Jack Egbers v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00023-CR
NO. 02-13-00024-CR
NO. 02-13-00025-CR
NO. 02-13-00026-CR
JACK EGBERS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In two issues, appellant Jack Egbers appeals his four convictions of
providing alcohol to minors.2 In his first issue, Egbers argues that he was denied
1
See Tex. R. App. P. 47.4.
2
See Tex. Alco. Bev. Code Ann. § 106.06(a) (West Supp. 2013).
his rights under the Confrontation Clause because the State did not call one of
the complainants to testify at trial. In his second issue, he argues that the minor
complainants in this case should be considered accomplices as a matter of law,
and as such, the “[n]on-accomplice” evidence is insufficient to support his
convictions; therefore, he should be acquitted of the four charges. We will affirm.
II. BACKGROUND
Roanoke Police Department patrol officer Jimmy Hutchison testified that
on May 2, 2011, V.F., who was thirteen years old at the time, and her parents
came to the Roanoke Police Department to file a report alleging that Egbers had
furnished alcohol to four minor girls, including V.F., on the night of April 30, 2011.
Per his duties at the police department, Hutchison took the report and passed it
on to his sergeant. The sergeant assigned the case to detective Sandy
Pettigrew.
Pettigrew testified that the report involved four minor girls. The record
shows two were thirteen, including V.F.; one was fourteen; and one was fifteen.
Pettigrew’s investigation revealed that a video existed of the four minor girls and
Egbers’s teenage daughter drinking alcohol at Egbers’s residence. Pettigrew
obtained a warrant to search his residence. According to Pettigrew, the search
revealed a camera containing a video. Pettigrew watched the video and
observed Egbers in his daughter’s bedroom pouring alcohol into one of the
thirteen-year-olds’ navels and the fourteen-year-old’s navel and drinking the
alcohol directly from their bellybuttons. Pettigrew said that the video led her to
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believe that Egbers had not only purchased the alcohol, but also made it
available to the four minor girls. The video was also played for the jury. In the
video, one can hear Egbers talking to the girls. At one point Egbers can be
heard saying, “I thought you would have gotten into the tequila already.” Later,
Egbers can be heard instructing one of the thirteen-year-old girls and the
fourteen-year-old girl to “lie down,” as he performed “body shots” on them. While
he performed “body shots,” one of the girls’ shirts had been removed, and she
appeared to be in her jeans and bra only. In another portion of the video, one of
the girls can be heard saying, “I feel like I’m drunk.”
Pettigrew also found a bottle of tequila and a bottle of watermelon vodka
on the top shelf of Egbers’s kitchen pantry. Pettigrew averred that the brands
and types of alcohol “were the same” as the brands and types of alcohol her
investigation revealed Egbers had provided the minor girls. Pictures of these
bottles of alcohol were published to the jury. The bottle of vodka specifically
matches the brand and type of vodka that Egbers can be seen using while he
performed the body shots on two of the girls.
Sergeant Jose Gallo testified that he accompanied Pettigrew during the
search of Egbers’s residence. Gallo questioned Egbers about furnishing alcohol
to the four minor girls. By Gallo’s account, Egbers told him that he “got caught
up in . . . their little dumb shit.” When Gallo asked Egbers where the alcohol was
stored, Egbers explained that it was in the kitchen pantry. Gallo said that Egbers
volunteered that there was “some vodka” in the pantry, “[a]nd then he paused a
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little while and said, [‘]some strawberry crap.[’]” Gallo also recalled overhearing
Egbers tell Pettigrew that the police searching his home was “what he [got] for
. . . trying to be a good dad.” Gallo’s “body mic” captured Egbers’s
communications with both officers. Portions of the captured audio were played
for the jury. In the audio, Egbers can be heard saying to Gallo, “I just got caught
up in their dumb little shit,” and he can be heard telling Pettigrew, “I try to be a
cool dad and I just let things get out of hand is what happened. I didn’t use the
best judgment.”
Three of the minor girls also testified to these events, but the majority of
their testimony is unnecessary for the determination of this appeal and thus will
not be recited. Significant to Egbers’s complaints on appeal is that V.F., the girl
who initially went with her parents to report these events to the police, did not
testify at trial. It is apparent from the record that Egbers was aware that V.F.
would not testify at trial. Egbers mentions her absence in his opening argument
and both the State and he questioned one of the other minor girls about V.F.’s
whereabouts and why she was not there to testify. After the State closed, and
citing the Confrontation Clause, Ebgers moved for a directed verdict on the count
of furnishing alcohol to V.F. The trial court denied his motion.
The jury returned a verdict of guilty on all four counts of furnishing alcohol
to a minor. After the punishment hearing, the jury assessed punishment at 365
days in jail and a $4,000 fine—the maximum penalty allowed under the statute.
The trial court entered judgments accordingly, and this appeal followed.
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III. DISCUSSION
A. Egbers’s Confrontation Clause and Due Process Complaint
In his first issue, Egbers argues that all four of his convictions should be
reversed because V.F. did not testify at trial. Egbers’s argument is that because
she did not testify, his confrontation and due process rights were violated. The
State argues that Egbers did not preserve this argument for appeal. We agree
with the State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g); Sample, 405 S.W.3d at 300. Even constitutional rights may
be forfeited if a proper objection is not asserted in the trial court. Saldano v.
State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002); see also Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (reasoning that due process
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complaints are bound by preservation rules); Anderson v. State, 301 S.W.3d 276,
280 (Tex. Crim. App. 2009) (holding that due process complaints and
confrontation complaints are subject to procedural default).
In this case, Egbers never made a due process objection at trial; thus, to
the extent that he lodges a due process violation on appeal, he forfeited such a
complaint for our review.3 Furthermore, as to his confrontation complaint, the
only confrontation objection that Egbers lodged at trial involved the singular
charge in which V.F. was the complainant. But that objection was not presented
until after Egbers explained to the jury in opening arguments that V.F. would not
testify, after both Egbers and the State had questioned one of the testifying
complainants about V.F.’s whereabouts, and after the State had closed. This
objection failed to satisfy the timeliness requirement of preservation; thus, Egbers
forfeited such a complaint for our review. See Tex. R. App. P. 33.1(a)(1).
Finally, Egbers never lodged a confrontation complaint at trial regarding the
charges related to the other three complainants; thus, he forfeited any such
complaints for our review. See Anderson, 301 S.W.3d at 280. We therefore
overrule Egbers’s first issue.
B. Minor Accomplices
In his second issue, Egbers argues that the evidence is insufficient to
support his conviction because the accomplice-witness testimony was not
3
Although Egbers references “due process” multiple times in his argument,
he does not cite authority or analyze his argument under due process law; rather,
the authorities he cites involve Confrontation Clause issues.
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sufficiently corroborated. Egbers’s argument is predicated on his contention that
the complainants who testified at trial were “accomplices” as a matter of law
because they could have been charged with consumption of alcohol by a minor.
See Tex. Alco. Bev. Code Ann. § 106.04(a) (West Supp. 2013). Egbers’s
argument is also predicated on his assertion that consumption of alcohol by a
minor is a lesser-included offense to the offense the State charged him with;
namely, furnishing an alcoholic beverage to a minor. See id.
The State counters that consumption of alcohol by a minor is not a lesser-
included offense to furnishing an alcoholic beverage to a minor. But the State
appropriately brings to this court’s attention a sister court’s case that supports the
argument that even a minor who provides another minor with an alcoholic
beverage can be considered an accomplice to an adult who furnished an
alcoholic beverage to a minor. See Cornish v. State, 172 S.W.3d 676, 679 (Tex.
App.—San Antonio 2005, no pet.).
We will assume without deciding that the complainants in this case were
accomplices to Egbers’s having furnished alcohol to the four minor girls, but we
conclude that the non-accomplice evidence in this case sufficiently tends to
connect Egbers to the offenses of furnishing alcohol to the four minor girls.
Before addressing Egbers’s accomplice complaint, we note that he is not
challenging the trial court’s failure to submit an accomplice-witness jury
instruction, which would be analyzed under jury-charge-error law. See Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); cf. Munoz v. State, 853
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S.W.2d 558, 560 (Tex. Crim. App. 1993). Instead, Egbers argues that there is
insufficient evidence to corroborate the testimony of the alleged minor-aged
accomplices.
“[A] challenge to the sufficiency of the evidence to corroborate the
testimony of an accomplice is a challenge to the sufficiency of the evidence to
support the jury’s verdict on guilt or innocence.” See Munoz, 853 S.W.2d at 560;
see also Griffin v. State, 936 S.W.2d 353, 356 (Tex. App.—Houston [14th Dist.]
1996, pet. ref’d). In this setting, we eliminate all accomplice evidence from the
record and determine whether inculpatory facts and circumstances in evidence
tend to connect the appellant to the offense to determine whether the accomplice
testimony is corroborated. Munoz, 853 S.W.2d at 559. “Corroborative evidence
need not establish appellant’s guilt of the charged offense nor directly link
appellant to the offense, but it is sufficient if it ‘tends to connect’ appellant to the
offense.” Id. All the facts and circumstances are considered, and the
corroborative evidence may be circumstantial or direct. Griffin, 936 S.W.2d at
356–57 (citing Brown v. State, 672 S.W.2d 487, 488 (Tex. Crim. App. 1984)).
The accomplice testimony need not be corroborated on every element of the
offense. Id. (citing Warren v. State, 514 S.W.2d 458, 463 (Tex. Crim. App. 1974),
overruled on other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App.
1988)).
Additionally, “[p]roof that the accused was at or near the scene of the crime
at or about the time of its commission, when coupled with other suspicious
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circumstances, may tend to connect the accused to the crime so as to furnish
sufficient corroboration to support a conviction.” Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008) (quoting Brown, 672 S.W.2d at 489). But “mere
presence alone of a defendant at the scene of a crime is insufficient to
corroborate accomplice testimony.” Id. (quoting Golden v. S tate, 851 S.W.2d
291, 294 (Tex. Crim. App. 1993)). Furthermore, corroboration of an accomplice’s
testimony is required only if the testimony is “adduced in open court by live
witnesses under oath.” Bingham v. State, 913 S.W.2d 208, 210–13 (Tex. Crim.
App. 1995).
“[A] person commits an offense if he purchases an alcoholic beverage for
or gives or with criminal negligence makes available an alcoholic beverage to a
minor.” Tex. Alco. Bev. Code Ann. § 106.06 (West Supp. 2013).
Here, a search of Egbers’s home produced a video in which Egbers can be
seen pouring alcohol into two of the minor girls’ navels and then drinking it from
their bellybuttons. He can also be heard on the video stating to the girls that he
thought that they “would have gotten into the tequila already.” The search also
produced the types and brands of alcohol that the officers’ investigation had
revealed were the types and brands of alcohol that Egbers had allegedly
provided for the minor girls. And Egbers made incriminating statements to two
different officers, statements which were captured via a police microphone.
These actions and statements by Egbers, coupled with video evidence of
his presence in his daughter’s bedroom, where he encouraged the minor girls to
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drink alcohol, are sufficient to “tend to connect” Egbers to the charges of
providing alcohol to the minor girls. See Malone, 253 S.W.3d at 257. Thus, we
overrule Egbers’s second issue.
IV. CONCLUSION
Having overruled both of Egbers’s issues on appeal, we affirm the trial
court’s judgments.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 6, 2014
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