Anders v. State, 44603

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: DOUGLAS
• Citation: 501 S.W.2d 665
• Parties: Joe Pat ANDERS, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 44603,44603
• Decision Date: 21 November 1973

Page 665

501 S.W.2d 665

Joe Pat ANDERS, Appellant, v. The STATE of Texas, Appellee.

No. 44603.

Court of Criminal Appeals of Texas.

Nov. 21, 1973.

John R. McFall, Lubbock (Court appointed), for appellant.

Jack Young, Dist. Atty., Muleshoe, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for burglary. ¹ Punishment, enhanced under Article 62, Vernon's Ann.P.C., twelve years.

At the outset, appellant contends that the evidence will not sustain the conviction because it is based upon the testimony of an accomplice witness which is not sufficiently corroborated as required by Article 38.14, Vernon's Ann.C.C.P. ²

The test for determining the evidence required to support a conviction in addition to the testimony of an accomplice has been stated by this court in numerous opinions as follows:

'The test of the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is inculpatory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient.' Odom v. State, Tex.Cr.App. 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629.

'The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime.' Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

'It is the combined cumulative weight of the evidence furnished by non-accomplice witnesses which supplies the test.' Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422. O'Donald v. State, (Tex.Cr.App.) 492 S.W.2d 584; Colunga v. State, (Tex.Cr.App.) 481 S.W.2d 866. See also Tompkins v. State, (501) S.W.2d (132) (No 47,095, November 14, 1973); Reynolds v. State, (Tex.CrApp.) 489 S.W.2d 866; Windham v. State, (Tex.Cr.App.) 479 S.W.2d 319; Odom v. State, (Tex.Cr.App.) 438 S.W.2d 912; Edwards v. State, 427 S.W.2d 629.

The record reflects that on January 11, 1967, the Tide Products, Inc. storage room at Clays Corner in Parmer County was burglarized and almost forty-nine cases of Treflan, a herbicide, bearing Lot No. L--2113 were missing.

There were no witnesses to the burglary and no evidence to show that appellant was ever at or in the vicinity of the burglarized storage room at any time. Being a circumstantial evidence case, the State must rely upon the rule that unexplained possession of recently stolen property is sufficient to sustain a conviction for the burglary of the storage room from which the property was taken.

The jury was instructed that the witness Brock was an accomplice witness. See Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305. Brock testified that around the 16th or 17th of January, 1967, he received a telephone call in which inquiry was made if he wanted to buy any Treflan and arrangements were made for the caller to come to Brock's home. A man identified as appellant came to Brock's house and, pursuant to an agreement made at this meeting, Brock purchased ten cases of Treflan at seventy dollars per case from appellant. The record reflects that Treflan retailed at $102.00 per case in the area. Brock stated that when the Treflan was delivered to him he told appellant he 'would take some more.' About five o'clock in the morning on January 28, 1967, appellant came to Brock's house and told Brock, 'I have got you some more Treflan.' Without agreeing to price, Brock took forty cases. Brock recalled that appellant was driving 'a red and white Chevrolet pickup, '65 or '66 model' and that 'a Spanish guy' was with him. After unloading the Treflan, it was agreed that Brock would pay appellant thirty-five dollars per case by Monday, January 30th. Brock sold thirty-eight (of the lot of forty cases) to various purchasers for sixty-five dollars per case, one case was sold for $62.50 and Brock kept one case. After collecting from these sales Brock met appellant in Anton on January 30th and paid appellant for the forty cases. In accordance with Brock's request on this occasion, appellant delivered thirteen more cases of Treflan to Brock on the night of January 30th. The delivery was made in a pickup Brock recognized as having been a vehicle used for drag racing and previously having belonged to one Don Kidd. Brock again paid appellant thirty-five dollars per case. When Brock was asked if he knew the Treflan was stolen he stated that there was no question but what it was stolen, after he purchased it for thirty-five dollars per case.

We look now to evidence other than that of the accomplice witness to determine if it tends to connect the appellant with the offense alleged.

The original ten cases purchased for seventy dollars per case were sold by Brock to one Neil Wood for seventy dollars per case. The cans and boxes of Treflan unused by Wood on March 17, 1967, bore the lot number L--2113. Bob Martin, plant superintendent for Tide Products, Inc. at the time in question, identified one of the cases recovered from Wood by a notation 'Sold C C' he had placed thereon with a grease pencil. Martin further testified that he had no idea about how many cases were stamped with the lot number L--2113 by the factory.

In addition to Wood, numerous other farmers testified regarding purchasing Treflan from Brock at prices ranging from sixty to sixty-five dollars per case. One of the purchasers, James Blessing, testified he was at Brock's house when a delivery of Treflan was made to Brock and that the vehicle which made the delivery was, in his opinion, a Chevrolet with a 'louder than stock' muffler. Don Kidd, a mechanic, testified that appellant owned two Chevrolets, that he did a lot of...