Torres v. State

694 S.W.2d 604, 1985 Tex. App. LEXIS 7659
CourtCourt of Appeals of Texas
DecidedMay 23, 1985
DocketNo. 13-84-258-CR
StatusPublished
Cited by2 cases

This text of 694 S.W.2d 604 (Torres 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
Torres v. State, 694 S.W.2d 604, 1985 Tex. App. LEXIS 7659 (Tex. Ct. App. 1985).

Opinion

OPINION

BENAVIDES, Justice.

Appellant was tried before a jury and found guilty of the offense of burglary of a building. The jury assessed punishment at five years’ confinement in the Texas Department of Corrections and a fine of $2,100. The jury recommended the confinement be probated for five years. We affirm.

In his first ground of error, appellant alleges the evidence is insufficient to sustain the conviction because testimony of the accomplice witness was only corroborated by proof that the appellant was in proximity to the stolen property. Appellant’s second ground of error alleges the evidence is insufficient because the testimony of the accomplice witness only raised a strong suspicion or possibility of appellant’s guilt.

TEX.CODE CRIM.PROC.ANN. art. 38.-14 (Vernon 1979) 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.”

In applying the statute, the Court of Criminal Appeals has stated the following rules:

(1) The accomplice witness need not be corroborated in all of his testimony, and the corroboration need not directly link the accused to the crime or be sufficient in itself to establish guilt, Walker v. State, 615 S.W.2d 728, 732 (Tex.Crim.App.1981);
(2) The test of the sufficiency of the corroborating testimony requires that the reviewing court eliminate from consideration the evidence of the accomplice witness and then examine the testimony of the other witnesses to ascertain if there is inculpatory evidence which tends to link the accused with the commission of the offense. If there is such evidence the corroboration is sufficient; otherwise, it is not, Meyers v. State, 626 S.W.2d 778, 780 (Tex.Crim.App.1982);
(3) The corroborating evidence need only make the accomplice witness’ testimony more likely than not, id;
(4) The mere showing that an offense occurred is not sufficient corroboration, id; and
(5) The mere presence of the accused in the company of the accomplice shortly before or after the commission of the [606]*606offense is not, in itself, sufficient corroboration. Id.

At trial, the accomplice witness took the stand and confessed to entering the building allegedly burglarized. He testified that entry was made through the back window of the bathroom. He also testified that appellant accompanied him; and, when they discovered a safe, he and appellant left to procure a crowbar to open the safe.

While going to fetch a crowbar, appellant allegedly recruited a third participant, at which time the accomplice declined to return to the building. The accomplice witness testified that appellant and the third party “went back” and that, in a little while, he saw appellant walking with a TV, a little radio and a blue money bag.

The television was recovered the morning after the burglary by the police, who were told by appellant it was in his mother’s yard. Appellant lived with his mother. The television, as well as the money bag, was introduced as evidence at the trial.

Sheri Ann Schrenkeisen, coordinator at the Aransas Pass Adult Habilitation Center, was called by the State and identified the television recovered from appellant’s residence as the one taken from the habili-tation center. She testified that the money bag appeared to be the same one taken from the center, and she also stated that a small transistor radio belonging to one of the clients was missing after the burglary.

Mary Long, an employee of the habilitation center, discovered the burglary. She stated that entry was made through the boys’ bathroom window, and this observation was confirmed by Officer Linda Thompson of the Aransas Pass Police Department.

The burglary occurred sometime between the evening of the 20th when the center was closed, and the morning of the 21st when Ms. Long arrived for work. Officer DeLeon testified that he was on patrol in the early morning hours, about 2:00 a.m., of December 21. He testified that he saw three suspects in the alley right behind the habilitation center. When he turned his patrol car into the alley, the suspects fled. Officer DeLeon followed the suspects to a convenience store where he identified one as his cousin, appellant herein, and another as the accomplice witness. After identifying the suspects, Officer DeLeon went about his duties without returning to inspect the habilitation center.

Finally, appellant’s statement was introduced wherein he stated:

On December 20th, 1983, at about 10:00 P.M., while in my bedroom at 457 S. Arch, Aransas Pass, San Patricio County, Texas, I remember I walked into the kitchen to get a glass of water when I heard someone (Tony Fernandez) knock at the back door. Tony Fernandez had a small black and white G.E., 12" T.V., which Tony Fernandez offered to me and I told him that I wanted the T.V., but to leave it outside the house, then he (Tony Fernandez) asked me if I wanted a blue money bag he had. Tony said they were just a bunch of quarters he didn’t want. I gave the money bag, which I noticed had only change to my sister, Brenda Torres, to bury the money bag in the back yard. (547 S. Arch).

At trial, appellant took the stand and denied any participation in the burglary. Appellant’s story was that the accomplice witness and another committed the burglary and brought the stolen property to his mother’s home to stash. Appellant denied any knowledge the property was stolen, and testified that, when the accomplice knocked on his door and offered him the T.V., he, the appellant, did not say he wanted it; rather, he just told the accomplice, “Put it in the backyard.” Appellant also denied fleeing from Officer DeLeon and testified that he never touched the money bag and did not know what it contained.

Appellant’s sister, Brenda Torres, took the stand and testified that she received the money bag from the accomplice witness to hold for him and buried it when she realized the money was probably stolen.

In reviewing the sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the [607]*607verdict or judgment and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984).

In the instant ease, the accomplice’s testimony concerning method of entry and items taken was corroborated by a police officer and an employee of the center. Officer DeLeon placed both appellant and the accomplice in the alley behind the habilitation center, and appellant fled when spotted. Appellant’s statement shows that he exercised possession over the money bag in directing his sister to bury it in the back yard.

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Related

Forbes v. State
976 S.W.2d 749 (Court of Appeals of Texas, 1998)
Johnson v. State
963 S.W.2d 140 (Court of Appeals of Texas, 1998)

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Bluebook (online)
694 S.W.2d 604, 1985 Tex. App. LEXIS 7659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-v-state-texapp-1985.