Fare v. State

1 S.W.3d 928, 1999 Tex. App. LEXIS 7821, 1999 WL 960967
CourtCourt of Appeals of Texas
DecidedOctober 20, 1999
DocketNo. 09-98-122 CR
StatusPublished
Cited by8 cases

This text of 1 S.W.3d 928 (Fare 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
Fare v. State, 1 S.W.3d 928, 1999 Tex. App. LEXIS 7821, 1999 WL 960967 (Tex. Ct. App. 1999).

Opinion

OPINION

RONALD L. WALKER, Chief Justice.

Appellant was convicted by a jury for having committed the state jail felony offense of Burglary of a Building. See Tex. Pen.Code Ann. § 30.02 (Vernon 1994). Appellant elected to have the trial court assess punishment. Appellant was sentenced to confinement in the State Jail Facility for a term of two years, and assessed a fine of $5,000. The trial court suspended the imposition of appellant’s confinement and placed her on community supervision for a period of five years. Appellant brings forth two issues for our consideration, viz:

Point 1: The evidence was insufficient to support the conviction.
Point 2: The appellant was wrongly convicted on the uncorroborated testimony of alleged co-conspirators.

The record before us reflects that appellant was tried jointly with co-defendant, Trish Sestric.1 Appellant and Sestric had been indicted separately for the burglary of the Child Protective Services (CPS) offices located in Orange County, Texas. The offense date was alleged as on or about May 29, 1995. The basic facts are uncontested. The testimony reflected that on the date alleged, someone entered the Orange County CPS offices and removed a large number of word processors, monitors, printers, and other items of office equipment. While the authorities had no suspects initially, a significant circumstance of the burglary was the fact that the building had not been forcibly entered. The assumption at that point was that persons unknown had entered the building by using a key.

The break in the case came in early November of 1995, when co-defendant Ses-tric’s son, Matt Reck, informed the authorities that he participated in the burglary and subsequent secreting of the stolen property. Reck was granted immunity by the Orange County authorities for providing information on the burglary. Reck gave a statement and provided the authorities with an address to a house in Beaumont, Texas, where a large number of word processing equipment was recovered. One particular item, a “tripod box,” had the letters “C.P.S.” written on it. The [930]*930owner of the house, David Barrera, cooperated with the authorities and allowed them full access to his house and garage. By the time the instant cases against appellant and Sestric went to trial, however, Barrera had died so that any testimony he may have been able to provide was lost.

Included in the information the authorities received from Matt Reck was that of the names of John Hall, Sestric, and appellant. At the time of the burglary, Hall was employed with Orange County CPS and appellant was a former employee. The authorities eventually tracked down Hall and he also gave them a statement admitting to participation in the burglary along with Matt Reck, Sestric, and appellant.

At trial, the State called both Matt Reck and John Hall to testify against Sestric and appellant. The State also called CPS employees Anna Bento and Gail Schlabs, Detective Lynn Thomas Arceneaux of the Orange Police Department, Detective Green D. Moree of the Beaumont Police Department, and Patricia John who was a former house-mate with John Hall. It was through John Hall that Ms. John became acquainted with Trish Sestric and appellant. Other than John Hall and Matt Reck, only two of the State’s witnesses had any encounters with either Sestric or appellant following the burglary. Those witnesses were Ms. John and Detective Mor-ee. We will discuss the significance of the encounter with Ms. John subsequently.

The case for the defense consisted of a single witness, Earl Eric Bennett. Bennett was a long-time friend of appellant and Sestric, and testified that on Memorial Day weekend of 1995, the week-end the burglary occurred, appellant, Sestric and Bennett were at appellant’s house watching war movies. Bennett further testified that neither appellant nor Sestric was gone from the house for any appreciable length of time and they could not have sneaked out because appellant’s and Hall’s dogs would have made so much noise that Bennett would have been alerted to their comings and goings.

As alluded to above, appellant makes a general legal sufficiency complaint and a more specific complaint that the co-conspirators’ testimony was not sufficiently corroborated with other evidence so that said testimony may be included in any legal sufficiency analysis. Tex.Code CRiM. PROC. Ann. art. 38.14 (Vernon 1979) provides that 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. The rationale behind the rule has been explained thusly:

An accomplice witness is a discredited witness because her or his testimony alone cannot furnish the basis for the conviction. No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated.

Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981) (citations omitted).

The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. See Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App.1999), cert, filed. Nevertheless, the remedy for an appellate finding of insufficient evidence to corroborate accomplice testimony is acquittal since Tex.Code CRiM. PROC. Ann. art. 38.17 (Vernon 1979) states: “In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.”

We will discuss appellant’s second issue first. In order to determine whether the accomplice witnesses’ testimo[931]*931ny is corroborated we eliminate all accomplice evidence from the record and determine whether the other inculpatory facts and circumstances in evidence tend to connect the accused to the offense. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). The non-accomplice evidence need not be sufficient in itself to establish the accused’s guilt beyond a reasonable doubt. Hernandez, 939 S.W.2d at 176. Nor is it necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Id. The 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. Id.

In the instant case, the State’s brief sets out seven non-accomplice eviden-tiary situations it contends are contained in the record. These are listed as follows:

1. Appellant, John Hall, and Trish Ses-tric had discussed burglarizing the CPS office and stealing computers before they committed the burglary;
2.

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1 S.W.3d 928, 1999 Tex. App. LEXIS 7821, 1999 WL 960967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fare-v-state-texapp-1999.