Juarez v. State

• Citation: 796 S.W.2d 523
• Decision Date: 15 August 1990
• Docket Number: No. 04-89-00560-CR,04-89-00560-CR
• Parties: Teresa JUAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 523

796 S.W.2d 523

Teresa JUAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00560-CR.

Court of Appeals of Texas,

San Antonio.

Aug. 15, 1990.

Rehearing Denied Sept. 11, 1990.

Discretionary Review Refused

Nov. 21, 1990.

Oscar J. Pena, Pena, Pena, & Pena, Laredo, for appellant.

Joe Rubio, Jr., Dist. Atty., Laredo, for appellee.

Before BUTTS, REEVES and CHAPA, JJ.

OPINION

CHAPA, Justice.

Appellant Teresa Juarez appeals her conviction for the offense of Aggravated Theft based on three indictments. The jury imposed a sentence of ten (10) years' confinement with the recommendation that such confinement be probated; additionally, a fine of $10,000.00 was assessed for each of the indictments. The trial court entered judgment probating the confinement for ten (10) years for each of the indictments, and ordered that they run concurrently, but imposed a fine of $10,000.00 in each of the three charges (for a total of $30,000.00). The trial court also ordered restitution in the amount of $107,000.00. We affirm.

The issues before this court are:

1) Whether there was insufficient evidence to corroborate the testimony of the accomplice witness.

2) Whether the trial court erred in entering judgment imposing payment of fines totaling $30,000.00 ($10,000.00 for each of the three indictments).

3) Whether the trial court erred in ordering restitution of $107,000.00.

Initially appellant contends that the record contains insufficient evidence to corroborate the testimony of the accomplice witness as required by TEX.CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1966). The complaint stems from the fact that the allegations against the appellant were that the appellant and the accomplice, coordinated to steal the alleged funds from certain bank accounts owned by a local business.

In reviewing the sufficiency of the evidence, this court must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Little v. State, 758 S.W.2d 551, 562 (Tex.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). See Valdez v. State, 776 S.W.2d 162, 165 (Tex.Crim.App.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

In assessing the sufficiency of the evidence to support a conviction, the reviewing court must consider all of the evidence which the jury was permitted, rightly or wrongly, to consider. Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App.1988); Beltran v. State, 728 S.W.2d 382, 389 (Tex.Crim.App.1987). If a portion of the evidence was wrongly admitted, the defendant may complain on appeal of such error. Thomas v. State, 753 S.W.2d at 695.

The reviewing court does not resolve any conflict in fact, weigh the evidence, or evaluate the credibility of the witnesses. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.1984), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). Additionally, the jury as trier of fact may accept or reject all or part of the testimony of any witness. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); Penagraph v. State, 623 S.W.2d 341, 342 (Tex.Crim.App.1981).

Moreover, TEX.CODE CRIM.PROC.ANN. art. 38.14, provides that "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."

In particular, TEX.PENAL CODE ANN. § 31.03 (Vernon 1989 & Supp.1990) provides in pertinent part:

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent;

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another;

* * * * * *

(c) For purposes of Subsection (b) of this section:

* * * * * * (2) the testimony of an accomplice shall be corroborated by proof that tends to connect the actor to the crime, but the actor's knowledge or intent may be established by the uncorroborated testimony of the accomplice;

* * * * * *

In applying the test of the sufficiency of the corroboration, the Texas Court of Criminal Appeals stated:

The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish his guilt. Otherwise, the testimony of the accomplice would be valueless. The corroborative evidence is sufficient if it tends to connect the accused with the crime, and it is the cumulative weight of such evidence which supplies the test.

Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App.1972).

All evidence, direct or circumstantial, may be considered in determining the sufficiency of corroboration. Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984). "The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test." Id. The issue therefore is whether the test has been met here.

The evidence furnished by the non-accomplice witnesses in this record strongly favors the verdict and reflects the following: that over $214,000.00 was stolen from the account of the Neel Abstract Company; that the amount was stolen by accomplice Rosie Aguilar, who was a closer with the Neel Abstract Company; that the appellant was an intimate associate of the accomplice, had been instrumental in the accomplice being employed, and was in a managerial position with the Neel Abstract Company; that the appellant made it possible for the accomplice to deviate from the normal routine of operations which was necessary in order for the accomplice to succeed in the theft; that although the normal routine did not require the appellant to endorse the checks involved in the thefts, she did so, thus making it possible for the accomplice to obtain "cash withdrawals" by means of executing deposit slips, which resulted in the theft; that the accomplice could not have been able to accomplish the "cash withdrawals" without the endorsements of the appellant; that the appellant was in a position, as manager, of controlling the auditing process to prevent the discovery of the theft; that although the appellant was only paid approximately $25,000.00 per year, she had accumulated several accounts which amounted to over $200,000.00; that in 1987, the appellant spent approximately $22,800.00 in just two department stores; that the appellant withdrew all the funds from the accounts soon after being discharged, and made a $5,000.00 payment to the accomplice through her attorney after the thefts were discovered.

Further, the accomplice testified that she and the appellant...