Aaron Scott Taylor v. The State of Texas--Appeal from 63rd Judicial District Court of Kinney County

00-00264 Taylor v State of Texas.wpd No. 04-00-00264-CR
Aaron Scott TAYLOR,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Kinney County, Texas
Trial Court No. 1921
Honorable George M. Thurmond, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 1, 2000

AFFIRMED

Aaron Scott Taylor appeals his conviction for burglary of a habitation complaining in two issues that the trial court erred in denying him an instructed verdict and motion for new trial because the testimony of the accomplice witnesses was not sufficiently corroborated.

Factual and Procedural Background

On July 23, 1998, appellant, Aaron Scott Taylor, picked up accomplice witnesses, Justin Turner, Tommy Ward, and Mauro Barrera in his truck. After driving around, appellant dropped the three off in a secluded area at the rear of William Stuart's house and drove around for a few minutes before picking them back up. Taylor drove them to two different back road locations where they hid bottles, jewelry, and coins. Taylor admitted in a statement that he did all the driving and picking up of the accomplice witnesses on this day. He also admitted to taking the three to hide the items he believed they had stolen.

The jury returned a verdict of guilty for the offense of burglary of a habitation with intent to commit theft. The trial court sentenced Taylor to two years confinement, but suspended execution of the sentence, placing Taylor on community supervision for a period of two years. Taylor was allowed to finish his semester in college and ordered to serve 60 days in the Kinney County Jail in the summer, during which time he would perform community service.

Accomplice Witness Rule

A person is defined as an accomplice if he could have been prosecuted for the same offense as the defendant, or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). Under Article 38.14 of the Code of Criminal Procedure, "a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense." Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 805 (2000). The corroborating evidence need only tend to connect the defendant to the offense, it is not necessary for the corroborating evidence to directly connect the defendant to the crime or be enough by itself to establish guilt. Id. "If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of 38.14 has been fulfilled." Id. Evidence of the defendant's presence at the scene, in addition to other suspicious circumstances, even seemingly insignificant ones, may well be enough to tend to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Similarly, evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence. Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988). We review non-accomplice testimony in the light most favorable to the verdict. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Ayers v. State, 879 S.W.2d 176, 178 (Tex. App.-Houston [14th Dist.] 1994, no pet.).

Motion for Instructed Verdict

A complaint in regard to overruling a motion for instructed verdict is an attack on the sufficiency of the evidence. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). In evaluating the legal sufficiency of the evidence of guilt, we shall consider all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

The relevant essential elements of a burglary with intent to commit theft under the law of parties are: while "acting with intent to promote or assist the commission of the offense, he solicits,

encourages, aids, or attempts to aid the other person to commit the offense (1)" of entering a habitation, without the consent of the owner while intending to commit theft. (2) To support a conviction under the law of parties, the defendant must be physically present at and encourage the commission of the offense by agreement. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Rivera v. State, 12 S.W.3d 572, 575 (Tex. App.-San Antonio 2000, no pet. h.). The court may inquire into the events that occurred before, during, and after the offense was committed as well as examining the conduct of the defendant which shows a common design or understanding. See Burdine at 315; Rivera at 575-76.

Taylor claims the motion for instructed verdict should not have been denied because the accomplice witness testimony was not corroborated. However, Taylor's own statement places him physically present at the offense, and agreement can be inferred from Taylor's conduct of transporting the accomplices to the remote location of the scene of the offense and then willingly taking them two different places to hide liquor, jewelry, and coins.

A rational trier of fact could find beyond a reasonable doubt that the essential elements of the offense were established and the accomplice witness testimony was corroborated by the admission and conduct of the defendant. Taylor's first point of error is overruled.

Motion for New Trial

The granting or denying of a motion for new trial is within the trial court's discretion. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The list of the grounds for granting a motion for new trial (3) is not exhaustive and other circumstances may lead to the granting of a new trial at the trial court's discretion. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993); State v. Evans, 843 S.W.2d 576, 578 (Tex. Crim. App. 1992). In reviewing a denial of a motion for

new trial we decide if the trial court's decision was arbitrary or unreasonable, rather than substituting our judgment for that of the trial court. See Lewis at 7.

Accomplice Witness Testimony

Accomplice witnesses, Barrera, Turner, and Ward, testified that they went cruising in Taylor's Ford Ranger on the day of the burglary. They all discussed committing a burglary and looked for a house. They decided on one by the golf course, eventually parking near the rear of the home. Barrera, Turner, and Ward got out of Taylor's vehicle and burglarized the home, while Taylor drove around and picked them back up about 15 minutes later. Taylor then drove to a couple of different locations where they all "messed with everything" and hid the stolen items.

Non-Accomplice Testimony

In a review of the non-accomplice testimony, Taylor's statement tends to connect him with the offense. His statement places him physically present at the scene of the offense and in the presence of the accomplices at and near the time and place of the offense. Again, agreement can be inferred from the admission and conduct of Taylor in dropping off and picking up the accomplices at the remote location of the scene of the offense and then willingly taking them to two different places to hide liquor, jewelry, and coins.

We find the trial court's decision was neither arbitrary nor unreasonable. Taylor's second point of error is overruled. The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. See Tex. Pen. Code Ann. 7.02 (Vernon 1994).

2. See Tex. Pen. Code Ann. 30.02 (Vernon Supp. 2000).

3. See Tex. R. App. P. 21.3.