Gill v. State

• Decision Date: 23 March 1994
• Docket Number: No. 650-93,650-93
• Citation: 873 S.W.2d 45
• Parties: Sammy GILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 45

873 S.W.2d 45

Sammy GILL, Appellant, v. The STATE of Texas, Appellee.

No. 650-93.

Court of Criminal Appeals of Texas,

En Banc.

March 23, 1994.

John A. Millin, III, Houston, for appellant.

David S. Barron, Dist. Atty., Anderson, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A Leon County jury found appellant, Sammy Gill, guilty of aggravated robbery of a person 65 years of age or older. See Tex.Penal Code § 29.03(a)(3)(A). The jury assessed his punishment at imprisonment for 50 years. See Tex.Penal Code § 12.32. The Tenth Court of Appeals, with one justice dissenting, later reversed appellant's conviction on the ground the evidence adduced at his trial was insufficient to satisfy the requirements of Texas Code of Criminal Procedure article 38.14, the accomplice witness rule. ¹ Gill v. State, 852 S.W.2d 7 (Tex.App.--Waco 1993). We granted the State's petitions ² for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(3) and (5), to determine whether the court of appeals erred in holding that an accused's possession of stolen property must be exclusive in order for it to adequately corroborate the testimony of an accomplice witness. We now reverse.

The Controversy

The evidence at appellant's April 1991 trial was, in relevant part, as follows: Seventy- eight-year-old Percy Westmoreland testified that on February 5, 1990, he closed his Normangee, Texas, grocery store at 8:00 p.m. and then drove two blocks to his home. He carried three days' store receipts with him in a paper grocery sack. The store receipts consisted of checks, food stamps, "WIC" welfare cards, and approximately $12,000 in cash. Moments after Westmoreland entered his home, someone threw a blanket over him and forced him to the floor. The robber or robbers, whom Westmoreland never saw or heard speak, then grabbed the grocery sack and fled. Westmoreland also testified that he and appellant had been acquainted for several years.

Steve Evans, the accomplice witness, ³ testified that around 7:30 p.m. on the night in question, he and appellant entered Westmoreland's home through a window and waited for him to arrive. After Westmoreland entered his home, Evans threw a blanket over him and pushed him to the floor. Appellant then grabbed the grocery sack, and he and Evans fled.

Amanda Manning, Evans' wife, testified that around 8:45 p.m. on the night in question, she saw appellant and Evans, who was carrying a grocery sack, enter the apartment in which she and Evans resided. The two men went directly to a bedroom, where "they ... poured the money and stuff on the bed," the "stuff" being checks and WIC cards. Manning attempted to enter the bedroom, but Evans pushed her out. Evans and appellant left the apartment together about twenty minutes later.

Sharwan Manning, Amanda's sister, testified that she visited her sister's apartment on the night in question and that at about 9:00 p.m. that night, she saw appellant and Evans, who was carrying a paper sack, enter the apartment. The two men, without saying a word, went directly into a bedroom, closing the door behind them.

Finally, Leon County Sheriff Royce Wilson testified that at the time of the robbery, appellant resided one block from Westmoreland's grocery store and about four blocks from Westmoreland's residence.

The jury charge at the guilt/innocence phase included the following instruction:

You are instructed that Steve Evans was an accomplice, if any offense was committed as alleged in the indictment, and you cannot convict the defendant upon his testimony unless you first believe that his testimony is true and shows the guilt of the defendant as charged by the indictment, and then you cannot convict the defendant unless the accomplice witness' testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of an offense, but it must tend to connect the defendant with its commission.

The court of appeals' majority held that the non-accomplice evidence did not adequately corroborate Evans' testimony. Gill v. State, 852 S.W.2d, at 9. The majority explained its holding thusly:

The problem with the State's position [that the non-accomplice evidence adequately corroborated Evans' testimony] is that there is no evidence that Gill ever possessed the brown grocery bag or the money, checks, food stamps or WIC cards it apparently contained. See Moron v. State, 779 S.W.2d 399, 402 (Tex.Crim.App.1985). Instead, the evidence showed that Evans had the grocery bag in his possession. Moreover, assuming that the evidence showed Gill also possessed the loot, his possession was not exclusive. For possession of recently stolen property to be sufficient corroboration, the possession by the accused must be exclusive. Rubio v. State, 121 Tex.Crim. 621, 50 S.W.2d 294, 295 (App.1932) [sic].

Likewise, the evidence does not show any furtive or suspicious acts on Gill's part while he was with Evans. According to the two eyewitnesses [the Mannings], Gill merely walked into the apartment with Evans and accompanied him to the bedroom. Evans, not Gill, then pushed Evans' wife out of the bedroom and shut the door. Gill later walked out of the apartment with Evans.

Ibid.

The dissenting justice argued that the testimony of the Mannings did tend to connect appellant to the commission of the offense, so as to satisfy the accomplice witness rule. The dissent pointed out simply that the non-accomplice evidence showed "the presence of the money, checks, WIC cards, and food stamps in the room where Gill and Evans were and the secretive nature of their actions" shortly after the offense was committed. Gill v. State, 852 S.W.2d, at 10 (Vance, J., dissenting).

The Accomplice Witness Rule

The accomplice witness rule is required by neither common law nor constitution. Thompson v. State, 691 S.W.2d 627, 631 (Tex.Crim.App.1984). The rule simply reflects a legislative determination that accomplice testimony that implicates another should be viewed with some level of caution. Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App.1982). Under the rule it is not necessary for the non-accomplice evidence to be sufficient in itself to establish the accused's guilt beyond a reasonable doubt. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988). Nor is it necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App.1972). All that is required is that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991). Judicial experience shows that no precise rule can be formulated as to the amount of evidence that is required to corroborate the testimony of an accomplice witness. Paulus v. State, 633 S.W.2d, at 844. Each case must be judged on its own facts. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993).

Viewed in the light most favorable to the jury's verdict, the non-accomplice evidence in the instant case established the following: (1) A person or persons robbed Westmoreland; (2) appellant had the opportunity to commit the robbery because he was a longtime acquaintance of Westmoreland and he resided near Westmoreland's grocery store and home; (3) shortly after the robbery was committed, appellant and Evans acted secretively; ⁴ and (4) at the same time, they jointly possessed ⁵ items matching the items stolen from Westmoreland. The issue before us is whether a reasonable jury could conclude that this non-accomplice evidence, taken as a whole, tended to connect appellant to the offense, even though such evidence established only his joint, rather than exclusive, possession of the property in question.

Relevant Precedents

In Lucas v. State, 482 S.W.2d 236 (Tex.Crim.App.1972), the defendant was found guilty of stealing items from a department store. The non-accomplice evidence showed that (1) the theft had in fact occurred; (2) the accomplice had been in the department store on the night of the theft; (3) the defendant and the accomplice had been arrested together while sitting on the front seat of an automobile many hours after the theft; and (4) some of the stolen merchandise had been found on the back seat and in the trunk of the automobile. We held that that evidence was sufficient to satisfy the accomplice witness rule, although the defendant's possession of the stolen items was not shown to have been exclusive.

In Cherb v. State, 472 S.W.2d 273 (Tex.Crim.App.1971), the defendant was found guilty of burglarizing a tavern. The non-accomplice evidence showed that (1) the burglary had in fact occurred; (2) coin-operated machines in the tavern had been forced open and many coins had been taken; (3) after midnight on the night of the burglary, the defendant, the accomplice, and others had left their apartment together and had later returned together; (4) sometime after they had returned, appellant had handed a bag of coins to a female who had been present; and (5) appellant had hidden the coins when someone had come to the door of the apartment. Again we held the non-accomplice evidence sufficient to satisfy the accomplice witness rule, although the defendant's possession of the stolen items was not shown to have been exclusive.

In Alexander v. State, 170 Tex.Crim. 282, 340 S.W.2d 493 (App.1960), the defendant was found guilty of burglary. The non-accomplice evidence showed that (1) the defendant and the accomplice had been arrested together in an automobile several hours after the burglary and (2) some of the stolen merchandise had been found in the automobile. Yet again we held the non-accomplice evidence...