Ethridge v. State
| Decision Date | 18 April 2012 |
| Docket Number | NO. 12-09-00190-CR,12-09-00190-CR |
| Parties | R.B. ETHRIDGE, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
APPEAL FROM THE 3RD
JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
R.B. Ethridge appeals his convictions for forgery of a financial instrument and fraudulent use or possession of identifying information. He raises nine issues on appeal. We affirm.
Appellant was arrested and indicted for forgery of a financial instrument and fraudulent use or possession of identifying information. At trial, the evidence showed that Appellant, who lived in Temple, Texas, drove Paul Davis, another Temple resident, to Palestine, Texas. While in Palestine, the pair went to a Walmart. Video surveillance images, and testimony from the cashier, Stephanie Watson, showed that Davis, with Appellant standing next to him, purchased a gift card and requested that Watson credit it with $2,500.00. Davis handed Watson a check that was written before he approached Watson. After consummating the purchase, Appellant and Davis drove to a Walmart in Mexia, Texas. Davis remained in Appellant's vehicle and did not enter the Mexia Walmart.
Appellant presented the gift card to the cashier to determine how much money was on the card and to see if he could divide the balance between two separate cards. Based on these circumstances, the cashier called her supervisor, who in turn called the Mexia Police Department.Detective Sanford of the Mexia Police Department arrived and was told of the circumstances by the supervisor and Tex Wilburn, the loss prevention specialist at the Mexia Walmart. Detective Sanford approached Appellant about the card and asked how he obtained it. Appellant told the detective that he purchased the gift card containing $2,500.00 in exchange for $600.00 in cash from a man named Matt Sweden. The evidence at trial showed that no person named Matt Sweden was located.
Detective Sanford and Wilburn testified that criminals, using a technique called "structuring," commonly attempt to break down gift cards into cards of smaller amounts to launder the proceeds of illegal activity. According to Wilburn, Walmart has the ability to track the purchase of gift cards and logs their purchase through store surveillance equipment. Wilburn testified that he traced the card to the Walmart in Palestine. He, along with Detective Sanford, immediately received photos and video surveillance images that showed Appellant and Davis purchasing the card.
Detective Sanford asked Appellant about the inconsistencies between his story of how he obtained the card and what the video surveillance images showed. Appellant admitted that Davis was the other person in the picture, and altered his version of how he acquired the card. He told Detective Sanford that he drove Davis to Palestine to pick up Davis's car, which had mechanical trouble. He stated that while in Palestine, Davis obtained the gift card and offered it as payment to Matt Sweden. Appellant said that Sweden was the mechanic who repaired Davis's car and that he wanted cash. Appellant claimed that he offered Sweden $600.00 in exchange for the $2,500.00 gift card, and that Sweden accepted.
The evidence obtained through Walmart's check tracking system, Solutran, showed that Appellant and Davis had purchased the gift card with a check from an account held by John Borders. Detective Sanford testified that during his investigation at the Mexia Walmart, he called Borders, who was unavailable at the time. The purpose of the call was to determine whether the check was authorized or a forgery. The check also contained Borders's handwritten driver's license number and birth date.
Detective Sanford contacted the district attorney for Limestone County, Texas, who informed him that Appellant had not committed any act in Limestone County that constituted a criminal offense. 1 The card was not returned to Appellant, and he left the premises. 2 Approximately two hours had elapsed between Detective Sanford's arrival and departure from the Mexia Walmart. Appellant was never restrained or placed under arrest. Although the timing is not entirely clear from the record, Appellant left of his own free will sometime before the detective left.3
Detective Sanford testified that he turned the investigation over to Detective Steen at the Palestine Police Department. Borders later told police that the transaction was not authorized, and that someone must have created a "self-generated" fake check and forged his signature.
The jury found Appellant guilty of both charged offenses, sentenced him to ten years of imprisonment for each offense, to be served concurrently, and assessed a $10,000.00 fine for each offense. Appellant declined the appointment of appellate counsel, and this pro se appeal followed.
In his first issue, Appellant argues that the evidence is insufficient to support Paul Davis's testimony as his accomplice witness.
"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." TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The testimony of an accomplice witness is considered to be inherently untrustworthy and should be received and acted on with caution because it is "evidence from a corrupt source." Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981). A witness who is indicted for the same offense or a lesser included offense as the accused is an accomplice as a matter of law. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
The accomplice witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal sufficiency standard. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Appellant raises this issue as a challenge tothe sufficiency of the accomplice testimony to support his conviction.4 Consequently, to weigh the sufficiency of the corroborative evidence, we apply a statutory standard by which we disregard the accomplice's testimony and examine the remaining portions of the record to ascertain whether there is any evidence tending to connect the accused to the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Because the standard is "tending to connect," the corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt. Maynard v. State, 166 S.W.3d 403, 410 (Tex. App.—Austin 2005, pet. ref'd).
When reviewing a claim that accomplice witness testimony is insufficiently corroborated, we review the nonaccomplice evidence in the light most favorable to the verdict. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). "[W]hen there are conflicting views of the evidence—one that tends to connect the accused to the offense and one that does not—we will defer to the factfinder's resolution of the evidence. Smith, 332 S.W.3d at 442. "Therefore, it is not appropriate for appellate courts to independently construe the non-accomplice evidence." Id. The nonaccomplice evidence is sufficiently corroborated if rational jurors could find that it tends to connect the accused to the crime. Id.
Davis testified at Appellant's trial in exchange for a negotiated plea of six months of imprisonment. He testified that Appellant was not merely present during the incidents in question and that they both agreed to commit the crimes with which Appellant is charged. Appellant contends that the only evidence other than Davis's accomplice testimony is the store video. He also points to other evidence that tends to favor him, and presents the evidence in a light favorable to himself, or makes inferences from the evidence in his favor. But this is contrary to our standard of review. Appellant also fails to acknowledge other evidence that demonstrates his active involvement in the offenses in question.
Without considering Davis's testimony, the evidence shows that Appellant drove Davis to the Palestine Walmart. The video surveillance images and tapes also show that Appellant stood next to Davis at the Palestine Walmart while Davis obtained the card. Appellant then drove Davis to the Mexia Walmart. Davis stayed in the car while Appellant went inside the Mexia Walmart, where he handed the card to a cashier and asked her to tell him the balance on the card. He alsoasked whether he could divide the balance equally between two separate cards. Wilburn and Detective Sanford testified that this was a common technique to launder money, which is why a manager and Wilburn were called to investigate while Appellant waited. Appellant was asked by Walmart personnel to wait while they verified the card's authenticity.
The Walmart supervisor then called the Mexia Police Department, and Detective Sanford arrived. The detective asked Appellant about the card, and Appellant said he bought it off the street from a man named Matt Sweden. During this conversation, Wilburn and Detective Sanford discovered that the card was purchased at the Palestine Walmart shortly before it was presented in Mexia and that Appellant was present during its purchase. This information was inconsistent with Appellant's version of the incident. Wilburn and Detective Sanford also discovered that the check was on Borders's account.
Stephanie Watson, the cashier at the Palestine Walmart, testified that she remembered the transaction, and that both Davis and Appellant were trying to obtain the gift card together. Appellant testified at trial that he left the counter to talk to another female customer in whom he was romantically interested. Watson testified that although Appellant was slightly out of the camera's view part of the time, he was next...
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