Debra H. Hodge v. State

• Court: Court of Appeals of Texas
• Decided: April 10, 2008
• Docket: 14-07-00511-CR
• Status: Published

Opinion

Reversed and Acquitted and Memorandum Opinion filed April 10, 2008

Reversed and Acquitted and Memorandum Opinion filed April 10, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00511-CR

DEBRA H. HODGE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 44,498

M E M O R A N D U M   O P I N I O N

Appellant, Debra H. Hodge, was found guilty by a jury of engaging in organized criminal activity and was sentenced to two years= confinement, probated for two years.  On appeal, appellant complains that: (1) the evidence is insufficient to corroborate the accomplice testimony; (2) the trial court erred in allowing the State to amend the indictment on the day of trial; and (3) the trial court erred in denying appellant=s request for an additional 10 days to prepare for trial after the indictment was amended.  Because we hold that the accomplice testimony was insufficiently corroborated, we reverse the conviction and render judgment of acquittal.

BACKGROUND

On June 12, 2006, appellant and twelve co-defendants were charged with theft and engaging in organized criminal activity.  The charges stem from 32 fraudulent checks mailed to the Attorney General=s Office in a scheme to fraudulently obtain funds from the state.  The criminal scheme was premised on a particular deficiency in the Texas child support system.  Generally, a non-custodial parent required to pay child support mails the payment to the Attorney General=s Office.  The check is scanned upon receipt.  Immediately, the state sends a second check, drawn by the Texas Comptroller=s Office, to the custodial parent in the amount made by the non-custodial parent.  The state, at the time the instant crime was comitted, did not first verify the non-custodial parent=s payment before sending the second check to the custodial parent.  Thus, a non-custodial parent could submit a check drawn on an account with insufficient funds, and the custodial parent would receive a check from the state and cash it before the Attorney General=s Office discovered that the original check was insufficient.  Tonya Jackson, a co-defendant and the organizer of the instant criminal scheme, utilized this information to devise a plan to defraud the Attorney General=s Office and fraudulently obtain funds from the state.

Jackson approached the co-defendants and appellant to enlist their participation in a similar fraudulent scheme.  Jackson sought out custodial parents receiving child support and individuals willing to open checking accounts to be used to obtain fraudulent child support payments.  According to Jackson, appellant agreed to open a checking account and to furnish temporary checks.  Jackson testified that appellant opened two checking accounts, the first at 1st Convenience Bank and the second at Hibernia Bank, and provided Jackson with temporary checks to be mailed into the Attorney General=s Office as fraudulent child support payments.  Jackson further testified that appellant received $50.00 for opening the bank account at Hibernia Bank.  On appellant=s Hibernia Bank account, a forged temporary check in the amount of $2,500.00, purporting to be a child support payment, was submitted to the Attorney General=s Office.  The state issued a check in turn, which was cashed.  According to Jackson, appellant received an additional $100.00 once the check was cashed. The $2,500.00 check was returned to the State of Texas due to insufficient funds.^[1]

Fontella Scott, another co-defendant, testified at trial that she was approached by Jackson to participate in the same criminal scheme.  Scott testified that appellant confirmed on the telephone that she was going to open a checking account for the purpose of giving Jackson the checks to use in the criminal scheme.  According to Scott, she and appellant met at Scott=s residence, and appellant confirmed that she had opened the checking account.   Scott also testified that appellant received $50.00 from Jackson for opening the bank account.  Minnie Waddle, a childhood friend of Jackson, Scott, and appellant, testified that she observed Jackson and appellant talking in a car together on two separate occasions.

Colleen Adams, an investigator with the Attorney General=s Office, testified about the particular deficiency in the child support system that allowed the instant crime to occur.  Adams also testified that she suspected appellant=s involvement based on her investigation and conversations with Jackson and Scott.   David Schultz of the Fort Bend County Sheriff=s Department testified that he investigated the instant crime and learned of appellant=s involvement based on his discussions with Adams, Jackson, and Scott.   Schultz testified that appellant told him, when questioned about the $2,500.00 check, it must have been stolen.  Schultz confirmed with Hibernia Bank that appellant did not report any checks stolen.  Joe Jeffry of Hibernia Bank testified that appellant opened a checking account with the bank, which became overdrawn within eleven days.  Jeffry testified that the $2,500.00 temporary check used in the crime was drawn on appellant=s Hibernia bank account; however, the temporary check was a forgery and did not contain appellant=s personal information, handwriting, or signature.

Appellant was arrested for her alleged involvement in the crime.  The original indictment alleged that appellant, by committing the overt act of Aopen[ing] a checking account at Hibernia Bank,@ engaged in organized criminal activity and committed theft.  On May 15, 2007, the State, over appellant=s objection, amended the indictment, changing appellant=s overt act of Aopen[ing] a checking account at Hibernia Bank@ to Aopen[ing] and/or allow[ing] the use of and/or provid[ing] checks for use from a checking account at Hibernia Bank and/or First National Bank and/or 1st Convenience Bank.@  Appellant=s request for an additional 10 days to prepare for trial in light of the amendment was denied.  The jury found appellant guilty as alleged in the amended indictment and sentenced appellant to two years= imprisonment, probated for two years. 

On appeal, appellant raises three issues: (1) the evidence does not sufficiently corroborate the accomplice testimonies of Jackson and Scott; (2) the trial court erred in allowing the State to amend the indictment on the day of trial; and (3) the trial court erred in denying appellant=s request for an additional 10 days to prepare for trial after the indictment was amended.

ANALYSIS

Corroboration of Accomplice Testimony

In appellant=s first issue, she argues that there is insufficient evidence to corroborate the accomplice testimonies of Jackson and Scott.  It is well-established that a conviction based upon the testimony of an accomplice must be sufficiently corroborated by other nonaccomplice evidence.  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  As co-indictees, Jackson and Scott are accomplices as a matter of law.^[2]  See Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985); Nolley v. State, 5 S.W.3d 850, 853 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Therefore, each of their testimonies must be corroborated by other nonaccomplice evidence connecting appellant to the crime.  Tex. Code Crim. Proc. Ann. art. 38.14; Nolley, 5 S.W.3d at 852-53.  In our review, we eliminate all accomplice testimony from consideration and examine the remaining portions of the record for any evidence tending to connect appellant with the commission of the crime.  Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).  Nonaccomplice evidence need not directly link the accused to the crime or establish guilt beyond a reasonable doubt.  Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997).  No precise rule can be formulated regarding the amount of evidence required to sufficiently corroborate the testimony of an accomplice witness; each case must be decided upon its own facts and circumstances.  Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).  In determining the sufficiency of corroboration, we must view the corroboration evidence in the light most favorable to the jury=s verdict.  Torres v. State, 137 S.W.3d 191, 196 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.CAustin 2002, no pet.).  Furthermore, if the State fails to produce some nonaccomplice evidence tending to connect the accused to the offense, the accused is entitled to an acquittal.  Tex. Code Crim. Proc. Ann. Art. 38.17; Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2000).  

At trial, Jackson=s and Scott=s testimonies furnished a complete case against appellant.  Specifically, they testified that appellant knowingly participated in the scheme to defraud the Attorney General=s Office.  According to these accomplices, appellant agreed to open a checking account and provide Jackson with checks to be used as fraudulent child support payments.  The State presented several pieces of evidence to corroborate Jackson=s and Scott=s testimonies: (1) testimony from Colleen Adams from the Attorney General=s Office and David Schultz from the Fort Bend County Sheriff=s Department; (2) testimony from Minnie Waddle; (3) the forged check used in the scheme; and (4) testimony from Joe Jeffry of Hibernia Bank.  Adams and Schultz testified about check scams in general and the deficiency in the Attorney General=s child support system that allowed a criminal scheme, such as the instant one, to occur.  Adams and Schultz had no personal knowledge, outside of the accomplices= statements, of facts connecting appellant to the commission of the crime.  See Young v. State, 95 S.W.3d 448, 452 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding that the State failed to sufficiently corroborate informant=s testimony where the arresting officer explained generally how informants are used, but failed to personally perceive any facts that connected the accused to the crime).  Additionally, Waddle, a childhood friend of both accomplices and appellant, testified that she observed appellant with Jackson on two occasions.  Appellant=s association with Jackson is not evidence tending to connect her with the crime.  See Dowthitt, 931 S.W.2d at 249 (holding that the mere presence of an accused in the company of the accomplice does not corroborate accomplice testimony); Wincott v. State, 59 S.W.3d 691, 700 (Tex. App.CAustin 2001, pet. ref=d) (rejecting the State=s effort to equate guilt by association with corroboration). 

The $2,500.00 forged check shows that a fraudulent child support payment was made to the Attorney General=s Office.  Evidence merely showing the commission of a crime is not sufficient corroboration.  Tex. Code Crim. Proc. Ann. Art. 38.14.  Jeffry=s testimony, coupled with the fraudulent check, shows that: (1) appellant=s check was used in the criminal scheme; (2) the check was forged; and (3) appellant did not report the forged check stolen.  The extent of appellant=s connection to the crime is based on these pieces of evidence.  We must determine whether the forged check and Jeffry=s testimony tends to connect appellant to the commission of the instant crime.  The phrase Atending to connect@ has been interpreted as Ato serve, contribute or conduce in some degree or way . . . to have a more or less direct bearing or effect;@ and while not contemplating conjecture, Ahas a tendency to prove the averments in the indictment.@  Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986).  Furthermore, if the accomplice witness states a number of facts that are corroborated by evidence of other witnesses, but these corroborated facts do not tend to connect the accused to the crime, the requirements of article 38.14 are not met.  Losada v. State, 721 S.W.2d 305, 308 (Tex. Crim. App. 1986).  If it appears that there was proof before the jury confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied.  Thompson v. State, 621 S.W.2d 624, 629 (Tex. Crim. App. 1981) (citing Minor v. State, 299 S.W. 422 (1927)) (emphasis added); see also Wincott, 59 S.W.3d. 699.

Here, the nonaccomplice evidence, the forged check and Jeffry=s testimony, does not meet the requirements of article 38.14 because it fails to corroborate an incriminating fact or a fact connecting appellant to the commission of the crime.  Instead, this evidence shows only that appellant=s forged check was used in the scheme, not that appellant was connected to the criminal scheme.  Evidence that provides corroboration of Amere details@ of the accomplice testimony is not sufficient if it does not corroborate a fact that tends to connect the accused to the commission of the offense.  Beathard v. State, 767 S.W.2d 423, 428 (Tex. Crim. App. 1989).  There is a line of cases stating that evidence corroborating a Amere detail@ of an accomplice=s testimony meets article 38.14 requirements.^[3]  In asserting this proposition, these cases rely on an isolated statement in Beathard v. State.   Beathard, 767 S.W.2d at 430 (AIndependent evidence which generally tends to prove that an accomplice witness= version of events is true, rather than the version given by the defendant, is considered corroborative, even if it concerns a mere >detail,= as opposed to a substantive link between the defendant and commission of the offense.@).   Taken out of context, this statement seems to minimize the amount of corroborating evidence necessary under article 38.14.  We do not read Beathard as altering downwards the quality of evidence needed to corroborate accomplice testimony.  Corroboration of any detail does not necessarily provide sufficient corroboration under article 38.14.  See Losada, 721 S.W.2d at 308 (stating that corroboration of a fact must be one that connects the accused to the commission of the crime); Simmons v. State, 205 S.W.3d 65, 73 (Tex. App.CFort Worth 2006, no pet.) (evidence that merely provides corroboration of Adetails@ of the accomplice=s testimony is not sufficient if it does not corroborate a fact that tends to connect the defendant to the offense).  It is the quality of the corroboration, not quantity, that must be examined to see if sufficient corroboration exists.

The nonaccomplice evidence in this case raises a suspicion that appellant allowed the use of her check to be used in the crime; however, even a strong suspicion is insufficient to corroborate the testimony of an accomplice witness.  See Umsted v. State, 435 S.W.2d 156, 158 (Tex. Crim. App. 1968); Wincott, 59 S.W.3d at 700.  The forged check and Jeffry=s testimony clearly points a finger of suspicion at appellant, but fails to corroborate a fact that incriminates appellant or connects her to the commission of the crime.  See Castaneda v. State, 682 S.W.2d 535, 538 (Tex. Crim. App. 1984) (stating that evidence merely pointing the Afinger of suspicion@ at an accused will not suffice as corroboration under article 38.14); see also Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.CAustin 2002, no pet.) (stating that corroboration must be to Acriminative facts@).  The nonaccomplice evidence establishing that appellant=s check was used in the crime, without more, cannot be regarded as furnishing the necessary corroboration under article 38.14. Because the state failed to produce nonaccomplice testimony tending to connect appellant to the instant crime, we sustain appellant=s first issue.  In view of our disposition of appellant=s first issue, it is not necessary to address appellant=s other issues. 

We reverse appellant=s conviction and render a judgment of acquittal. 

/s/        Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed April 10, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

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

---

^[1] Jackson also testified that two checks from appellant=s 1st Convenience checking account were used to fraudulently obtain additional funds from the state.  However, those alleged payments were not  discovered and are not apart of the funds alleged in the indictment in this case.  

^[2]  Prior to appellant=s trial, both Jackson and Scott entered into plea agreements with the State wherein both pleaded guilty to the offense of engaging in organized criminal activity.  Jackson received five years imprisonment, while Scott received one day in county jail.  As apart of their plea agreements, both accomplices testified against appellant at her trial.

^[3]  See Smith v. State, No. 02-04-00120-CR, 2005 WL 852144, at *3 (Tex. App.CFort Worth April 14, 2005, pet. ref=d) (per curiam) (mem. op., not designated for publication); Reister v. State, No. 08-01-00373-CR, 2003 WL 21291035, *10 (Tex. App.CEl Paso June 5, 2003, pet. ref=d) (not designated for publication); Davis v. State, 68 S.W.3d 273, 281 (Tex. App.CDallas 2002, pet. ref=d); Alexander v. State, No. 05-01-01614-CR, 2002 WL 3184837, at *1 (Tex. App.CDallas December 20, 2002, no pet.) (mem. op., not designated for publication); Buchanan v. State, No. 05-98-02054-CR, 2001 WL 171090, at *6 (Tex. App.CDallas February 22, 2001, no pet.) (not designated for publication); Lee v. State, 29 S.W.3d 570, 577 (Tex. App.CDallas 2000, no pet.); Williams v. State, No. 14-97-00085-CR, 1999 WL 130147, at *5 (Tex. App.CHouston [14th Dist.] March 11, 1999, no pet.) (not designated for publication); Blacklock v. State, No. 14-93-00330-CR, 1994 WL 416551, at *1 (Tex. App.CHouston [14th Dist.] August 11, 1994, pet. ref=d) (not designated for publication); Moya v. State, No. 14-91-00660-CR, 1993 WL 123083, at *1 (Tex. App.CHouston [14th Dist.] April 22, 1993, pet. ref=d) (not designated for publication); Jebbia v. State, No. 14-90-00313-CR, 1991 WL 168685, at *4 (Tex. App.CHouston [14th Dist.] September 5, 1991, pet. ref=d) (not designated for publication); Gonzales v. State, No. 14-90-00458-CR, 1991 WL 44968, at * 4 (Tex. App.CHouston [14th Dist.] April 4, 1991, pet. ref=d) (not designated for publication).