Gill v. State

873 S.W.2d 45, 1994 Tex. Crim. App. LEXIS 34, 1994 WL 90559
CourtCourt of Criminal Appeals of Texas
DecidedMarch 23, 1994
Docket650-93
StatusPublished
Cited by391 cases

This text of 873 S.W.2d 45 (Gill v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gill v. State, 873 S.W.2d 45, 1994 Tex. Crim. App. LEXIS 34, 1994 WL 90559 (Tex. 1994).

Opinions

OPINION ON THE STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A Leon County jury found appellant, Sammy Gill, guilty of aggravated robbery of a person 65 years of age or older. See Tex.Penal Code § 29.03(a)(3)(A). The jury assessed his punishment at imprisonment for 50 years. See Tex.Penal Code § 12.32. The Tenth Court of Appeals, with one justice dissenting, later reversed appellant’s conviction on the ground the evidence adduced at his trial was insufficient to satisfy the requirements of Texas Code of Criminal Procedure article 38.14, the accomplice witness rule.1 Gill v. State, 852 S.W.2d 7 (Tex.App.—Waco 1993). We granted the State’s petitions2 for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(3) and (5), to determine whether the court of appeals erred in holding that an accused’s possession of stolen property must be exclusive in order for it to adequately corroborate the testimony of an accomplice witness. We now reverse.

The Controversy

The evidence at appellant’s April 1991 trial was, in relevant part, as follows: Seventy-[47]*47eight-year-old Percy Westmoreland testified that on February 5, 1990, he closed his Nor-mangee, Texas, grocery store at 8:00 p.m. and then drove two blocks to his home. He carried three days’ store receipts with him in a paper grocery sack. The store receipts consisted of checks, food stamps, “WIC” welfare cards, and approximately $12,000 in cash. Moments after Westmoreland entered his home, someone threw a blanket over him and forced him to the floor. The robber or robbers, whom Westmoreland never saw or heard speak, then grabbed the grocery sack and fled. Westmoreland also testified that he and appellant had been acquainted for several years.

Steve Evans, the accomplice witness,3 testified that around 7:30 p.m. on the night in question, he and appellant entered West-moreland’s home through a window and waited for him to arrive. After Westmoreland entered his home, Evans threw a blanket over him and pushed him to the floor. Appellant then grabbed the grocery sack, and he and Evans fled.

Amanda Manning, Evans’ wife, testified that around 8:45 p.m. on the night in question, she saw appellant and Evans, who was carrying a grocery sack, enter the apartment in which she and Evans resided. The two men went directly to a bedroom, where “they ... poured the money and stuff on the bed,” the “stuff’ being checks' and WIC cards. Manning attempted to enter the bedroom, but Evans pushed her out. Evans and appellant left the apartment together about twenty minutes later.

Sharwan Manning, Amanda’s sister, testified that she visited her sister’s apartment on the night in question and that at about 9:00 p.m. that night, she saw appellant and Evans, who was carrying a paper sack, enter the apartment. The two men, without saying a word, went directly into a bedroom, closing the door behind them.

Finally, Leon County Sheriff Royce Wilson testified that at the time of the robbery, appellant resided one block from Westmore-land’s grocery store and about four blocks from Westmoreland’s residence.

The jury charge at the guilt/innocence phase included the following instruction:

You are instructed that Steve Evans was an accomplice, if any offense was committed as alleged in the indictment, and you cannot convict the defendant upon his testimony unless you first believe that his testimony is true and shows the guilt of the defendant as charged by the indictment, and then you cannot convict the defendant unless the accomplice witness’ testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of an offense, but it must tend to connect the defendant with its commission.

The court of appeals’ majority held that the non-accomplice evidence did not adequately corroborate Evans’ testimony. Gill v. State, 852 S.W.2d, at 9. The majority explained its holding thusly:

The problem with the State’s position [that the non-accomplice evidence adequately corroborated Evans’ testimony] is that there is no evidence that Gill ever possessed the brown grocery bag or the money, checks, food stamps or WIC cards it apparently contained. See Moron v. State, 779 S.W.2d 399, 402 (Tex.Crim.App.1985). Instead, the evidence showed that Evans had the grocery bag in his possession. Moreover, assuming that the evidence showed Gill also possessed the loot, his possession was not exclusive. For possession of recently stolen property to be sufficient corroboration, the possession by the accused must be exclusive. Rubio v. State, 121 Tex.Crim. 621, 50 S.W.2d 294, 295 (App.1932) [sic].
Likewise, the evidence does not show any furtive or suspicious acts on Gill’s part while he was with Evans. According to the two eyewitnesses [the Mannings], Gill merely walked into the apartment with Evans and accompanied him to the bedroom. Evans, not Gill, then pushed Evans’ [48]*48wife out of the bedroom and shut the door. Gill later walked out of the apartment with Evans.

Ibid.

The dissenting justice argued that the testimony of the Mannings did tend to connect appellant to the commission of the offense, so as to satisfy the accomplice witness rule. The dissent pointed out simply that the non-accomplice evidence showed “the presence of the money, checks, WIC cards, and food stamps in the room where Gill and Evans were and the secretive nature of their actions” shortly after the offense was committed. Gill v. State, 852 S.W.2d, at 10 (Vance, J., dissenting).

The Accomplice Witness Rule

The accomplice witness rule is required by neither common law nor constitution. Thompson v. State, 691 S.W.2d 627, 631 (Tex.Crim.App.1984). The rule simply reflects a legislative determination that accomplice testimony that implicates another should be viewed with some level of caution. Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App.1982). Under the rule it is not necessary for the non-accomplice evidence to be sufficient in itself to establish the accused’s guilt beyond a reasonable doubt. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988). Nor is it necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App.1972). All that is required is that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991).

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Cite This Page — Counsel Stack

Bluebook (online)
873 S.W.2d 45, 1994 Tex. Crim. App. LEXIS 34, 1994 WL 90559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gill-v-state-texcrimapp-1994.