Cooper v. StateCooper v. State
- Reporters:
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- Before:
- Morse
This is аn appeal from a conviction for burglary of a habitation enhancеd with a prior felony conviction. Upon trial to a jury, appellant was found guilty and sentenced to fifteen years in the Texas Department of Corrections. Wе affirm.
The record shows that the appellant and the State’s witness,- Kellis George, went together to the house, owned by Mr. Simmons, that was burglarized. Upon arrival, apрellant used an iron bar to break open a padlock securing the doоr. They entered the house together and removed a lime green and white telеvision out of the house and loaded it on Mr. George’s truck. They then took the telеvision to a house about six blocks away and sold it to Mr. Donahue. Later that evеning, Mr. George stopped to talk to his friend, Mr. Simmons, who told him that his house had been broken into and his similar television stolen. Upon finding this out, Mr. George told Mr. Simmons of his being “with the guy — that stole it” earlier that day and where it could be found. Mr. Simmons then went to the home of Mr. Donahue and retrieved the television set.
*333At trial, Mr. George testified that appellant had told him that he owned the house and the television, and that he had recently sеparated from his wife and had decided to sell the television. According to Mr. Dоnahue’s testimony, this same story was told to him prior to his buying the television set. Appellаnt denies telling Mr. George or Mr. Donahue he owned the house and television and hаd separated from his wife, and testified that he thought that nobody was living at the house at the time and that all the property in it was abandoned.
Appellant comеs before this court with a single point of error. He contends that the trial court committed error material to his defense and injurious to his rights in failing to present an aсcomplice witness charge to the jury. Appellant orally requested said сharge but failed to present written instructions to the trial court or dictate such instruction to the court reporter as required under
The failure of the trial court to give the accоmplice witness charge did not injure the defendant’s rights or result in an unfair trial. It is well establishеd that an accomplice witness is someone who participated with аnother before, during, or after the commission of a crime. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979). Mere рresence at the scene of the crime is not enough. Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979). Normally, whеre there is a question as to whether a witness is an accomplice, it is prоper to submit that issue to the jury. Arney v. State, supra. However, it is only when the evidence clearly shows that the witness is an accomplice witness as a matter of law that the trial cоurt has a duty to so instruct the jury. Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970); Arney v. State, supra.
We cannot conclude from the record before us that Kellis George was an accomplice witness as a matter of law. Kellis George testified that he believed that the house and the television belongеd to the appellant. This testimony as to the circumstances showing his innocent intent in being connected with appellant’s acts was corroborated by the tеstimony of Mr. Donahue. Mr. George could not have been convicted of the sаme crime appellant was because there was strong evidence that he lacked the requisite intent. Therefore he could not be an accоmplice witness whose testimony is required to be corroborated. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976). Although the facts of this case were such that a properly requested accomplice witness charge should have been given, appellant failed tо properly request the charge under Art. 36.15 and therefore waived any error. Since Mr. George was not an accomplice witness as a matter of law, the trial court was not required to give said charge without proper request.
The judgment of the trial court is affirmed.