Gill v. State , 1993 Tex. App. LEXIS 722 ( 1993 )

VANCE, Justice,

dissenting.

The victim testified that at about 8:00 p.m. he was robbed in his home, and a paper grocery sack containing a large amount of cash, checks, food stamps, and WIC cards was stolen. Steve Evans, who had been convicted of the crime, testified that Gill assisted him with the robbery. Amanda Evans, Steve’s wife, testified that on the night of the robbery she was at home around 8:45 P.M. when Gill and Steve entered the apartment. Steve had a brown paper sack in his hands. Amanda followed Steve and Gill into the bedroom where she saw “a lot of money,” WIC cards, food stamps, and checks on the bed. Steve then pushed her out of the bedroom. She stated that the two men were in the apartment for about twenty minutes before they left together.

Sharwan Manning, Amanda’s sister, testified that she saw Steve and Gill together at the apartment on the night of the robbery. As the men entered the apartment she saw Steve carrying a brown paper bag. She stated that neither Steve nor Gill said anything when they entered the apartment. She saw the two men enter the bedroom and close the door and Amanda go “back there.”

To test the sufficiency of evidence corroborating the testimony of an accomplice witness, we ask whether the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses tends to connect the accused with the offense. See Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992); Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App.1982); Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). Our inquiry looks to all the facts and circumstances in evidence. See Paulus, 633 S.W.2d at 843. The corroborative evidence may be circumstantial or direct. Id. Apparently insignificant circumstances sometimes afford the most satisfactory evidence of guilt and corroboration of the accomplice witness’ testimony. Id. at 844.

The non-accomplice testimony of Amanda and Sharwan tends to connect Gill to the robbery. Their testimony places Gill and Steve together within one hour of the robbery. Although the mere presence of an accused in the company of an accomplice witness shortly before or after the commission of an offense is not, in itself, sufficient corroboration, nevertheless, when coupled with other circumstances it may be sufficient. Harris v. State, 738 S.W.2d 207, 218 (Tex.Crim.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). The “other circumstances” in this case are the presence of the money, checks, WIC cards, and food stamps in the room where Gill and Evans were and the secretive nature of their actions.

Sufficient corroboration of the testimony of an accomplice to warrant a conviction may be furnished by the suspicious conduct of a defendant after a crime was committed. Passmore v. State, 617 S.W.2d 682, 684-85 (Tex.Crim.App. [Panel Op.] 1981). Sharwan testified that when Gill and Evans entered the apartment on the night of the robbery, neither man said a word before proceeding to the bedroom. Amanda testified that when she attempted to enter the room Steve pushed her out.

Although the “other evidence” may not establish Gill’s guilt in and of itself, taken as a whole it “tends to connect” him to the offense committed. See Cox, 830 S.W.2d at 612. I would affirm the judgment.

OPINION ON REHEARING

The State correctly points out on rehearing that our original opinion, citing Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992), does not accurately state the standard for determining when the evidence is sufficient to corroborate the testimony of an accomplice-witness. The correct standard is not whether the evidence, apart from the accomplice-witness’ testimony, “directly connects” the accused to the crime but whether the evidence “tends to connect” the accused to the crime. Id. The correct standard was stated, however, on page 3 of the opinion and was used in reviewing the sufficiency of the evidence.

The State’s motion for a rehearing is otherwise denied.

VANCE, J., dissents; he would grant the motion for rehearing.