  We cannot say that this evidence is so weak and unconvincing that the Stateâs case
would have been less persuasive had the jury been properly instructed.  Thus, there was no
egregious harm resulting from the courtâs failure to properly instruct the jury.  See id.  Issue two
is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Â Â Â Â Â Â M.E.R.âs final point asserts that his counsel was ineffective when he failed to request a charge
concerning the accomplice-witness testimony.  This complaint has not been presented to the trial
judge.
Â Â Â Â Â Â We have observed that some claims of ineffective assistance of counsel can be determined
from the trial record.  Gonzalez v. State, 994 S.W.2d 369, 374, n.3 (Tex. App.âWaco 1999, no
pet.). For example, a defense attorney's failure to object to the omission of a jury instruction on
the necessity of corroboration of accomplice-witness testimony may amount to ineffective
assistance of counsel.  See Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991); Howard,
972 S.W.2d at 128 (citing Posey, 966 S.W.2d at 62 (Womack, J., concurring) (defense attorney's
failure to object to jury-charge omission would almost always amount to ineffective assistance of
counsel), and Posey, 966 S.W.2d at 59-60 (Mansfield, J., concurring) (while failure to include
instruction on defensive issue of mistake of fact is not trial court's error, failure of defense counsel
to request such instruction is ineffective assistance of counsel)).  Although M.E.R.âs claim of
ineffective assistance might be determined from the record, we have held that claims not presented
to the trial court are not preserved for our review.  Gonzalez, No. 98-268-CR, slip op. at 8, n.3. 
We now apply this preservation rule to juvenile cases.  Tex. R. App. P. 33.1(a).  Issue three is
overruled.
Â Â Â Â Â Â The judgment is affirmed.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BILL VANCE
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Before Chief Justice Davis,
Â Â Â Â Â Â Â Â Â Â Justice Vance, and
Â Â Â Â Â Â Â Â Â Â Justice Gray
Affirmed
Opinion delivered and filed June 23, 1999
Publish

normal'>The Inventory List
      Pfeffer prepared an inventory list immediately after the
fire.Â  Previously, the list of items
included undamaged items and items of DrillingÂs personal property.Â  See
Drilling, 134 S.W.3d at 470.Â  We
abated the appeal, and ordered the trial court to conduct a new restitution
hearing so these problems could be resolved.Â 
Id. at 471.Â  At the new hearing, the suspect items were
excluded and new calculations were made.Â 
However, Pfeffer, consistent with her previous testimony, testified that
the list was not that of destroyed property alone, but of the entire contents
of the house, and that the list was never meant to demonstrate loss.Â  Pfeffer could not identify which items on the
list were undamaged by the fire, because after the fire she left the area for
three months, and when she returned everything was either ruined by water, or
stolen.Â  Despite these inconsistencies,
PfefferÂs testimony was accepted by the trial court, and Drilling did not
specifically object to the admissibility of this evidence.Â  Therefore, we must include these items in our
analysis.
Â Â Â Â Â Â Â Â Â  Despite our remand, no direct
testimony of fair market value was elicited.Â 
Restitution must be ordered for the value of the property on the date of
destruction, and not the purchase price.Â 
See Tex. Code Crim. Proc. Ann. art. 42.037(b)(i) (Vernon 2003); Drilling, 134 S.W.3d at 470.Â  Drilling testified that some of the items on
the list were not purchased, but were a gift.Â 
Also he stated that the value Pfeffer listed for some items was either a
highly inflated purchase price or the original purchase price.Â  However, an owner may testify either
in terms of purchase price or replacement cost, and is presumed to be
testifying to an estimation of fair market value.Â  See Sullivan
v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986).Â  Drilling
and Pfeffer presented two different accounts concerning the value of the items
in the list, and the trial court chose to believe Pfeffer.Â  While we might have arrived at a different conclusion,
we cannot say that the trial courtÂs decision was outside the Âzone of
reasonable disagreement.ÂÂ  Gonzalez,
117 S.W.3d at 839.
The Testimony of the
Insurance Agent
Â Â Â Â Â Â Â Â Â  Drilling also argues that the court abused its discretion
by awarding restitution to the insurance company because the insurance agentÂs
testimony does not provide a sufficient factual basis, and because the
restitution is to be paid to someone other than the victim.
Â Â Â Â Â Â Â Â Â  While there was no specific testimony of the fair market
value of PfefferÂs house, the insurance agent testified that the company paid
Pfeffer an amount suggested by the companyÂs claims adjustor and investigatory
team.Â  References to the amount an
insurance company has paid is sufficient to prove value.Â  Jimenez
v. State, 67 S.W.3d 493, 506 (Tex. App.ÂCorpus Christi 2002, pet. refÂd)
(holding insurance payment to victim sufficient to prove value despite no
evidence of fair market value).Â  Furthermore,
in the interest of justice,
restitution may be made to a person who has compensated the victim for the loss
to the extent that person has paid compensation.Â  Maloy
v. State, 990 S.W.2d 442, 444 (Tex. App.ÂWaco 1999, no pet.).Â  This includes insurance companies that
compensate victims.Â  See Flores v. State, 513 S.W.2d 66, 69-70 (Tex. Crim. App. 1974); Narvaez
v. State, 40 S.W.3d 729, 730
(Tex. App.ÂSan Antonio 2001, pet. dismÂd) (trial court did not abuse its
discretion by ordering appellant to pay restitution to a hospital for the
victimÂs medical bills); Maloy,
990 S.W.2d at 444.Â  Finding no abuse of
discretion, we overrule DrillingÂs second issue.
Conclusion
Â Â Â Â Â Â Â Â Â  Having
overruled all of DrillingÂs issues, we affirm the judgment of the trial court.
Â 
Â 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  FELIPE
REYNA
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Justice
Â 
Before Chief Justice Gray,
Â Â Â Â Â Â Â Â Â  Justice
Vance, and 
Â Â Â Â Â Â Â Â Â  Justice
Reyna
Â Â Â Â Â Â Â Â Â  (Chief
Justice Gray concurring and dissenting)
Affirmed
Opinion delivered and filed February 23, 2005
Do not publish
[CR25]
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