Lucas v. State , 1972 Tex. Crim. App. LEXIS 1933 ( 1972 )

DOUGLAS, Judge

(concurring).

The dissenting opinion discusses how many times the accomplice witness had been convicted and arrested. He was an admitted participant in the offense charged in the present case and that is the reason that the trial court charged that he was an accomplice witness as a matter of law. His testimony alone is insufficient to support the conviction under Article 38.14, V.A.C.C.P. It is immaterial whether we, as appellate judges, would believe him had we heard him under oath for his credibility was a matter for the jury, not this Court, to decide. We should not penalize the State for offering the testimony of an accomplice witness, but merely should see if there is sufficient evidence, excluding that of the accomplice witness, which tends to connect the accused with the commission of the offense.

In addition to the testimony set out in the original and in the dissenting opinion, Officer Weilbacher testified that a small overnight bag¹ containing spark plugs in the rear seat had what he was almost positive a Spartan’s tag on it. The bag in the trunk also had a Spartan’s tag on the outside.

There is no testimony by Officer Weil-bacher in the record or anyone else that shows that a passenger in the front seat in the daytime, when the arrest was made, could not see the spark plugs, which also contained Spartan tags, in the rear seat. The accomplice witness Singleton testified that he poured the spark plugs in the bag. From what this record shows, the spark plugs with Spartan tags on them could have been visible as well as the bag with the tag on it.

If the rule of Article 38.14, supra, required that there be sufficient evidence over and above that of an accomplice witness to convict an accused, it would be useless and foolish to use such a witness and have him impeached and weaken the case for the prosecution. However, such is not the rule. What evidence in the present case tends to incriminate the appellant? He was in the car with Singleton with stolen property. They were arrested in the daytime. The officer saw the bag in the rear seat and it had, in the officer’s almost positive recollection, a Spartan’s tag on the outside of it. Also, the large number of spark plugs had Spartan’s tags on the packages.

In the present case we have direct testimony from the accomplice and in addition sufficient evidence, in my opinion, to tend to connect the appellant with the commission of the offense.

For the above reasons, I concur with the original opinion affirming this cause.

1 . It was also referred to as a flight bag.