Thomas v. State, 29639

• Decision Date: 23 April 1958
• Docket Number: No. 29639,29639
• Citation: 166 Tex.Crim. 331,313 S.W.2d 311
• Parties: Varona THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 311

313 S.W.2d 311

166 Tex.Crim. 331

Varona THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 29639.

Court of Criminal Appeals of Texas.

April 23, 1958.

[166 TEXCRIM 331] W. B. Chauncey, Hubbard, Bernard Martin, Wichita Falls, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is murder; the punishment, 25 years.

The sufficiency of the evidence to corroborate the testimony of the accomplice witness is seriously challenged.

Article 718, Vernon's Ann.C.C.P., provides:

'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 construing such statute, this Court has consistently applied the following rule: 'The test as to the sufficiency of the corroboration long recognized as correct by our courts is to eliminate from consideration the evidence of the accomplice and examine the testimony of other witnesses with the view of ascertaining if from them comes incriminating evidence which tends to connect accused with the commission of the offense. If so, the corroboration is sufficient; otherwise, not.' Barnes v. State, 158 Tex.Cr.R. 93, 253 S.W.2d 440, and Turner v. State, [166 TEXCRIM 332] 108 Tex.Cr.R. 486, 1 S.W.2d 642. We shall apply these rules to the facts before us here.

Cobb, the confessed murderer, who had shortly before the homicide been released from the penitentiary on parole after serving 12 1/2 years of a 99-year sentence for robbery with firearms, testified that he shot and killed the deceased while the deceased was seated in his automobile on a country road and at a time when the appellant was seated in a pickup truck some fifty yards away. He stated that he killed the deceased because the appellant told him 'we are going to have to have the money' which she understood the deceased customarily carried about his person.

According to Cobb, no one else was present at the scene of the homicide, and, in order to determine if there is incriminating testimony from other witnesses which tends to connect the accused with the killing, we must outline his testimony more fully. After his release from prison, Cobb was employed and lived alone on a ranch in Leon County and made frequent trips to Mexia in Limestone County, where he met the appellant, who appears not to have been married at the time, at a beer establishment. They became intimate, and on occasions she would visit for a day or two at a time at the ranch. On the day of the homicide, he and the appellant were seated in the Past Time Club in Mexia drinking beer when the deceased came in and seated himself at another table. Appellant told Cobb that the deceased was a school teacher and had been known to carry as much as $200 on his person at a time. Shortly after this, the deceased left the tavern and, when Cobb went outside, the deceased, who was seated in his automobile, called to him and asked him for a match. The deceased offered to buy Cobb a beer; Cobb was agreeable, and the beer was brought out to the automobile and consumed by the two men. Further drinking was mentioned, and, as closing time had arrived, the parties, having been joined by the appellant, left in their respective conveyances; the appellant accompanied Cobb in a pickup...