Dennis Jerome Burton v. State

Affirmed and Memorandum Opinion filed June 28, 2007 Affirmed and Memorandum Opinion filed June 28, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-06-00022-CR _______________ DENNIS JEROME BURTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 984,016 M E M O R A N D U M   O P I N I O N Dennis Jerome Burton appeals a conviction for capital murder[1] on the grounds of: (1) jury charge error; (2) ineffective assistance of counsel; and (3) insufficient evidence. We affirm. Jury Charge Appellant=s first two issues challenge the trial court=s failure to instruct the jury that Dexter Garrett was a party, co-conspirator, or accomplice to the offense committed by appellant. Where a jury charge complaint is not properly preserved at trial, as in this case, then to be reversible error, it must result in egregious harm, which is harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Druery v. State, __ S.W.3d __, __ (Tex. Crim. App. 2007). Appellant=s brief does not indicate how a failure to instruct the jury that Garrett was a party or co-conspirator could have produced egregious harm. If anything, the absence of such an instruction benefitted appellant.[2] Because appellant=s first issue thus fails to demonstrate that the failure to treat Garrett as a party or co-conspirator in the charge could have produced egregious harm, it is overruled. Appellant=s second issue contends that egregious harm resulted from the failure to instruct the jury regarding Garrett as an accomplice because, had such an instruction been given, the accomplice witness evidence in this case would not have been adequately corroborated, and the evidence of guilt would thus be insufficient to support the conviction.[3] However, in order for Garrett to be an accomplice, he must have committed some affirmative act that promoted the commission of the charged offense. Druery, __ S.W.3d at __. Although appellant contends that Garrett was involved in planning the robbery, acting as a lookout, and disposing of evidence, his brief provides no citations to the record for these assertions, and, more importantly, none of them involve taking part in the murder, as contrasted from the robbery. See id. In addition, even without Garrett=s testimony, the following non-accomplice evidence is sufficient to connect appellant with the offense: (1) Tiffany Helaire testified that she saw appellant approach the complainant=s truck and jump in; and (2) immediately after the offense, appellant was in possession of the complainant=s truck. Because there is sufficient corroborating evidence without Garrett=s testimony, appellant=s second issue fails to demonstrate that the lack of an accomplice instruction for Garrett could have resulted in egregious harm.[4] Therefore, appellant=s second issue is overruled. Appellant=s third issue contends that the trial court failed to instruct the jury that Danielle Primes was an accomplice as a matter of law because she was listed as a party and/or co-conspirator in other portions of the charge. However, because appellant=s brief cites no authority and provides no argument in support of this contention, it presents nothing for our review and is overruled.[5] Appellant=s fourth issue contends that the trial court=s failure to include an instruction that Garrett was a party/co-conspirator or an accomplice in the jury charge was a comment on the weight of the evidence because it made the jury think that the trial judge did not think Garrett was a party/co-conspirator and/or accomplice. Appellant=s brief cites no authority to support this contention, and it is not apparent how a trial court=s failure to submit an instruction can express anything to the jury, let alone an opinion on the weight of the evidence. Accordingly, appellant=s fourth issue affords no basis for relief and is overruled. Ineffective Assistance Appellant=s fifth issue contends that his trial counsel was ineffective in failing to request jury instructions that: (1) Danielle Primes was an accomplice witness as a matter of law; (2) Dexter Garrett was a party and/or co-conspirator to the appellant; and (3) Dexter Garrett was an accomplice witness. To prevail on an ineffective assistance claim, an appellant must show that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Garza v. State, 213 S.W.3d 338, 347B48 (Tex. Crim. App. 2007). Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Id. at 348. If counsel's reasons for his conduct do not appear in the record and there is at least a possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Id. In this case, appellant argues that, had these instructions been included in the jury charge, the outcome would have been different because there would have been insufficient evidence to corroborate the accomplice testimony. However, as noted above in response to the second issue, this is incorrect. In addition, because appellant developed no record of his defense counsel's reasons for not requesting the accomplice and/or party and/or co-conspirator instructions, appellant has failed to overcome the presumption that counsel's decision not to do so was sound trial strategy. Because appellant's fifth issue thus fails to demonstrate ineffective assistance of counsel, it is overruled. Sufficiency of Evidence Appellant=s sixth and seventh issues contend that the evidence is legally and factually insufficient to prove beyond a reasonable doubt that appellant committed the offense of capital murder because the testimony of the accomplice witnesses was not sufficiently corroborated with non-accomplice evidence tending to connect appellant to the crime. Because we have rejected appellant=s challenge to the corroborating evidence in response to issue two, his sixth and seventh issues afford no basis for relief. Accordingly, they are overruled, and the judgment of the trial court is affirmed. /s/ Richard H. Edelman Justice Judgment rendered and Memorandum Opinion filed June 28, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do not publish C Tex. R. App. P. 47.2(b). [1] A jury found appellant guilty, and the trial court assessed punishment at life imprisonment. [2] See Reyes v. State, 741 S.W.2d 414, 425 (Tex. Crim. App. 1987) (stating that a charge requiring the jury to find that a defendant acted alone increases the State's burden and thus benefits the defendant); Romo v. State, 568 S.W.2d 298, 302 (Tex. Crim. App. 1977) (op. on reh=g) (stating that a charge on the law of parties enlarges a defendant's criminal responsibility and benefits the State, not the defendant). [3] A defendant may not be convicted based on testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the offense committed. See Tex. Code. Crim. Proc. Ann. art. 38.14 (Vernon 2005). In conducting a sufficiency review under the accomplice‑witness rule, we eliminate the accomplice testimony from consideration. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Where corroborating evidence required for a conviction is lacking, the defendant is entitled to a verdict of acquittal. Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005). However, where corroborating evidence exists, its sufficiency as such is not further reviewed for legal and factual sufficiency. See Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999). [4] See, e.g., Harrison v. State, No. 03-99-00049-CR, 2000 WL 962699, at *2B4 (Tex. App.CAustin July 13, 2000, no pet.) (not designated for publication) (holding because there was sufficient corroboration evidence, appellant failed to demonstrate egregious harm resulting from the absence of an accomplice instruction); Opina v. State, No. 05-98-00403-CR, 1999 WL 431113, at *2B3 (Tex. App.CDallas June 29, 1999, no pet.) (not designated for publication) (same); Coffman v. State, No. 04-94-00773-CR, 1996 WL 383096, at *1B4 (Tex. App.CSan Antonio July 10, 1996, pet. ref=d) (not designated for publication) (same). [5] See Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (stating failure to cite relevant authority waives error).