Passmore v. State

617 S.W.2d 682, 1981 Tex. Crim. App. LEXIS 1044

• Court: Court of Criminal Appeals of Texas
• Decided: May 27, 1981
• Docket: 51792
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a building.¹ Punishment, enhanced by two prior convictions, was assessed at life.

In his first ground of error, appellant challenges the sufficiency of the evidence to support his conviction. He maintains the evidence is insufficient to corroborate the testimony of an accomplice witness.

Officer Jeffery Wilkerson, of the Amarillo Police Department, testified that on the night of September 18,1974, he went to the Acme Brick Yard after receiving a report of a burglary in progress. As Wilkerson approached the yard, he noticed a car slowly drive away from in front of the yard. The car was pursued and stopped. Wilkerson released the driver of the car, Marvin Pass-more, after checking his driver’s license. Finding no evidence of a burglary at the yard, Wilkerson left only to be resummoned some twenty minutes later after receiving a second burglary report.

Wilkerson returned to the yard a second time. He related that the yard was surrounded by a fence. By shining his flashlight on a building in the yard, the officer saw a broken window and an open door. Wilkerson then spoke with Jesus Cortez at the scene of the offense. While they were talking, Cortez pointed toward two individuals who were walking nearby. Wilkerson ran to the individuals who were near some railroad tracks and placed appellant and Jimmy Chambers under arrest. Both of the men had cuts on their arms which were bleeding.

Cortez related that his home was near the brick yard. On the night of the offense, he heard noises coming from the yard and called the police. Cortez testified that after Wilkerson had been at the yard the first time, two individuals came around the fence from behind the yard. The men were outside the fence. When Wilkerson returned to the yard, the men “ran around the building here and took to the tracks.” Cortez identified appellant as one of the men he had seen outside the fence surrounding the yard.

James Duckworth testified that he was the manager of Acme Brick Yard. He related that nothing had been taken from the building. Duckworth stated that a window had been broken in order to enter the building.

Jimmy Chambers was the accomplice witness in the instant case. Chambers related that on the day of the offense, he and appellant went to the home of appellant’s brother, Marvin Passmore. The three individuals then went to the Acme Brick Yard. While Passmore sat in his car in front of the yard. Chambers stated that he and appellant crawled under the fence surrounding the yard. A window was then broken and Chambers crawled into the building. He unlocked a door and appellant entered the building. Chambers stated that while he and appellant were looking for money in the building, the police arrived. The men then left the building through the unlocked door and went to a tire company which was nearby. After waiting ten minutes, Chambers and appellant returned to the yard and entered the premises after cutting through a fence. Before they had a chance to enter the building again, the police arrived a second time. Chambers testified that he and appellant then fled and were arrested a short time later.

Art. 38.14, V.A.C.C.P., provides as follows:

“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 test as to sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then examine the other evidence to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise it is not. Sheets v. State, Tex.Cr.App., 606 S.W.2d 864; Rice v. State, Tex.Cr.App., 587 S.W.2d 689. In Bentley v. State, Tex.Cr.App., 520 S.W.2d 390, this Court noted:

“The mere showing that an offense occurred is not sufficient corroboration. Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test. Perkins v. State, 450 S.W.2d 855 (Tex.Cr.App.1970); Windham v. State, supra; Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Reynolds v. State, supra; Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966); it need only make the accomplice’s testimony more likely than not. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).”

Proof that an accused was at or near the scene of a crime at or near the time of its commission may tend to connect the accused with the commission of a crime so as to furnish sufficient corroboration to support a conviction. Deas v. State, Tex. Cr.App., 531 S.W.2d 810. Sufficient corroboration of the testimony of an accomplice to

warrant a conviction may be furnished by the suspicious conduct of a defendant such as flight after a crime was committed. Cawley v. State, Tex.Cr.App., 310 S.W.2d 340. Finally, the presence of the accused in the company of the accomplice is a circumstance to be considered in considering the sufficiency of the evidence to corroborate an accomplice. See Moore v. State, Tex.Cr.App., 521 S.W.2d 263. Thus, in Rodriguez v. State, Tex.Cr.App., 508 S.W.2d 80, it was stated:

“Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with suspicious circumstances such as unreasonableness of the hour, lack of apparent reason for such presence, being in the company of accomplice and subsequent flight, furnishes sufficient corroboration [of an accomplice witness] to support a conviction. Edwards v. State, Tex.Cr.App., 427 S.W.2d 629.” Id. 508 S.W.2d at 83.

The non-accomplice testimony in the instant case showed that appellant was present near the scene of the offense. At the time appellant was seen at the yard, the business had been closed for six hours. Appellant was observed in the company of the accomplice Chambers near the scene of the offense. Finally, Cortez observed appellant and the accomplice flee when the police arrived to investigate the burglary report.

We conclude that the non-accomplice testimony in the instant case tended to connect appellant with the offense and was thus sufficient to corroborate the accomplice testimony of Chambers. Appellant’s first ground of error is without merit.

In his second ground of error, appellant contends the court unduly restricted his right to cross-examine the accomplice Chambers. Specifically, appellant complains of the following two instances in which he sought to ask Chambers the following questions:

“Q. You’ve been in jail other places since then, haven’t you?

“MR. DAMBOLD: Objection Your Honor. May we approach the bench?

“THE COURT: All right.

“(Off the record discussion.)

“THE COURT: I’ll sustain your objection as to whether or not Mr. Chambers has been in jail, and I will instruct the jury to disregard not only the question but the response, if any. Proceed Mr. Fairweather.

“Q. You’ve been in custody, haven’t you, for the past—

“MR. DAMBOLD: Objection, Your Honor, it’s immaterial where he’s been.

“THE COURT: Sustained.”

Appellant did not perfect a bill of exception or proffer proof to show what Chambers’ testimony would have been. Under such circumstances, nothing is preserved for review. See Toler v. State, Tex.Cr.App., 546 S.W.2d 290; Stein v. State, Tex.Cr.App., 514 S.W.2d 927. Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends he was denied the effective assistance of counsel. Initially, appellant complains that his attorney failed to file a discovery motion. Appellant now speculates as to the matters which could have been revealed by virtue of filing such a motion. We note that there is no support in the record for the existence of the matters which appellant maintains could have been discovered by such a motion, such as “the criminal records of the States witnesses, production of prior written statements, etc.” Moreover, there is no showing as to what type of informal discovery occurred in the instant cause.

Appellant further contends his attorney was ineffective for failing to object to the identification testimony by Cortez. In support of this contention, appellant points to the fact that Cortez was allowed to confront him in a show-up following the arrest. The record reflects that Cortez observed appellant standing underneath a street light near the scene of the offense. Such observations would have provided an independent basis for the admissibility of Cortez’ identification testimony. See Thomas v. State, Tex.Cr.App., 605 S.W.2d 290. Thus, the objection which appellant contends his attorney should have made would have been without merit.

Appellant further contends his attorney was ineffective because he did not “adequately pursue” the cross-examination of Chambers and his closing argument was “totally insufficient.” Appellant would now have this Court second-guess the strategy of his trial counsel. The fact that another attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness. Blott v. State, Tex.Cr.App., 588 S.W.2d 588; Howell v. State, Tex.Cr.App., 563 S.W.2d 933.

Finally, appellant contends his attorney was ineffective for failing to object when the prosecutor argued his personal opinion as to appellant’s guilt. We agree that the argument was improper. However, the adequacy of a counsel’s assistance is based upon the totality of the attorney’s representation. Harrison v. State, Tex.Cr.App., 552 S.W.2d 151. Thus, an isolated instance of a failure to object does not necessarily render counsel ineffective. Callaway v. State, Tex.Cr.App., 594 S.W.2d 440.

The test to be applied in determining whether counsel provided constitutionally satisfactory services is the “reasonably effective assistance” standard. Ex Parte Morse, Tex.Cr.App., 591 S.W.2d 904. Such a determination will be based upon the totality of counsel’s representation. Sanchez v. State, Tex.Cr.Ap., 589 S.W.2d 422. From the record before us, we conclude that appellant was provided with reasonably effective counsel. Accordingly, appellant’s third ground of error is without merit.

The judgment is affirmed.

1 . On original submission, appellant’s conviction was affirmed in a per curiam opinion on June 30, 1976. Appellant has been granted an out-of-time appeal by virtue of his filing of a federal writ of habeas corpus. See Passmore v. Estelle, 607 F.2d 662 (5th Cir. 1979).