Martinez v. State

749 S.W.2d 556, 1988 Tex. App. LEXIS 1084, 1988 WL 47215
Court of Appeals of Texas·Decided March 31, 1988·No. 04-87-00215-CR·Published·Cited by 17 cases

Opinion

OPINION

CHAPA, Justice.

This is an appeal from a conviction of appellant, Mauro Martinez, for possession of heroin, less than 28 grams. After being convicted by a jury, the court sentenced the appellant to 16 years’ confinement. We affirm.

The issues are

1) whether the evidence is sufficient to support the conviction based on the accomplice testimony; and
2) whether the trial court erred in overruling appellant’s hearsay objection to the testimony of Officer Hierholzer.

In his initial complaint, appellant contends the evidence is insufficient to support the conviction. Appellant particularly argues that the corroborating evidence insufficiently supports the accomplice testimony *558 as required by TEX.CODE CRIM.PROC. ANN. art. 38.14 (Vernon 1979).

Generally, in reviewing the sufficiency of the evidence, the standard requires that we look at the evidence in the light most favorable to the prosecution and determine whether any rational trier of the facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984) (en banc). The jury is the sole judge of the credibility of the witnesses, the weight to be given their testimony, and may accept or reject all or part of any witness’ testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982) (en banc).

However, cases involving the testimony of an accomplice witness are controlled by TEX.CODE CRIM.PROC.ANN. art. 38.14, which provides:

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.

Thus, where a sufficiency of the evidence complaint is broad enough to attack the conviction both in general and on non-compliance with article 38.14, the reviewing court must, in fact, adopt a two prong standard of review. The reviewing court must 1) determine whether the corroborating evidence alone meets the requirements of article 38.14; and if so, 2) whether the corroborating evidence together with the accomplice testimony meets the general sufficiency of evidence standard.

In determining the initial requirement of such cases, the reviewing court must eliminate from consideration the evidence of the accomplice witness and then examine the corroborating evidence to ascertain if its incriminating character tends to connect the defendant with the commission of the offense charged. If the corroborating evidence does, the requirements of article 38.14 are satisfied and the last prong will then be considered; otherwise, the point of error must be sustained. Gamez v. State, 737 S.W.2d 315 (Tex.Crim.App.1987); Paulus v. State, 633 S.W.2d 827 (Tex.Crim.App.1982) (on rehearing); Walker v. State, 615 S.W.2d 728 (Tex.Crim.App.1981); Carrillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979). However, the “more likely than not” test enunciated in May v. State, 618 S.W.2d 333 (Tex.Crim.App.1981) (en banc); James v. State, 538 S.W.2d 414 (Tex.Crim.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Crim.App.1975); and Warren v. State, 514 S.W.2d 458 (Tex.Crim.App.1974) has now been disavowed. Gamez v. State, supra.

Further, the corroborative evidence need not directly link the accused to the crime or be sufficient in itself to establish guilt as long as it tends to connect the accused to the commission of the offense involved. Brooks v. State, 686 S.W.2d 952 (Tex.Crim.App.1985) (en banc); Eckert v. State, 623 S.W.2d 359 (Tex.Crim.App.1981); May v. State, 618 S.W.2d 333. Therefore, if the corroborative evidence is sufficient, consideration of the accomplice testimony is then permissible in reaching the second requirement which involves the general sufficiency of evidence standard.

In this case, accomplice Lalita On-tiveros testified for the State after being granted immunity. The initial issue then clearly is whether the corroborative evidence alone in this record tends to connect the appellant to the commission of the offense charged. We agree it does.

Viewed in the light most favorable to the prosecution, the record reflects the following corroborative evidence tending to connect the appellant to the offense charged:

1) A confidential informant was furnished Texas Dept, of Public Safety money with recorded serial numbers in conjunction with a drug investigation by the Kerr County Sheriff’s Department.
2) As a result of an alleged purchase of heroin at the Ybarra home, a search warrant was issued authorizing the search of the residence of Rosemary and Florencio Ybarra.
*559 3) At the time the warrant was executed, Rosemary Ybarra, Lalita Ontive-ros, and the appellant were in the Kitchen of the Ybarra home.
4) Bags of heroin were found in a purse belonging to Lalita Ontiveros, in a green overnight bag located in the closet of another room, and in a coat pocket of a coat belonging to Florencio Ybarra in another closet.
5) The green overnight bag also contained the registration papers of appellant’s vehicle, a copy of a letter to the newspaper editor complaining about the alleged unjust conviction of appellant’s brother for possession of heroin, and shaving plus other men’s paraphernalia.
6) Appellant was in possession of $285.00 in cash which included some of the bills given to the confidential informant with the recorded serial numbers.
7) The deputy sheriff in charge of the search had received information that the Ybarras were selling heroin, and that their supply source was the appellant.

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Martinez v. State, 749 S.W.2d 556, 1988 Tex. App. LEXIS 1084, 1988 WL 47215 (Tex. Ct. App. 1988).

749 S.W.2d 556 (Martinez v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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