Cocke v. State

170 S.W.3d 747, 2005 Tex. App. LEXIS 5555, 2005 WL 1654591
CourtCourt of Appeals of Texas
DecidedJuly 13, 2005
Docket10-04-00056-CR
StatusPublished
Cited by13 cases

This text of 170 S.W.3d 747 (Cocke v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cocke v. State, 170 S.W.3d 747, 2005 Tex. App. LEXIS 5555, 2005 WL 1654591 (Tex. Ct. App. 2005).

Opinions

OPINION

FELIPE REYNA, Justice.

A jury convicted Abner Lee Cocke of burglary of a habitation and assessed his punishment at life imprisonment after Cocke pleaded “true” to enhancement allegations. Cocke contends in his sole issue that the court erred by failing to provide an accomplice-witness instruction to the jury in the guilt-innocence charge. We will reverse and remand.

The evidence establishes that five firearms and a Chevrolet pickup were stolen from Thomas Vick’s residence in Bosque County on May 16, 2003. Law enforcement officers in neighboring Coryell County discovered the stolen pickup on May 22 during an unrelated drug investigation at premises occupied by Paul Bundrant (and owned by his mother). Bundrant, David Sneed, and Sid Harmon were on the premises when the officers executed the search warrant which led to the discovery of the pickup. Bundrant was arrested on a drug charge. After the officers impounded the pickup and confirmed that it was stolen, they discovered that some firearms had also been stolen with the pickup. They returned and searched Bundrant’s property for the stolen firearms but found none.

Sneed testified that Cocke had brought the pickup to Bundrant’s property a few days before the raid. Cocke sold two firearms to Sneed on that day for $50 apiece. Sneed thought Cocke “[sjeemed like a des-parate man” with “no money, no cigarettes or nothing.” At some point during the course of the drug raid, the officers mentioned the stolen firearms. Sneed told them that he had purchased two firearms [749]*749from Cocke and that he would bring them in. The firearms were identified as two of the five stolen from Vick’s residence. Vick testified that these firearms were worth $800 and $1,000 respectively. Sneed also told the investigators where two of the other stolen firearms were located on Bun-drant’s property.

Officers then obtained consent from Bundrant to search the property, where they recovered the two stolen firearms Sneed had told them about. Bundrant testified that Warner Massingill, an acquaintance of his, and Cocke, whom he had not met before, stayed on his property a few days in mid-May. Cocke returned a few days later with the stolen pickup. Cocke gave Bundrant the two firearms as “rent” for allowing Cocke to stay on his property. When Bundrant saw that Cocke and Massingill had removed the rear bumper from the pickup and were “sanding on it,” Bundrant advised them that the pickup needed to be taken elsewhere if it was stolen. Massingill told Bundrant that they would. Cocke and Massingill were gone the next day, and Bundrant did not see the pickup either.

Bundrant overheard Cocke offer to sell another firearm to Sid Harmon. Harmon’s father testified that Sid later sold him what turned out to be the last of the stolen firearms for $100.

At trial, Cocke argued that Bundrant and Sneed were accomplice witnesses because of their possession of property stolen in the Vick burglary. However, the court denied Cocke’s request to include an accomplice-witness instruction in the charge.

Cocke contends in his sole issue that the court erred by denying his request for an accomplice-witness instruction because Bundrant and Sneed are either accomplices as a matter of law or a fact issue was raised on this issue which the jury should have been instructed to resolve.

“A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001). The purpose of this rule is to ensure “that the jury, not the judge, will decide the relative credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Prenger v. State, 108 S.W.3d 501, 505 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. See id.

Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.).

A defendant cannot be convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. Tex.Code Ceim. PROC. Ann. art. 38.14 (Vernon 2005).

“An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state.” Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004). This participation must involve an affirmative act which promotes the commission of the crime. A person is an accomplice as a matter of law if the person “is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense.” Id.

A trial court has no duty to charge the jury on the accomplice-witness rule unless there is no doubt or the evidence clearly shows that a witness is an accom[750]*750plice as a matter of law. If conflicting evidence is presented on a witness’s status as an accomplice or if it is unclear whether the witness is an accomplice, “then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’ ” Id.

A person need not “actually participate in the commission of the offense to be criminally responsible,” nor must the person “be physically present at the commission of the offense” to be considered a party. Guevara v. State, 152 S.W.3d 45, 51-52 (Tex.Crim.App.2004). Thus, when there is independent evidence of a recent burglary, a defendant’s unexplained possession of property stolen in that burglary may constitute sufficient evidence to convict. See Christopher v. State, 833 S.W.2d 526, 527-28 (Tex.Crim.App.1992); Tabor v. State, 88 S.W.3d 783, 786 (Tex.App.-Tyler 2002, no pet.); Dixon v. State, 43 S.W.3d 548, 552 (Tex.App.-Texarkana 2001, no pet.); Jackson v. State, 12 S.W.3d 836, 839 (Tex.App.-Waco 2000, pet. ref'd).

To be sufficient, the defendant’s possession of the stolen property must be personal, recent, and unexplained. Tabor, 88 S.W.3d at 786; Sweeny v. State, 925 S.W.2d 268, 270 (Tex.App.-Corpus Christi 1996, no pet.); Dickerson v. State, 740 S.W.2d 567, 570 (Tex.App.-Fort Worth 1987, pet. ref'd).

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170 S.W.3d 747, 2005 Tex. App. LEXIS 5555, 2005 WL 1654591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cocke-v-state-texapp-2005.