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435 S.W.2d 511

Todd v. State

Court of Criminal Appeals of Texas

Decided November 20, 1968

Court of Criminal Appeals of Texas · decided 1968-11-20

Cited by 1 later decisions — most recently September 1980

1 state decisions

Relies on Edwards v. State · 167 Tex. Crim. 197 - Chavira v. State · 170 Tex. Crim. 530 - Bradford v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1968-11-20

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¶1OPINION

WOODLEY, Presiding Judge.

¶2The offense is felony theft of golf clubs; the punishment, three years.

¶3Trial was before the court, a jury being waived.

¶4The sole ground of error is the contention that the state failed to present sufficient evidence to corroborate its accomplice witness.

¶5The state’s evidence reflects that the Clubhouse at Max Starcke Park, in Seguin, was burglarized and golf clubs, of the value of $200.00, and other property including a rifle belonging to W. A. Stackhouse were removed.

¶6The stolen golf clubs were found in an automobile that was pursued by Seguin police officers from which the two occupants fled. One of them, the accomplice witness James C. Washington, pleaded guilty to the theft and thereafter testified as a witness for the state at appellant’s trial. His testimony was to the effect that appellant participated in the burglary and theft, and was the driver of the car which was pursued by the officers.

¶7The accomplice witness further testified that when they stopped the car appellant got out and ran and the officers were unable to catch him at that time.

¶8Seguin Police Sergeant Zoboroski, a witness for the state, testified that Washington (the accomplice witness) was taken into custody and pointed out where he and appellant had hidden part of the property taken from the Clubhouse; that later in the afternoon appellant came to the police station and told him that he was turning himself in for the burglary of the Clubhouse; that he claimed the car and it was released to him.

¶9Sgt. Zoboroski further testified that he had seen appellant driving the automobile in which the golf equipment was found before and after the night he chased it.

¶10*512Officer De la Garza testified that he participated in the chase of the automobile and saw two colored men in the car, one of whom was Washington who was on the passenger side.

¶11Testimony was elicited from Car lena Washington, step-mother of the accomplice witness and aunt of appellant, that neither of them was living with her at the time; that appellant came to her house before his arrest and that she called the police station to find out about his car.

¶12Mrs. Washington further testified that she found the rifle (afterwards identified by the owner Stackhouse) in a closet in her home and, upon learning that it did not belong to her husband, took it to the police station and gave it to Officer Zoboroski.

¶13The rule as to accomplice testimony and its sufficiency is set out in Art. 38.14 Vernon’s Ann.C.C.P. and in the recent cases of Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; and Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319, cited by appellant.

¶14The evidence other than the testimony of the co-indictee Washington tends to connect appellant with the theft and is deemed sufficient to corroborate the testimony of the accomplice Washington. See Edwards v. State, Tex.Cr.App., 427 S.W.2d 629; Bird v. State, Tex.Cr.App., 423 S.W.2d 919; Horne v. State, Tex.Cr.App., 434 S.W.2d 366.

¶15The record reflects that the trial judge assessed the punishment at three years in the penitentiary but the judgment recites that the punishment was “for a term of not less than two (2) years, nor more than three (3) years.” The sentence is defective for like reason.

¶16The record reflecting the punishment that was actually assessed, the judgment and sentence are reformed so as to reflect that the punishment was assessed at three years, and that appellant was sentenced to serve not less than two years nor more than three years in the Texas Department of Corrections.

¶17As reformed, the judgment is affirmed.

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