Clifford Wayne Gardner v. State

• Court: Court of Appeals of Texas
• Decided: March 18, 2010
• Docket: 13-08-00431-CR
• Status: Published

Opinion

NUMBER 13-08-00431-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CLIFFORD WAYNE GARDNER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Jackson County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Chief Justice Valdez

Appellant, Clifford Wayne Gardner, was convicted by a Jackson County jury of

unlawful delivery of a controlled substance, cocaine, in an amount of more than one gram

but less than four grams, a second-degree felony. See TEX . HEALTH & SAFETY CODE ANN .

§ 481.112(c) (Vernon Supp. 2009). The indictment contained four enhancement

paragraphs alleging that Gardner had four prior felony convictions. After finding that all

four enhancement paragraphs were true, the jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice with

no fine. See TEX . PENAL CODE ANN . § 12.42(d) (Vernon Supp. 2009) (providing that “if it

is shown on the trial of a felony offense other than a state jail felony punishable under

Section 12.35(a) that the defendant has previously been finally convicted of two felony

offenses . . . on conviction he shall be punished by imprisonment in the Texas Department

of Criminal Justice for life, or for any term of not more than 99 years or less than 25

years”). By two issues, which can be categorized as one, Gardner asserts that his

conviction was not supported by sufficient evidence because the conviction is based upon

uncorroborated accomplice-witness and covert-witness testimony. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of April 20, 2005, James Rivera, while serving as an informant for

law enforcement, allegedly purchased 2.5 grams of cocaine from Gardner. Rivera testified

that he had worked as an informant for law enforcement on two other occasions and that

he was paid $100 for his participation in the underlying transaction. In organizing the

transaction, Rivera arranged for an acquaintance of his, April Matulik, to contact Gardner

so that Rivera, at the direction of law enforcement, could purchase the cocaine. Rivera

agreed to bring Matulik along when he met with Gardner because Matulik desired to

purchase some cocaine for herself. Prior to picking up Matulik, Rivera contacted Ron

Garrett, a police officer formerly employed by the Edna Police Department. Officer Garrett

met with Rivera at a local transfer station, otherwise known as the city dump. While there,

Officer Garrett and Jackson County Deputy Sheriff Joe Garcia searched Rivera’s clothing,

person, and vehicle for contraband, and Rivera fitted himself with an audio recording

device that was hidden on his inner thigh. Once Rivera was fitted with the audio recording

device, the officers tested the device to ensure that it worked properly. After concluding

2 that the device was in good working order, the officers provided Rivera with $200 to make

the cocaine purchase.

Rivera picked up Matulik at her apartment. Matulik provided Rivera with directions

to the place where they would meet up with “Seven” or “Seven Days” to purchase cocaine.

At trial, several witnesses testified that Gardner’s street name was “Seven” or “Seven

Days.” Rivera’s conversations with Matulik and his interaction with Gardner were recorded

by the hidden audio recording device. The officers proceeded to the meeting place and

parked about three-tenths of a mile away from where the transaction occurred; however,

Officer Garrett admitted that, despite their proximity to the meeting place, they were not

able to see much of the transaction. In any event, the hidden audio recording device

demonstrated that Rivera purchased ten rocks of crack cocaine from Gardner in exchange

for the $200 that was provided by law enforcement. After purchasing the cocaine from

Gardner, Rivera conversed with Gardner while Matulik also purchased some cocaine for

use in her crack pipe. Gardner agreed to allow Rivera to contact him directly for any future

drug purchases. Once the meeting had concluded, Rivera dropped off Matulik at her

apartment and drove to the dump to meet with Officer Garrett for debriefing. Once he

arrived at the dump, Rivera turned over the ten rocks of crack cocaine and described the

particulars of the meeting with Gardner to Officer Garrett.

Approximately two weeks after the transaction, Rivera identified Gardner from a

photo lineup as the individual who had sold him the cocaine. In addition, Matulik confirmed

that Gardner had sold cocaine to Rivera on this occasion. Gardner was subsequently

arrested. Tests conducted on the substances that Rivera received from Gardner revealed

that the substances constituted 2.5 grams of cocaine.

After a jury trial, Gardner was convicted of unlawful delivery of a controlled

3 substance. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(c). Because he had been

convicted previously of four felonies, the jury sentenced Gardner to life imprisonment with

no fine. See TEX . PENAL CODE ANN . § 12.42(d). Gardner later filed a motion for new trial

and a motion in arrest of judgment; however, those motions were overruled by operation

of law. See TEX . R. APP. P. 21.8(c). This appeal ensued.

II. STANDARD OF REVIEW

A. The Accomplice-Witness Rule

Article 38.14 of the Texas Code of Criminal Procedure provides that a defendant

cannot be convicted of a crime based solely on the testimony of an accomplice unless that

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). The Texas

Court of Criminal Appeals has described the accomplice-witness rule as “a statutorily

imposed review” that “is not derived from federal or state constitutional principles that

define the legal and factual sufficiency standards.” Druery v. State, 225 S.W.3d 491, 498

(Tex. Crim. App. 2007). We evaluate the “sufficiency of corroboration evidence under the

accomplice-witness rule” by first eliminating the accomplice’s testimony from consideration

and then examining the remainder of the record for non-accomplice witness “evidence that

tends to connect the accused with the commission of the crime.” See TEX . CODE CRIM .

PROC . ANN . art. 38.14; see also Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App.

2008). In applying this standard, we view the evidence in the light that most favors the

jury’s verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Gill v.

State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)).

In Patterson v. State, we noted that “[t]he tends-to-connect standard presents a low

4 hurdle for the State.” 204 S.W.3d 852, 859 (Tex. App.–Corpus Christi 2006, pet. ref’d).

“We consider the combined weight of the non-accomplice evidence, even if [that evidence]

is entirely circumstantial.” Claxton v. State, 124 S.W.3d 761, 765 (Tex. App.–Houston [1st

Dist.] 2003, pet. ref’d). In fact, “[t]he non-accomplice evidence need not be sufficient in

itself to establish the accused’s guilt beyond a reasonable doubt. Nor is it necessary for

the non-accomplice evidence to directly link the accused to the commission of the offense.”

Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (citation omitted); see

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996) (“While the accused’s mere

presence in the company of the accomplice before, during, and after the commission of

the offense is insufficient by itself to corroborate accomplice testimony, evidence of such

presence, coupled with other suspicious circumstances, may tend to connect the accused

to the offense.”); see also Gill, 873 S.W.2d at 48; Munoz v. State, 853 S.W.2d 558, 559

(Tex. Crim. App. 1993). Further, “unlike extrajudicial confessions, testimony of an

accomplice need be corroborated only as to facts ‘tending to connect the defendant with

the offense committed’ and not as to the corpus delecti itself.” Castillo v. State, 221

S.W.3d 689, 691 (Tex. Crim. App. 2007) (quoting Gribble v. State, 808 S.W.2d 65, 71 n.13

(Tex. Crim. App. 1990)); see Munoz, 853 S.W.2d at 559; see also Taylor v. State, 10

S.W.3d 673, 685 (Tex. Crim. App. 2001).

In some instances, insignificant circumstances afford the most satisfactory evidence

of guilt and corroboration of the accomplice-witness’s testimony. Patterson, 204 S.W.3d

at 860; see Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. “In applying the test

of the sufficiency of the corroboration, each case must be considered on its own facts and

circumstances.” Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).

5 “Independent evidence [that] generally tends to prove that an accomplice witness’s version

of events is true, rather than the [defendant’s version], is considered corroborative, even

if it concerns a mere ‘detail,’ as opposed to a substantive link between the defendant and

commission of the offense.” Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App.

1989). “The corroborating evidence may be [either] circumstantial or direct.” Reed, 744

S.W.2d at 126; Granger v. State, 683 S.W.2d 387, 392 (Tex. Crim. App. 1984). Because

each case must rest on its own facts, corroboration does not require a set quantum of

proof. Malone, 253 S.W.3d at 257. “The accomplice witness rule is satisfied if there is

some non-accomplice evidence which tends to connect the accused to the commission of

the offense alleged in the indictment.” Hernandez, 939 S.W.2d at 176 (emphasis in

original); see Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999) (noting that

the absence of "smoking gun" evidence does not invalidate evidence that connects the

defendant to the offense).

B. The Covert-Witness Rule

Article 38.141 of the code of criminal procedure provides that:

A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

TEX . CODE CRIM . PROC . ANN . art. 38.141 (Vernon 2005). Texas courts have held that we

apply the same standards governing the accomplice-witness rule to the covert-witness rule;

thus, we must ignore the testimony of the informant, or covert witness, and examine the

record to see if any other evidence tended to connect the defendant with the offense

6 committed. See Smith v. State, 211 S.W.3d 476, 478 (Tex. App.–Amarillo 2006, no pet.)

(citing Dennis v. State, 151 S.W.3d 745, 749 (Tex. App.–Amarillo 2004, pet. ref’d); Young

v. State, 95 S.W.3d 448, 451 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d)); Cantelon

v. State, 85 S.W.3d 457, 459-60 (Tex. App.–Austin 2002, no pet.) (concluding that article

38.141 requires the same standard of corroboration for an informant witness as that of

article 38.14, the accomplice-witness rule); see also Jeffrey v. State, No. 13-03-381-CR,

2004 Tex. App. LEXIS 2276, at **8-10 (Tex. App.–Corpus Christi Mar. 11, 2004, no pet.)

(mem. op., not designated for publication) (same). Furthermore, we review the

corroborating evidence in the light most favorable to the jury’s verdict. Smith, 211 S.W.3d

at 478 (citing Dennis, 151 S.W.3d at 749).

III. ANALYSIS

In his sole issue on appeal, Gardner argues that the evidence supporting his

conviction is insufficient because the evidence provided by Rivera and Matulik was not

sufficiently corroborated. Gardner further argues that accomplice-witness testimony may

not be corroborated by covert-witness testimony and vice versa. The State asserts that

the record contains sufficient evidence tending to connect Gardner to the offense, thus

corroborating both the accomplice-witness testimony and the covert-witness testimony

provided at trial.

A. Matulik’s Status as an Accomplice Witness and Rivera’s Status as a Covert Witness

At the outset of our analysis, we note that the parties do not dispute that: (1) Matulik

was an accomplice to the underlying offense; and (2) Rivera was a covert witness. See

7 Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004) (“An accomplice

participates with a defendant before, during, or after the commission of a crime and acts

with the required culpable mental state.”); see also Simmons v. State, 205 S.W.3d 65, 72

(Tex. App.–Fort Worth 2006, no pet.) (noting that covert witnesses or informants are

individuals who work with law enforcement for self-interested reasons, often for

compensation or to have charges against them reduced or dismissed). As such, we must

ignore the testimony of both Matulik and Rivera to assess whether the remaining evidence

in the record tends to connect Gardner to the underlying offense and thus corroborates

Matulik and Rivera’s testimony. See Malone, 253 S.W.3d at 257; Smith, 211 S.W.3d at

478.

B. Corroboration of Matulik and Rivera’s Testimony

The record reflects that the State called several witnesses to corroborate the

testimony provided by both Rivera and Matulik, including Officer Garrett, Ruben Rendon

Jr., a drug section supervisor for the Texas Department of Public Safety crime lab in

Corpus Christi, and Ronnie Kovar, a jailer with the Jackson County Sheriff’s Office. Officer

Garrett described the contents of the recorded audiotape of the purported transactions

between Gardner, Rivera, and Matulik.1 Officer Garrett testified that he and Deputy Garcia

used the recording device to listen to the conversations that Rivera had with both Gardner

and Matulik as they were happening. Officer Garrett also testified as to his conversations

with Rivera at the debriefing, where Rivera recounted that Gardner had sold him ten rocks

of cocaine and gave Officer Garrett the ten rocks of cocaine that had been allegedly

1 The recorded audiotape was played in open court, and a transcript of the conversations contained on the audiotape was provided to the jury for dem onstrative purposes only. Several witnesses opined on the contents of the conversations, including Rivera’s repeated references to “Seven” as the supplier of the cocaine.

8 purchased from Gardner. Officer Garrett noted that Rivera had worked for law

enforcement on two prior occasions, which indicated that law enforcement trusted Rivera.

Furthermore, Officer Garrett stated that: (1) he and Deputy Garcia strip-searched Rivera

prior to the transaction to make sure that he did not have any contraband; (2) Rivera

attached the recording device to himself; and (3) Officer Garrett and Deputy Garcia

ensured that the recording device was working properly prior to the meeting. Officer

Garrett and Deputy Garcia followed Rivera as he traveled to pick Matulik up and later to

the location where Rivera and Matulik met Gardner. However, Officer Garrett admitted that

he positioned the car that he and Deputy Garcia were in three-tenths of a mile away from

the location of the transaction, which allowed for a clear reception for the audiotape but

prevented them from clearly observing the purported transaction. Officer Garrett testified

that Matulik verified in his presence that Gardner had delivered the cocaine to Rivera and,

approximately two weeks after buying cocaine from Gardner, Rivera came into the police

station and identified Gardner from a photographic lineup as the individual who had sold

him the cocaine.

Rendon testified that he tested the substances that Rivera provided to Officer

Garrett and concluded that the substances amounted to 2.5 grams of cocaine. Kovar

stated that: (1) he had known Gardner as an inmate at the county jail for one-and-a-half

to two years; (2) he spoke with Gardner on a daily basis; and (3) he was very familiar with

the sound of Gardner’s voice. After listening to the recorded audiotape submitted into

evidence by the State, Kovar identified the voice of the individual selling the cocaine to

Rivera as Gardner’s. Moreover, both Officer Garrett and Kovar identified Gardner by his

street names of “Seven” and “Seven Days.”

9 As noted earlier, Gardner argues on appeal that the State failed to sufficiently

corroborate the testimony of Matulik and Rivera. However, based on our review of the

non-accomplice and non-covert evidence in the light most favorable to the jury’s verdict,

we conclude that the State has provided some non-accomplice and non-covert evidence

that tends to connect Gardner to the commission of the offense alleged in the indictment.

See Brown, 270 S.W.3d at 568; Smith, 211 S.W.3d at 478; see also TEX . CODE CRIM .

PROC . ANN . arts. 38.14, 38.141. Gardner also argues that Kovar’s testimony was not

sufficiently corroborative of Rivera and Matulik’s testimony because it was unreliable.

However, the resolution of Kovar’s testimony was within the province of the jury as the

exclusive judge of the credibility of the witness and of the weight to be given to the

testimony. See Brown, 270 S.W.3d at 568 (citing Jones v. State, 944 S.W.2d 642, 647

(Tex. Crim. App. 1996)). Because the State has provided some evidence connecting

Gardner to the commission of the offense, we further conclude that the evidence

corroborating Matulik and Rivera’s testimony is sufficient, thus satisfying the corroboration

requirements of articles 38.14 and 38.141. See TEX . CODE CRIM . PROC . ANN . arts. 38.14,

38.141; see also Malone, 253 S.W.3d at 257; Dennis, 151 S.W.3d at 749 (finding the

corroborating evidence sufficient when the informant and his vehicle were searched prior

to the purchase; the defendant was observed coming out of a house and approaching the

informant’s vehicle; the informant called the defendant by name; words on the audio

recording indicated the exchange of a substance for $400; the officer identified one of the

voices on the tape as the defendant’s; and when the informant returned to meet the officer,

he gave him the cocaine); Jefferson v. State, 99 S.W.3d 790, 792-93 (Tex. App.–Eastland

2003, pet. ref’d) (holding the corroborating evidence sufficient even though the informant

10 went by herself to a house to make the purchase because she had been searched prior

to leaving; the officer watched her go into the house; the informant purchased $150 worth

of cocaine; a recording was made of the transaction; the officer testified that the

defendant’s voice was on the recording; and the informant gave the officer cocaine when

she returned to his vehicle). Accordingly, we overrule Gardner’s sole issue on appeal.2

IV. CONCLUSION

Having overruled Gardner’s sole issue on appeal, we affirm the judgment of the trial

court.

________________________ ROGELIO VALDEZ Chief Justice Do not publish. TEX . R. APP. P. 47.2(b) Delivered and filed the 18th day of March, 2010.

2 Because we have concluded that the non-accom plice and non-covert evidence contained in the record sufficiently corroborated Matulik and Rivera’s testim ony, we need not address Gardner’s argum ent that covert-witness testim ony m ay not be corroborated by accom plice-witness testim ony and vice versa. See T EX . R. A PP . P. 47.1.