Opinion
Nos. 10-05-00365-CR, 10-05-00366-CR
Opinion delivered and filed December 13, 2006. DO NOT PUBLISH.
Appeal from the 278th District Court, Madison County, Texas, Trial Court Nos. 05-10907-278-07 and 05-10909-278-07.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
MEMORANDUM OPINION
A jury convicted James Daniel Green of two counts of burglary of a habitation and assessed his punishment at two terms of forty years' imprisonment to run concurrently. Green contends in his sole issue that there is insufficient evidence to corroborate the accomplice testimony offered at trial. We will affirm. Twice in the first week of January, the ranch home of Tony Wolfskill was burglarized. Each time guns, ammunition, and other items were taken. Green was charged in each burglary. The primary witnesses against him were his two accomplices, Matt Driskell and Jared Tidwell. Driskell and Tidwell were arrested in possession of certain stolen within hours of the second burglary. They immediately confessed and implicated Green in the burglaries. Each accomplice testified that Green was the leader. In addition to this accomplice testimony, two sheriff's deputies, neighbors, and other witnesses testified as to the facts of the break-ins and having seen Green in the area of the Wolfskills' house near the time of the burglaries. Green argues in his sole issue that there is insufficient evidence to corroborate the accomplice testimony. Accomplice testimony must be corroborated by "other evidence tending to connect the defendant with the offense committed." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony, and then examine the remaining inculpatory evidence to ascertain whether it tends to connect the defendant with the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999); Phillips v. State, 72 S.W.3d 719, 722 (Tex.App. — Waco 2002, no pet.). Evidence merely proving that a crime was committed is insufficient. TEX. CODE CRIM. PROC. ANN. art. 38.14. We begin with a review of the non-accomplice testimony. The sheriff's deputies and the Wolfskills testified that the house had been broken into twice. Tony Wolfskill and his brother testified that the Wolfskills' ranch house had been burglarized on the afternoon of January 4, 2005, and on the evening of January 6, 2005. Wolfskill identified two rifles, field binoculars and other items found hidden in the woods near his house as some of the items taken. A bank bag and hunting knife found in Driskell's vehicle were also identified by Wolfskill as being among the items stolen. Two handguns taken in the first burglary and additional rifles and ammunition stolen in the second break-in were never recovered. The Wolf skills' neighbor Dallas Ivey testified that on the morning of January 4, he saw a jeep abandoned on the road near the Wolfskills' ranch. Earlier in the day, Green had been seen by another witness driving that same jeep. Ivey also testified that he saw Green and another man, later identified as Tidwell, walking down the road away from the Wolfskills' ranch on the afternoon of the first burglary. Ashley Nuss said Green and Tidwell stopped her on the road that same afternoon. When Green asked her for a ride, he also showed her two handguns, which were similar to those stolen in the first burglary. Ivey also testified that on January 6, his brother and he went to investigate a car parked on the side of the road and saw Green and Tidwell coming from the woods near the Wolfskills' house. Green claimed to be having car trouble, but the car started immediately. A cache of the Wolfskills' stolen guns were later found in that area of the woods. Ivey and his brother testified that later that same evening they saw a red Dodge truck which they knew to belong to Matt Driskell, driving slowly by the Wolfskills' with its lights off. They saw the shadows of people running across the yard and jumping in the truck. Once away form the Wolfskills' house, the headlights came on as the truck speed away. The Iveys had, in the weeks prior to the burglary, seen Green riding in Driskell's truck and spotlighting the Wolfskills' house. Green at that time claimed he was going to knock on the door. The question of whether sufficient corroborating evidence exists does not invoke the traditional legal or factual sufficiency analyses. Cathey, 992 S.W.2d at 462. The analysis of the sufficiency of corroborating evidence is done on a case by case basis. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). The non-accomplice evidence need not directly link the defendant to the crime, nor does it alone have to establish guilt beyond a reasonable doubt; rather the evidence need only to tend to connect the defendant to the crime. Cathey, 992 S.W.2d at 462. Presence with accomplices at or around the time of the crime is not sufficient corroboration alone, but it is an important factor. Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App. 1997); Jackson v. State, 745 S.W.2d 4, 13 (Tex.Crim.App. 1988). Evidence of a guilty demeanor coupled with other corroborating circumstances may tend to connect the defendant to the crime. Hernandez, 939 S.W.2d at 178. Possession of the fruits of the crime or even items similar to those taken is proper corroborating evidence. Bradley v. State, 48 S.W.3d 437, 441 (Tex.App.-Waco 2001, pet. ref'd); see also Cockrum v. State, 758 S.W.2d 577, 582 (Tex.Crim.App. 1988). Here, the record contains considerable non-accomplice testimony placing Green with his accomplices shortly before and after the commission of each offense and not far from the site of the offense. Such evidence adds to the weight of the corroborative evidence. Burks v. State, 876 S.W.2d 877, 887-88 (Tex.Crim.App. 1994); Bradley, 48 S.W.3d at 441. Testimony from the neighbors as to having seen Driskell's truck and people running from the house shows when and how the crime was committed, offering further corroboration of the accomplice testimony. Bradley, 48 S.W.3d at 441 (citing Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988)). Green acted suspiciously prior to the burglary when he was seen with Driskell spotlighting the Wolfskills' property and also aroused suspicion following the first burglary when he claimed to have car trouble but had no problems starting the car. He was also seen with handguns similar to those stolen from the Wolfskills. Although each piece of corroborating evidence taken individually might be insufficient to tend to connect the defendant to the offense, the totality of the evidence is enough for a rational jury to conclude that Green was sufficiently connected to the burglaries through non-accomplice testimony. Hernandez, 939 S.W.2d at 178-79. We overrule Green's sole issue on appeal and affirm the conviction. Affirmed.