No. 05-04-01427-CR
Opinion Filed November 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th District Court, Collin County, Texas, Trial Court Cause No. 926-81585-03. Affirm.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice FITZGERALD.
Jonathon Ray Cain appeals his conviction for tampering with a governmental record. After finding appellant guilty, the jury assessed his punishment at 180 days in state jail and a $1000 fine. Appellant brings two points of error challenging the legal and factual sufficiency of the evidence. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Appellant was a detective for the City of Frisco Police Department in its Special Investigations Division. Appellant, along with Detective James Baggett, worked primarily narcotics and vice cases. Because appellant and Baggett often worked undercover, they were allowed to drive forfeited vehicles. The forfeited vehicle issued to appellant was an old pickup truck that appellant considered dangerous to drive, and he often voiced his dislike for the vehicle. On Wednesday July 16, 2003, appellant and Baggett, with the assistance of numerous other officers, executed a search warrant on a house in Frisco. Appellant was the lead investigator on the case. During the search, parts of which were videotaped, the officers opened a safe and found a bank bag containing, among other items, several clear-plastic bags of methamphetamine. Baggett prepared the inventory of items seized that was to be signed by appellant as lead investigator and filed with the search warrant return. During the execution of the search warrant, appellant searched a 2002 Volkswagen Jetta parked in front of the house. Baggett testified appellant called him over to the Volkswagen and said, "I've got everything in this car but dope. We've got to put some dope in it." Believing appellant was joking, Baggett smiled and said, "do whatever you need to do, dude," and walked away. Baggett testified that while he was in the office inside the house continuing to inventory the items seized during the search, appellant approached him when he was alone and asked where the drugs were. Baggett held out the bag containing the bags of methamphetamine, and appellant removed one of the bags of methamphetamine and left with it. Appellant returned a few minutes later, handed the bag of methamphetamine to Baggett and told Baggett "to log this in as being in the car." Baggett followed appellant's instructions and logged in the drugs as coming from the car. Baggett put the bag of drugs appellant said came from the car into a different envelope from the rest of the drugs. Appellant said, "boy, I haven't done anything like this before." Baggett asked, "what are you talking about?" and appellant answered, "exactly." Appellant later approached Baggett and asked if he had entered the drugs as coming from the car, and Baggett assured appellant that he had. The next day, July 17, 2003, appellant signed the inventory and search warrant return before a notary and filed it with the county clerk of Collin County. Baggett testified that on the following Saturday, appellant called him and said he had spoken to the representative of the estate that owned the Volkswagen, who told appellant the estate would not challenge the seizure of the car. Appellant also said the arrestees had hired a well-known attorney, and appellant asked Baggett if he thought they would have any trouble with the lawyer. Appellant then said, "I was just trying to make all of the ends meet." Baggett prepared a memorandum describing what had happened and delivered it to Assistant Chief John Bruce on Sunday. Baggett gave Bruce a revised memorandum on Monday. Baggett testified he knew that recording the bag of methamphetamine as coming from the car was wrong, but he did it hoping appellant would change the entry before he filed the inventory. He also testified he considered himself to be working undercover from the moment appellant told him to record the drugs as having come from the car. Officer Chris Coggan, who assisted in the execution of the search warrant, testified he saw appellant and Baggett talking together near the Volkswagen, but he could not hear their conversation. In two videotaped interviews played for the jury, appellant was questioned about the incident. He said his search of the Volkswagen took place in two parts. In the first part, he searched the passenger side and the center console. He found various papers in the glove box. In the console he found several hundred dollars in cash, a key chain that included the key to the safe, and one or two small plastic bags similar to those in which the methamphetamine was packaged. He carried these items over to the area where the safe was being searched. When appellant returned to the car, he searched the driver's side. He stated he pushed the driver's seat back and raked the items out from under the seat. He found a lot of papers and trash under the seat, and when he "looked back," he saw the bag of methamphetamine. He stated he found the drugs between the driver's seat and the center console. Later in the interview and in the second interview, appellant said he found the drugs under the driver's seat. In the second interview, he said the drugs were under the papers that were under the seat. Appellant denied asking Baggett where the drugs were. Appellant said he asked Baggett "where did you put the dope that I gave you," and that Baggett said, "I put it in the bag with all the rest of it." Appellant then asked Baggett if he had marked it, and Baggett told him, "Yes, I put `car' on it." Appellant denied speaking to Baggett by himself during the search, and he denied telling Baggett that they needed to find drugs in the car. Appellant denied taking a bag of methamphetamine out of the bag containing the rest of the drugs or taking any drug evidence out of the house. Appellant also stated, "I remember saying something to somebody about I hope we get the car, you know, be a nice seizure; tired of driving that ragged piece of shit that I'm in." Appellant also said in the first interview that Baggett is vindictive and lays in wait for people. Appellant said in November 2002, he and Baggett had a strong disagreement over officer scheduling policy. Appellant told Baggett that because of their disagreement, one of them should transfer out of the department, but Baggett told him they were fine and "to let it go. He said it ain't worth it." Appellant said he could not believe Baggett would make the allegations against him, but he indicated Baggett may have been trying to get back at him for not standing with him over the scheduling change. Appellant also stated that Baggett's paperwork was often incorrect and that Baggett took criticism as a personal insult. Appellant said Baggett had often accused appellant of wanting "to steal my empire"; appellant thought Baggett meant appellant was trying to take Baggett's job. Appellant was indicted for tampering with a governmental record and fabricating physical evidence. The jury acquitted appellant of fabricating physical evidence but convicted him of tampering with a governmental record. ACCOMPLICE WITNESS TESTIMONY
In his first point of error, appellant contends the evidence is legally insufficient to support his conviction because (1) Baggett was an accomplice witness as a matter of law and the trial court erred in charging the jury to determine as a question of fact whether Baggett was an accomplice, and (2) the evidence failed to corroborate Baggett's accomplice-witness testimony. Article 38.14 of the code of criminal procedure provides, "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. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). "Tend[ency] to connect" rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt. Id. The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense. Id. An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004). The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense. Id. The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Id. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term "accomplice." Id. An officer participating in a crime is not an accomplice if his participation was solely for the purpose of apprehending another person engaged in criminal conduct. In that situation, no accomplice-witness charge is necessary. Vela v. State, 373 S.W.2d 505, 507 (Tex.Crim.App. 1963). The facts, as testified to by Baggett, show Baggett entered the incorrect information on the inventory of the search warrant return for the purpose of detecting appellant's criminal conduct. Therefore, there exists some doubt as to whether Baggett was an accomplice, and the trial court did not err by instructing the jury to determine whether Baggett was as an accomplice as a matter of fact. When a witness is not an accomplice witness as a matter of law and the record does not show the fact finder found the witness was an accomplice as a matter of fact, the court of appeals is not required to determine whether the defendant's involvement in the offense is corroborated by other evidence. See Green v. State, 72 S.W.3d 420, 424 (Tex.App.-Texarkana 2002, pet. ref'd); Reyna v. State, 22 S.W.3d 655, 659 (Tex.App.-Austin 2000, no pet.). Appellant's arguments of legal insufficiency concern only the lack of corroboration of Baggett's testimony. Because the record does not show corroboration was required, those arguments lack merit. We overrule appellant's first point of error. FACTUAL INSUFFICIENCY
In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Our evaluation of the sufficiency of the evidence must give deference to the jury's verdict and to its determinations of the credibility and demeanor of the witnesses. Id. at 481. Our evaluation of the sufficiency of the evidence must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). To prove state-jail-felony tampering with a governmental record, the State had to prove appellant made or presented a governmental record-the search warrant return and inventory-with knowledge of its falsity and with the intent to harm or defraud another. Tex. Pen. Code Ann. § 37.10(a)(5), (c)(1) (Vernon Supp. 2005). Appellant asserts the evidence is factually insufficient to show appellant knew the inventory in the search warrant return was false and that he acted with the intent to harm or defraud another. Baggett's testimony-that (1) appellant told him they needed to find drugs in the car, (2) appellant came to him, asked for the bag of drugs, and removed a bag of drugs, and (3) appellant returned to Baggett a few minutes later and gave Baggett the same bag of drugs telling him to record the bag as coming from the car-shows appellant knew the inventory listing drugs as being taken from the car was false and that he participated in the falsification of the inventory with the intent to fraudulently guarantee the seizure of the vehicle. Appellant argues Baggett's testimony is not credible for many reasons, including the fact that Baggett initially testified he removed the drugs from the safe when the video showed another officer removing the drugs from the safe, Baggett waited four days before informing his superiors of appellant's wrongdoing, Baggett continued to work with appellant on narcotics cases during those four days, Baggett had lied for years about his military-service record, the Frisco police chief referred to Baggett as "a professional liar," and Baggett was often incorrect in his paperwork due to his dyslexia. Appellant also asserts Baggett wanted to get appellant fired because appellant was irritated with appellant for telling him to be sure to mark that the drugs came from the car. The credibility of the witnesses is an issue for the jury, and we must give deference to the jury's determination that Baggett was credible. See Zuniga, 144 S.W.3d at 481; see also Goodman v. State, 66 S.W.3d 283, 286 (Tex.Crim.App. 2001) (conviction based on testimony of "Cretan liar" is factually sufficient in absence of contrary evidence of "boy scouts"). Appellant also argues the evidence shows the car was subject to forfeiture without the drugs being found in it, so there was no reason for appellant to state he found drugs in the car. Witnesses at trial testified that the car was likely subject to forfeiture without the drugs but that evidence that drugs were found in the car would guarantee forfeiture of the vehicle. However, the jury could have concluded that appellant, as Baggett testified, "was just trying to make all the ends meet" to guarantee the Volkswagen's forfeiture. Appellant also argues the evidence is insufficient because Baggett testified he could have made up the events. This testimony occurred during appellant's cross-examination of Baggett and concerned the fact that Baggett was the only witness to appellant's crime and Baggett had control of the drugs. Baggett's testimony was an agreement that he was in a position to fabricate evidence against appellant and to have made up the charges against him. Baggett's testimony was not an admission that he fabricated the evidence and charges against appellant, nor was it an admission of uncertainty whether he fabricated the evidence and charges. After reviewing all the evidence in a neutral light, we conclude the evidence of appellant's guilt is not too weak to support the finding of guilt beyond a reasonable doubt, and the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. We hold the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. We affirm the trial court's judgment.