Bradley Cantelon v. State ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
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NO. 03-01-00593-CR
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Bradley Cantelon, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 9133, HONORABLE CHARLES E. MILLER, JR., JUDGE PRESIDING
A confidential informant testified that he purchased marihuana from Bradley Michael
Cantelon. The jury found Cantelon guilty of delivery of a controlled substance; after he pleaded true to two
earlier felony convictions, he was sentenced to serve four years in prison.
A recent provision of the Texas Code of Criminal Procedure states that a defendant may
not be convicted for such an offense on the testimony of a covert informant Aunless the testimony is
corroborated by other evidence tending to connect the defendant with the offense committed.@ Tex. Crim.
Proc. Code Ann. art. 38.141 (West Supp. 2002). Cantelon contends on appeal that the testimony of the
confidential informant was not sufficiently corroborated. To review this challenge, we turn to the similarly
worded article 38.14 which requires corroboration of accomplice testimony. Tex. Crim. Proc. Code Ann.
art. 38.14 (West 1979). Applying the Atends-to-connect@ standard courts have found sufficient to
corroborate accomplice testimony, we hold that sufficient corroborating evidence tends to connect Cantelon
to the offense charged.
BACKGROUND
Sergeant Chris Johnson, an investigator with the Narcotics Enforcement Team
employed by the Marble Falls Police Department, testified that he received information from a
confidential informant named Chris Humphries1 that Cantelon was willing to sell marihuana.
Sergeant Johnson and Humphries arranged to meet Cantelon at a Wal-Mart parking lot on June
28, 2000. Sergeant Johnson testified that he searched Humphries to be sure that he had no
marihuana, gave him an audio recording device, and provided the cash to purchase the
marihuana. At the agreed-upon location, Humphries left Sergeant Johnson=s car, entered
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Humphries had entered into a written agreement with the Marble Falls Police Department to serve
as a confidential informant who would buy drugs to incriminate local drug dealers. He did this in order to
have drug charges against him dismissed. Accordingly, at the trial in the present case, he testified under a
grant of immunity.
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Cantelon=s car and left after several minutes, walked to a pay phone to divert suspicion, and then
returned to Sergeant Johnson=s car. Sergeant Johnson attempted to videotape Humphries=s
actions, but had to replace the battery in the video recorder at the exact moment of the actual
exchange. When Humphries returned, he delivered the marihuana to Sergeant Johnson, who
again searched him and found he no longer had the cash provided for the purchase. At trial,
Humphries testified that Cantelon delivered the marihuana to him in exchange for $65 plus $5 gas
money.
Cantelon was found guilty by the jury and sentenced by the trial court. He now
appeals his conviction to this Court.
DISCUSSION
In his sole issue on appeal, Cantelon complains that the evidence was insufficient
to corroborate the testimony of the confidential informant because no one other than Humphries
testified to the actual transfer of the marihuana; due to a faulty battery, Sergeant Johnson did not
record and did not observe Cantelon or Humphries during this alleged transaction. 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.
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(b) Corroboration is not sufficient for the purposes of this article if the
corroboration only shows the commission of the offense.
Tex. Crim. Proc. Code Ann. art. 38.141(a), (b) (West Supp. 2002). There is no case law interpreting
article 38.141, but article 38.14 has long required in strikingly similar language that the State must present
evidence to corroborate the accomplice=s testimony:
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. Crim. Proc. Code Ann. art. 38.14 (West 1979).2 The enactment of substantially the same language in
article 38.141 suggests that the legislature intended the same standard for corroboration to apply to
accomplice witnesses and confidential informants.
2
Before the passage of article 38.141, courts made it clear that an undercover agent or actor
working covertly with law enforcement officials was not an accomplice for purposes of article 38.14. A
Avolunteer@ working on behalf of a criminal investigation is not an accomplice if that person does not bring
about the crime but merely intends to obtain evidence to be used against those committing the crime. See
Parr v. State, 606 S.W.2d 928, 929 (Tex. Crim. App.1980); Alexander v . State, 168 Tex. Crim. 288,
325 S.W.2d 139, 140 (1959); see also Bacon v. State, 762 S.W.2d 653, 656 (Tex. App.CHouston
[14th Dist.] 1988, pet. ref=d).
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Furthermore, we believe the purposes of the two articles are similar. Article 38.14 applies
to an accomplice to a crime who, by definition, participated with the accused in the commission of the
charged offense and therefore would have a selfish interest in testifying against the defendant in order to
secure relief from prosecution or a lessened punishment. The purpose of article 38.14 then is to assure that
a jury does not consider an accomplice witness=s testimony unless it finds that the witness is telling the truth
and that other evidence corroborates the discredited witness=s testimony. See McDuff v. State, 943
S.W.2d 517, 520 (Tex. App.CAustin 1997, pet ref=d). AThis requires the jury to receive and act upon
such testimony with caution, considering the selfish interests and possibly corrupt motives of the witness.@
Howard v. State, 972 S.W.2d 121, 125 (Tex. App.CAustin 1997, no pet). Article 38.141 applies to
confidential informants. Informants, as Sergeant Johnson testified in the present case, work with the police
for self-interested reasons. They may have no direct connection with the offense in issue but generally have
an incentive or hope for personal gain. Often they work for compensation or to have charges against them
dismissed. Because an informant, like an accomplice, could fall into the class of a discredited witness with
selfish interests and possibly corrupt motives, the legislature has imposed the same standard of
corroboration for an informant=s testimony. Therefore, to establish a standard for corroborating an
informant=s testimony, we look to case law establishing how much evidence is sufficient to corroborate the
testimony of an accomplice witness.3
3
We find it significant that Cantelon agrees with this standard for corroboration of an informant=s
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testimony in his brief to this Court. Cantelon insists that applying the accomplice-witness standard, the
testimony of Humphries was not sufficiently corroborated. Inexplicably, the State argues that the article
38.14 line of cases do not apply, but that the testimony was sufficiently corroborated, citing only article
38.14 cases to support this contention.
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A challenge of insufficient corroboration is not the same as a challenge of
insufficient evidence to support the verdict as a whole. See Cathey v. State, 992 S.W.2d 460, 462-
63 (Tex. Crim. App. 1999). To corroborate accomplice-witness testimony, A[a]ll the law requires
is that there be some non-accomplice evidence which tends to connect the accused to the
commission of the offense. While individually these circumstances might not be sufficient to
corroborate the accomplice testimony, taken together, rational jurors could conclude that this
evidence sufficiently tended to connect appellant to the offense.@ Hernandez v. State, 939 S.W.2d
173, 178-79 (Tex. Crim. App. 1997) (citing Cox v. State, 830 S.W.2d 609, 612 (Tex. Crim. App.
1992); Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. 1981)). To determine the
sufficiency of the corroboration, we eliminate the testimony of the accomplice and ask whether
other inculpatory evidence tends to connect the accused to the commission of the offense, even if
it does not directly link the accused to the crime. See McDuff v. State, 939 S.W.2d 607, 612 (Tex.
Crim. App. 1997); Casias v. State, 36 S.W.3d 897, 901 (Tex. App.CAustin 2001, no pet.). We
must view the corroborating evidence in the light most favorable to the verdict. Knox v. State,
934 S.W.2d 678, 686-87; Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). 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. Gill, 873 S.W.2d at 48.
Even insignificant circumstances may satisfy the test. See Reed v. State, 744 S.W.2d 112, 126
(Tex. Crim. App. 1988). AAs the court of criminal appeals instructs, the tends -to-connect standard
does not present a high threshold.@ In the Matter of C.M.G., 905 S.W.2d 56, 58 (Tex.
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App.CAustin 1995, no writ). We shall apply the tends -to-connect standard to the confidential
informant=s testimony in the present case.
If we eliminate Humphries=s testimony, we are left with the following inculpatory
evidence. Sergeant Johnson established the time and place for the Acontrolled buy@ to occur.
Before executing the plan, Johnson searched Humphries to ensure he had no drugs on him and
then provided Humphries with $70 cash and a recording device. Johnson watched Humphries go
directly from Johnson=s car to Cantelon=s car. Johnson maintained surveillance and videotaped
Humphries with Cantelon, except for the critical moment of the actual exchange when Johnson
was distracted by having to change the battery in the video recorder. Johnson watched
Humphries exit Cantelon=s car, walk to a pay phone and pretend to place a call before he
returned to Johnson=s car. Humphries handed Johnson a bag of marihuana and no longer had the
$70 cash he had been provided to make the purchase. The transaction took only a few minutes.
In addition to Sergeant Johnson=s testimony, the State played the audio recording,
and the jury was able to hear the actual recording of the exchange between Humphries and
Cantelon during Humphries=s testimony. The State also played the video recording which does
not show Cantelon delivering the marihuana, but does corroborate Humphries=s other actions
from the time he left Johnson=s car until he returned.
Cantelon contends that this evidence merely establishes that he was present in the
Wal-Mart parking lot on June 28, 2000, along with Humphries and hundreds of other people. We
disagree. The evidence corroborates that Cantelon met Humphries at an agreed-upon time at an
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agreed-upon place, they spent several minutes together sitting in Cantelon=s car in the parking
lot, Humphries entered the car with a specific amount of cash and an audio recorder, returned
without the cash, then gave Johnson a bag of marihuana and the recording device with a recorded
conversation between Humphries and Cantelon.
The trial court correctly instructed the jury that it had to find evidence Athat tends
to connect the defendant with the commission of the offense.@
You are instructed that a person may not be convicted of delivery of a
controlled substance, including marihuana, merely on the testimony of a civilian
person who is acting covertly on behalf of a law enforcement agency, unless the
testimony of the civilian is corroborated by other evidence in the case tending to
connect the defendant with the offense committed, if you find that an offense was
committed. The corroborating evidence, if any, is not sufficient if it merely shows
the commission of the offense. The corroborating evidence, if any, must also tend
to connect the defendant with the commission of the offense, if any, and then from
all the evidence you must believe beyond a reasonable doubt that the defendant is
guilty of the offense charged against him.
In any jury trial, the jurors are the triers of fact, the judges of the credibility of the witnesses, and
the judges of the weight to be given the witnesses= testimony. Castellano v. State, 810 S.W.2d
800, 807 (Tex. App.CAustin 1991, no pet.). The jury is entitled to accept or reject all or any part
of the testimony given by the witnesses for the State and the accused; reconciliation of
evidentiary conflicts is solely a function of the trier of fact. Id. Even though Humphries as an
informant may have been a discredited witness with selfish interests and possibly corrupt motives, the
jury was entitled to find that he was telling the truth and that other evidence corroborated his testimony. See
McDuff, 943 S.W.2d at 520; Hunter, 972 S.W.2d at 125.
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We conclude that the corroborating evidence detailed above sufficiently tends to
connect Cantelon with the delivery of marihuana to Humphries. Hernandez, 939 S.W.3d at 178-
79; see also Bacon v. State, 762 S.W.2d 653, 654, 656 (Tex. App.CHouston [14th Dist.] 1988, pet.
ref=d). Therefore, we overrule Cantelon=s sole issue on appeal and affirm the trial court=s judgment.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed: August 30, 2002
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