Donald Jean Depriest v. State
06-16-00056-CR
| Tex. App. | Oct 13, 2016Background
- STOP agents used confidential informant Waylon Gardner to conduct two controlled buys of methamphetamine from Donald Jean Depriest at 7220 Timber Road (an RV/camper) on Oct. 14 and Oct. 16, 2014.
- Before each buy, officers searched Gardner, supplied buy money and concealed recording devices, and followed him to and from the location.
- Gardner purchased ~0.5 g for $40 on Oct. 14 (video showed a blurry face) and 1.06 g for $100 on Oct. 16 (Gardner called “Donnie” beforehand); officers recovered the drugs and recordings after each transaction.
- Investigators testified about following Gardner, the searches showing no other drugs, ownership/occupancy links tying Depriest to the RV, and that recordings and calls were admitted at trial.
- Depriest was convicted on two counts of delivery of a controlled substance; he appeals arguing (1) insufficient corroboration of the confidential informant’s testimony and (2) an erroneous jury parole-eligibility instruction.
Issues
| Issue | State's Argument | Depriest's Argument | Held |
|---|---|---|---|
| Whether CI testimony was sufficiently corroborated | Corroboration existed: officers followed Gardner to/from 7220 Timber Rd; searches before/after buys; recordings and phone call linking buyer to “Donnie”; evidence Depriest occupied the RV | Gardner’s testimony was the only direct evidence; recordings/phone did not verify the number/voice or directly identify Depriest | Corroboration sufficient; other evidence tended to connect Depriest to the offenses (issue overruled) |
| Whether jury charge misstated parole-eligibility by omitting “plus any good conduct time earned” | Omission was a scrivener’s error and jury was properly instructed otherwise; State argued jury followed instructions and closing urged ignoring parole in sentencing | Charge incorrectly stated parole law and could mislead jury; trial objection focused on inaccuracy but not the specific missing phrase | Error occurred but was unpreserved; defendant failed to show egregious harm, so no reversal |
Key Cases Cited
- Malone v. State, 253 S.W.3d 253 (Tex. Crim. App. 2008) (corroboration standard for confidential informant testimony)
- Cantelon v. State, 85 S.W.3d 457 (Tex. App.—Austin 2002) (cumulative corroboration may connect accused to offense)
- Hernandez v. State, 939 S.W.2d 173 (Tex. Crim. App. 1997) (accomplice/corroboration principles)
- McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) (eliminate accomplice/CI testimony to test corroboration)
- Gill v. State, 873 S.W.2d 45 (Tex. Crim. App. 1994) (view corroborating evidence in light most favorable to verdict)
- Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (two-step review for jury-charge error)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (harmless vs. egregious harm standards for charge errors)
- Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) (preservation requirements for appellate complaints)
- Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) (appellate points must comport with trial objections)
- Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) (requirement that appellate complaint match trial objection)
- Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (specificity required to preserve error)
- Hooper v. State, 255 S.W.3d 262 (Tex. App.—Waco 2008) (factors for egregious-harm analysis re: parole instruction)
- Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991) (egregious harm definitions)
- Stewart v. State, 293 S.W.3d 853 (Tex. App.—Texarkana 2009) (parole-insruction harm analysis)
- Smith v. State, 424 S.W.3d 588 (Tex. App.—Texarkana 2013) (egregious-harm framework)