Nowell v. State

720 S.W.2d 859, 1986 Tex. App. LEXIS 9052
CourtCourt of Appeals of Texas
DecidedNovember 12, 1986
DocketNo. 6-85-032-CR
StatusPublished
Cited by1 cases

This text of 720 S.W.2d 859 (Nowell 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
Nowell v. State, 720 S.W.2d 859, 1986 Tex. App. LEXIS 9052 (Tex. Ct. App. 1986).

Opinion

CORNELIUS, Chief Justice.

William Tom Nowell was convicted of theft of property having an aggregate value of at least $10,000.00. Punishment, enhanced by prior convictions, was life imprisonment and a $10,000.00 fine.

In six points of error, Nowell contends that the indictment and the charge were defective, there was insufficient evidence to support the conviction, he was denied his right to a speedy trial, the trial court should have granted his motion to quash the indictment, and the court’s charge was an improper comment on the weight of the evidence.

Nowell contends that the indictment is fundamentally defective because it fails to allege that the property was unlawfully appropriated, or that he unlawfully exercised control of the property without the effective consent of the owner with intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 1986). The second page of the indictment was omitted from the transcript initially filed in this appeal. The transcript was later supplemented to include the missing page of the indictment. The complete indictment contains the language alleged to be missing. Thus, no error is demonstrated.

Nowell also contends that the jury charge was fundamentally defective because, although it abstractly charged on the law of parties, it failed to apply the law to the facts. He argues that if he is guilty at all, it is only as a party and not as the primary actor.

The indictment charged Nowell with committing the theft himself. In such a case, a charge on the law of parties is not required, although if the evidence supports such a charge the court may give it, even though there is no corresponding allegation in the indictment. Williams v. State, 676 S.W.2d 399 (Tex.Crim.App.1984), and cases there cited. As the charge was not required in this case, there was no error in failing to apply the law of parties to the facts. Moreover, we find Nowell’s objection in this respect was not sufficient to point out to the court the specific alleged defect. See Brown v. State, 716 S.W.2d 939 (Tex.Crim.App.1986).

Nowell also contends that the evidence is insufficient to support the allegations, of the indictment, and that there was insuffi[861]*861cient corroboration of Jean Campbell’s accomplice testimony.

When a question of insufficient evidence is presented in a criminal case, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the jury verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Gardner v. State, 699 S.W.2d 831 (Tex.Crim.App.1985); Brandley v. State, 691 S.W.2d 699 (Tex.Crim.App.1985); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983).

The elements of the offense of theft are: (a) a person who (b) unlawfully appropriates property (c) with intent to deprive the owner of such property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.1986). Appropriation of property is unlawful if: (a) it is without the owner’s effective consent, (b) the property is stolen and the actor appropriates the property knowing it was stolen by another. Tex. Penal Code Ann. § 31.03(b) (Vernon Supp.1986).

In the light most favorable to the verdict, the testimony of accomplice Jean Campbell did establish that Nowell induced her to assist him in the scheme of presenting false invoices from Nowell to Campbell’s employer for payment. Taken as a whole, her testimony clearly indicates that it was Nowell’s intent to unlawfully appropriate property from Kentron International with the intent to deprive Kentron of such property without its effective consent. An actor’s knowledge or intent may be established by the uncorroborated testimony of the accomplice that tends to connect the actor to the crime. Tex. Penal Code Ann. § 31.03(b), (c) (Vernon Supp.1986).

Nowell also argues that no crime was committed because the initial appropriation by Mrs. Campbell was not unlawful, but was rather by the express permission of the effective owner of the property, W.J. Flynn, who was vice-president of Kentron. The essence of Flynn’s testimony was that he never gave Campbell permission to write checks for Nowell, or for any of Nowell’s companies, and he never gave No-well permission to receive and cash or deposit such checks. He testified no person in the corporation had permission to write checks which were not authorized or for purposes which were unauthorized. He characterized the checks in the indictment as being for purposes which were not authorized. Billy Jean Taylor, Campbell’s immediate supervisor, testified that the checks which were issued as a result of the false invoices submitted by Nowell through Mrs. Campbell were not authorized checks. In addition to the witnesses named, there were several other witnesses whose testimony supported the commission of the offense by Nowell.

Nowell correctly states 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. Tex. Code Crim.Proc.Ann. art. 38.14 (Vernon 1979).

To determine the sufficiency of corroboration, we eliminate from consideration the testimony of the accomplice and then examine the testimony of the other witnesses to determine if there is inculpatory evidence which tends to connect the accused with the commission of the offense. Cruz v. State, 690 S.W.2d 246 (Tex.Crim.App.1985). The corroborative evidence need not directly link the accused to the offense, nor must it standing alone establish guilt. It need only make the accomplice’s testimony more likely than not. Meyers v. State, 626 S.W.2d 778 (Tex.Crim.App.1982). And, the accomplice witness need not be corroborated in all of his testimony. Walker v. State, 615 S.W.2d 728 (Tex.Crim.App.1981). If we eliminate the testimony of Campbell, there remains the testimony of her supervisor, Mrs. Taylor, that checks for false invoices from Nowell and his companies had been submitted by Campbell for payment to Kentron International. There is testimony from the four representatives of the [862]*862Dallas area banks that those same checks were either deposited in accounts of, or cashed by, Nowell. Although the evidence raised the issue of Nowell’s guilt as a party, there was also sufficient evidence to convict him as a principal.

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744 S.W.2d 191 (Court of Appeals of Texas, 1987)

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720 S.W.2d 859, 1986 Tex. App. LEXIS 9052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowell-v-state-texapp-1986.