Creek v. State, 50964

• Decision Date: 25 February 1976
• Docket Number: No. 50964,50964
• Citation: 533 S.W.2d 794
• Parties: Collie C. CREEK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 794

533 S.W.2d 794

Collie C. CREEK, Appellant, v. The STATE of Texas, Appellee.

No. 50964.

Court of Criminal Appeals of Texas.

Feb. 25, 1976.

Aubrey L. Roberts, Jr., Sweetwater, for appellant.

Gary R. Price, Dist. Atty., Brownwood, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for theft. Punishment was assessed by the jury at two years.

The indictment alleged that the offense occurred on or about March 29, 1972, and the record reflects that trial was in September, 1974.

Appellant contends that the court erred 'in failing in its charge to the jury, to apply the law of accomplice testimony to the facts in evidence.'

The record reflects that the court charged the jury abstractly relative to the law governing testimony of an accomplice witness, the pertinent part of the charge reading:

'A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed and the corroboration is not sufficient if it merely shows the commission of the offense.'

Appellant by timely objection to the court's charge complained of the court's failure to instruct the jury that Terry Goza was an accomplice witness.

Goza, a co-indictee who had been tried, convicted and had served his time, testified for the State. When one is a co-indictee and testifies for the State against an accused, he is an accomplice witness as a matter of law. Hendricks v. State, Tex.Cr.App., 508 S.W.2d 633. It was error for the court to fail to instruct the jury that Goza was an accomplice as a matter of law. Bentley v. State, Tex.Cr.App., 520 S.W.2d 390. The State concedes that Goza was an accomplice as a matter of law but urges that if the court failed to properly instruct on the law of accomplice witness the error is harmless where the evidence clearly warranted a conviction independently of the accomplice's testimony. The abstract charge given by the court did not serve to instruct the jury that Goza was an accomplice as a matter of law. In light of the argument advanced by the State, we review the evidence.

The accomplice witness Goza testified that on the date in question he and appellant went to a utility right of way near the Goldbusk community in Coleman County. Goza climbed the poles and cut copper wire therefrom which he and appellant rolled and placed in their car. Goza and appellant drove to Sweetwater where they sold what was determined to be about 758 pounds of copper wire to one Leroy Sells for thirty-seven cents a pound. The money from the sale of the wire was split between Goza and appellant.

Wayne Farley, who lived eight miles south of Goldbusk, testified that on the date in question he observed a Ford Thunderbird with license plates 'DHT996' parked on a dirt road 100--150 yards east of his mailbox.

L. R. Sells testified that he was in the business of buying scrap iron and metal in Sweetwater and that on March 30, 1972, he purchased rolls of copper wire from appellant and Goza.

A sales ticket reflected Sells had purchased 'number one copper, 758 pounds, $280.46.' The sales ticket showed the license number 'DHT996' and a signature 'Jim Carver.' Sells stated that the number on the...