Opinions Released July 6, 2017

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Perry v. State, No. 13-16-00021-CR (Memorandum Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this direct appeal from a conviction, the Thirteenth Court of Appeals discussed an exception to the accomplice witness rule applicable to drug delivery offenses.

Christopher West performed construction work with David Perry in 2015 and rented a room in Perry’s home. West stated that he had been using methamphetamines and that Perry texted him stating he had a “nice shard,” meaning rock crystal meth. West asked Perry to “front” him for the drugs, and the two arranged for the exchange at a convenience store.

When Perry arrived at the convenience store, a police car pulled in behind him with its lights activated. The officer spoke with Perry momentarily before returning to his vehicle. West then refused to come out of the store and meet with Perry in his truck, and Perry threatened to kick West out of his home. West got into the truck, and Perry handed him the meth. As West put the drugs in his pocket, the police officer returned to the vehicle. Perry told the officer that West had a knife in his pocket, and the officer asked to retrieve the weapon. West consented, and the officer found the knife, along with the meth and drug pipes. Both West and Perry were arrested. West gave the officer consent to search his phone—including his text messages with Perry.

West was charged with possession of meth, and Perry was charged with second-degree delivery of methamphetamine between one gram and four grams. West testified against Perry at his jury trial, but he swore he received no favorable treatment for his testimony. Perry was convicted and sentenced to sixteen years’ confinement.

Held: West was not an accomplice witness as a matter of law. The trial court’s judgment was affirmed.

Perry’s sole argument on appeal was that the trial court erred by refusing to submit a jury instruction regarding the accomplice witness rule. The rule provides that a conviction cannot stand on the testimony of an accomplice alone; such testimony must be corroborated by evidence or testimony showing more than the commission of the offense. An accomplice is someone who participates before, during, or after the crime by performing an affirmative act to promote the offense with the relevant mental state.

A witness who is indicted for the same offense or a lesser-included offense as the accused is an accomplice witness as a matter of law. Perry argued that West’s conviction for possession of meth was a lesser-included offense of Perry’s delivery of meth charge. However, the Court of Criminal Appeals has created an exception to the accomplice witness rule for witnesses who possess or receive drugs delivered to them by the defendant. The Court explained that the exception applies where the nature of the crime makes participation by another inevitable and incident to the commission of the offense. A charge for delivery of meth qualifies for this exception. Thus, West was not an accomplice witness as a matter of law, and the trial court did not err by refusing to give the accomplice witness instruction.

Read the Full Opinion Here

Hernandez v. State, Nos. 13-16-00584-CR & 13-16-00585-CR (Memorandum Opinion by Justice Benavides; Panel Members: Justices Rodriguez and Contreras)

In this appeal from an adjudication of guilt and revocation of probation, the Thirteenth Court of Appeals reiterated the rule that a single violation of community supervision will justify revocation.

In 2012, Simon Hernandez III pleaded guilty to two counts of manufacturing and/or delivery of controlled substances—one a first degree felony, and the other a third-degree felony. Hernandez was sentenced to ten years deferred adjudication on the first offense, and ten years’ confinement probated for ten years on the latter offense, with a $1,000 fine for each count and treatment in a substance abuse facility, among other terms.

After Hernandez was dismissed from the substance abuse facility for noncompliance, the State filed motions to revoke and adjudicate. However, Hernandez was found incompetent in October 2014, and he spent the following seven months in a state psychiatric facility to regain competency. Upon release, the State dismissed its motions to adjudicate and revoke.

Two years later, in 2016, Hernandez’s probation was amended to require his placement at an intermediate sanctions facility to deal with his mental health issues. Again, Hernandez was dismissed for noncompliance. The State filed new motions to adjudicate and revoke, alleging eleven total violations of the terms of Hernandez’s two community supervision sentences.

Hernandez’s probation officer testified not only that he had been released from the intermediate sanctions facility, but that Hernandez admitted using drugs, was caught speeding without a driver’s license, did not report for probation on two occasions, violated curfew, was behind on his probation payments, and had not completed his required community service. The trial court granted the State’s motions and sentenced Hernandez to ten years’ confinement on both charges, to run concurrently.

Hernandez appealed.

Held: Hernandez’s unchallenged violations of the conditions of his community supervision were sufficient to support the trial court’s adjudication and revocation. The judgment was affirmed.

On appeal, Hernandez claimed that the State’s financial allegations were false and that the State did not prove he was not indigent. However, Hernandez did not object to this issue at the hearing. Moreover, Hernandez did not challenge the numerous other acts which the trial court found were committed in violation of Hernandez’s probation. Since a finding of a single violation of community supervision is sufficient to support revocation, the trial court’s judgment was supported by sufficient evidence.

Read the Full Opinion Here