The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. Cockrum v. State, 758 S.W.2d 577, 581 (Tex.Cr.App. 1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1358, 103 L.Ed.2d 825 (1989); Granger v. State, 683 S.W.2d 387, 392 (Tex.Cr.App. 1984) (quoting Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App. 1968)), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). One hour before the offense, Guillem saw appellant with Mark McConnell in Mark's car.
That conviction, too, was overturned, because of trial error unrelated to the sufficiency of the evidence. Granger v. State, 653 S.W.2d 868 (Tex.App. — Corpus Christi 1983), aff'd, 683 S.W.2d 387 (Tex.Cr.App. 1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). In its opinion reversing appellant's second conviction, the Thirteenth Court of Appeals specifically rejected his argument that his retrial for murder had been barred by our federal and state constitutional guarantees against being placed in jeopardy twice for the same offense.
Dix, § 22.55. A violation of this prohibition demands a conviction be set aside or rendered invalid, but only if there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. See Agurs, 427 U.S. at 103; Adams, 768 S.W.2d at 292; Granger v. State, 683 S.W.2d 387, 391 (Tex.Crim.App. 1984); Davis, 831 S.W.2d at 439. "This is essentially the harmless error standard for constitutional error embodied in the Texas Rules of Appellate Procedure 44.2(a)."
The general rule that merely cumulative, corroborative, collateral or impeaching evidence rarely is judged by appellate courts to be of such weight as likely to bring about a different result, has numerous exceptions. Jones v. State, supra; Granger v. State, 683 S.W.2d 387 (Tex.Crim.App. 1984) (en banc); Burkhalter v. State, 493 S.W.2d 214 (Tex.Crim.App. 1973); Spencer v. State, 69 Tex.Crim. 92, 153 S.W. 858 (1913). A possible standard for determining when the newly discovered evidence is no longer "merely cumulative or impeaching" was enunciated by the Texas Court of Criminal Appeals in Spencer v. State.
The non-accomplice evidence is sufficient if it tends to connect the defendant to the offense; this evidence need not establish guilt or even directly link the defendant to the offense. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Cr.App. 1991); Cox v. State, 830 S.W.2d 609 (Tex.Cr.App. 1992); Granger v. State, 683 S.W.2d 387, 392 (Tex.Cr.App. 1984); and, Castaneda v. State, 682 S.W.2d 535, 537 (Tex.Cr.App. 1984). However, each case is determined on its own merit, Mitchell v. State, 650 S.W.2d at 807, and the non-accomplice evidence must point toward the defendant's commission of the offense.
Corroborative evidence need not establish appellant's guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it "tends to connect" appellant to the offense. Granger v. State, 683 S.W.2d 387, 392 (Tex.Cr.App. 1984) (citing Edwards, 427 S.W.2d 629, 632 (Tex.Cr.App. 1968)). See, Gosch, 829 S.W.2d at 777; Castaneda v. State, 682 S.W.2d 535, 537 (Tex.Cr.App. 1984); and, Cox v. State, 830 S.W.2d 609, 611 (Tex.Cr.App. 1992).
A witness is rendered unavailable when she invokes her Fifth Amendment privilege not to testify. Tex.R.Crim.Evid. 804(a)(1) (A witness is unavailable when she "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of [her] statement."); see also Granger v. State, 653 S.W.2d 868, 873 (Tex.App.-Corpus Christi 1983), aff'd, 683 S.W.2d 387 (Tex.Cr.App. 1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). Since Comalander asserted her privilege against self-incrimination, she was unavailable as a witness to appellant.
See Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App. 1989). See also Granger v. State, 683 S.W.2d 387 (Tex.Cr.App. 1984). In his second ground for review, appellant argues that the court of appeals erroneously concluded that the evidence was sufficient to corroborate the accomplice testimony.
"It is sufficient if the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses tends to connect the accused with the commission of the offense. Granger v. State, 683 S.W.2d 387 (Tex.Cr.App. 1984)." Romero v. State, 716 S.W.2d 519, 523 (Tex.Cr.App. 1986).
It is not necessary that the evidence corroborating the accomplice witness testimony directly link the accused to the crime or be sufficient in itself to establish guilt. It is sufficient if the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses tends to connect the accused with the commission of the offense. Granger v. State, 683 S.W.2d 387 (Tex.Cr.App. 1984). The statement given by appellant corroborates the testimony of Leyva in that it places the appellant with the codefendants before, during and after the sexual assaults upon and murder of the deceased.