Cooper v. State

• Decision Date: 21 April 1982
• Docket Number: No. 49328,49328
• Citation: 631 S.W.2d 508
• Parties: Jack Wayne COOPER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 508

631 S.W.2d 508

Jack Wayne COOPER, Appellant, v. The STATE of Texas, Appellee.

No. 49328.

Court of Criminal Appeals of Texas, En Banc.

April 21, 1982.

Randy Schaffer, Houston (court appointed on appeal only), for appellant.

Carol S. Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This Court earlier granted appellant an out-of-time appeal in this case. Appellant was convicted of burglary of a habitation. Punishment, enhanced by two prior convictions for burglary, was assessed at life in the Texas Department of Corrections.

Initially, appellant contends that the evidence was insufficient to corroborate the testimony of appellant's accomplice who testified for the State.

The evidence showed that the home of Charles Willingham was burglarized on October 20, 1971. The burglary occurred at some time after noon and before 3:30 p. m. while no one was home. Taken in the burglary were cash, a coin collection, a wedding ring, several guns and other items.

Avis Smith, the accomplice, testified that she and two other girls, one of whom was Brenda Farmer, were good friends of appellant. Smith testified that on October 20, 1971, before noon, she was with appellant. She testified that Brenda Farmer, who was not with them that day, knew the Willinghams. Smith said that they had driven by the house several times previously to case the house in preparation for the burglary.

Smith testified that on October 20 she and appellant were with appellant's brother in an orange-brown Chevrolet with a white top. The brother let appellant and Smith out of the car, apparently some distance from the house. Smith and appellant entered the Willinghams' home by going through the backyard and crawling in a kitchen window. Meanwhile, appellant's brother had moved the car. After completing the burglary, Smith and appellant wandered about the neighborhood with the stolen goods looking for the car. They finally stumbled upon the car and made good their escape.

The State then called the Willinghams' next door neighbor, Acelia Avila. Her testimony was somewhat confused. She testified that the day before the burglary she had seen a Chevrolet with a beige or white top and rust colored bottom slowly go by the Willinghams' house and the occupants were staring at the house. She said that early in the afternoon of the day of the burglary she saw the girl who testified earlier (Avis Smith) and appellant get out of that Chevrolet. She said that the Chevrolet was near the driveway of the Willingham home. She positively identified appellant as the man who, with Smith, entered the house. She testified she could see appellant and Smith inside the Willingham home. She testified that there were two other persons left in the Chevrolet while Smith and appellant were in the house. Her testimony conflicted in several respects with Smith's testimony about the details of the burglary but agreed that appellant and Smith were the persons who entered the house.

She later testified under vigorous cross-examination that it was "possible" she saw another man and not appellant in the house. She added on redirect, however, that she was positive in her "own mind" that appellant was the person in the house. A police officer also testified that when he went to arrest appellant, appellant attempted to flee by jumping out of a window.

Appellant initially claims such is insufficient corroboration because the identification was tentative and not positive. Even if the identification were not positive, it need not be positive to provide sufficient corroboration. In Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972), this Court said:

"We have examined the record with care and conclude that the testimony falls into the same category as that in Jenkins v. State (Tex.Cr.App.1972), 484 S.W.2d 900, which held that a less than positive identification is sufficient to corroborate the testimony of an accomplice. See also Williams v. State, Tex.Cr.App., 466 S.W.2d 313." 486 S.W.2d at 950.

See also Valenciano v. State, 511 S.W.2d 297 (Tex.Cr.App.1974).

Next, appellant contends that because Smith's version of the burglary in time and other details differs from Avila's, there is not sufficient corroboration. We disagree. The test for measuring the sufficiency of the corroboration is whether that evidence tends to connect the defendant with the offense, Pinson v. State, 598 S.W.2d 299 (Tex.Cr.App.1980). Avila's testimony certainly tended to connect appellant with the burglary described by Smith. As was said in Myers v. State, 7 Tex.App. 640 (1880), at 659, discussing the sufficiency of corroboration, "We do not understand that this requires that the different matters testified to by the accomplice are to be supported, each one, by other testimony to the same isolated facts, but that it must tend to connect the defendant with the offense committed."

This Court likewise held in Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974), that the State need not corroborate the accomplice witness about all of his testimony, it need only produce other evidence tending to connect the defendant to the crime.

Further, we note that appellant's attempt to flee made when the police came to make the arrest, while not alone sufficient, can be considered as a part of the corroboration, Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968); Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). It is the cumulative weight of the corroboration which must be examined to see if sufficient corroboration exists, Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974). Appellant's ground is overruled.

Next, appellant contends the evidence was insufficient to prove the State's allegation in the indictment that Charles Willingham occupied and controlled the home burglarized. Appellant argues that it was necessary for the State to prove that Charles Willingham was present at the time of the burglary. Since Willingham was not present, appellant contends the evidence was insufficient. We disagree. In Kizer v. State, 400 S.W.2d 333 (Tex.Cr.App.1966), at 335, we said:

"It is contended that the evidence is not sufficient to support the conviction on the ground that Sam Lawson nor any member of his family (sic) were occupying the house as a private residence on July 23.

"It is not essential that the family or occupant be personally present at the very time the residence is burglarized in order to constitute the offense of burglary of a private residence at night. It is sufficient if it is actually used at the time as a private residence, within the meaning of this article, even though at the time it was burglarized the family was temporarily absent. Handy v. State, 46 Tex.Cr.R. 406, 80 S.W. 526; Warren v. State, 120 Tex.Cr.R. 58, 47 S.W.2d 288."

Appellant argues that reversal of this case is required because, immediately after the selection of the jury, the court gave the jury certain initial general admonishments outside the appellant's presence in violation of Article 33.03, V.A.C.C.P. The admonishments included instructions that the jury was not to deliberate about the case until they had heard all of the evidence. They were told not to discuss their jury service and to avoid contact with the attorneys.

The record, while indicating the appellant was absent at that time, fails to indicate why the appellant was not present. It is not alleged that appellant's counsel was not present. No objection was lodged by appellant's counsel.

Article 33.03, V.A.C.C.P., provides:

"In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case."

In Mares v. State, 571 S.W.2d 303 (Tex.Cr.App.1978), a defendant claimed that Article 33.03, supra, was violated because he had not been present in chambers when certain objections relating to the trial were made and argued. Quoting Cartwright v. State, 96 Tex.Cr.R. 230, 259 S.W. 1085 (1924), this Court, through Judge Tom Davis, said, "It is not everything that takes place in the absence of a defendant upon trial for which a reversal should be ordered. There must be an actual showing of injury or a showing of facts from which injury might reasonably be inferred." 571 S.W.2d at 305. It was concluded:

"In the instant case, no request was made by appellant or his counsel to attend the conferences at the bench or in chambers where questions of law were discussed between the court and counsel on both sides. No injury is shown to appellant, nor are there facts from which injury can be inferred. The presence of appellant at such conferences did not bear 'a reasonably substantial relationship to the opportunity to defend.' We find no violation of Art. 33.03, supra, nor do we find that appellant was deprived of any right guaranteed by the Sixth Amendment. No error is shown." 571 S.W.2d at 307.

Similarly, we find no injury here to appellant, and that the presence of the appellant during the admonishments did not bear a reasonably substantial relationship to the opportunity to defend himself.

Complaint is made of the refusal of the trial court to admit photostatic copies of checks offered by app...