East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

Moody v. State (Unpublihed Memo): Moody's own statements along with those of her maintenance contractor were sufficient to corroborate an accomplice’s testimony.

Moody was charged with organized criminal activity concerning gambling at “The Spot” in Trinity County. A co-conspirator said Moody ran The Spot.  Moody denied that, but admitted being at The Spot on occasion, and also admitted owning gambling machines used at another facility, “The Spur.”

An A/C and electrical contractor testified that Moody called him to do repairs at The Spot and personally inspected his work on-site.  That sufficiently corroborated the testimony that Moody ran The Spot.

Moody also contended there was error in the the trial court's answer to a written question from the jury.  Since Moody did not object to the answer at trial, her appeal is rejected.

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Middleton v. State (Unpublished Memo): On the evening of Easter Sunday, 2006, Middleton fired a great number of rounds with his AK-47. He didn’t kill the people he was shooting at. Instead, the rounds carried some distance, and one of his bullets killed an innocent bystander, Dorcas Peroutka,

The sheriff didn't need a warrant to get the murder weapon -- he had consent..  Middleton was 18 years old and living with his father.  Middleton thought his bedroom was his, and his alone.  So he stashed the AK-47 there.  But his father testified that he could go into that room as he pleased, without asking the son's permission.  Consequently, the father had the authority to let the sheriff search Middleton's bedroom.

Middleton also asserted that his father consented to the search out of fear of the sheriff.  In other words, it was coercion, not consent.  But the father testified that he had known the sheriff for years, was on a first name basis with the sheriff, and felt comfortable around the sheriff.  No coercion there.

No charge error: Middleton had the option to request that the jury consider a lesser included offense. As a matter of strategy, he put the jury to a choice of murder or acquittal. The jury chose murder. The omission of some statutorily mandated instructions can be reviewed under the “egregious error” standard even when there was no request for the instruction at trial. The defendant here asked for review under that standard. But lesser included offenses are not statutorily mandated. This is not an “egregious error” case. This is plain old waiver.

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