Autum Cornish v. The State of Texas--Appeal from County Court of Mason County

DISSENTING OPINION

No. 04-04-00661-CR

Autum D Anna CORNISH,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court, Mason County, Texas

Trial Court No. CC-4901

Honorable Jerry M. Bearden, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 27, 2005

Because I believe the evidence is insufficient to corroborate the accomplice witness s testimony, I respectfully dissent. Eliminating the accomplice witness testimony from consideration, the only evidence in the record establishes: (1) Cornish was a passenger in a car three hours after the accomplice witness was arrested for minor in possession of alcohol; (2) the other occupants of the car were one female over twenty-one years of age and three female minors; (3) an open container of beer was located in Cornish s purse; (4) an open container of beer was located on the console of the car; and (5) the other occupants of the car admitted they had consumed from a few sips of beer to one beer. The majority states that the evidence established that Cornish was making alcohol available to the minors in her company at the time she was apprehended; however, there is no evidence in the record to establish that Cornish furnished the alcohol. The alcohol could have been furnished by any of the occupants and likely more easily by the only occupant of the car who was over twenty-one years of age, who was not Cornish. Non-accomplice evidence that establishes that the accused was in the company of the accomplice before, during, and after the commission of the offense has been held to be insufficient corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Rios v. State, 982 S.W.2d 558, 560 (Tex. App. San Antonio 1998, pet. ref d). In this case, the evidence is even weaker because it merely establishes that Cornish was in the company of other minors who admitted to consuming alcohol. The evidence does not even establish that the car in which Cornish was riding was even in the same vicinity as the park where Cornish allegedly gave the alcohol to the accomplice. The evidence in this case does no more than raise a suspicion that Cornish might be willing to furnish alcohol to minors; however, such a suspicion is insufficient corroboration. Saunders v. State, 794 S.W.2d 91, 94 (Tex. App. San Antonio 1990), aff d, 817 S.W.2d 688 (Tex. Crim. App. 1991). For these reasons, I respectfully dissent.

Alma L. L pez, Chief Justice

PUBLISH