Sidney Owens, Jr. v. The State of Texas--Appeal from County Court at Law No 1 of Galveston County

Opinion issued October 11, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00601-CR

SIDNEY OWENS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 254929

MEMORANDUM OPINION

The trial court convicted appellant, Sidney Owens, Jr., of possession of less than two ounces of marihuana (1) and sentenced him to confinement for 106 days. In his point of error, appellant argues that the corroborative evidence was insufficient to support his conviction and that he is, therefore, entitled to an acquittal. See Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 2005).

We affirm.

Background

Appellant was traveling eastbound on Highway 1765 when Texas Department of Public Safety (DPS) Trooper T. Phillips noticed that the registration of appellant's vehicle was expired and initiated a traffic stop. When Trooper Phillips informed appellant of the reason for the stop, appellant stated that he had mistakenly displayed the current paper tag registration in the front window. Trooper Phillips told appellant that the correct placement of the tag was in the rear window and permitted appellant to get out of the car to resolve the issue.

When Trooper Phillips asked appellant for his driver's license, appellant admitted to Trooper Phillips that he did not have one. Appellant told Trooper Phillips his name and date of birth, and Trooper Phillips returned to his vehicle to confirm appellant's identity with DPS. While speaking with DPS, Trooper Phillips saw appellant walk around his Ford Explorer with the paper registration tag in hand, stop in the front of the vehicle, return to the rear of the vehicle, and finally walk to Trooper Phillip's patrol car without ever placing the paper tag in the back window of his vehicle. Upon discovering that appellant had outstanding warrants, Trooper Phillips arrested him and placed him inside a second patrol car. Trooper Phillips then walked to the front of appellant's vehicle, where appellant had paused, and observed a plastic baggy sitting unsecured on the vehicle's front grille, which, he testified, could not have been there previously when the vehicle was in motion. Trooper Phillips testified that he had previous training and experience in narcotics detection and that the baggy contained a green, leafy substance with the characteristics of marihuana. The trial court found appellant guilty, and this appeal followed.

Analysis

In his sole point of error, appellant argues that the trial court erred in not entering a judgment of acquittal as required by article 38.17 of the Texas Code of Criminal Procedure. Specifically, appellant argues that article 38.17 requires the testimony of "two witnesses or one witness with corroborating circumstances to 'authorize' [a] conviction." Because "[t]here was no 'corroborating circumstance' that supported Trooper Phillip's testimony," he is, therefore, entitled to an acquittal. We construe appellant's argument to be a challenge to the legal sufficiency of the corroborating evidence.

Article 38.17 provides:

In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction.

Tex. Code Crim. Proc. Ann. art. 38.17. Possession of a controlled substance, however, is not a case where, by law, two witnesses or one witness with corroborating circumstances are required for a conviction. (2) State v. Provost, 205 S.W.3d 561, 569 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Only cases of treason, perjury, and aggravated perjury require two witnesses. Martin v. State, 13 S.W.3d 133, 140 (Tex. App.--Dallas 2000, no pet.) (citing Tex. Code Crim. Proc. Ann. arts. 38.15, 38.18 (Vernon 2005)). Corroborating circumstances are required only when a conviction is based on the testimony of an accomplice, in certain circumstances when a defendant's oral statement resulting from custodial interrogation is admitted into evidence, and in certain circumstances in sexual assault and aggravated sexual assault cases. Id. at 140-41 (citing Tex. Code Crim. Proc. Ann. arts. 38.07, 38.14, art. 38.22, 3(c) (Vernon 2005)). In all other cases, the testimony of a single witness, without corroboration, is sufficient for conviction if the jury may believe it beyond a reasonable doubt. See Castillo v. State, 913 S.W.2d 529, 532-33 (Tex. Crim. App. 1995).

The State did not charge appellant with treason, perjury, aggravated perjury, sexual assault, or aggravated sexual assault; nor was his conviction based on the testimony of an accomplice; nor was an oral statement that he made during a custodial interrogation admitted into evidence. Therefore, no corroboration was required and appellant's arguments based on the requirement of corroboration fails. See Tex. Code Crim. Proc. Ann. art. 38.17; Provost, 205 S.W.3d at 569; Martin, 13 S.W.3d at 140-41.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

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

1. See Tex. Health & Safety Code Ann. 481.121 (Vernon 2003).

2. Appellant cites Sestric v. State, 1 S.W.3d 921, 924 (Tex. App.--Beaumont 1999, no pet.), for the proposition that in reviewing the facts of this case, we "must eliminate Trooper Phillip's testimony and [the videotape of appellant's traffic stop and arrest] from the record and . . . determine whether 'other inculpatory facts and circumstances in evidence tend to connect'" appellant to the offense. Appellant's reliance on Sestric is misplaced. Sestric concerns the use of accomplice testimony to secure a conviction. See id. at 924. Neither the testimony of Trooper Phillips nor the videotape qualify as accomplice testimony. Sestric, therefore, is inapplicable.