Pamela Carter Westbrook v. The State of Texas--Appeal from 173rd District Court of Henderson County

NO. 12-06-00137-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PAMELA CARTER WESTBROOK, APPEAL FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Pamela Carter Westbrook appeals her conviction for theft of a firearm. In her sole issue, Appellant challenges the sufficiency of the evidence supporting her conviction. We affirm.

Background

Appellant was charged with the theft of a firearm from Terry Ward, her friend and former lover. The firearm was one of several firearms that were in a gun safe at Ward s home. This gun safe, along with its contents, disappeared one weekend while Ward was on a hunting trip. Following a jury trial, Appellant was found guilty of the offense. The trial court sentenced her to two years of confinement, probated for three years, and ordered her to pay Ward $3,500.00 in restitution. This appeal followed.

Sufficient Corroboration of Accomplice Witness Testimony

In one issue, Appellant challenges the sufficiency of the evidence supporting her conviction. More specifically, Appellant argues that the testimony of her two accomplices, Christopher Gibson ( Chris ) and Travis Gibson ( Travis ), was not sufficiently corroborated to be admissible as evidence.1

Standard of Review

Article 38.14 of the Texas Code of Criminal Procedure provides that

[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). The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witnesses and then examine the testimony of other witnesses to ascertain if there is evidence that tends to connect the accused with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) (citing Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988)). The nonaccomplice evidence need not be sufficient in itself to establish the accused s guilt beyond a reasonable doubt. Id. Nor is it necessary for the nonaccomplice evidence to directly link the accused to the commission of the offense. Id. Article 38.14 is satisfied if there is some nonaccomplice evidence that tends to connect the accused to the commission of the offense alleged in the indictment. Id. When reviewing the record, all facts and circumstances may be looked to as furnishing the necessary corroboration. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983). Further, the corroborative evidence may be circumstantial or direct. Reed, 744 S.W.2d at 126.

Discussion

At trial, the State presented testimony from the accomplice witnesses, Chris and Travis. They testified that, on the evening of Friday, January 14, 2005, Appellant arrived at the home of Chris s sister. Appellant was driving a pickup truck with a gun safe in the back. She asked Chris and Travis to pry open the safe for her, which they did. Inside the safe were a number of firearms and credit cards. Some of these cards were in Appellant s name, and some were in Ward s name. According to Chris, Appellant had to activate some of these cards, which she did later and in his presence by using information from a tablet containing Ward s personal information.

These witnesses also testified that on Saturday, January 15, Appellant went into a bank and used one or more credit cards to get a cash advance. Chris testified that the cash advance had been $3,000. That same day, Appellant, Chris, and Travis traveled together to Kaufman, Texas, where Appellant delivered the guns to a female relative of hers so that the relative could sell them for her. Afterwards, they traveled to Cleburne, Texas, where Appellant purchased a gold necklace from a pawn shop. Finally, on Sunday, the group traveled to Waco where they purchased a cellular telephone, as well as other items, at an Office Max business supply store. According to Chris, Appellant instructed him that they had to use the credit cards before Ward returned home. Chris stated that Appellant believed Ward would report that the cards had been stolen.

Appellant testified at trial. She admitted her prior relationship with Ward. She admitted that she had a key to Ward s home and knew Ward s alarm code. She also admitted that, on Friday, January 14, 2005, Ward had told her he was going on a hunting trip that weekend. Finally, she admitted that, on that same day, she had gone to Ward s home to pick up some meat Ward had offered her.2

Appellant denied any part in the theft of Ward s gun safe. She testified that she believed Ward had set [her] up because he was mad at her based upon a recent disagreement the two had. She also suggested that Chris could have committed the crime and asserted that Chris was trying to blame her because she had rebuffed his attempts at establishing a relationship between them. Appellant admitted traveling to Kaufman and having relatives in Kaufman, but denied being part of any gun transaction in that town.

Appellant admitted that she had obtained possession of some credit cards but stated that she had found the credit cards in her truck. Appellant testified that she had thought Ward, or a friend of Ward s, had brought the cards over in an attempt to make up for a recent argument. She testified that she was able to activate the cards as required because Ward had given her the necessary information. She also admitted taking out the cash advance at the bank and making the purchases at the Cleburne pawn shop and the Waco Office Max.

Ward testified that, on the morning of Friday, January 14, 2005, he left his home to go on a weekend hunting trip. According to Ward, he did not return from this trip until the following Sunday afternoon. When Ward returned home, he found that his gun safe and a notebook had been stolen from his home. He stated that the safe had contained, among other things, credit cards and firearms. He testified that the notebook stolen from his home contained personal information such as his mother s maiden name. He also testified that he had learned Appellant had charged approximately $4,000 on the weekend in question.

Ward stated that he did not notice any signs of a forced entry into his home. Because he suspected that Appellant might have been involved, Ward called her to inquire about the matter. According to Ward, Appellant asked him not to report the matter to law enforcement for a few days because she might be able to find something out. Despite offering to check into the matter and contact him in a few days, Appellant did not call Ward back as promised. He eventually contacted the Henderson County Sheriff s Department. Ward stated that he did not give Appellant permission to pry open his gun safe or take any firearms from his home.

Bank teller Brenda Richardson testified that Appellant had entered her bank on Saturday, January 15, and had used two credit cards to get cash advances totaling $3,000. She also authenticated the bank records of this transaction. These records were evidence that the two credit cards used were two of the credit cards that had been in Ward s gun safe.

Investigator Paul Habelt of the Henderson County Sheriff s Department testified regarding his investigation of the matter. Habelt met with Appellant, who, according to Habelt, admitted having recently obtained possession of some credit cards and allowed Habelt to search her purse, in which he found receipts from the Cleburne pawn shop and the Waco Office Max. Appellant also had a bag, which Habelt searched and found five of the stolen credit cards inside. Habelt stated that Appellant told him she had found the cards on the front seat of her truck on Saturday, January 15. He also stated that Appellant later called him and told him she had found an additional credit card in her house that had suddenly showed up on the fireplace mantle of her home. Habelt arrested Appellant when she brought this final card to him.

In summary, the nonaccomplice evidence linked Appellant to other items, specifically the credit cards, that had been in the safe at the time the safe was stolen. Another item stolen from the home, Ward s record book, roughly matched the description of the tablet described by Chris. Chris testified that Appellant had used this tablet to get Ward s personal information necessary to activate the unactivated credit cards. Further, the nonaccomplice evidence established that Appellant had charged $4,000 that weekend. Finally, Ward testified that Appellant did not call him back after asking him to wait a few days to contact law enforcement. This is some evidence that Appellant was attempting to delay arrest. The nonaccomplice evidence tends to connect Appellant to the theft of a firearm from Ward s gun safe. Because there is some nonaccomplice evidence tending to connect Appellant to the commission of the offense, we conclude that the nonaccomplice evidence sufficiently corroborates the accomplice testimony. See Hernandez, 939 S.W.2d at 176.

We overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered May 23, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 We have assumed, arguendo, that Chris and Travis were accomplices.

2 Both Ward and Appellant testified that it was not unusual for Ward to provide Appellant with food and other support.