A.C. Jones v. The State of Texas--Appeal from 188th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00057-CR
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A. C. JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 32314-A
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

A. C. Jones appeals his conviction by a jury for delivery of morphine, a controlled substance. The State's evidence showed that Jones sold Lori Beasley more than one gram but less than four grams of morphine. (1) Beasley was acting covertly on behalf of the Gregg County Organized Drug Enforcement Unit in order to avoid prosecution on at least one possession of a controlled substance charge and "help" with a driving while intoxicated charge. In addition, Beasley was paid cash for her cooperation. Jones admitted giving Beasley the morphine, which had been prescribed to Jones's mother before Jones's mother passed away, and he admitted to having accepted money from Beasley, but also testified that Beasley induced him to sell her the morphine by plying him with sexual favors. The jury rejected Jones's defense of entrapment and found him guilty. Jones pleaded true to the enhancements, and the jury assessed punishment at fifty years' imprisonment. On appeal, Jones argues that there was insufficient corroboration of the covert witness. We affirm the judgment of the trial court.

Article 38.141 of the Texas Code of Criminal Procedure requires that testimony of a person who is not a licensed police officer or special investigator, but who is acting covertly on behalf of the police, be corroborated by other evidence tending to connect the accused to the offense. Brown v. State, 159 S.W.3d 703, 707 (Tex. App.--Texarkana 2004, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). The covert witness rule requires that the State produce some evidence other than the covert witness's testimony which "tends to connect" the accused to the commission of the offense alleged in the indictment. Brown, 159 S.W.3d at 707-08.

This Court has found the interpretations of Article 38.14 of the Texas Code of Criminal Procedure relating to accomplice-witness testimony to be persuasive and applicable to Article 38.141. Brown, 159 S.W.3d at 707; see Torres v. State, 137 S.W.3d 191, 196 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 793 (Tex. App.--Eastland 2003, pet. ref'd); Young v. State, 95 S.W.3d 448, 451 (Tex. App.--Houston [1st Dist.] 2002, pef. ref'd); Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.--Austin 2002, no pet.). Similar to accomplice witnesses, covert witnesses may have incentives to lie or shade their testimony in favor of the State and, therefore, such testimony should be viewed with a measure of caution. Brown, 159 S.W.3d at 707.

In our analysis of whether there is "other evidence" which tends to connect the accused with the offense, we must eliminate all of the covert witness's testimony and determine whether the remaining inculpatory facts and circumstances tend to connect the appellant to the offense. Id. Mere presence at the scene is not enough to corroborate the accomplice testimony. Id. at 708; Torres, 137 S.W.3d at 196. However, presence of the accused at or near the scene of the crime at or about the time of its commission, coupled with other suspicious circumstances, may be sufficient to tend to connect the accused to the crime. Brown, 159 S.W.3d at 708. "Even apparently insignificant incriminating suspicious circumstances may sometimes prove to be sufficient corroboration." Id.; Torres, 137 S.W.3d at 196; see Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Cantelon, 85 S.W.3d at 461. Cumulative evidence of "suspicious circumstances" may be sufficient even if none of the circumstances would be sufficient individually. Cantelon, 85 S.W.3d at 460-61. The corroborating evidence does not need to prove all the elements of the alleged offense or directly link the accused to the commission of the offense; the covert-witness rule merely requires some evidence which tends to connect the accused to the offense. Jeffery v. State, 169 S.W.3d 439, 448 (Tex. App.--Texarkana 2005, pet. ref'd); see Torres, 137 S.W.3d at 196.

A judicial confession by the accused may be sufficient to corroborate the testimony of a covert witness even if the confession contains exculpatory assertions. See Jackson v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (judicial confession sufficient to corroborate accomplice testimony despite defendant's testimony he acted in self-defense); see also Thompson v. State, 54 S.W.3d 88, 94 (Tex. App.--Tyler 2001, pet. ref'd). Jones admitted to accepting money from Beasley in exchange for the morphine. In addition, a videotape (2) of the transaction between Jones and Beasley was introduced into evidence. The videotape shows Beasley and Jones exchanging money and pills. The audio portion of the videotape includes a discussion of the morphine purchase. There is sufficient corroboration of the covert witness's testimony. We overrule Jones's sole point of error.

Because there is sufficient corroboration of the covert witness's testimony, we affirm Jones's conviction.

 

Bailey C. Moseley

Justice

 

Date Submitted: November 22, 2006

Date Decided: February 1, 2007

 

Do Not Publish

 

1. Tex. Health & Safety Code Ann. 481.114(b) (Vernon 2003).

2. We note three videotapes of drug transactions between Jones and Beasley were introduced into evidence. The videotape which records Beasley purchasing morphine from Jones was recorded on or about January 30, 2004. In a related appeal, Jones appeals a separate conviction for selling Beasley Vicodin. See Jones v. State, cause number 06-06-00056-CR.