Opinion
Nos. 4-05-00349-CR, 04-05-00350-CR
Delivered and Filed: March 15, 2006. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-1907B 2004-CR-1908B, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Appellant Richard Rodriguez appeals his conviction for possession of a controlled substance, arguing that there was insufficient corroboration of the accomplice testimony to sustain a guilty verdict. We affirm. On January 30, 2004, at approximately 12:30 in the morning, Detective William Garcia of the San Antonio Police Department, narcotics unit, was working surveillance near a gas station. Through his binoculars, he saw Rodriguez and his girlfriend at the time, Nora Contreras, arrive at the gas station's parking lot in a white car. The car belonged to Contreras, but Rodriguez was driving it and Contreras sat in the passenger's seat. Rodriguez parked, got out of the car and played with the windshield wipers. He then appeared to make a call on his mobile phone. Meanwhile, Garcia left his surveillance position for a few minutes to assist another detective down the street and then returned. Shortly thereafter, a second vehicle arrived at the gas station which was closed for business. Rodriguez briefly entered this second vehicle. He and Contreras then left the gas station in the white car. Believing that a drug transaction had taken place, Garcia alerted fellow officers and followed Rodriguez. As Rodriguez was leaving a restaurant a few blocks away from the gas station, he was pulled over for making an illegal turn and for displaying a broken rear taillight. He and Contreras were arrested pursuant to active arrest warrants. The white car was impounded and an inventory search conducted by Officer Ruben Saenz led to the discovery of a package of cigarettes between the passenger's door and the passenger's seat. Concealed inside the cigarette package was a small amount of what proved to be cocaine and methamphetamine. On February 3, 2004, Contreras contacted Rodriguez's attorney and swore in an affidavit that the drugs found on January 30 belonged to her. At Rodriguez's trial for possession of a controlled substance, however, Contreras contradicted her statement and testified on the State's behalf. She stated that on January 30, she and Rodriguez drove to the gas station to meet a friend of Rodriguez's in order to purchase drugs. When his friend arrived, Rodriguez got into his vehicle and completed the drug transaction. After they were stopped by the police, Contreras testified that Rodriguez threw the two baggies of drugs to her and that she hid them in the cigarette package between the door and the passenger's seat. In four issues, Rodriguez attacks the sufficiency of the evidence to corroborate Contreras's 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). 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. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App. 1997). The non-accomplice testimony does not have to directly link the defendant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; rather, the non-accomplice testimony merely has to tend to connect the defendant to the offense. Burks v. State, 876 S.W.2d 877, 888 (Tex.Crim.App. 1994). Thus, there must simply be some non-accomplice evidence which tends to connect the defendant to the commission of the offense alleged in the indictment. McDuff, 939 S.W.2d at 613. There was non-accomplice testimony at trial from Detective Garcia and Officer Saenz. Garcia testified that he was looking for a light-colored vehicle and that from his surveillance position he observed Rodriguez drive to a closed gas station in an area known for drug transactions. He observed Rodriguez get out of the white car and play with the windshield wipers, even though it was not raining. He further noticed that Rodriguez was talking on his mobile phone and looking up and down the street, as though he were trying to give directions or tell someone where he was. When the second vehicle arrived, Rodriguez entered the car for a brief time, exited, and then quickly drove off in the white car with Contreras. Furthermore, Garcia testified that after the white car was stopped and the narcotics were found, both occupants at first denied that the drugs were theirs. He then saw Rodriguez mouth something to Contreras, who said, "Okay, it's mine." Officer Saenz testified that he conducted an inventory search of the white car. He discovered a red carton of cigarettes between the passenger's seat and the passenger's door. He testified that there were no cigarettes inside the carton, but there were two plastic bags containing what appeared to be narcotics. After eliminating the accomplice witness testimony from our consideration and conducting an examination of the non-accomplice evidence, we conclude that such non-accomplice evidence does tend to connect Rodriguez to the offense sufficiently to corroborate the testimony of Contreras, the accomplice witness. Accordingly, we overrule Rodriguez's issues. The judgments of the trial court are affirmed.
The jury charge informed the jury that Contreras was an accomplice as a matter of law.