Saunders v. State

794 S.W.2d 91, 1990 Tex. App. LEXIS 2259, 1990 WL 127317
CourtCourt of Appeals of Texas
DecidedJuly 18, 1990
Docket04-89-00235-CR
StatusPublished
Cited by12 cases

This text of 794 S.W.2d 91 (Saunders 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
Saunders v. State, 794 S.W.2d 91, 1990 Tex. App. LEXIS 2259, 1990 WL 127317 (Tex. Ct. App. 1990).

Opinions

OPINION

REEVES, Justice.

Appellant was convicted by a jury of conspiracy to commit arson. TEXAS PENAL CODE ANN. § 15.02. The trial court assessed punishment at five years’ confinement.

We shall first address appellant’s argument that the evidence was insufficient to support his conviction. The state’s theory presented to the jury was that appellant had his house burned down in order to collect insurance proceeds. James Woodley, an old friend of appellant’s, testified that appellant approached him with a request to burn the house while appellant would be out of the state. Woodley refused. Shortly thereafter appellant told him he had found someone else to do the job for five thousand dollars. Despite his refusal to commit arson, Woodley agreed to assist appellant by storing some of his belongings so they would be saved from the fire. Because of this assistance Wood-ley was also indicted for the same offense as appellant.

Appellant now contends that because Woodley was an accomplice witness the state was required to offer sufficient evidence independent of his testimony to connect appellant with the offense. TEX. CODE CRIM.PROC.ANN. art. 38.14. We disagree. No charge was submitted to the jury instructing the jurors to apply this evidentiary test. Accomplice witness testimony was not defined in the abstract or included in the paragraph applying the law to the facts. The sufficiency of the evidence is to be measured by the charge that was given to the jury. Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984). Under the charge that was given to appellant’s jury, the evidence, including Wood-[93]*93ley’s testimony, was sufficient to support the verdict of guilty. Appellant’s fifth point of error is overruled.

In his first point of error appellant contends the trial court committed fundamental error by failing to charge the jury on accomplice witness testimony, and that appellant was egregiously harmed by this error. We agree.

James Woodley was indicted for the same offense in the same indictment with appellant. He was therefore an accomplice witness as a matter of law. Burns v. State, 703 S.W.2d 649, 651 (Tex.Crim.App.1985). The trial court was under a duty to so instruct the jury. Id. Appellant, however, did not object to the court’s failure to include a charge on accomplice witness testimony. To obtain reversal he must therefore demonstrate the error caused him “egregious harm”; that is, that the error created such harm he was deprived of a fair and impartial trial as a result. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (Opinion on rehearing 1985).

In Gonzales v. State, 441 S.W.2d 539, 542 (Tex.Crim.App.1969), the Court of Criminal Appeals listed three non-exclusive instances in which failure properly to charge on accomplice witness testimony would constitute reversible error. The two applicable to this case are that reversal is required (1) if the witness was an accomplice, there is no evidence to corroborate his testimony, or (2) where the evidence exclusive of the accomplice witness’s testimony is insufficient to support conviction. Id. Gonzales predated the harm test established in Almanza, supra, but the Court of Criminal Appeals has continued to utilize the Gonzales standards in light of Almanza. Burns, supra, 703 S.W.2d at 651-52.

In the instant case, Woodley was an accomplice as a matter of law and his testimony was essential to the State’s case. The court’s failure to instruct the jury that Woodley was an accomplice witness, so that his testimony required corroboration in order to convict, resulted in egregious harm to appellant if in fact Woodley’s testimony was not corroborated. Gonzales at supra. The test for determining the sufficiency of the corroborating evidence is well established. Evidence independent of the accomplice’s testimony must tend to connect the defendant to the commission of the offense. Article 38.14, supra. The corroborative evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt. The test is to eliminate the testimony of the accomplice from consideration and determine whether the other evidence tends to connect the defendant with the commission of the offense. Killough v. State, 718 S.W.2d 708, 710 (Tex.Crim.App.1986).

Other evidence included the following: Three months before his house burned down appellant significantly increased his insurance coverage. Appellant’s banker testified that at the time of the fire appellant had a ninety-day, two hundred thousand dollar note outstanding; when previous notes had come due appellant had been unable to pay them and so had been forced to consolidate them into this large loan. Shortly before the fire appellant brought several guns to a gunsmith, and picked them up two months later, with the result that the guns were not destroyed in the fire. After the fire appellant wished to conduct a second, controlled burn in order to level the house. A deputy sheriff asked appellant not to do so until the investigation was complete, but appellant conducted the second burn anyway, destroying potential evidence. An insurance investigator who had taken samples before this second burn did find evidence that an accelerant had been used in the first fire. He concluded that fire had been deliberately set.

Evidence that appellant was in financial difficulties and had increased his insurance coverage provide a motive for arson, but evidence of such a motive alone is insufficient to corroborate an accomplice witness. In Umstead v. State, 435 S.W.2d 156 (Tex.Crim.App.1968), evidence the defendant was in immediate danger of having his business seized by the Internal Revenue Service, and that he had paid for an increase in his insurance coverage only three [94]*94days before the fire, was held insufficient to corroborate the accomplice’s testimony that the defendant had paid him to burn the building.

The expert’s opinion that the fire was deliberately set tends to prove arson, but it does not connect appellant to the offense. Corroborating evidence is insufficient if it merely shows the commission of an offense. Article 38.14, supra; Killough, supra.

That appellant had removed guns from his home before the fire may be suspicious, but amounts to no more than that. See Baugh v. State, 776 S.W.2d 583 (Tex.Crim.App.1989) (evidence the defendant had removed some of the furniture from his house before the fire held insufficient, along with other evidence, to support a conviction for arson).

Similarly, Woodley testified he had held certain items for appellant during the time the house was to be burned, but he also testified these items were returned to appellant after the fire. The items in question, a silverware set and a necklace, were found on appellant’s property, not in Wood-ley’s custody. This certainly provides no corroboration for Woodley’s testimony. The only items found in Woodley’s possession were some arrowheads and a carbine.

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Saunders v. State
794 S.W.2d 91 (Court of Appeals of Texas, 1990)

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Bluebook (online)
794 S.W.2d 91, 1990 Tex. App. LEXIS 2259, 1990 WL 127317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-state-texapp-1990.