Jonathon William Wayne Krebbs v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00323-CR
JONATHON WILLIAM WAYNE KREBBS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F43789
MEMORANDUM OPINION
Jonathon William Wayne Krebbs appeals from a conviction by a jury of two
counts of the offense of delivery of a controlled substance in an amount greater than
four and less than two hundred grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d)
(Vernon 2003). After pleading true to two enhancement paragraphs, Krebbs was
sentenced in accordance with the jury’s verdict on punishment to imprisonment for
ninety (90) years in the Texas Department of Criminal Justice – Institutional Division.
Krebbs complains that the evidence corroborating the testimony of the confidential
informant was insufficient to sustain his conviction. Because we find that the evidence
sufficiently “tended to connect” Krebbs to the offenses without the testimony of the
confidential informant, we affirm the judgment of the trial court.
Corroboration of Confidential Informant’s Testimony
Legal and factual sufficiency standards of review are not applicable to a review
of covert witness testimony under Article 38.141 of the Code of Criminal Procedure
because corroboration of such testimony is established by statute. See TEX. CODE CRIM.
PROC. ANN. art. 38.141 (Vernon 2005). The standard for evaluation of the sufficiency of
the corroboration of the testimony of a covert witness is the same as that of the
testimony of an accomplice. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008);
see TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005) (corroboration required of
accomplice witness).
A challenge of insufficient corroboration of evidence given by a covert witness
described in Article 38.141 does not stand on the same plateau as a challenge of
insufficient evidence to support the verdict as a whole. Cathey v. State, 992 S.W.2d 460,
462-63 (Tex. Crim. App. 1999). Rather, under the test which is applied, we must exclude
the testimony of the covert witness from consideration when weighing the sufficiency
of corroborating evidence under Article 38.141(a) and examine the remaining evidence
to determine whether this evidence “tends to connect” the defendant to the commission
of the offense. Malone, 253 S.W.3d at 258. The tends-to-connect standard does not
present a high threshold. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin
2002, no pet.).
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In determining the quantum of evidence required to corroborate covert agent
testimony, each case must be judged on its own facts, and even insignificant
circumstances may satisfy the test. Cantelon, 85 S.W.3d at 461. Evidence is
insufficient to corroborate covert agent testimony if it shows merely that the defendant
was present during the commission of the offense. McAfee v. State, 204 S.W.3d 868, 872
(Tex. App.—Corpus Christi 2006, pet. ref'd). Although evidence tending to connect a
defendant to an offense may not be sufficient for a conviction standing alone, it does not
need to rise to such a high threshold for purposes of corroboration. Gill v. State, 873
S.W.2d 45, 48 (Tex. Crim. App. 1994). The corroborating evidence must provide
“suspicious circumstances” in addition to “mere presence” at the scene of a crime which
would tend to rebut that the defendant’s presence at the scene of the crime was more
than simply “innocent coincidence.” McAfee, 204 S.W.3d at 872.
Corroborating Evidence
The evidence here, absent the testimony of the confidential informant, was that:
Bates was working as a confidential informant for Detective Goetz of the Johnson
County S.T.O.P. Special Crimes Unit and provided Goetz with information relating to
an individual he knew as “Woodie” who was a crack cocaine dealer. Bates picked
Krebbs out of a lineup and identified him as “Woodie.” An undercover officer named
Gray, acting as Bates, set up a transaction with Krebbs through text messages that were
admitted into evidence. The deal was for Bates to purchase $350 worth of crack cocaine
and to repay money owed by Bates to Krebbs of $150. Bates was searched prior to the
transaction, had a covert video and audio recording device installed on his hat, and was
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given $500. Gray and Bates went to a prearranged location where Bates got into
Krebbs’s vehicle. Upon his return to Gray’s vehicle, he gave Gray a baggie containing
crack cocaine. Bates was searched thereafter and had no drugs or money in his
possession.
Gray brokered the second deal with Krebbs directly for $500 worth of quality
crack cocaine. Bates was the intermediary for Gray. He was searched prior to meeting
Krebbs, had the recording device installed, and given $500. Torres, another undercover
officer, drove Bates to the prearranged location, a car wash. Bates got into Krebbs’s
vehicle, left it quickly, and returned to Torres’s vehicle. Bates attempted to give the
drugs to Torres, but Torres told Bates to keep them and give them to Goetz, which he
did. Goetz searched Bates and found no drugs or money after the second transaction.
While each of these circumstances taken alone might or might not be sufficient to
corroborate Bates’s testimony, the weight of all of them when taken together provides
the basis for a rational juror to conclude that this evidence sufficiently tended to connect
Krebbs to both offenses. See Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex. Crim. App.
1997). We overrule issue one.
Conclusion
We find that there was sufficient evidence that “tended to connect” Krebbs to the
offenses for which he was convicted when taken without the testimony of the
confidential informant. We affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed September 15, 2010
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