John Lee Jr. v. State

Affirmed and Memorandum Opinion filed July 31, 2007 Affirmed and Memorandum Opinion filed July 31, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00208-CR ____________ JOHN LEE, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1010758 M E M O R A N D U M   O P I N I O N A jury convicted appellant John Lee, Jr. of theft and sentenced him to 455 days= confinement in a state jail. In a single issue, appellant argues the trial court erred in refusing a requested accomplice-witness instruction as to extraneous conduct introduced during the guilt-innocence phase of trial. We affirm. I. Factual and Procedural Background Appellant, John Lee, Jr., began operating a clothing store in a flea market in 1997. He sold new and used clothing and purchased clothing from thrift stores and individuals. According to evidence presented at trial, he also purchased new clothing that had been stolen by Adger Armstrong, a former professional football player, who stole clothing to support his drug addiction. Armstrong testified that he met appellant in the spring of 2004 and learned that appellant wanted Zanella brand men=s slacks to sell in his store. Armstrong further testified that he and a woman named Wanda Humphries devised a plan in which Armstrong would drive Humphries to the door of Nordstrom department store, Humphries would run in the store, Asnatch and grab@ several pairs of Zanella slacks, and would then exit the store where Armstrong was waiting to drive away. John Lopez, the loss prevention manager for Nordstrom, testified that he viewed Humphries on videotape executing the Asnatch and grab@ as Armstrong described. Armstrong testified that he sold the slacks to appellant for approximately $30 per pair. Appellant then began placing specific orders for slacks, and Armstrong and Humphries repeated the Asnatch and grab@ at Nordstrom at least twice. Armstrong testified that appellant knew the slacks were stolen when he purchased them. After police arrested Armstrong and Humphries, they enlisted Armstrong=s help in apprehending appellant. In exchange, prosecutors agreed to tell the judge presiding over Armstrong=s pending charges that he had been cooperative in this matter. Captain Dan McAnulty, an investigator at the Harris County District Attorney=s office, asked Armstrong to contact appellant and discuss appellant=s next clothing order. Lopez lent the requested clothing to Armstrong from Nordstrom=s inventory, and Armstrong arranged to meet appellant. The meeting between Armstrong and appellant was observed by several officers and recorded on videotape. The videotape revealed that appellant purchased the slacks he assumed were stolen and placed another order. After appellant=s arrest, police officers executed a search warrant at appellant=s store in the flea market and found twenty-eight pairs of Zanella slacks with Nordstrom inventory tags and the name ANordstrom@ embroidered on a label inside the slacks. Appellant was indicted and convicted for the theft of the slacks that were provided in the sting operation. At trial, Armstrong testified about the offense for which appellant was indicted and further testified regarding the times he previously stole clothes and sold them to appellant. At the close of evidence, appellant requested that the trial court instruct the jury that it could not consider evidence of the extraneous offenses unless Armstrong=s testimony was corroborated. The trial court denied appellant=s request. The jury convicted appellant and sentenced him to 455 days= confinement in state jail. II. Accomplice Witness Instruction In his sole issue, appellant contends the trial court erred in failing to give an accomplice witness instruction as to the extraneous offenses testified to by Armstrong. An appellate court=s first duty in evaluating a jury charge issue is to determine whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). If error is found, the appellate court should analyze that error for harm. Id. Section 31.03 of the Penal Code[1] provides: (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner=s effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another. (c) For purposes of Subsection (b): (1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor=s plea of not guilty; (2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor=s knowledge or intent may be established by the uncorroborated testimony of the accomplice. Tex. Penal Code Ann. ' 31.03 (Vernon Supp. 2006) (emphasis added). Under Section 31.03(c)(2), the uncorroborated testimony of an accomplice is sufficient to establish knowledge or intent of an actor charged with theft under Section 31.03(b)(2). Matthias v. State, 695 S.W.2d 736, 739 (Tex. App.CHouston [14 Dist.] 1985, pet. ref=d); see also Nethery v. State, 29 S.W.3d 178, 185B86 (Tex. App.CDallas 2000, pet. ref=d). Here, the trial court included the following instruction on extraneous offense evidence in the jury charge on guilt-innocence: You are [] instructed that if there is any evidence before you in this case regarding the defendant=s committing an alleged offense or offenses other than the offense alleged against him in the indictment, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the intent or knowledge of the defendant, if any, in connection with the offense, if any alleged against him in the indictment and for no other purpose. Thus, the evidence of extraneous offenses was not used to obtain a conviction, but was instead limited to a determination of appellant=s knowledge or intent.[2] And uncorroborated accomplice testimony may establish an actor=s knowledge or intent. Thus, the trial court did not err in failing to give an accomplice witness instruction as to the extraneous conduct introduced through Armstrong=s testimony. Accordingly, appellant=s sole issue is overruled. III. Conclusion Having overruled appellant=s only issue, we affirm the judgment of the trial court /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed July 31, 2007. Panel consists of Chief Justice Hedges and Justices Hudson and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Section 31.03 has been amended, effective September 1, 2007. Act of May 15, 2007, 80th Leg., R.S., 2007 Tex. Sess. Law Ch. 304 (H.B. 1766). The amended statute does not apply to appellant=s conviction. [2] Appellant cites Bustamante v. State in support of his contention evidence of extraneous offenses is barred if based solely on the uncorroborated testimony of an accomplice to the offenses. 653 S.W.2d 846, 849 (Tex. App.CCorpus Christi 1982, pet. ref=d). Importantly, however, the Corpus Christi court of appeals concluded, Ait was error to admit this uncorroborated evidence of extraneous offenses and, having admitted it, to refuse to give the jury a proper limiting charge.@ Id. (emphasis added). Here, the trial court gave the jury a proper limiting charge.