Moreno v. State , 761 S.W.2d 407 ( 1988 )

OPINION

MURPHY, Justice.

Julian Moreno Moreno appeals his felony conviction for the offense of delivery of over four hundred grams of the controlled substance cocaine. Tex.Rev.Civ.Stat.Ann. art. 4476-15 § 4.03(c), (d)(3) (Vernon Supp. 1988). A jury found him guilty, sentenced him to life imprisonment in the Texas Department of Corrections and assessed a $250,000 fine. We reverse the judgment of the trial court and order entry of a judgment of acquittal because there is insufficient non-accomplice evidence which tends to connect appellant with the delivery charged. Tex.Code CRIM.Proc.Ann. art. 38.-14 (Vernon 1979).

The State alleged that on April 24, 1987, in Harris County, Texas, appellant delivered cocaine weighing at least four hundred grams by aggregate weight, to G. Mize. The indictment alleged the three means of delivery included in Article 4476-15 § 1.02(7): actual transfer, constructive transfer, and offer to sell. Officer Glenn Mize of the Texas Department of Safety had met Marla Faye Honey while working undercover on an official investigation. He purchased small amounts of cocaine from her twice. On the second occasion, March 25, 1987, Mize asked her about purchasing larger amounts. Honey, who knew Mize only as “Glenn” told him her supplier, “John,” could furnish a kilogram or more and that she would inquire about the price. The supplier, John Humphries, testified as an accomplice witness at appellant’s trial. When Mize contacted Honey on April 21, 1987, she informed him she could deliver two kilograms.

While he was negotiating details of the two kilo purchase in a telephone conversation with Honey on April 21, 1987, Mize also spoke with Humphries. Humphries rejected the San Antonio location Mize requested and insisted the purchase take place in Houston. Responding to questions about the quality of the cocaine he could deliver, Humphries assured Mize he '.‘had been dealing with the same two guys for a period of eight years to the point where he could almost speak Colombian.” Mize arranged to purchase two kilograms of cocaine for $60,000 in cash. Humphries detailed how the transaction would take place: he and “one of them” would occupy a hotel room; Mize and Honey would occupy an adjoining room; a simultaneous exchange of cocaine and cash would occur through the door connecting the two rooms.

As they had previously planned, Mize met Honey at a Houston restaurant early in the evening of April 24, 1987. After Honey contacted Humphries, she and Mize each drove to a Holiday Inn, where Mize had already rented two adjoining rooms and, unknown to Honey, a third room for surveillance officers. Honey and Mize arrived at the Holiday Inn at approximately 7 p.m. and went into one of the two adjoining rooms to await the delivery. Honey telephoned Humphries twice while they waited. After speaking on the telephone to someone she called “Maureen” at 9:54 p.m., Honey told Mize “John and the two Colombians should be arriving any minute.” Honey looked outside at 10 p.m. and announced “they are here.”

Testimony from two surveillance officers assisting Mize shows that Humphries drove a Chevrolet Suburban automobile containing two passengers into the parking lot. Donald Keith Allen, the surveillance officer in the third room Mize had rented, testified that he looked out his window and saw Humphries park the vehicle just outside the door to Mize’s room, whereupon Hum-phries and Hernando Dejesus Tabares left the Suburban. After they conversed briefly with the appellant, who remained seated in the front passenger seat of the Suburban, Humphries and Tabares went into the room adjoining that of Mize and Honey. One of them carried a suitcase. Agent Allen also testified that the appellant was “watching” him as Allen looked out the window.

Inside the motel, Honey went to the door connecting the two rooms as soon as she heard someone knock from the other side. She spoke with Humphries, who asked for the money. Mize then refused to surrender the $60,000 immediately and insisted on seeing “some dope.” After Honey got a package of cocaine from the adjoining room, Mize cut into it to ascertain whether it was actually cocaine and then called his “bag man” to deliver the money for the transaction, as he had told Honey he would. The “bag man” was actually Officer Allen; the request to deliver the money was Allen’s signal to initiate the arrest. Shortly thereafter, several agents arrived at the scene. They arrested Humphries and Honey in the room. They arrested Tabares, who had left the motel room while the transaction was taking place, as he was attempting to flee. The appellant was arrested as he sat in the Suburban, where he had remained during the transaction in the motel. The police recovered cocaine weighing 1.0045 kilograms.

Humphries, who testified at appellant’s and Tabares’s trial pursuant to a plea bargain agreement with the State, identified the appellant as his supplier for this and other sales. In charging the jury, the court classified Humphries as an accomplice and tracked Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 1979). Pursuant to Article 38.14,

[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 (emphasis added).

In his first point of error, appellant maintains his conviction must be reversed and an acquittal entered pursuant to Article 38.14 because there is insufficient evidence tending to connect him to the offense, other than the testimony of Humphries. We agree. In its en banc decision in Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988), the court of criminal appeals emphatically rejected misapplication of Article 38.14 by a “more likely than not” analysis and clearly stated that the statute provided the “only test” of the sufficiency of evidence to sustain a conviction when an accomplice inculpates the accused. 744 S.W.2d at 125 n. 10. Quoting from its 1968 opinion in Edwards v. State, the Reed court reemphasized that the statute requires this court to

eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is[] evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not (emphasis in original, citations omitted).

744 S.W.2d at 125, quoting Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.App.1968). The Reed court rejected only the “more likely than not” test; it pointedly reaffirmed that the following rules, long associated with application of Article 38.14, would continue to apply:

(1) each case must be considered on its own facts and circumstances;

(2) all the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary;

(3) corroborative evidence may be circumstantial or direct;

(4) the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test;

(5) it is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt;

(6) insignificant circumstances sometimes afford most satisfactory evidence of guilt and corroboration of accomplice witness testimony.

744 S.W.2d at 126. If the record shows that the accused was present, as occurred in the instant case, Reed also restated the familiar rule that

[pjroof that the accused was at or near the scene of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.

Reed, 744 S.W.2d at 127, quoting Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984) (en banc) (emphasis added). Similarly, proof that “someone” committed an offense, expressly insufficient under Article 38.14, can also be a factor “to be considered along with other possible factors ” in evaluating sufficiency challenges pursuant to Article 38.14. Reed, 744 S.W.2d at 126 (emphasis added).

Because the court rejected only the “more likely than not” test and reaffirmed the rules we have set out above, Article 38.14 continues to demand that the record contain non-accomplice evidence of suspicious circumstances which independently incriminate the accused before the jury can give effect to the accomplice’s incriminating testimony. See Reed, 744 S.W.2d at 125-27; accord, Jackson v. State, 745 S.W.2d 4, 11 (Tex.Crim.App.1988) (en banc) (after eliminating the accomplice’s testimony we must “examine the remaining evidence to ascertain whether it independently tends to connect the appellant to the commission ” of the offense) (emphasis added).

In the case before us, it is undisputed that a delivery occurred and that the appellant was present as a passenger in the vehicle of an accomplice whose testimony unequivocally inculpates him. However, after considering the remainder of the record, based on the standards which Reed reaffirmed, we cannot say there is sufficient incriminating corroborating evidence which independently tends to connect the appellant to the delivery charged. Therefore, his conviction cannot stand.

Humphries unquestionably supplied the cocaine to the co-conspirator Honey. But while Humphries, in Honey’s presence, referred to his suppliers as Colombians, nothing in the record suggests that Honey knew the identity of the person or persons who supplied the cocaine to Humphries, other than as purported Colombian nationals. Therefore, while she told Agent Mize that “John and the two Colombians should be arriving any minute,” and, six minutes later, “they are here,” the most her testimony establishes about the appellant is that Honey presumed the appellant was one of the two Colombians Humphries told her would soon arrive. There is no non-accomplice evidence that the two Colombians were referred to as suppliers on April 24, 1987, the date of the offense. While the transaction did take place in Houston as Humphries had proposed, there is nothing to show that the appellant was one of the same “two Colombians” Humphries had referred to in his telephone conversation with Agent Mize on April 21, 1987. Although circumstantial evidence can corroborate an accomplice’s testimony, Reed, 744 S.W.2d at 126, evidence which identifies appellant only as “a Colombian” does not suffice to tend to connect him to the delivery alleged here.

Further, while a delivery did occur while appellant sat outside in the front seat of the Suburban, the record fails to reflect the additional incriminating circumstances which, the Reed court reaffirmed, Article 38.14 mandates in a “mere presence” or “mere occurrence” case such as this one. See Reed, 744 S.W.2d at 126-27. Although Humphries and Tabares apparently spoke to the appellant before entering the motel room, no one heard that conversation. Likewise, there is nothing to suggest that the conversation incriminates the appellant since the record indicates that the suitcase remained closed until it was opened inside the motel. Furthermore, no non-accomplice testimony suggests that appellant knew that the suitcase contained cocaine or that he even handled the suitcase. See Sewell v. State, 578 S.W.2d 131 (Tex.Crim.App.1979). Similarly, while the appellant “watched” Agent Allen as he looked from the third surveillance room, nothing in the record suggests that this “watching” was incriminating: he neither fled nor warned the others. Agent Allen’s testimony reveals nothing suspicious about appellant’s facial expression. Moreover, appellant again made no attempt to flee either when one of the co-conspirators left the hotel room temporarily or, unlike his co-defendant Tabares, when the arresting officers arrived at the scene. See Reed, 744 S.W.2d at 127 (noting absence of flight).

In short, the non-accomplice evidence establishes only that appellant, a Colombian, although he was a passenger in a Suburban automobile which the accomplice witness drove to a motel where a drug deal was to occur and from which the accomplice removed a suitcase without opening it, sat in that car while delivery of over a kilo of cocaine occurred inside the motel, and did not attempt to flee when arresting officers arrived at the scene. Because the record contains no additional independently incriminating or suspicious circumstances, we hold that the combined cumulative effect of such evidence does not tend to link the appellant to the offense and therefore cannot suffice under Article 38.14 to sustain his conviction. We reach this conclusion based on the Reed court’s having rejected the “more likely than not” standard while reaffirming the traditional rules applying Article 38.14. We also note that the court of criminal appeals has consistently demanded strict proof of the accused’s participation in a delivery of a controlled substance case. See e.g., Daniels v. State, 754 S.W.2d 214 (Tex.Crim.App.1988) (reversing, on sufficiency of evidence grounds, conviction for constructive transfer of marijuana, based on failure to show appellant had direct or indirect control over the drug, or that he knew undercover agent would be the ultimate transferee).

Because we conclude there is insufficient evidence to corroborate the testimony of the accomplice witness Humphries, we reverse the judgment of the trial court and accordingly order entry of an order of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 59 L.Ed.2d 15 (1978); Gibbs v. State, 610 S.W.2d 489 Tex.Crim.App. [Panel Op.] 1980). In view of our disposition of appellant’s challenge to the sufficiency of the evidence, we need not consider his second point of error.