Adam Edward Green v. State

• Court: Court of Appeals of Texas
• Decided: May 28, 2009
• Docket: 14-08-00591-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 28, 2009

Affirmed and Memorandum Opinion filed May 28, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00591-CR

ADAM EDWARD GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 220th District Court

Bosque County, Texas

Trial Court Cause No. 08-02-14216-BCCR

M E M O R A N D U M   O P I N I O N

A jury found appellant, Adam Edward Green, guilty of credit card abuse and assessed punishment at two years= state jail confinement.  The trial court sentenced appellant accordingly.  In two issues, appellant contends (1) the trial court erred in failing to submit an instruction on whether a witness was an accomplice as a matter of fact, and (2) the evidence was insufficient to corroborate the testimony of a witness who was an accomplice as a matter of law.  Because all dispositive issues of law are settled, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural Background

Appellant and Michael Squillace were charged with credit card abuse based on Squillace=s proffer of a credit card belonging to Lottie McElyea to pay for gasoline at a convenience store near Valley Mills.  At appellant=s jury trial, the State elicited testimony from Squillace, Stormy Jones, who was with appellant and Squillace, McElyea, Stephanie Crow, who was clerking at the convenience store, and Tommy Roach, the police officer who investigated the case.  Appellant did not call any witnesses, but relied on his cross-examination of the State=s.

The undisputed testimony established the following events as occurring on the day of the offense.  Around 3:00 or 4:00 p.m., appellant, Squillace, Stormy, Earnest McLemore, and Richard Jones went to Whitney Cliffs, where they swam and drank beer.^[1]  After they left the cliffs, they went to the Lake Stop in Whitney, where they met McElyea.^[2]  McElyea appeared intoxicated, and one of the young men either drove her home or they all followed her to her home to make sure she arrived.  After they arrived at McElyea=s home, the young men and McElyea sat at an outdoor table.  McElyea=s purse was in her car, which was under the carport of her house.  At some point, one or more of the young men entered McElyea=s home for a short time to use the bathroom or to get some Canadian Mist, which at least some of the young men drank.  After an hour or so, the young men left.  The next morning McElyea discovered her purse and credit card were missing.

On their way home, the young men stopped at a CEFCO convenience store.  Appellant put $35.00 worth of gasoline in his or his grandparents= car.  Squillace entered the convenience store to pay for the gasoline, along with a lantern and some cigarettes.  He offered a card bearing the name ALottie@ to Crow.^[3]  While Squillace was at the counter, Stormy entered the store, and Stormy and Crow approached each other and hugged.  The credit card was declined, and Squillace then left the store for a few minutes and talked with appellant and the other young men.  Appellant told Squillace to tell the clerk the card belonged to a relative.  Squillace reentered the store and gave Crow the card, this time just for the $35.00 gasoline charge.  Squillace told Crow the card belonged to the aunt of Athe guy that was out there pumping the gas.@  The card was again declined and Squillace left the store.  Appellant then entered and gave Crow ten dollars in small bills, saying he would return the next day with the rest of the amount.  Crow noted the make, model, color, and licence plate of the car.

After the young men left the store, a police car drove into the CEFCO parking lot; and the officer approached Richard, who appeared intoxicated.  When appellant saw the police car, he got into the driver=s seat and drove off, leaving Richard behind.  Richard was arrested for public intoxication.

Valley Mills Chief of Police Tommy Roach investigated the case.  Appellant was charged based on Squillance=s confession, the content of the surveillance tape, McLemore=s statement, and the full investigation.

II.  Discussion

A.  Jury Charge on whether Stormy Jones was an Accomplice Witness

In issue one, appellant contends the trial court erred in not submitting a charge asking the jury to find whether Stormy Jones was an accomplice witness.  Appellant did not request such a charge and affirmatively stated he did not object to the jury charge as given.  Thus, if the trial court erred in not submitting an accomplice-witness charge in relation to Stormy, appellant cannot prevail unless he can prove egregious harm.  See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).

An accomplice is one who participates with another before, during, or after the commission of a crime.  Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).  Without performing an affirmative act to assist in the commission of the offense, a person cannot be an accomplice witness, even as a matter of fact.  Kunkle v. State, 771 S.W.2d 435, 441 (Tex. Crim. App. 1986).  In Creel v. State, the court of criminal appeals listed actions which are insufficient to characterize one as an accomplice witness:

One is not an Aaccomplice witness@ who cannot be prosecuted for the offense for which the accused is charged.  In addition, Amere presence@ at the scene of the offense is not a sufficient amount of participation by the witness to render her an Aaccomplice witness.@  Moreover, a witness is not deemed an accomplice witness because she failed to disclose the commission of the offense to law enforcement officials.  Furthermore, a witness is not proved an accomplice by proof merely that she interested herself in the defense of the accused.  Finally, a witness= [sic] complicity with the accused in the commission of another offense does not make her testimony that of an accomplice for which the accused is on trial.

754 S.W.2d 205, 213 (Tex. Crim. App. 1988) (citations omitted).

In the present case, the only Aaffirmative acts@ to which appellant points are Stormy=s entry into the store after the card was declined, possibly to tell Squillace to ask appellant what to do after the card was declined, and hugging Crow.  We cannot conclude this evidence sufficed to create a fact issue on whether Stormy was an accomplice.  See Haney v. State, 951 S.W.2d 551, 552B53 (Tex. App.CWaco 1997, no pet.) (AIf . . . there is a fact question about whether or not the witness is an accomplice, the trial court should instruct the jurors to resolve this factual issue . . . .@).

Put differently, we cannot conclude Stormy could have been prosecuted for the offense with which appellant was charged.  He therefore could not have been considered an accomplice witness.  See Creel, 754 S.W.2d at 213.

For the foregoing reasons, we overrule appellant=s first issue.

B.  Corroboration for the Testimony of Accomplice-Witness Squillace

 In issue two, appellant contends there was insufficient evidence to corroborate the testimony of accomplice-witness Michael Squillace.  Squillace was charged with the same offense as appellant and therefore was an accomplice witness as a matter of law.  See Herron,  86 S.W.3d at 631.  Under the accomplice-witness rule, a defendant cannot be convicted based on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  Corroboration is insufficient if it merely shows commission of the offense.  Id.

To determine whether sufficient corroboration exists, we eliminate the accomplice witness=s testimony from consideration and then determine whether any of the remaining evidence tends to connect the accused with commission of the crime.  Longoria v. State, 154 S.W.3d 747, 758 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  The corroborating evidence need not directly link the accused to commission of the offense, nor must it be sufficient in itself to establish guilt.  Id.  In other words, it is not necessary for the non-accomplice evidence to connect the defendant with every element of the crime.  Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001).  The accomplice-witness rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to commission of the offense alleged.  Longoria, 154 S.W.3d at 758.  We view this evidence in the light most favorable to the jury=s verdict, and we must judge each case on its own facts.  See Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

A defendant=s presence in the company of the accomplice before, during, and after commission of the offense coupled with other suspicious circumstances may tend to connect the defendant to the offense.  Thompson v. State, 54 S.W.3d 88, 93B94 (Tex. App.CTyler 2001, pet. ref=d) (citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)).  Proof a defendant was at or near the place where the crime occurred, at or about the time it happened, along with evidence of other circumstances can be sufficient corroboration to support a conviction.  Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992).

The following evidence corroborates Squillace=s testimony and tends to connect appellant with the offense:

$                   Stormy=s testimony appellant or his grandparents owned the car into which appellant pumped the fuel at CEFCO;

$                   McElyea=s testimony five boys were at her home and Stormy=s testimony appellant was there;

$                   Stormy=s statement appellant took a small dark colored purse from McElyea=s car;

$                   Stormy=s testimony appellant took credit cards from the purse;

$                   the CEFCO surveillance videos showing appellant pumping gas into the white car and paying the clerk in small bills for the gasoline after the credit card was declined; and

$                   Roach=s testimony that, based on the surveillance videos and McLemore=s statement, Roach concluded appellant had given Squillace the credit card to pay for the gasoline.

Viewed in the light most favorable to the verdict, the preceding evidence from sources other than Squillace tends to connect appellant with commission of the alleged offense.  Squillace=s testimony was sufficiently corroborated to support appellant=s conviction.  Accordingly, we overrule appellant=s second issue.

III.  Conclusion

Having overruled appellant=s two issues, we affirm the judgment of the trial court.

/s/        Charles W. Seymore

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The five young men ranged in age from around seventeen years to their early twenties.  Because two of the young men are surnamed Jones, we refer to those two by their first names.

^[2]  At the time of trial, McElyea was forty-eight years old.

^[3]  Crow testified she did not look at the name until after the card was declined and she remembered only the name, ALottie.@