Ralph McAfee, Sr. v. State

• Court: Court of Appeals of Texas
• Decided: October 26, 2006
• Docket: 13-03-00420-CR
• Status: Published

Opinion

NUMBER 13-03-420-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RALPH MCAFEE, SR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 23rd District Court of Wharton County, Texas.

DISSENTING OPINION

Before the Court En Banc

Dissenting Opinion by Justice Yañez

The majority affirms appellant's conviction because it concludes there is independent evidence requiring no corroboration that "tends to connect" appellant to the offense. Specifically, the majority identifies (1) Officer Ross Gonzales's testimony that he observed appellant and his accomplice, Frank Gonzales (Franky) arrive at Jesse Waddy's (the confidential informant's) residence in accordance with a proposed drug transaction pre-arranged by Waddy and police officers, and (2) appellant was apprehended immediately thereafter "in close proximity" to the drugs. I would hold that neither constitutes evidence "tending to connect" appellant with the offense and would order appellant acquitted of all charges. Accordingly, I respectfully dissent.

I. Background

On September 24, 2002, a confidential informant, Waddy, called Grady Smith, a City of Wharton police officer, with information regarding an impending drug transaction. Officer Smith, who was out of town when he received the call, referred Waddy to Detective Ross Gonzales. Gonzales learned that appellant was to bring some crack cocaine to Waddy's house. Gonzales testified that he had "not even ten minutes" to make the arrangements. Gonzales testified that he and Waddy agreed that if Waddy saw that appellant had drugs in the car, he was to signal the police by taking off his hat when appellant left. Gonzales testified that he and another officer, Detective Lynch, set up surveillance on Waddy's residence. He also testified that he alerted patrol officers and arranged for them to try and make a traffic stop of appellant's vehicle. According to Gonzales, the police did not want to arrest appellant at Waddy's residence because they wanted to protect Waddy's identity as a confidential informant. Gonzales testified that he saw appellant arrive at Waddy's house and speak to Waddy outside in the yard. Gonzales testified that a passenger in appellant's vehicle, Franky (also known as "Chauchi"), stayed in the vehicle. Gonzales recognized Franky as someone who had been arrested on several occasions for public intoxication. Officers Gonzales and Lynch saw Waddy give the agreed-upon signal after appellant's vehicle left the house.

Officer Lupe Hernandez testified that he "paced" appellant's vehicle with his patrol car and stopped appellant for traveling at forty miles per hour in a thirty-mile-per-hour zone. Officer Hernandez activated his vehicle's lights and appellant pulled over. After appellant produced an expired insurance card, Officer Hernandez arrested him. Officer Hernandez performed a pat-down search of appellant and an inventory search of the vehicle because it was going to be towed. ⁽¹⁾ Several other officers arrived at the scene, including Officer Walter Jameson. Officer Hernandez testified that Franky was shaking, sweating, and extremely nervous. Officer Jameson performed a pat-down search on Franky and found cocaine in the cuff of his sweat pants. Appellant and Franky were both charged with possession of cocaine. ⁽²⁾

Appellant did not testify at trial and the defense offered no witnesses. The State presented testimony by Officers Smith and Gonzales, Officers Jameson and Hernandez (both involved in the traffic stop and arrest), Waddy, and Franky. At the close of the State's case, appellant's counsel requested an instructed verdict on grounds that the State had failed to provide evidence corroborating either Franky's testimony, as an accomplice witness, or Waddy's testimony, as a confidential informant. Counsel argued that neither witness's testimony could corroborate the other because "you can't take unreliable information and corroborate it with other unreliable information." The State argued that as a confidential informant, Waddy's testimony "does not need to be corroborated." The trial court overruled appellant's motion for instructed verdict. The jury found appellant guilty. ⁽³⁾ This appeal ensued.

II. Standard of Review and Applicable Law

In his first issue, appellant contends the evidence is insufficient to corroborate Franky's testimony as an accomplice witness as required by the accomplice witness rule. ⁽⁴⁾ In his second issue, appellant contends the evidence is insufficient to corroborate Waddy's testimony as a confidential informant as required by the confidential informant statute. ⁽⁵⁾

A. Accomplice Witness Rule

Appellant argues that Franky's accomplice witness testimony must be corroborated by "other evidence" and cannot be corroborated by the testimony of a confidential informant. The State argues that "no prohibition exists against an accomplice corroborating an informant or vice versa." The State contends that Franky's accomplice witness testimony is independently corroborated by Waddy's confidential informant testimony. Moreover, the State contends that even without Waddy's testimony, there was sufficient non-accomplice testimony tending to connect appellant to the crime because (1) appellant was present at the time and place of the offense, (2) the cocaine was found on a passenger in a car that appellant owned and was driving, and (3) appellant was in close proximity to the passenger at the time of the commission of the offense.

The accomplice-witness rule 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. ⁽⁶⁾

In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. ⁽⁷⁾ "Tendency to connect" rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt. ⁽⁸⁾ "The accomplice witness 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." ⁽⁹⁾ No precise rule can be formulated regarding the amount of evidence that is required to corroborate the testimony of an accomplice witness; each case must be judged on its own facts. ⁽¹⁰⁾ The "tends-to-connect" standard does not present a high threshold. ⁽¹¹⁾ Even insignificant circumstances may satisfy the test. ⁽¹²⁾ If, however, the corroborating evidence does no more than point the finger of suspicion towards the accused, it is insufficient to satisfy the requirements of article 38.14. ⁽¹³⁾ One accomplice witness's testimony may not corroborate the testimony of another accomplice witness. ⁽¹⁴⁾ While the accused's mere presence at the scene of the crime is insufficient, by itself, to corroborate accomplice witness testimony, "evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense." ⁽¹⁵⁾ The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense. ⁽¹⁶⁾

The State's failure to sufficiently corroborate accomplice testimony in accordance with the statute results in the remedy of acquittal. ⁽¹⁷⁾ This result is not required by the federal constitution, but by state statute: "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." ⁽¹⁸⁾

B. Confidential Informant Statute

Similarly, the legislature has decided that a defendant may not be convicted by the statements of a confidential informant unless that testimony is corroborated:

(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense. ⁽¹⁹⁾

Several courts, including this Court, have concluded that by enacting substantially the same language in article 38.141 as in article 38.14, the legislature intended the same standard for corroboration to apply to accomplice witnesses and confidential informants. ⁽²⁰⁾ Courts have acknowledged that the purpose of the corroboration requirement in article 38.14 is to ensure that a conviction rests upon more than just the testimony of an accomplice because an accomplice may have a selfish incentive to be untruthful, such as to avoid or lessen punishment or to shift the blame to another person. ⁽²¹⁾ Similarly, courts have recognized that confidential informants often work with police for self-interested reasons and "generally have an incentive or hope for personal gain," such as monetary compensation or dismissal of pending charges. ⁽²²⁾ Accordingly, courts have applied the same corroboration standard to article 38.141. ⁽²³⁾

III. Analysis

Appellant asserts that the issue of whether an informant's testimony under article 38.141 can corroborate an accomplice witness's testimony under article 38.14 is "an issue of first impression." However, since appellant's brief was filed, this Court has addressed this question. ⁽²⁴⁾ In Patterson, this Court found that "the code of criminal procedure places no restrictions on the use of informant testimony to corroborate accomplice testimony or vice versa." ⁽²⁵⁾ Based on the absence of an express statutory prohibition against the use of informant testimony to corroborate accomplice testimony and vice versa, this Court concluded that "an accomplice may corroborate the testimony of an informant and an informant may corroborate the testimony of an accomplice." ⁽²⁶⁾

On May 6, 2006, this Court granted appellant Patterson's motion for rehearing en banc to reconsider the issue of whether an informant's testimony can be used to corroborate accomplice testimony and vice versa. ⁽²⁷⁾ Accordingly, I turn to reconsideration of the issue.

In Blake v. State, the court of criminal appeals explained the purpose of the accomplice witness rule:

The heart of the accomplice witness rule is the legislature's inherent suspicion and belief in the untrustworthiness of the accomplice's testimony.

The rule's roots can be traced to common law, where interested parties were precluded from testifying in both criminal and civil cases- "fear of perjury was the reason for this rule." The United States Supreme Court recognized that the basis of such rules was to set aside a class of persons who were more likely to commit perjury than other witnesses.

This suspicion and fear of perjury is not without reason. Accomplices often strike bargains with the state, where the prosecutor agrees to a favorable sentencing recommendation in exchange for the accomplice's testimony against another person. Courts have recognized that a plea bargain contains a degree of compulsion. In addition, those accused of crimes tend to try to place the responsibility for the commission of the crime on the other participants while downplaying their own participation, often in order to avoid the consequences of criminal acts. For these reasons, and to protect the criminal defendant in each case, the legislature has determined that uncorroborated testimony of an accomplice is not enough to support a criminal conviction. ⁽²⁸⁾

Article 31.141 was enacted by the Texas Legislature and became effective September 1, 2001. ⁽²⁹⁾ "Similar to the concerns raised by accomplice witness testimony, covert witnesses may have incentives to lie or shade their testimony in favor of the state, which requires such testimony to be viewed with a measure of caution." ⁽³⁰⁾ "In interpreting the meaning of article 38.141, we must assume that the legislature was aware of case law interpreting the similar language used in article 38.14." ⁽³¹⁾

In determining whether there is "other evidence" tending to connect an accused with the offense under article 38.14, I agree with appellant that the "other evidence" used to corroborate accomplice witness testimony cannot include uncorroborated confidential informant testimony. I conclude that uncorroborated confidential informant testimony is not "evidence" (unless independently corroborated), and thus, cannot constitute "other evidence" under the accomplice witness statute. Similarly, I conclude that uncorroborated accomplice witness testimony is not "evidence" (unless independently corroborated), and thus, cannot constitute "other evidence" under the confidential informant statute.

Moreover, I conclude that the rules governing statutory construction support my conclusion. In construing a statute, we look first to the literal language, for that is the best indicator of the legislative intent. ⁽³²⁾ "If that language is clear and unambiguous, the plain meaning of those words is applied." ⁽³³⁾ "But if the plain language leads to absurd results that the Legislature could not possibly have intended, or if the language is ambiguous, we may consider extra-textual factors to determine the statute's meaning." ⁽³⁴⁾

Here, the plain language of each statute requires corroboration by "other evidence tending to connect the defendant with the offense committed." ⁽³⁵⁾ As noted above, I must assume that, in enacting article 38.141, "the legislature was aware of case law interpreting the similar language used in article 38.14." ⁽³⁶⁾ Although the statute does not define "other evidence" or otherwise qualify the term, I conclude that the legislature could not have intended it to include inherently suspect evidence that "should be viewed with a measure of caution." ⁽³⁷⁾

I address appellant's first issue by eliminating the accomplice witness testimony of Franky to determine "whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense." ⁽³⁸⁾ If the "other evidence" is insufficient to tend to connect appellant to the offense, I next address appellant's second issue by eliminating the confidential informant (Waddy's) testimony to determine "whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense." ⁽³⁹⁾ If, under both analyses, the "other evidence tending to connect" appellant to the offense is insufficient, I must order the appellant acquitted. ⁽⁴⁰⁾

I first eliminate Franky's testimony and examine the other witnesses' testimony for evidence that tends to connect appellant to the offense. ⁽⁴¹⁾ Officer Gonzales testified that (1) he saw appellant arrive at Waddy's house and speak to him in the yard (which corroborates Waddy's testimony that appellant came to his house to sell him crack cocaine); (2) he saw Franky was a passenger in appellant's vehicle, but stayed in the car during appellant's conversation with Waddy (which corroborates Waddy's testimony that Franky was present but stayed in the car); and (3) when appellant left, he saw Waddy give the agreed-upon signal that meant appellant had drugs in the car (which corroborates Waddy's testimony that he gave the pre-arranged signal to the police that appellant had drugs in his possession). Gonzales testified that the only time he uses a "wire" on an informant is during an investigation of a delivery case. He did not have a "wire" on Waddy in this case because it was a possession case. Gonzales testified that the first time he saw the drugs in this case was after appellant and Franky had been arrested. Eliminating Franky's testimony, the only testimony that appellant had crack cocaine in his possession is Waddy's testimony that he did. Thus, eliminating Franky's testimony, Waddy's testimony that appellant had possession of the cocaine is not corroborated. After eliminating Franky's testimony from consideration, I find that the corroborating evidence fails to connect appellant to the offense. I would sustain appellant's first issue.

I next eliminate from consideration Waddy's testimony and examine the other witnesses' testimony for evidence that tends to connect appellant to the offense. Officer Jameson testified that (1) at the traffic stop, Franky was "really nervous" and "shaking uncontrollably," (which corroborates Franky's testimony that he was shaking because he was scared and nervous); (2) because Franky was "sweating profusely" and "generally acting like there was something wrong," Jameson pat-searched him a second time and found cocaine in the cuff of his sweat pants (which corroborates Franky's testimony that he was scared because when the police vehicle activated its lights, he had put what he knew was crack cocaine in the crotch area of his pants). Significantly, Franky's testimony that when the police vehicle activated its lights, appellant handed him the cocaine and told him to put it in his pants, was not corroborated by any evidence other than Waddy's uncorroborated testimony that appellant had drugs in his possession when he left Waddy's residence.

The State also argues that even if Waddy's testimony is eliminated from consideration, there was sufficient non-accomplice evidence tending to connect appellant to the crime because (1) appellant was present at the time and place of the offense, (2) the cocaine was found on a passenger in a car that appellant owned and was driving, and (3) appellant was in close proximity to the passenger at the time of the commission of the offense. I disagree.

It is well-settled that the mere presence of the accused in the company of an accomplice during the commission of a crime is not, by itself, sufficient to corroborate accomplice testimony. ⁽⁴²⁾ In Rios, the San Antonio Court of Appeals held the State presented insufficient evidence "tending to connect" the crime to a passenger present in a car which contained marihuana. ⁽⁴³⁾ Rios stands for the proposition that, absent any other "suspicious circumstances," mere presence at the scene is insufficient to corroborate accomplice witness testimony. ⁽⁴⁴⁾ Texas courts have held that "suspicious circumstances" can include nervous and furtive behavior. ⁽⁴⁵⁾ For example, in Hill v. State, the police followed a vehicle based on an informant's tip and pulled it over. ⁽⁴⁶⁾ Upon questioning, the front-seat passenger produced cocaine, which she had been hiding in her underwear. ⁽⁴⁷⁾ The front-seat passenger told the police that the cocaine belonged to the appellant (back-seat passenger), who had given it to her and asked her to hide it when the police began to follow their vehicle. ⁽⁴⁸⁾ Both were arrested. ⁽⁴⁹⁾ Eliminating the front-seat passenger's accomplice witness testimony, the court found that appellant's presence, plus the officers' observation of suspicious behavior inside the vehicle, provided sufficient corroboration of the accomplice witness's testimony. ⁽⁵⁰⁾ The officers testified that they saw appellant engage in furtive gestures as they followed the suspect vehicle. ⁽⁵¹⁾ One officer testified that he saw appellant move sideways and lean over the front seat toward the side of the car where the front-seat passenger was sitting. ⁽⁵²⁾ The other officer testified that there was a lot of movement in the vehicle, "primarily from the back to the front," and that the appellant's movements were consistent with someone trying to hide or dispose of something. ⁽⁵³⁾

Here, the officers did not testify that they observed any movement or furtive gestures inside the car consistent with Franky's testimony that appellant handed him the cocaine. The officers did not testify that appellant was nervous. Other than appellant's presence at the scene, there were no other "suspicious circumstances" tending to connect appellant to the offense.

Eliminating Waddy's testimony, Franky's testimony that appellant gave him the cocaine is not corroborated. After eliminating Waddy's testimony from consideration, I find that the corroborating evidence fails to connect appellant to the offense. I would sustain appellant's second issue.

Response to Majority

The majority concludes there is independent evidence requiring no corroboration that "tends to connect" appellant to the offense. Specifically, the majority identifies (1) Officer Gonzales's testimony that he observed appellant and his accomplice (Franky) arrive at Waddy's (confidential informant's) residence in accordance with a proposed drug transaction pre-arranged by Waddy and police officers, and (2) appellant was apprehended immediately thereafter "in close proximity" to the drugs. I am unpersuaded that either constitutes evidence "tending to connect" appellant with the offense for the following reasons.

With regard to the "narcotics investigation" involving appellant, Gonzales testified:

[Gonzales]: Okay. During the course of this narcotics investigation, me and Waddy spoke and the deal was whenever McAfee got to his house, if he [Waddy] saw the dope in the car, he was going to take his hat off as a signal when he [McAfee] drove off.

As to the particulars of the "narcotics investigation," Gonzales testified:

[Appellant's counsel]: . . . When you did the-- how much notice did you have ahead of time that the Defendant was going to be at Jesse Waddy's house?

[Gonzales]: Not very long at all.

[Counsel]: Approximately how long?

[Gonzales]: I believe Detective Smith called me. It was just spur of the moment, and I probably maybe had not even ten minutes to gather everybody up and get everything ready.

[Counsel]: Is that about ten minutes from the time the Defendant advised you- excuse me- Jesse Waddy was at his residence and the Defendant was on his way?

[Gonzales]: Right.

Waddy testified that he contacted Officer Smith and was referred to Detective Gonzales.

Waddy also testified that he called appellant around 9:00 a.m. and told appellant he wanted to purchase two ounces of cocaine. According to Waddy, when appellant did not come, he called back and appellant was not home. At that point, Waddy left a message for appellant. According to Waddy, the arrangements for appellant to come to Waddy's house were made during a third phone call. Although Waddy's testimony does not reflect how much time transpired between the first phone call at 9:00 a.m. and appellant's visit to the house, Officer Jameson testified that he began his shift at 2:15 p.m. and was advised of the proposed transaction by Gonzales. Significantly, all of the information- the proposed drug transaction, the set-up, the hat signal indicating the presence of drugs- came from Waddy. Officer Gonzales was contacted at the last moment and was invited to observe the "transaction" that had been arranged by Waddy. On voir dire, Waddy testified that he licked and smelled the substance appellant brought to the house to determine it was cocaine. Although Gonzales testified he was able to watch the conversation between Waddy and appellant, he did not testify that he observed Waddy licking or smelling any substance. Gonzales testified that he did not see any cocaine until after appellant was arrested. Gonzales's testimony shows only that he observed appellant and Franky conversing in Waddy's yard. Waddy (and only Waddy) is the source of all inferences that the events Gonzales observed represented a drug transaction. Accordingly, I conclude that Gonzales's "independent testimony" is shaped entirely by the information that came from Waddy (the confidential informant) and is therefore, not completely "independent."

The majority also concludes that appellant's apprehension "in close proximity" to the drugs at issue constitutes evidence tending to connect appellant to the offense. It is undisputed, however, that the drugs were not found within appellant's reach or anywhere else in the vehicle. Instead, they were found in the cuff of Franky's (the accomplice witness's) sweat pants. The majority concludes the evidence "tending to connect" appellant to the offense is sufficient and should not be characterized as showing appellant's "mere presence" because "mere presence" "denotes an element of innocent coincidence that is entirely lacking in this case." We are not free, however, to speculate as to whether there is an "element of innocent coincidence" in this case. The court of criminal appeals has determined that mere presence of the accused is insufficient to corroborate accomplice witness testimony; in order to "tend to connect" the accused to the offense, such presence must be coupled with "suspicious circumstances." ⁽⁵⁴⁾ Here, I conclude that because the drugs were found in Franky's pants, not in a common area of the vehicle readily accessible to appellant, such evidence cannot constitute the "suspicious circumstances" required for purposes of corroboration.

Response to Justice Castillo's Concurring Opinion

In his brief, appellant challenged the sufficiency of the evidence to corroborate the testimony of the accomplice witness, Franky (issue one) and the sufficiency of the evidence to corroborate the testimony of the confidential informant, Waddy (issue two). Justice Castillo's opinion takes no position on whether accomplice witness testimony can corroborate confidential informant testimony and vice versa, but concludes that the evidence is sufficient to support appellant's conviction as a party to the offense, based on circumstances which affirmatively link him to the drugs. Justice Castillo concludes that "non-accomplice and non-confidential-informant testimony provide the affirmative links sufficient to sustain the conviction on a party theory of culpability." The evidence Justice Castillo points to is the testimony of the law enforcement officers regarding the narcotics investigation and subsequent stop of appellant's vehicle. Justice Castillo states that appellant was a "target" and that "[l]aw enforcement set up a procedure whereby a covert agent would meet with McAfee at a predetermined location for the sole purpose of, and ostensibly to transact, a cocaine buy." However, as noted above, appellant was not a "target" of any investigation until Waddy called Officer Smith and law enforcement officers did not "set up" the transaction; instead, Waddy set up the meeting with appellant and called law enforcement officers to observe the transaction on extremely short notice. For the reasons outlined above, I conclude that the officers' testimony regarding the transaction is insufficient to affirmatively link appellant to the drugs.

Conclusion

I would hold that the evidence is insufficient to satisfy the requirements of either the accomplice witness rule or the confidential informant rule. ⁽⁵⁵⁾ Accordingly, I would reverse the judgment of conviction and render a judgment of acquittal. ⁽⁵⁶⁾

LINDA REYNA YAÑEZ,

Justice

Publish. Tex. R. App. P. 47.2(b).

Dissenting opinion delivered and filed

this the 26th day of October, 2006.

1. Officer Hernandez testified that he could not release the vehicle to Franky, the passenger, because he did not have a driver's license.

2. It is undisputed that Franky is an accomplice. See Badillo v. State, 963 S.W.2d 854, 857 (Tex. App.-San Antonio 1998, pet. ref'd) ("If a witness has been indicted for the crime, he or she is an accomplice as a matter of law.").

3. The court's charge stated, in pertinent part:

The witness, Frank Gonzales, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you first believe that his testimony is true and shows that the defendant is guilty as charged and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged. The witness, Jesse Waddy[,] is a person who is not a licensed peace officer or investigator but was acting covertly on behalf of a law enforcement agency. You cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of Frank Gonzales and Jesse Waddy[,] tending to connect the defendant with its commission, the corroboration is not sufficient if it merely shows the commission of the offense, but it must also tend to connect the defendant with its commission and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him. (Emphasis added).

4. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

5. See Tex. Code Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005).

6.

Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).

7.

Solomon, 49 S.W.3d at 361.

8.

Id. (citing Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999)).

9. Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999) (quoting Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (emphasis in original)).

10. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

11. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.)

.

12.

See id.

13. Nolley v. State, 5 S.W.3d 850, 853 (Tex. App.-Houston [14th Dist.] 1999, no pet.).

14. Badillo, 963 S.W.2d at 857.

15. Trevino, 991 S.W.2d at 851-52 (quoting Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)).

16. Solomon, 49 S.W.3d at 361 (citing Cathey, 992 S.W.2d at 462-63).

17. Cathey, 992 S.W.2d at 463 n.2.

18.

Id. (quoting Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005) (emphasis in Cathey)).

19. Tex. Code Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005).

20. See, e.g.

, Brown v.State, 159 S.W.3d 703, 707 (Tex. App.-Texarkana 2004, pet. ref'd); Torres v. State, 137 S.W.3d 191, 196 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 793 (Tex. App.-Eastland 2003, pet. ref'd ); Campos v. State, No. 13-02-359-CR, 2003 Tex. App. LEXIS 10614, *5 (Tex. App.-Corpus Christi Dec. 18, 2003, pet. ref'd) (not designated for publication); Cantelon, 85 S.W.3d at 460; Young v. State, 95 S.W.3d 448, 450-51 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) ("In interpreting the meaning of article 38.141, we must assume that the legislature was aware of case law interpreting the similar language used in article 38.14.").

21. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998); Young, 95 S.W.3d at 451; Cantelon, 85 S.W.3d at 460.

22.

Cantelon, 85 S.W.3d at 460; see Young, 95 S.W.3d at 451 (stating that "confidential informants may have incentives to create criminal cases or shade their testimony in favor of the State in the hope that they will be rewarded with greater leniency later on.").

23.

See Brown, 159 S.W.3d at 707; Torres, 137 S.W.3d at 196; Jefferson, 99 S.W.3d at 793; Campos, 2003 Tex. App. LEXIS 10614, at *5; Young, 95 S.W.3d at 451; Cantelon, 85 S.W.3d at 460.

24.

Patterson v. State, Nos. 13-04-482-CR, 13-04-483-CR, 13-04-484-CR, 2005 Tex. App. LEXIS 8253 at *16 (Tex. App.-Corpus Christi Oct. 6, 2005, no pet. h.), reh'g en banc granted.

25. See id.

26. See id.

27.

On May 31, 2006, Patterson v. State and the present cause were resubmitted to this Court en banc. Upon reconsideration, a majority of this en banc Court has issued its opinion in Patterson this same date. See Patterson v. State, Nos. 13-04-482-CR, 13-04-483-CR, 13-04-484-CR (Tex. App.-Corpus Christi Oct. 26, 2006, no pet. h.).

28. Blake, 971 S.W.2d at 460; see Reyna v. State, 22 S.W.3d 655, 658 (Tex. App.-Austin 2000, no pet.) (accomplice witness rule is intended to minimize the danger that an accomplice's self-interest might motivate him to falsely implicate others in order to deflect blame and punishment from himself); Howard v. State, 972 S.W.2d 121, 125 (Tex. App.-Austin 1998, no pet.) (accomplice witness rule requires the jury to receive and act upon accomplice witness testimony with caution, considering the selfish interests and possibly corrupt motives of the witness); McDuff v. State, 943 S.W.2d 517, 520 (Tex. App.-Austin 1997, pet. ref'd) (noting "an accomplice witness is a discredited witness whose testimony should be received, viewed, and acted upon with caution because of any interest the witness may have and because it is considered evidence from a corrupt source."); Tran v. State, 870 S.W.2d 654, 658 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (purpose of accomplice evidence rule is to assure that a jury does not consider accomplice evidence unless the jury finds both that the accomplice is telling the truth and that other evidence corroborates the accomplice).

29. See Acts 2001, 77th Leg., ch. 1102, § 1.

30. Brown, 159 S.W.3d at 707 (citing Young, 95 S.W.3d at 451).

31. Young, 95 S.W.3d at 451 (citing Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990) ("[a] statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.")).

32. Getts v. State, 155 S.W.3d 153,155 (Tex. Crim. App. 2005) (citing Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)).

33. Id.

34. Id.

35.

See Tex. Code Crim. Proc. Ann. arts. 38.14, 38.141(a), (b) (Vernon 2005).

36.

Young, 95 S.W.3d at 451.

37. See Blake, 971 S.W.2d at 454.

38. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997) (citing Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993)).

39. See id.

40. See Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005); Young, 95 S.W.3d at 451.

41. See McDuff, 939 S.W.2d at 612.

42.

See Rios v. State, 982 S.W.2d 558, 560 (Tex. App.-San Antonio 1998, pet. ref'd) (citing Dowthitt, 931 S.W.2d at 249).

43. Id. at 561 (holding the glance the driver gave to the passenger was not evidence of nervous or furtive behavior on the part of the passenger).

44. Id. at 560-61.

45. See Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) (appearing to panic, driving away from police, and other suspicious circumstances); Hill v. State, 832 S.W.2d 724, 726 (Tex. App.-Houston [1st Dist.] 1992, no pet.) (engaging in furtive behavior inside vehicle consistent with attempting to hide or dispose of something).

46. Hill, 832 S.W.2d at 725.

47.

Id.

48. Id.

49. Id.

50.

Id. at 726.

51. Id.

52.

Id.

53.

Id.

54.

See Trevino, 991 S.W.2d at 851-52.

55. See Tex. Code Crim. Proc. Ann. arts. 38.14, 38.141 (Vernon 2005).

56.

See Tex. R. App. P. 43.2 (c), 43.3.