RALPH MCAFEE, SR. v. THE STATE OF TEXAS--Appeal from 23rd District Court of Wharton County

NUMBER 13-03-420-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

RALPH MCAFEE, SR., Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 23rd District Court of Wharton County, Texas.

O P I N I O N

 
Before the Court En Banc
Opinion by Justice Garza

This Court granted en banc review in this case, as well as in Patterson v. State, a separate case that raises a similar and related issue. (1) By four issues, appellant, Ralph McAfee, Sr., challenges his conviction for possession of cocaine. For the following reasons, we overrule appellant's issues and affirm the judgment of the trial court.

I. Admissibility of Evidence Stemming from Traffic Stop

In his fourth issue, appellant contends that the "trial court erred in admitting the cocaine because the State failed to establish probable cause for the stop of appellant's vehicle." Appellant's Brief p.21. This issue ultimately fails because, among other things, law enforcement does not need "probable cause" to effectuate a traffic stop. See Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989) ("It is clear that circumstances short of probable cause may justify temporary detention for purposes of investigation."). (2)

The evidence shows the following facts: A police officer observed appellant's vehicle traveling in excess of the posted speed limit. The officer stopped appellant for speeding, but testified that, before the stop, he knew that appellant was suspected of illegal drug activity that had occurred immediately prior to the traffic stop. During the traffic stop, the officer discovered appellant had no proof of insurance for his automobile. A pat-down search of the vehicle's other occupant, who was highly agitated and shaking uncontrollably at the time of appellant's arrest, revealed that the passenger was carrying the cocaine that was later admitted at appellant's trial.

Appellant contends that the traffic stop was improper because there was no evidence that the speedometer in the police cruiser "was in proper working order" when the arresting officer used it to "pace" the speed of appellant's vehicle. Appellant's Brief p.26. As the State's brief points out, speedometer pacing was not the sole basis for the officer's conclusion that appellant was speeding. At trial, the arresting officer explained that he visually observed the rate at which appellant's vehicle was traveling and testified that, based on his training and experience, he was able to determine that appellant's vehicle was traveling at an excessive rate. The officer attempted to catch up to appellant's vehicle and testified that, only then, did he use his speedometer to pace appellant's speed more definitively. Appellant has provided this Court with no authority for holding that these circumstances cannot give rise to a reasonable suspicion of speeding. See Garza, 771 S.W.2d at 558. The legality of the officer's actions beyond initiating the traffic stop for speeding has not been challenged on appeal. Appellant's fourth issue is overruled.

II. Corroboration of Accomplice and Informant Testimony

In his first and second issues, appellant contends that there is insufficient evidence to independently corroborate the testimony of Frank Gonzales, the passenger in his vehicle, who is an accomplice, and the testimony of Jesse Waddy, a police informant.

The code of criminal procedure provides as follows:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

 

Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005).

Corroborative evidence is sufficient if it "tends to connect" appellant to the offense. See Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); see also Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2001). No precise rule has been formulated as to the amount of evidence required to corroborate, but the Texas Court of Criminal Appeals has articulated some basic precepts for our assistance. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). The evidence used for corroboration does not need to be in itself sufficient to establish guilt beyond a reasonable doubt. Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). Nor must it directly link the accused to the commission of the offense. Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 48;Munoz, 853 S.W.2d at 559; Cox, 830 S.W.2d at 611. While the accused's mere presence in the company of the accomplice or informant before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. See Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. See Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. The absence of "smoking gun" evidence does not invalidate evidence that does connect the defendant to the offense. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999).

Appellant argues that his convictions must be overturned because the corroboration evidence is insufficient:

The cocaine alleged to have been possessed in this case was found in the pant cuff of the accomplice Frank Gonzales. Apart from the testimony of the accomplice Frank Gonzales that Appellant gave him the cocaine when they were being stopped by officers and the testimony of the confidential informant Jesse Waddy that Appellant had shown him the cocaine earlier, police officers could only testify that Appellant was in the presence of Gonzales and Waddy before Gonzales' arrest and with Gonzales at the time the police found cocaine on Gonzales.

[A]ll that the non-accomplice non-informant testimony establishes is that Appellant was in the presence of the accomplice and informant before and/or during the commission of the offense. . .

 

The legal issue is whether the testimony of an informant under Article 38.141 can corroborate the testimony of an accomplice under Article 38.14 [or vice versa].

 

Appellant's Brief pp. 7, 10.

 

Appellant's first and second issues fail because the independent corroboration evidence--that is, the evidence that requires no corroboration--tends to connect appellant to the offense committed. There is, for one thing, testimony from a detective who witnessed appellant and his accomplice arrive at the scene of a pre-arranged drug transaction. According to the detective's testimony, law enforcement had worked out an arrangement with an informant to lure appellant to the informant's house with drugs for a sale, which the informant would ultimately decline. The plan was designed to catch appellant in possession of the drugs that he had brought to the informant's house. Because law enforcement wanted to keep their informant's identity confidential, they arranged to have a patrol car follow appellant away from the informant's house and develop an independent justification to detain and investigate appellant.

The detective testified that, on the day in question, he visually observed appellant arrive at the informant's house with a passenger who remained in appellant's car. The detective also saw appellant get out of his car and approach the informant, who was standing in front of the house. The detective watched appellant and the informant have a conversation outside and observed the informant remove his hat, which was a pre-arranged signal that appellant had drugs on him. The detective then watched as appellant returned to his car, where his passenger had remained, and watched as appellant drove away. There was also testimony from the police officers who interdicted appellant's vehicle as it sped away from the informant's house. As noted above, the arresting officers had reasonable suspicion to stop appellant for speeding, and the legality of their actions beyond initiating the traffic stop has not been challenged on appeal. The officers testified that they immediately developed a second infraction of the law when appellant could not produce valid proof of insurance upon their request. Before any additional police investigations or any interrogations of appellant could occur, the officers discovered contraband on the person of the vehicle's other occupant.

The tends-to-connect standard presents a low hurdle for the State. See Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559. After all, the tends-to-connect evidence is unlikely to be the same evidence that proves guilt beyond a reasonable doubt. If the "other evidence" required by the corroboration statute were always sufficient for conviction, there would be no necessity for the State to ever rely on accomplice or informant testimony in the first place.

The corroboration evidence is sufficient in this case. Direct eyewitness testimony from law enforcement agents established appellant's participation in drug-related activities that had been orchestrated and monitored by local law enforcement. Appellant was apprehended almost immediately after these activities and was discovered to be in close proximity to the drugs at issue. It would be improper to hold such evidence insufficient for corroboration on the grounds that appellant was "merely present" during the commission of the offense because such expressions denote an element of innocent coincidence that is entirely lacking in this case. In other words, this case presents the additional "suspicious circumstances" that, when coupled with "mere presence," are sufficient for corroboration purposes. See Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611.

Although the evidence connecting appellant to the offense may not have been enough to convict appellant, it need not rise to such a high threshold for purposes of corroboration. See Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox, 830 S.W.2d at 611. Accordingly, appellant's first and second issues are overruled without addressing whether an informant may corroborate an accomplice or vice versa, as that determination would have no effect on the outcome of the case. See Tex. R. App. P. 47.1. (3)

III. Cross-Examination

In his third and final issue, appellant contends that the trial court erred by sustaining the State's objection to a question regarding specific violations of the law that the informant committed while on probation. Appellant points out that the informant's credibility as a witness was hotly contested at trial. According to appellant, the trial court's refusal to allow the informant to be questioned about his recent violations of the law prevented appellant from impeaching the informant's credibility as a witness. In particular, appellant argues that he was wrongfully thwarted by the trial court in attempting to prove that the informant had a motive for cooperating with law enforcement, and perhaps for offering perjured testimony, because he was on probation and had committed violations of the law that could cause his probation to be revoked.

Before the objected-to question, appellant's trial counsel asked the informant whether he had violated the law in the seven years he had been on probation, and the informant answered in the affirmative. Counsel then asked, "So, what other violations of the law have you had?" The State objected to the question as "improper impeachment," and after an off-the-record discussion, the trial court sustained the objection.

Although the record reflects that the State's objection to this line of questioning was sustained, there is no indication in the record that appellant attempted to make an offer of proof. Error may not be predicated upon a ruling which excludes evidence unless the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). An offer of proof may be in question-and-answer form, or it may be in the form of a concise statement by counsel. Id.; Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App.1993).

It is apparent from the record that the informant had a criminal history. It is also equally apparent that appellant explored this criminal history at trial through cross-examination testimony that focused on the informant's current probation, past drug use, current drug testing, and prior criminal offenses. Through questioning, appellant established that the informant had committed violations of the law while on probation and that, nevertheless, no motions to revoke his probation had been filed by the State. This is the very fact that appellant now claims he wanted to use to impeach the informant's credibility. Because this fact was testified to in open court, there is no basis for sustaining appellant's third issue. See Tex. R. App. P. 44.2. The absence of an offer of proof also prevents this Court from ascertaining whether or to what extent the proposed testimony would have further developed this ground for impeachment. Accordingly, the issue is overruled.

The judgment of the trial court is affirmed.

 

_______________________

DORI CONTRERAS GARZA,

Justice

 

Dissenting Opinion by

Justice Linda Reyna Ya ez.

 

Concurring Opinion by

Justice Errlinda Castillo.

 

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 26th day of October, 2006.

1. See Patterson v. State, Nos. 13-04-482-CR, 13-04-483-CR, 13-04-484-CR, 2005 Tex. App. LEXIS 8253 (Corpus Christi Oct. 6, 2005).

2. All that the officer needs to conduct an investigatory detention, such as a traffic stop, are specific, articulable facts, which, in light of the officer's experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for investigation. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). There need only be an objective basis for the detention; the subjective intent of the officer is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

3. See Patterson v. State, Nos. 13-04-482-CR, 13-04-483-CR, 13-04-484-CR (discussing cross-corroboration and the meaning of "other evidence" under corroboration statutes).