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521 S.W.2d 263

Moore v. State

Court of Criminal Appeals of Texas

Decided April 9, 1975

Court of Criminal Appeals of Texas · decided 1975-04-09

Key passage — most relied on by later courts

““The test as to the sufficiency of the corroboration is 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.””

quoted by 3 later decisions, including Brown v. State, Powell v. State

““A conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s evidence is true and that it shows the Defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the Defendant with the offense charged and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the Defendant with its commission. “You are charged that James Earl Shaw was an accomplice if any offense was committed, and you are instructed that you cannot find the Defendant guilty upon the testimony of James Earl Shaw unless you first believe that the testimony of the said James Earl Shaw is true and that it shows the Defendant is guilty as charged in the indictment; and even then you cannot convict the Defendant Harold Eugene Nunley and the Defendant Willie D. Dillard unless you further believe that there is other evidence in this case, outside the evidence of James Earl Shaw, tending to connect the Defendant with the commission of the offense charged in the indictment and then from all the evidence you must believe beyond a reasonable doubt that the Defendant is guilty.””

quoted by 1 later decision, including Dillard v. State

Relies on Edwards v. State · Cherb v. State · Odom v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1975-04-09

How this case has been cited

Cited by 11 later decisions — most recently May 1992

11 state decisions

50197519801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

DAVIS, Commissioner.

¶2 Appeal is taken from convictions for the offense of burglary. The jury assessed appellant Moore’s punishment at four years probated. Punishment was assessed by the jury at two years for appellant Schaffer.

¶3 Appellants contend the evidence will not sustain the convictions because it is based upon the testimony of an accomplice witness which is not sufficiently corroborated. 1

¶4 The test for determining the evidence required to support a conviction in addition to the testimony of an accomplice has been stated by this Court in numerous opinions as follows:

“The test of the sufficiency of such corroboration is to eliminate the evidence, of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is incul-patory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient.” Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629; Anders v. State, Tex.Cr.App., 501 S.W.2d 665.
“The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime.” Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

¶5 The record reflects that accomplice Billy Don Holland testified that he and the appellants drove to the Hillsboro Monument Works on the night of August 8, 1972, in appellant Schaffer’s car. Holland and appellant Moore pried the back door of the Hillsboro Monument Works open with a tire tool, entered the building, and removed money therefrom which was divided between Holland and the two appellants.

¶6 We look now to evidence other than that of the accomplice witness to determine if it tends to connect the appellants with the offense alleged.

¶7 Margaret Taylor testified that she was bookkeeper for Hillsboro Monument Works on August 8, 1972, and that the back door *265 of the building was locked on the night of August 8, 1972. When she arrived at work the next morning, she found that the door “had been pried open with something heavy.” According to Taylor, “thirty to forty dollars” had been taken “out of my desk and out of the coke machine and the candy machine.”

¶8 Officer Younger stated that it was determined that “change” had been spent at Grimes Service Station and Hazel’s Cafe on the night in question and that such investigation led officers to contact Holland. The investigation to determine places where “change” had been spent was prompted by the fact that a large number of quarters, dimes, and nickels were taken in the burglary.

¶9 Officer Taylor testified that he saw Holland and the appellants a little after 10:00 p. m. on the courthouse square, noted that they were gone “five or ten minutes later,” and did not see them again until “around midnight,” when he observed them “coming in from the north end of town from towards Itasca.”

¶10 Mere presence of accused in company of accomplice shortly before or after time of offense is not, in itself, sufficient corroboration of testimony of an accomplice. Cherb v. State, supra; Rodriquez v. State, Tex.Cr.App., 508 S.W.2d 80. The record in the instant case is devoid of any evidence of probative value as to the time of the crime other than accomplice’s testimony.

¶11 While there was evidence that appellants spent “change” at a service station and a cafe on the night in question, such money was not identified or in any manner connected with the money taken in the burglary-

¶12 Appellants were placed on the courthouse square on the night of the burglary. The evidence does not reflect the location of the building entered in relation to the courthouse square. It would appear from the testimony of Officers Taylor and Younger that the appellants and Holland were not “at or near the scene of the crime” when they were observed on the courthouse square. See Rodriquez v. State, supra; Edwards v. State, supra.

¶13 While some of the details related by the accomplice are supported by the testimony of the witnesses, the corroborating evidence fails to meet the requirement that it tend to connect the appellants with the offense alleged. See Anders v. State, supra; O’Donald v. State, Tex.Cr.App., 492 S.W.2d 584.

¶14 The judgments are reversed and the cause remanded.

¶15 Opinion approved by the Court.

1

¶16 . Article 38.14, Vernon’s Ann.C.C.P. provides :

“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.”
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