No. 05-04-00201-CR
Opinion issued December 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81318-03. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
WHITTINGTON, Justice.
Charles Kelly appeals his conviction for engaging in organized criminal activity. After finding appellant guilty, the trial judge assessed punishment at 35 years' confinement. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction and he was wrongly convicted on the uncorroborated testimony of co-conspirators. We affirm the trial court's judgment.
Background
The charges against appellant relate to a forged check cashed on April 4, 2003, at Legacy Bank in Plano. The previous day, Jerry Cooks was under surveillance by the Dallas police department for activity relating to narcotics and stolen property. Officer James Shivers testified he followed Cooks on that day and observed as Cooks picked up a woman the police department had identified as a prostitute. Officer Shivers and Detective Christopher Hauffe then followed Cooks as he drove in his red Suburban to Legacy Bank in Plano. Detective Hauffe saw two black men and a white female in Cooks's Suburban. Cooks parked some distance from the bank, and the white female got out and walked into the bank. A black male, identified by Hauffe as appellant, then got out of the Suburban and followed the woman into the bank, but stayed behind in the bank's foyer. Officer Shivers testified he followed the female into the bank and sat in the lobby to watch. When the woman completed the transaction and left the bank, Officer Shivers approached the teller and told him that the check might be forged. He then met with the bank's management and obtained a copy of the check. Detective Hauffe saw the woman come out of the bank and walk to the Suburban with appellant. The officers arranged to have Cook's vehicle stopped by the Dallas police on the way back to Dallas from Plano, to identify the occupants of the car. Officer James Johnson made the stop. He identified appellant as one of the occupants of the car. Melody Patrick testified she met appellant on April 3 when Cooks and appellant picked her up at her apartment. She rode with the men in Cooks's red Suburban to Legacy Bank. On the way, appellant opened an envelope from which Patrick took a check that was made out to her. She took the check to Legacy Bank and cashed it. Appellant walked in the bank with Patrick but did not get in line with her. He stood by the entrance and watched her. He then exited the bank and walked to the car ahead of Patrick. Patrick got in the car and handed the money to appellant. They were stopped by the police on the way home but were not arrested. Patrick also testified she saw Cooks and appellant several weeks later when they took her to a Bank of America in Dallas to cash another forged check. Again, she took the check from an envelope held by appellant and gave the money to appellant after returning to the car. On both days, she received a share of the money. She testified she knew both checks were forged. She pled guilty to charges relating to both forgeries. Sherry Cullum testified she was picked up from her apartment on April 4 by Cooks. Appellant was a passenger in the car. Appellant opened an envelope, and Cullum removed a check in the amount of $5000 made payable to Cullum. Cooks drove to the Legacy Bank in Plano where Cullum presented the check to a teller. Cullum testified she expected to receive $800 from the transaction. The check was introduced into evidence at trial. Brett Autrey, the person who purportedly signed the check, testified it was not his signature, and in fact, his name was misspelled. Autrey also testified that the check was one stolen from his company, Maxim Solutions Group, Cullum, Cooks, and appellant had never worked for Maxim Solutions, and Autrey was contacted by Legacy Bank about more than one forged Maxim Solutions check. Having been warned to watch for a forged check, the bank teller contacted security after Cullum presented the check. The bank teller did not see appellant. David Tilley, a police officer for the City of Plano, was dispatched to the bank. He had been given information to look for a white female wearing all black clothing who was attempting to pass a forged check at a teller window at Legacy Bank. Officer Tilley entered the bank and apprehended Cullum, who matched the description he had been given. Officer Tilley advised Cullum of her rights and arrested her. She gave Tilley a description of a vehicle and two male subjects. Officer Tommy Ruiz of the Plano police was dispatched to the bank, with information to look for a red Chevrolet Suburban and two black males. He found a red Suburban parked in a handicapped space in front of an Albertson's store near the bank. No one was in the car, but appellant was standing nearby. Officer Ruiz asked appellant for identification, which appellant supplied. Officer Ruiz then told appellant he was free to go. The parties stipulated to the testimony of several witnesses. Legacy Bank employee Leanne Kenney would have testified she was the teller working at the bank on April 4, 2003. According to Kenney, she was warned to watch for a forged check and contacted security when Cullum presented her the check. Legacy Bank employee Shannon Stewart would have testified that Maxim Solutions checks were cashed by females at the bank on April 1 and April 3, 2003, and both checks were forged. Legacy Bank employee Angela Craddock would have testified she cashed a check presented by Cullum on March 31, 2003, in the amount of $3,250.47, and the check was forged. Kenney, Stewart, and Craddock could not identify appellant. Cullum pled guilty to charges related to the April 4 offense. Appellant was indicted for and convicted of engaging in organized criminal activity. See Tex. Pen. Code Ann. § 71.02 (Vernon 2003). This appeal followed. Standards of Review
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). We view the evidence in the light most favorable to the verdict. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Escamilla, 143 S.W.3d at 817. The trial judge, as the finder of fact in a bench trial, is entitled to resolve any conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight to be given any particular evidence. See, e.g., Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The factfinder is free to accept or reject any or all of the evidence presented by either side, and may draw reasonable inferences from basic to ultimate facts. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). In a factual sufficiency review, the question is whether, considering all of the evidence in a neutral light, a factfinder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits the offense of engaging in organized criminal activity "if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination . . . he commits or conspires to commit" one of several enumerated offenses, including forgery. See Tex. Pen. Code Ann. § 71.02(a)(1). A person commits forgery if he forges a writing with intent to defraud or harm another. See Tex. Pen. Code Ann. § 32.21(b) (Vernon Supp. 2004-05). When reviewing accomplice witness testimony, traditional sufficiency of the evidence standards are not used. See Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). The accomplice witness rule is a statutorily-imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Cathey, 992 S.W.2d at 462-63. An accomplice witness is someone who participates with the defendant before, during, or after a crime and could be prosecuted for the offense with which the defendant was charged. Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). To support a conviction when accomplice testimony is used, the State must present nonaccomplice evidence tending to connect the defendant with the offense. See Cathey, 992 S.W.2d at 463; Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979) (conviction cannot be had upon testimony of accomplice unless corroborated by other evidence tending to connect defendant with offense committed; corroboration not sufficient if merely shows commission of offense). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt; rather, it need only tend to connect the defendant to the offense. Cathey, 992 S.W.2d at 462. If the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462. Discussion
Appellant argues the evidence is insufficient to establish he had any knowledge the check was forged. He also urges that because both Patrick and Cullum were accomplices, he was wrongly convicted on the uncorroborated testimony of co-conspirators. Cullum was arrested, charged, and pleaded guilty to the April 4 offense. As the State concedes, Cullum was an accomplice. See Kunkle, 771 S.W.2d at 439. Patrick, however, did not testify about the April 4 offense; rather, she testified about offenses on April 3 and another date some time later. There is no evidence Patrick participated in any way in the April 4 offense with which appellant was charged. Thus, Patrick was not an accomplice. See Kunkle, 771 S.W.2d at 439. We may therefore consider Patrick's nonaccomplice witness testimony to determine whether there is sufficient evidence to corroborate Cullum's testimony. After reviewing the entire record, we conclude there is sufficient evidence, excluding Cullum's testimony, to connect appellant to the April 4 offense. The checks used on April 3 and April 4 were from the same company, Maxim Solutions; appellant held the envelope from which Patrick took the check, monitored Patrick as she entered Legacy Bank, returned to a red Suburban driven by Cooks, accepted cash from Patrick, was identified by a police officer as a passenger in the Suburban on April 3, participated in a later offense with Patrick in which appellant offered Patrick an envelope with a check, and accepted the cash from Patrick when she returned from cashing the check. Each time Patrick accepted a cash payment from appellant. A police officer identified appellant as the individual standing near a red Suburban parked near Legacy Bank on April 4. Without considering Cullum's testimony, the evidence shows appellant handled the checks, rode with Cullum and Patrick, monitored Patrick's conduct in the bank, and divided the cash from the forgeries. The pattern of circumstances coupled with the non-accomplice testimony of the witnesses other than Cullum is evidence of appellant's knowing participation in the offense on April 4. A rational trier of fact could have found from this circumstantial evidence that appellant had intent to defraud. Moreover, considering Cullum's testimony, there is additional evidence from which a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. On the day of the offense with which appellant was charged, appellant and Cooks picked up Cullum and drove to Legacy Bank in Plano. Appellant opened an envelope from which Cullum withdrew a check, made out to her. She expected to receive $800 from the deal. She signed and presented the check at Legacy Bank and was arrested. Reviewing the evidence in both a neutral light, see Zuniga, 144 S.W.3d at 484-85, and in the light most favorable to the verdict, see Escamilla, 143 S.W.3d at 817, we conclude the evidence was legally and factually sufficient to support appellant's conviction. We affirm the trial court's judgment.