### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 423 -CR

Eliz abe th Sanc he z Bar to n , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF LAMP ASAS COUNTY , 27TH JUDICIAL DISTRICT NO. 7894 , HO NORAB LE WI LLIAM BACH US JR. , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Eli zabeth Sanchez Barton was indicted for c riminal solicitation, a seconddeg ree felony , to which she plea ded not g uilty

. See Tex. Pena l Code Ann. § 15.03 (West 2003) . The jur y fo un d Barto n guil ty

of the of fe ns e , a nd the tr ia l c ourt

a sse sse d p un ish me nt o f t e n y e a rs ’ confine ment, probate d for ten y ear s. I n two points of err or, Ba rton contends that the evidenc e wa s le g a lly and fa c tua lly ins uf fi c ie nt to s us ta in h e r c onvic tio n a nd tha t th e tr ia l c ourt

e rr e d in fa ili ngto

corr ectly instruct the jury

reg ardingthe re quirements for corr oboration under section 15.03(b) of the Te xas P e na l Co de . B e c a

us e we ho ld t

hat th e e vid e nc e is fa c tua lly and le g a lly su ff ic ie nt t o s us ta in Ba rton’s convic tion and that any err or i n the instructions to the jury reg ardingcorr oboration did not

re su lt i n e g re g iou s h arm , w e a ff ir m th e tr ia l c ourt ’s jud g me nt.The re porter’ s rec ord indicate s that “De anda” is a phonetic spelling

. 1 Dea nda re nted a house on Br idge Street fr om Rocky Wolfe, Virg ie Wolfe’s g randson. 2 2 BACK GR OUND Ba rton’s conviction for criminal solicitation was based on the State’s evide nce that she paid a n underc over Te x as De partment of Public Safety (DPS) office r t o burn down the home of her ne ighbor , Virg ie Wolfe.

Wolfe’s residenc e is loc ated at 1101 Br idge Street, L ampasa s, Texas. Ba rt o n h ad previou s l y l i v ed i n a house on the same lot, but was forc ed to vac ate 17 y ear s ag o as a r esult of unpaid prope rty

taxes. The house B arton ha d lived in had bee n torn down, leaving the lot vacant f or many y ear s. Wolfe’s daug hter, L inda McMullin, testified that in November 2005, she purc hased the lot for the purpose of building a house for

her mother . McMullin furt h er t es tified that she had mentioned to Ba

rton that she planne d to build a house on the lot. Ba rton, who had lived in the neig hborhood for many y ear s and wa s 74 y ear s old at the time of trial, wa s often see n in Wol fe’ s neig hborhood, drivin g ar o und in a re d truck. B arton te sti fi e d th a t be c a

us e sh e is p hy sic a lly

dis a ble d an d una

ble to w a lk, sh e ne e de d to dr ive he r t ru c k to g e t to the va

ri ou s pla c e s in t

he ne ig hb or

ho od wh e re sh e ro uti ne ly

fe d c a ts. Th e e vid e nc e su g g e sts tha t Ba rt o nw a s l i v i n g i nh e r t r u c k a tt h e t i m e o f

h e r ar r e s t , b u th a d

anar r an g e m e n tw i t h Jo se Dea nda, a llo wi ng he r t o u se his ho us e on B ri dg e Str e e t to take sh ow e rs . At some point after the 1 2

arr e st, B art on

mov e d in to D e and a ’s ho us e , b ut w a s no lon g e r l ivi ngthe re a t th e tim e of tr ia l. Dea nda’s house was located down the stre et from Wolfe’s house , with only a vaca nt lot sepa

rating the tw o r e sid e nc e s.3 Wolf e ’s g ra nd so n Ro c ky

te sti fi e d tha t he ha d s e e n B art on dr ivi ngpa st Wo lf

e ’s ho us e and par king he r truck so that she could see into the back of the house for

extended periods of time. He f urther te stified that when he discussed t he lot at 1101 Br idge Street with Ba rton, she expressed to him that “she felt l ike t he C ity took that lot from her be cause of the due taxes, and that she didn’t fee l any body should have that lot bec ause that was b asi cally her mother ’s.” B randy Br ice, Rocky ’s fi an cé , testified that she ha d seen B arton’s truc k parke d near Wolfe’s house two or thre e tim e s and tha t on on e oc c a sio n, sh e ha d ob se rv e d B art on “ tos sin g so me thi ngov e r t he fe nc e ” on to Wolfe’s proper

ty

. McMullin also testified t hat s he had seen B arton looking throug h the windows of Wolfe’s house and driving in a vac ant lot behind the house, whic h was fe nced in on thre e sides and not usable a s a thoroug hfar e.

J ames Rowan, a

volunte e r f ir e f ig h te r in L ampasa s, testified that in April 2006, Ba rton drove up to him while he was working outside of hi s residenc e and asked him if he would bur n down her house for $300. She c laimed that she wa nted to collect the insurance money on the house, whic h she identified by

descr ibing Wolfe’s house . Rowan fur ther testified that afte r he refuse d this offer, Ba rton told him t hat she kne w someone who would do the job f or $50. Approxim ately

two wee ks later, Rowa

n took this i nformation to the L ampasa s Fire Marsha l, Reece Oestre ich. At Oestre ich’ s r e q

uest, Rowan g ave a

n officia l statement rec ounting his conve rsation with Ba rton to Sammy

Ba iley , the assistant ch i ef o f pol ice in L ampasa s. As a re sult of Rowan’s statement, an unde rcove r oper ation was a rra ng ed in which Ricky e Fe ist of the DPS Specia l Crimes Unit was to serve as the unde rcove r office r. On the morning of May 10, 2006, Ba

rton, Rowan, and Fe ist held a meeting at B arton’s truc k, which wa s parke d in an open f ield near Wolfe’s4

neig hborhood. An a

udio rec ording of this meeting was play ed in the pre sence of the jury

. Rowan introduced Fe ist to Ba

rton as his c ousin a

nd asked Ba

rton if she reme mbere d asking h i m t o b u rn down the house. W hen B arton re sponded af firmatively , Fe ist ex plained that he w as willing to do the job. Ba

rton asked him how much the job w ould c ost a nd verifie d that he knew

which house she wanted to burn down. Fe ist told Ba rton that he would do the job for $100, but that he would nee d to ge t some money up front. Ba rton stated that she neede d to g et money from the ba nk and re quested that they meet ag ain that day

so that she could g ive the money to Feist. L ater that same d ay , Ba rt on, Rowan, and F eist held a sec ond meeting at B arton’s truck, which was parked on Bridg e Stree t. Audio and video re cording s of the sec ond meeting wer e pla y e d f or the jur y . B art on a sk e d F e ist

a numbe r o f t ime s if

he wa s r e a lly

g oin g to b ur

n th e ho us e down and a g ain indicated that she wante d to be pre sent, but Fe i s t t o l d h er that he wor ked alone

. F e ist a sk e d B art on

if sh e ha d a g a s c an that he c ou ld us e fo r the job , b ut s he ans we re d th a t sh e did not. Ba rton then delivered $50 to Fe ist for the purpose of bur ning down Wolfe’s house, stating that she would mee t him the nex t morning at the same location to pay him another $50 if he completed the job. Rowan and F eist both testified that t h e amount of ca sh Ba rton hande d to Feist wa s $50. When the money

exchang ed hands, F eist signa led to the off i cer s standing by , who then ar rested Ba rton for c riminal s o l i ci t at ion. Ba iley testified that af

ter the a rre st was made, F eist turned the $50 in cash ove r to her a s evidenc e.

Ba rton took the stand and testi fied that Rowan “is a li ar,” and that she had neve r bee n to his residence or aske d him to burn down a house. She testified that Rowan initially approa ched her to discuss a pic kup truck that he was int ere sted in stealing . Rowan testified that he did have a5

conver sation with Bar

ton involving a truck at one time, but he insisted that he wa s merely interested in “taking ” the truc k. I t is not clea r from Rowan’s testimony what he me ant by

“taking ” the truc k, as he state d that he wa s “g oing to look for the owner

first,” a nd later tes t ified that he “ wasn’t planning on taking it,” but was only “looking at i t.” According to Rowan, Ba rton sug g ested that he steal the truc k and split the money with her, a

n offe r which he ref

used. Ba rton also testified that during h er co n v ersation with R owan a bout the truck, he p ro p o s i t i o n edh er s ex u al l y an d gav e h er $ 2 0 , wh i ch s h e p re s u m ed wa s i n t en d edt o b e i nex ch an ge for se x . Rowan denie d these e vents in his testim ony .

Ba rton furthe r testified that on the day of her arr est, she met with Rowan a nd a man that Rowan introduced as his c ousin, a nd that Rowan “said something, me want to burn the house

. An d I did n’ t—I did n’ t—I do n’ t kn ow wh y he sa id that, bu t I did ha nd him his $2 0 th a t I

ow e d h im for the car t.” There is no other mention of a car t in any other evidenc e or te stimony . Ba rton testified that she never g a v e F e is t $ 5 0 , an d th a t t h e o n ly c a s h th a t e xc h an g e d

h an d s a t t

h e me e ti n g w as Rowan’s $20. In other testimony , Ba rton stated that she r eturne d Rowan’s $20 because she believe d he wa s ang r

y a t h e r f o r n o t p e r f

o r mi n g s e xu a l a c ts in e xc h an g e f o r th e mo n e y . Sh e te s ti f

ie d that befor e the da

y of her arr est, Rowan had c ome to see he r “w hen he w as re al mad and he was c ussing,” and aske d for his $20 bac k. Ba rton testified that she ha d told him she would g o to the bank and g et his money , and that it was this money that she re turned to him on the day of her arr est. B art on de nie d ask ing F e ist or Row an to bur n dow n Wolf

e ’s ho us e or

me e tin g wi th Fe ist a n d R o wa n a sec ond time on the day of her arr est. When asked a

bout the rec ording of her second meeting with Fe ist and R owan, Bar ton stated, “Iwould call that a liar beca use there is a lot of wa y s the law c an fix thi ng s up to blame any body .”6 When asked about the testimony that she had be en par

king ne ar Wolfe’ s house and looking in the windows, B arton testified that she only parke d in the are a to fe ed ca ts under a ne arby shade tree, stating, “I have been parking there ever since 1980, e ven whe n Ilived there in my house.” After 35 minutes of deliberation, the jury found Ba rton g uilty

of cr iminal soli citation. Ba rton’s motion for newtrial was ove rruled by operation of law, and this appe al followed.

STA ND AR

D O F RE VI EW I n revie wing the leg al s ufficie ncy of t he evidence, we mus t view the e vidence in the light most favor able to the verdic t to determine whe ther a ny rational trier

of fa ct could have found the e ssential elements of the offe nse bey o n d a reasonable doubt. Swe ar inge n v . S tat e , 101 S.W .3d 89, 95 (Tex. Crim. App. 2003). When fac ed with conf licting e vidence , we pr esume the t rier of fac t resolved c onflicts in favor of the ver dict. Fu e nte

s v . S tat e , 9 9 1 S. W. 2 d 267, 271 (Tex. Crim. App. 1999).

I n deter mining factual sufficiency , we must weig h all the evidenc e in a ne utral lig ht and may set the finding aside only if the evide nce is so we ak that the ve rdict see ms clear ly wrong or manife stly

unjust , or the ve rdict is ag ainst the g reat weig ht and pre pondera nce of the evidenc e. W a t s o n v . Sta te , 2 0 4 S.W .3d 404, 414-15 (Te x . Crim. App. 2006). An appe llate cour t must be appropr iately

defe rential to the jury ’s verdic t, in order to a void substit uting its own judg ment for that of the fa ctfinder

. Va sq ue

z v . S tat e , 67 S.W .3d 229, 236 (Tex. Crim. App. 2002). Th e jur y is t he so le judge of the c redibility

of the witnesse s and the weig ht to be acc orded the ir testimony

. Id

. A fa ctual sufficie ncy

revie w must inclu d e an ex am ination of the most important and rele vant evidenc e7

t h at supports the appe llant’s complaint on appea l. Sim s v . S tat e , 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

The standard of revie w for jury -cha rg e error depends on whether a timely objection was made in the trial court. Al ma nz a v . S

tat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985). I f er ror in a jury char g e was the subject of a timely objection, reve rsal is require d if the er ror is ca lculated to injure the rig hts of the def endant. Id. I f n o pro per ob je c tio n w a s ma de a t tr ia l, r e ve rs a l is on ly proper in the prese nce of

eg reg ious harm. Id.

DI SCU SSIO N Sufficiency of the E

videnc e B art on a sse rt s tha t the e vid e nc e a t tria l wa s b oth le g a lly and fa c tua lly ins uf fi c ie nt t o convict her

of the off

ense of criminal soli ci t at i o n . T he evide nce introduc ed at tria l included a photogr aph and a

n audio re co rd i n g o f B arton’s f irst meeting with Rowan and F eist, in which she neg otiated a pr ice f

or havingFe ist burn down Wolfe’s home and asked for time to go to a ba nk and

re tr ie ve the ne c e ssa

ry fu nd s f or pa y me nt. Th e e vid e nc e a lso inc lud e d bot h a v ide o a nd an a ud io

rec ording of B arton’s se cond mee ting with Rowan and Fe ist—a meeting which she c laimed did not take pla c e —in

wh ic h B art on

a sk e d F e ist

se ve ra l ti me s if

he wo uld burn do wn the ho us e , o ff e re d to he lp h im c omp le te the job , a nd a g re e d to me e t hi m a t th e sc e ne the ne xt mor nin g to pay him

the re st of the money

once the job was finished. The evidenc e also include d Rowan’s testimony reg arding Ba rton’s off er to pa y him $ 3 0 0 t o burn down a house, F eist’s testimony reg ardingBa

rton’s comments during the two meeting s in w hich he serve d as an underc over office r, and the testimony8

of Roc ky , B ri c e , a

nd Mc Mu lli n, e a c h of wh om te sti fi e d th a t th e y ha d s e e n B art on

a c tin g su sp ic iou sly

aro un d Wo lf

e ’s ho us e pr ior

to h e r a rr e st. The e vidence in Ba

rton’s favor consists of her own testimony

that she did not meet with Rowan and F eist a sec ond time on the day of the a rre st, that she never

offe red t o pay Row an o r F e ist

to b ur n d ow n a ho us e , a nd that the mon e y that e xch ang e d h and s at he r m e e tin g wi th Row an a nd F e ist wa s actu all y th e ret

ur n o f $ 20 to R ow an th a t sh e be lie ve d h e ha d g ive n h e r i n exchang e for

sex. Barton a lso attempted to discredit Rowan’ s statements by testify ing that she had pr e vio us ly

ha d a c on ve rs a tio n w ithRow an a bo ut a tr uc k th a t he int e nd e d to ste a l. B art on a lso explained the testimony that she had fre quently been se en par

ked nea r Wolfe’s house by

testify ing that sh e wa s me re ly

pa rk ingthe re to f

e e d c a ts, a s sh e ha d d on e fo r m any y e ars . B art on ’s te sti mony c on fl ic ts with the a ud io an d vide o re c or din g s pre se nte d at tr ia l,

as we ll as the testimony

of F eist, Rowan, and B ailey . I n a leg al-suff iciency revie w, we vie w the evidenc e i n t h e l i gh t most favora ble to the ver dict and assume that the jury resolved e videntiary

co n fl i ct s i n fa vor of the pr evailing party

. Swearingen , 1 01 S.W. 3d a t 95 . T he re fo re , w e mus t assume that

th e ju r y r e s o lv e d th e c o n f li c ts b e tw e e nB arto n ’ s te s ti mo n y an d th e r e ma in d e r

o f the evidenc e by

choosing not to believe B arton’s te stimony . As a re sult, we hold that the evidenc e at trial was leg ally

sufficie nt to find Bar

ton guilty of the off ense of criminal solicitation. I n a fa ctual-suf

ficienc y revie w, we vie w t he evidence in a neutr al light to dete rmine whether the evidenc e is so wea

k that the ver dict seems cle arly wrong o r m an i fe s tly

unjust, or the verdic t is ag ainst the g reat weig ht and prepondera nce of the evide nce. W

atson , 204 S.W .3d at 414- 15. Viewingthe evidenc e in a ne utral lig ht, including the a udio and video re cording s of B arton’s9

meeting s with Feist and Rowan, as well as the testimony of F eist, Rowan, B ailey , Rocky , Br ice, a nd McMullin, we deter

mine that the evidenc e wa s not so weak that the ve rdict see ms clear ly wrongor manifes tl y u n

ju s t. F u rth e r

mo r e , th e g r e a t w e ig h t an d p r e p o n d e r an c e o f th e e v id e n c e s u p p o rts the g u i l t y v e r d i c t , a s t h e o n l y e v i d e n c e i nB art o n ’ s f

a v o r c o n s i s t s o f

h e r o w ns e l f

- s e r v i n g t e s t i m o n y. Se e Bu sta ma ntev . S

tat e , 1 06 S.W. 3d

73 8, 74 1 ( Te x. Cr im. Ap p. 20 03 ) (h old ing that jur y is fr e e to disbelieve de fenda

nt’s self-se rving testimony in li g ht of contra dictory

evidenc e). A s a re sult, we hold that the evidenc e is fac tually sufficie nt to support the jury ’s finding that Ba rton was guilty

of criminal solicitation. Ba

rton’s first issue is overr

uled. Jury- Charge Error

I n Ba rton’s sec ond issue on appea l, she contends that the trial cour t erre d in failing to corre ctly

instruct the jury

reg arding

the re quirements for corr oboration under section 15.03(b) of the pena l code. See Tex. Pena l Code Ann. § 15.03(b). Section 15.03(b) states, “A pe rson may not be convic ted under

this section on the uncorr oborate d testimony of the pe rson alleg edly

solicited and unless the solicitation is made under c ircumstance s strong ly corr oborative of b o t h the solicitation itself and the a ctor’s intent that the other pe rson ac t on the solicitation.” Ba rton argues in her br ief on appea l that “there was no c orrobor ation instruction included in the Court’s cha rg e.” A r e a din g of

the jur y c ha rg e us e d in B art on ’s c a se re ve a ls that pa ra g ra phtw o c on sis ts of the followinglang uag e: “A person may not be convicte d under this sec tion on the uncorrobor ated testimony of the pe rson alleg edly

solicited and unless the solicitation is made under circ umstances strong ly corr oborative of

both the solicitation it self and the actor ’s intent that the person act on the10

solicitation.” This instruction is practica lly identical to the statutory

lang uag e of se ction 15.03(b). Se e id . § 15.03(b).

Whil e the c orrobor ation instruction in this case trac ks the lang uag e of se ction 1 5

. 0 3 (b ), i td o es n o ti n cl u d e a nap p l i ca t i o np ar agr ap h s u ch as t h e f o l l o wi n g: Now, ther efor e, even if y ou believe f rom the evide nce be y ond a re asonable doubt that the defendant did commit the offe nse of c riminal solicitation as alleg ed in the indictment, in order to convic t the defe ndant y o u must further be lieve beyond a rea sonable doubt that the t estimony of C.D. [ person solicited

] i s corr oborate d . . . and that the solicitation was made unde r circ umstances strong ly corr oborative of

both the soli ci tation itself and the def endant’ s intent that the other per son act on the solicitation, but i f y ou do not so believe, or if y ou have a rea sonable doubt there of, y ou will acquit the def

endant a nd say by y our ver dict “Not Guilty .”

8 Michae l J . McCormick, et a l., Te x as Prac tice: Crimi na l F or ms an d Tr ial

Ma nu al § 111.3 (1 1th e d. 20 05 ). Te xas c ourt s h a ve e xpre sse d a pp ro va l of

c or ro borat io n in str

uc tio ns that c on ta in such an a pplication para g raph. Se e Be ll v . S tat e , 768 S.W .2d 790, 799-800 (Te x . App.—Houston [ 14 th Dis t.] 1 98 9, pe t. r e f’ d) ; Va rv ar o v . S tat e , 7 7 2 S. W. 2 d

1 4 0 , 1 4 3 ( T e x. A p p . — T y le r 1988, pe t. r e f’ d) (h old ingtha

t “ [t]he se ins tr

uc tio ns are e min e ntl y c or re c t, and pr ov ide [ap pe lla nt] the fu ll

measure of protec tion mandated by section 15.03(b)”). Whil e it is not clea r t hat t he omission of an application par ag raph on c orrobor ation nece ssarily constitutes error , the State’s b rief on a ppeal

conce des that “[t] he jury char g e in thi s ca s e failed to inst ruct the jury that the law r equire s

corr oboration of testimony of the pe rson solicited as to the solicitation itself and Appellant’s intent that Fe ist act on her solicitation.”

B e c a us e B art on did no t ob

je c t to the jur

y c ha rg e a t tr ia l, re ve rs a l fo r c ha rg e e rr or is only proper in the prese nce of

eg reg ious harm. Al

ma nz a , 6 86 S.W. 2d

a t 17 1. Un de r t

he e g re g iou sharm standa

rd, the omission of a prope r cor roboration inst ruction i s g ener ally harmless unless the11

c or ro bo ratin g e vid e nc e is s o unc on vin c ing a s to re nd e r the State ’s c a se fo r c on vic tio n s ig nif ic a ntl y less persua sive. He rro n v . S tat e , 86 S.W .3d 621, 632 (Tex. Crim. App. 2002). The corr oborating evidenc e in this case inc luded audio and vide o rec ording s of B arton’s me eti n gs wi t h Fe ist and Rowan, in wh i ch s h e neg otiated a pr ice a nd questioned F eist about whethe r he w ould rea lly burn down the house. A ssuming without decidi n g t h at i t wa s err or for the trial cour

t to omit an application par ag raph reg arding corr oboration in the absenc e of a reque st, w e conclude that, in light of the streng th of t he corroborating evidence , no eg reg ious harm resulted. Fur thermore , this Court has held that in t he abse nce of a re quest or objec tion, a trial court’ s char g e that sets for th the law but fails to direc tly

apply the law to the f

acts doe s not constitute eg reg ious harm. Se e Gr e e ne v . S tat e , 240 S.W .3d 7, 15-16 (Te x . App.—Austin 2007, pet. ref ’d). B arton’s se cond issue is overr uled.

CO NC LU SION B e c a us e we have de te rm ine d th a t the evid e nc e wa s b oth le g a lly and fa c tua lly sufficien t t o convict Barton of the offe nse of c riminal solicitation, and beca use any err or in the

corr oboration instruction of the jury char g e d i d n o t result in eg reg ious harm, the trial c ourt’s judgme nt is affirmed.

__________________________________________ Diane H enson, Jus tice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Apr il 23, 2008 Do No t Pu

bli sh