Brandon Keith Scott v. The State of Texas--Appeal from 142nd District Court of Midland County

Opinion filed September 20, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-06-00111-CR

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 BRANDON KEITH SCOTT, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CR30336

O P I N I O N

Brandon Keith Scott appeals his conviction by a jury of the offense of forgery by passing. The jury assessed his punishment at two years in the State Department of Criminal Justice, State Jail Division. In a single issue, Scott contends that the evidence is legally insufficient to support his conviction because there was insufficient evidence to corroborate the testimony of Carmen Allison Shuey, the complainants= daughter, whom he contends was an accomplice. We reverse and render.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The State maintained that the complainants= home was burglarized by Carmen, by Scott, and by a third person while they were out of town on vacation. Carmen identified Scott as being the man shown in a security video as passing the complainants= Check Number 4606, the check alleged in the indictment, at an Exxon station. Scott contends, and the State does not dispute, that the image in the picture was difficult to make out.

Scott contends that the evidence is insufficient because there was no evidence, other than Carmen=s testimony, tending to connect him with the commission of the offense. The jury was instructed in the court=s charge that Carmen was an accomplice.

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). There is no evidence other than Carmen=s testimony that would tend to connect Scott with this offense.

The State, rather than referring us to any corroborating evidence, contends that the charge was erroneous and that the evidence does not show that Carmen was an accomplice. Neither Scott nor the State objected to the court=s charge. The State notes that in determining the sufficiency of the evidence it is measured against a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). It argues that Carmen was not a party to the offense who could have been prosecuted for the offense.

Carmen testified that she met Scott not long before she and he broke into her parents= home. She admitted that she, Scott, and a third person broke into her parents= home and that she took some of their checks from their house. When asked what was done with those checks, Carmen said, AWe went to the store. We went to several stores and used them.@ She indicated that she kept the checkbook and that she and Scott went to cash them. She said they went around writing Athese checks@ until they ran out of checks. With respect to the check that was the subject of this prosecution, Carmen testified that she did not go with Scott to cash it and that she did not know anything about the check. However, on cross-examination, Scott=s attorney stated, AYou went around for three days with this man day and night without any sleep, but somehow he slipped between the cracks and got away from you long enough to go over to the Exxon station on South Rankin road to buy a package of cigarettes and you didn=t know anything about it --.@ Carmen replied, ANo, sir.@

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. ' 7.02(a)(2) (Vernon 2003). We hold that, based upon her own testimony, Carmen could have been found to have, acting with the intent to promote or assist the commission of the offense, aided Scott in committing the offense by providing him with the check to pass at the Exxon station. That being the case, the State=s contention that Carmen was not an accomplice because she could not have been prosecuted for this offense is without merit. While it is true, as the State suggests, that there is no direct evidence as to how Scott came to be in possession of the checkbook, a reasonable jury could find, from Carmen=s testimony, that she was in charge of the checkbook, that she and Scott were acting together in cashing the checks, and that she aided him in the commission of this offense by providing him with the checkbook on the occasion in question. Because Carmen could have been prosecuted for this offense, she was an accomplice. We sustain Scott=s sole issue on appeal.

We reverse the judgment of the trial court and render a judgment of acquittal.

JOHN G. HILL

JUSTICE

September 20, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.