Andra P. Spencer v. The State of Texas--Appeal from 159th District Court of Angelina County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00074-CR

______________________________

ANDRA PARNELL SPENCER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 159th Judicial District Court

Angelina County, Texas

Trial Court No. CR-24383

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

On at least fourteen of sixteen occasions on which counterfeit checks were passed during a ten-day period, Andra Parnell Spencer was either driving or a passenger in the vehicle used to conduct the transactions at GENCO Bank's drive-through facility. A jury convicted Spencer of engaging in organized criminal activity, and the trial court sentenced Spencer to twenty-five years' imprisonment. Spencer appeals his conviction based solely on the assertion that the nonaccomplice evidence insufficiently corroborated the accomplice testimony. We disagree.

Arrishia Moore, an accomplice, testified that, after she met Spencer, Moore started receiving counterfeit checks from Spencer and passing them through the bank. Spencer would accompany Moore to the bank where the checks would be deposited. Later, Moore would withdraw the funds and divide them between herself and Spencer.

Tracy Barkin, also an accomplice, had a similar experience. She testified that Spencer would bring counterfeit checks from Houston, which Barkin would deposit with the bank. Later, Barkin would withdraw the funds and divide the proceeds with Spencer.

Neither party disputes that both Moore and Barkin were accomplice witnesses. While their testimony provided a complete case against Spencer, accomplice-witness testimony is suspect and cannot alone be the basis for conviction. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Walker v. State, 615 S.W.2d 728 (Tex. Crim. App. [Panel Op.] 1981).

To determine whether an accomplice's testimony is corroborated, we must eliminate all accomplice evidence from the record and determine whether inculpatory facts and circumstances in evidence tend to connect Spencer to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Corroborative evidence need not establish his or her guilt or directly link him or her to the offense; it is sufficient if it "tends to connect" him or her to the offense. Id. Further, all of the facts and circumstances may be looked to for corroboration, and the corroborative evidence may be circumstantial or direct. Brown v. State, 672 S.W.2d 487, 488 (Tex. Crim. App. 1984). The accomplice testimony need not be corroborated on every element of the offense. Warren v. State, 514 S.W.2d 458, 463 (Tex. Crim. App. 1974), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). The corroborating evidence need not be of such substance to be sufficient evidence on its own to convict the accused. Eickenhorst v. State, 662 S.W.2d 622, 625 (Tex. App. Houston [14th Dist.] 1983, pet. ref'd).

Evidence merely pointing the "finger of suspicion" at an accused will not suffice as independent corroboration. Castaneda v. State, 682 S.W.2d 535, 538 (Tex. Crim. App. 1984). The mere presence of an accused in the presence of an accomplice at the scene of the crime or shortly before or after commission of an offense is not in itself sufficient corroboration. Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993). But the presence of the accused with the accomplice witness may, when coupled with the other circumstances, be sufficient to corroborate the testimony of the accomplice witness. Brown, 672 S.W.2d at 489; Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983); Dillard v. State, 550 S.W.2d 45, 51 (Tex. Crim. App. 1977); Nelson v. State, 542 S.W.2d 175, 177 (Tex. Crim. App. 1976); Cherb v. State, 472 S.W.2d 273, 280 (Tex. Crim. App. 1971).

We must look to all the factors and circumstances of the case to determine whether there is nonaccomplice evidence that tends to connect Spencer to the offense. Mitchell, 650 S.W.2d at 807. Each case must be considered on its own facts and circumstances. Munoz, 853 S.W.2d at 559. If the nonaccomplice evidence does not connect Spencer to the offense, the evidence to support the conviction is insufficient, resulting in an acquittal. Id. at 560. To determine the sufficiency of corroboration, we must view the corroborating evidence in the light most favorable to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

Viewed in the light most favorable to the jury's verdict, the nonaccomplice evidence shows the following: (1) there were eight counterfeit checks deposited with the bank; (2) in total, there were sixteen transactions with the bank eight deposits and ten withdrawals (two withdrawals occurred simultaneously with deposits); (3) fifteen of these transactions occurred at a kiosk in the bank's drive-through facility; (4) Spencer was either driving or a passenger in the vehicle during at least fourteen of the transactions; (5) video clearly showed Spencer with one of the accomplices during several of the transactions; (6) all of the transactions occurred during a ten-day period; (7) Spencer did not have an account at the bank; and (8) the counterfeit checks were all from fictitious companies purportedly based in the Houston area.

Although Spencer's mere presence with an accomplice would be insufficient corroboration, we hold that the surrounding circumstances presented here are sufficient to corroborate the accomplice-witness testimony. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). When many of the drive-through transactions were conducted, Spencer was the driver of the vehicle. There were numerous deposits and withdrawals which occurred during a short period of time. Spencer was present in the vehicle from which were conducted almost all of those transactions actually participating in many of them. The transactions occurred at a bank with which Spencer did not have an account.

Although it is possible to imagine innocent reasons for Spencer's behavior, this is not the test. Brosky v. State, 915 S.W.2d 120, 139 (Tex. App. Fort Worth 1996, pet. denied). The facts and circumstances discussed above tend to connect Spencer with the offense. Munoz, 853 S.W.2d at 559. Accordingly, we overrule Spencer's sole point of error.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 7, 2005

Date Decided: December 22, 2005

Do Not Publish