                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-358-CR


STEPHEN RAY SMITH                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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               MEMORANDUM OPINION ON REHEARING 1

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      After reconsidering our opinion on appellant’s motion for rehearing, we

deny the motion, but withdraw our opinion and judgment dated December 18,

2008, and substitute the following to clarify some of the facts.

                                  Introduction

      Appellant Stephen Ray Smith appeals his conviction for theft of property

with a value between $100,000 and $200,000. See Tex. Penal Code Ann.


      1
          … See Tex. R. App. P. 47.4.
§ 31.03(e)(6) (Vernon Supp. 2008). In two points, appellant contends that the

trial court erred by failing to include an accomplice witness instruction in the

jury charge and that he received ineffective assistance from his trial counsel

because his counsel failed to request such an instruction. We affirm.

                               Background Facts

      On December 26, 2004, Alton Kiser received a call informing him that his

travel trailer had been stolen.2 Less than a month later, Woody Vannatta, an

employee of Flowers Construction Company (located in Temple, Texas), arrived

at work to find that two trucks, a flatbed trailer, a generator, and various tools

and equipment were missing. Company employees called the police to notify

them of the suspected theft of these items.3 On the morning of February 3,

2005, Barbie Don Bramlett, owner of Bramlett Implement Company (a John

Deere dealership), received a call from an employee about a break-in at his

business. When Bramlett arrived at the business, he discovered that the locks

on his gates had been cut. He then noticed that a long trailer, a black pickup




      2
        … Kiser filed a police report, and more than a month later, he received
a call that the travel trailer had been found. When Kiser identified the trailer,
he noticed that its siding had been torn and its electrical connections had been
severed.
      3
      … Eventually, Tory Vannatta (another employee) received a call informing
him that the trucks and some of the other equipment had been recovered.

                                        2
truck, a customized generator, a four-wheeler vehicle, and two John Deere

Gator (Gator) utility vehicles had been stolen.

      Two days later, Hood County Sheriff's Office Sergeant Steve Smith was

flagged down by Clinton Sullivan and Jackie Mitchell, who had noticed

Bramlett’s abandoned black truck in front of a shop Mitchell owned. After

Sergeant Smith saw that decals had been ground off of the truck, he confirmed

that the truck had been stolen.4 Sullivan then told Sergeant Smith that he had

seen the same black truck along with a Gator at his neighbor’s house and that

he had seen a heavy-set white man riding on the Gator.

      Sergeant Smith and other officers went to the location described by

Sullivan to investigate.   Upon arriving, Sergeant Smith noticed a Gator and

several other vehicles at the property, along with flooring, insulation, hauling

trailers, and a large amount of construction tools and materials. Appellant was

outside working on an old house trailer when they arrived.5 Appellant allowed

Sergeant Smith to examine the Gator, and Sergeant Smith confirmed that it

was one of the Gators that had been stolen from Bramlett. Appellant told



      4
       … Bramlett received a call that the pickup truck had been found and
went with members of the Hood County Sheriff’s Department to identify the
truck. He acknowledged that the truck belonged to his business.
      5
      … The house trailer appeared to be unlivable, and appellant seemed to
have been remodeling it.

                                       3
Sergeant Smith that he was a part owner of the real property where the stolen

items were located.

      A man named Scott Elmore then left a travel trailer, and both he and

appellant refused to give the officers consent to further search the trailer or the

surrounding property.     Upon obtaining a search warrant, Sergeant Smith

searched the travel trailer and found the keys to Bramlett’s black truck,

marijuana, syringes, and a gun (which had also been reported stolen).

      In September 2005, appellant was indicted for theft. The indictment

alleged that appellant participated in a continuing course of conduct that was

intended to deprive Kiser, Vannatta, and Bramlett of more than $100,000

worth of various items of property, including three pickup trucks, two Gators,

two generators, and three trailers.6        The indictment also contained an

enhancement paragraph alleging that appellant had been previously convicted




      6
       … Section 31.09 of the penal code states that when “amounts are
obtained . . . pursuant to one scheme or continuing course of conduct, whether
from the same or several sources, the conduct may be considered as one
offense and the amounts aggregated in determining the grade of the offense.”
Tex. Penal Code Ann. § 31.09 (Vernon 2003).

                                        4
of a felony drug offense.7 Appellant went to trial before a jury in May 2006.

Following voir dire, appellant pled not guilty.

      At trial, Scott Elmore (who had several prior felony convictions) testified

that he had known appellant since 2004, that he received money and

methamphetamine from appellant, and that he had joined together with

appellant to purchase the real property where the various items of stolen

property were found.8 Elmore admitted that he stole property from Bramlett

Implements and from Flowers Construction Company and testified that

appellant had the right to use the stolen property if he desired, that appellant

encouraged him or aided him in stealing the property, that appellant purchased

most of the stolen property, 9 and that he bought marijuana with money that

appellant gave him in exchange for the property.




      7
        … Though theft of property valued between $100,000 and $200,000 is
a second degree felony, the enhancement paragraph enabled the State to seek
punishment for a first degree offense. See Tex. Penal Code Ann. §§ 12.42(b),
31.03(e)(6) (Vernon Supp. 2008). Appellant pled true to the enhancement
paragraph’s allegation, and evidence admitted at trial further established that
the allegation was true.
      8
       … Appellant testified that he purchased the property with Elmore to store
old cars which he had collected.
      9
       … Specifically, Elmore testified that appellant bought three trailers and
a four wheeler vehicle that Elmore had stolen and that appellant knew that
these items were stolen when he bought them.

                                        5
      After other witnesses testified and counsel concluded their closing

arguments, the trial court submitted a charge to the jury on the theft offense.

The charge defined theft, generally informed the jury about criminal

responsibility, and specifically instructed the jury that if it found that appellant,

either acting alone or with Elmore, participated in a scheme of conduct that

intended to deprive the owners of their property, then it was required to convict

him. However, the charge did not contain any instruction related to accomplice

witnesses or the evidentiary effect of Elmore’s testimony, and appellant did not

request any such instruction or object to its omission. The jury found appellant

guilty, found that the enhancement paragraph in the indictment was true, and

assessed punishment at ninety-nine years’ confinement and a $10,000 fine.

Appellant filed this appeal.

                         Accomplice Witness Instruction

      In his first point, appellant asserts that the trial court erred by failing to

include an instruction in the jury charge regarding accomplice witness

testimony. The State concedes and we hold that Elmore was an accomplice as

a matter of law and that the trial court erred by not including such an

instruction.10 See Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App.


      10
       … At the time of appellant’s trial, Elmore was in custody and was
awaiting trial on the same charges as those contained in appellant’s indictment.

                                         6
2006), cert. denied, 127 S. Ct. 1832 (2007). However, because appellant

admits that he made no request to the trial court that an accomplice witness

instruction be included in the jury’s charge, he must demonstrate that he

suffered egregious harm from the instruction’s omission. Herron v. State, 86

S.W.3d 621, 632 (Tex. Crim. App. 2002). In other words, appellant must

show that any corroborating evidence not linked to an accomplice’s testimony

is “so unconvincing in fact as to render the State’s overall case for conviction

clearly and significantly less persuasive.” Id. (quoting Saunders v. State, 817

S.W.2d 688, 692 (Tex. Crim. App. 1991)); see also Jones v. State, 195

S.W.3d 279, 289 (Tex. App.—Fort Worth 2006), aff’d, 235 S.W.3d 783 (Tex.

Crim. App. 2007) (explaining that if “the evidence clearly warrants conviction

independent of the accomplice testimony, the trial court’s failure to instruct on

the law of accomplice testimony is not reversible error”).

      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).   In order to be an accomplice, the person must be susceptible to

prosecution for the offense with which the accused is charged or a lesser




                                       7
included offense. See Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1102 (2000).

     When evaluating the sufficiency of corroboration evidence under the

accomplice-witness rule, we “eliminate the accomplice testimony from

consideration and then examine the remaining portions of the record to see if

there is any evidence that tends to connect the accused with the crime.

Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting

Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). To meet the

requirements of the rule, the corroborating evidence need not prove the

defendant’s guilt beyond a reasonable doubt by itself. Malone, 253 S.W.3d at

257; Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999); Gill v.

State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Nor is it necessary for the

corroborating evidence to directly link the accused to the commission of the

offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert.

denied, 528 U.S. 1082 (2000). Rather, the evidence must simply link the

accused in some way to the commission of the crime and show that “rational

jurors could conclude that this evidence sufficiently tended to connect [the

accused] to the offense.” Malone, 253 S.W.3d at 257 (quoting Hernandez v.

State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). “Independent evidence

which generally tends to prove that an accomplice witness’s version of events

                                     8
is true, rather than the version given by the defendant, is considered

corroborative, even if it concerns a mere ‘detail,’ as opposed to a substantive

link between the defendant and commission of the offense.” Beathard v. State,

767 S.W.2d 423, 430 (Tex. Crim. App. 1989); see also Munoz v. State, 853

S.W.2d 558, 559 (Tex. Crim. App. 1993) (noting that “[a]pparently

insignificant incriminating circumstances may sometimes afford satisfactory

evidence of corroboration”).

      The accomplice-witness rule is a statutorily imposed sufficiency review

and is not derived from federal or state constitutional principles that define the

legal and factual sufficiency standards. Cathey, 992 S.W.2d at 462–63. The

“tends to connect” standard does not present a high threshold, and we must

apply the standard by viewing corroborating evidence in the light most

favorable to the verdict. See Simmons v. State, 205 S.W.3d 65, 73 (Tex.

App.—Fort Worth 2006, no pet.); Cantelon v. State, 85 S.W.3d 457, 461 (Tex.

App.—Austin 2002, no pet.).

      Here, appellant contends that he suffered egregious harm because he

asserts that absent Elmore’s testimony, no evidence links appellant to the theft

scheme. The State argues that appellant did not suffer egregious harm because

Elmore’s testimony was sufficiently corroborated by other evidence.




                                        9
      We conclude that the record contains sufficient evidence apart from

accomplice testimony that tends to connect appellant to the theft scheme

charged in the indictment.11 First, appellant jointly owned the real property

where the various items of stolen property were found and stayed overnight at

the property on a few occasions. Upon approaching the property to investigate,

Sergeant Smith found appellant on the property near the location of some of the

stolen tools.

      Next, Clinton Sullivan, who lived near the real property where the stolen

items were found, testified that he saw appellant riding on one of the stolen

Gators. More importantly, Sullivan stated that he saw appellant “grinding”

Bramlett’s stolen black truck, which he later found abandoned at Mitchell’s

shop, and also saw appellant “cutting up” other cars.        Sullivan correctly

identified appellant from a photo lineup as being the man he had seen grinding

the truck. 12   Sergeant Smith testified that when he first saw the truck at



      11
        … The record established that another witness at appellant’s trial, Lisa
Diane Atkins, may also have been connected to the theft scheme. Atkins, a
confessed thief of over two hundred cars, testified that she had previously sold
stolen property to appellant and that she had received drugs from appellant in
exchange for such property. Therefore, we will not consider the testimony of
Atkins (or Elmore) in determining whether sufficient corroborating testimony
was presented. See Solomon, 49 S.W.3d at 361.
      12
        … At oral argument, appellant’s counsel argued that Sullivan’s testimony
regarding appellant’s “grinding” on the truck was not credible because Sullivan

                                      10
Mitchell’s shop, he “noticed that on the passenger side of the tailgate that paint

had been ground down by what appeared to be an electric grinder . . . removing

some decals from the side of the vehicle.” Bramlett also confirmed that the

truck’s decals, which identified his company and provided its phone numbers,

had been ground off.13

      Appellant’s communications with two of the witnesses who testified at

trial demonstrated consciousness of his guilt and further connected him to the

theft scheme.    For instance, Carol Schott, who sold the real property that

appellant and Elmore jointly purchased (as evidenced by a real estate contract

that appellant signed in January 2005), testified that she received a letter from

appellant asking her to contact law enforcement and tell them that he had not

taken any part in purchasing the property. Schott understood that this letter

asked her to lie for appellant. Finally, Susan Elmore (Scott's mother) testified

that after Scott had been arrested for theft, appellant called her and told her




stated that he saw the incident at about 11:30 p.m. However, we must view
this evidence in the light most favorable to the verdict, and we must defer to
the jury’s resolution of the witness’s credibility.        See Simmons, 205
S.W.3d at 72–73; Clement v. State, 248 S.W.3d 791, 797 (Tex. App.—Fort
Worth 2008, no pet.).
      13
       … The record indicates that the truck may have been left at Mitchell’s
shop because it was stuck in the mud.

                                       11
that if Scott would “take the fall” for the theft charges, appellant could “help

him with money” after he was released from jail.

      We    hold   that      these   facts,   considered   cumulatively,   sufficiently

corroborated the accomplice testimony by tending to connect appellant to the

theft scheme; therefore, no egregious harm resulted from the lack of an

instruction about accomplice witness testimony.14 See Solomon, 49 S.W.3d

at 361; Cathey, 992 S.W.2d at 462 (explaining that if “the combined weight

of the non-accomplice evidence tends to connect the defendant to the offense,

the requirement of Article 38.14 has been fulfilled”). We therefore overrule

appellant’s first point.15

                          Ineffective Assistance of Counsel




      14
        … We note that appellant’s criminal intent in purchasing the real
property, riding on the Gator, grinding off the decals, and making these
communications may be properly inferred by supplementing Elmore’s testimony
(which more directly implicated appellant in the scheme). In a theft case, the
actor's knowledge or intent may be established by the uncorroborated
testimony of an accomplice. Tex. Penal Code Ann. § 31.03(c)(2); see Nethery
v. State, 29 S.W.3d 178, 185–86 (Tex. App.—Dallas 2000, pet. ref’d).
      15
        … Within the portion of appellant’s brief related to his first point, he
included subheadings and a brief analysis regarding legal and factual
sufficiency. However, because this analysis seems to repeat the allegations
appellant included regarding the lack of corroborating evidence, and because
the analysis contains no citation to authorities, we will not address legal or
factual sufficiency as independent grounds for this appeal. See Dornbusch v.
State, 262 S.W.3d 432, 438 n.3 (Tex. App.—Fort Worth 2008, no pet.).

                                              12
      In his second point, appellant argues that his trial counsel gave him

ineffective assistance by failing to request an accomplice witness instruction.

To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant

must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding whose result

is being challenged. Id. at 697, 104 S. Ct. at 2070.




                                       13
      In this case, appellant’s ineffective assistance claim is wholly predicated

on his counsel’s failure to request an accomplice witness instruction. Even if

we were to assume that appellant’s counsel’s performance was legally

deficient,16 because we have concluded that, despite no instruction being given,

the accomplice testimony was sufficiently corroborated by other evidence that

tended to connect appellant to the theft scheme, appellant cannot demonstrate

that the result of his trial would have been different. See Johnson v. State,

234 S.W.3d 43, 56 (Tex. App.—El Paso 2007, no pet.) (reasoning that because

the “non-accomplice evidence sufficiently corroborated the accomplice and

tended to connect [the defendant] to the offense . . ., the record [did] not

establish a reasonable probability that but for counsel’s error, the result of the

proceeding would have been different”); Casias v. State, 36 S.W.3d 897, 902

(Tex. App.—Austin 2001, no pet.) (overruling an ineffective assistance

argument because the corroborating evidence was sufficient to tend to connect

the defendant to the crime). Therefore, we overrule appellant’s second point.




      16
         … Courts have noted that failure to request an accomplice witness
instruction may render counsel’s performance deficient. See Ex parte Zepeda,
819 S.W .2d 874, 876–77 (Tex. Crim. App. 1991); Robinson v. State, 665
S.W.2d 826, 831 (Tex. App.—Austin 1984, pet. ref’d) (describing counsel’s
failure to request an accomplice witness instruction as a “glaring error”).

                                       14
                                Conclusion

     Having overruled both of appellant’s points, we affirm the trial court’s

judgment.

                                         TERRIE LIVINGSTON
                                         JUSTICE


PANEL: CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 29, 2009




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