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                     ..\FFII{MEI>; Opinion Filed Scptcmhcr 7, 2012




                                                                                     In The
                                                                   <!rllnrt of Appruls
                                                        1f.ift11 IDistrict of fficxu.s at IDulla.s
                                                                           No. 05-11-00015-CR


                                                          ED\VARD Sf-lAMAR COLLINS, Appellant

                                                                                        v.
                                                               THE STATE OF TEXAS, Appellee


                                                      On Appeal from the 382nd Judicial District Court
                                                                  Rockwall County, Texas
                                                             Trial Court Cause No. 2-09-597


                                                                                OPINION
                                                 Before Chief Justice Wright and Justices Murphy and Campbell
                                                                 Opinion By Justice Campbell 1

                                   Edward Shamar Collins was convicted by a jury of possession of marijuana in an amount of

                     fifty pounds or less but more than five pounds, enhanced by a prior felony conviction. See TEX.

                     HEALTH & SAFETY CODE ANN.§ 48l.l21(a), (b)(4) {West 2010). After pleading true to the

                     enhancement paragraph, he was assessed punishment of fifteen years' imprisonment in the Texas

                     Department of Criminal Justice and a $5,000 fine. In his sole issue presented to this Court. appellant

                     contends the conviction is not supported by non-accomplice corroborating evidence connecting him




                           1 The llonorahk Charles~. Campbell. Senior Appellale Judge, Texas Court of Criminal Appeals. sining by assignment


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   with the oiTcns..:. We disagree and will allirm.

                                                   FM.TS

           Rockwall Police Ollicer Jackyc Shouse stopped Tancshia Hodges for a trallic violation on

   1-30 in Rockwall County. Appellant was a passenger in the vehicle Hodges was driving. The vehicle

. . was rented by a third person, Raven Gregory. The names of Hodges and appellant did not appear on

   the rental agreement. Upon questioning, Hodges told Shouse that her cousin had rented the vehicle,

   but she later changed that to appellant's cousin, Gregory. Appellant claimed Gregory had rented the

   vehicle, and appellant called Gregory while still at the scene of the stop. Hodges and appellant gave

   Shouse contlicting answers about their destination and the purpose of their trip. According to

   Shouse, appellant was nervous, looking around, and fidgeting. Hodges gave Shouse consent to

   search the vehicle. During the vehicle search; Shouse found a taped-up Bud Light box in a plastic

   tub in the trunk that contained 19.85 pounds of marijuana. Hodges and appellant were arrested and

   charged with possession of marijuana. While being placed under arrest, but prior to Shouse revealing

   or removing the contraband from the trunk, appellant stated "That's not even mine."

           Hodges testified that she pled guilty to the possession charge in exchange for deferred

   adjudication, but she also testified that she did not know the marijuana was in the trunk. She testified

   that her belongings were all in the back seat of the vehicle. She further testified that appellant knew

   the drugs were his, but he would not "own up to it like a man." Hodges said she later learned that

   appellant's girlfriend had rented the vehicle. Conversely, appellant testified he had never seen the

   plastic tub that contained the marijuana and had no knowledge of what was in the trunk of the

   vehicle.

                                APPELLANT'S AND STATE'S ARGUMENTS


           Appellant contends there is insufficient non-accomplice corroborating evidence in this case


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lo   co111h.:ct appdlantto the offense. According to appellant. all such testimony olkred by the State

was nebulous and vague. The State counters that the multiple inculpatory circumstances presented

through non-accomplice evidence tended to connect appellant to the commission of the crime and

that it meaningfully contributed to the corrohoration of the accomplice testimony.

                                                          APPLICABLE LAW


           Texas Code of Criminal Procedure article 38.14 provides that a defendant cannot be

convicted of an offense upon the testimony of an accomplice without other corroborating evidence

tending to connect the defendant to the otTense. TEX. CODE CRHvl. PROC. ANN. art. 38.14 (West

2005). When reviewing the sufficiency of non-accomplice evidence under article 38.14, an appellate

court decides whether the inculpatory evidence tends to connect the accused to the commission of

the offense. Smith v. State, 332 S.W.3d- 425, 442 (Tex. Crim. App. 2011). The direct or

circumstantial non-accomplice evidence is sutlicient corroboration if it shows that rational jurors

could have found that it sufficiently tended to connect the accused to the offense. Simmons v. State,

282 S.W.3d 504, 508 (Tex. Crim. App. 2009). There is no required quantity of corroborating

evidence necessary for sutliciency purposes. Malone v. State, 253 S. W .3d 253,257 (Tex. Crim. App.

2008). Corroborating evidence, considered independently, need not establish guilt. !d.

           When there are conflicting views of the evidence-one that tends to connect the accused to

the offense and one that does not-an appellate court will defer to the fact finder's resolution of the

evidence. Simmons 282 S.W.3d at 508. 2 Consequently, it is not appropriate for appellate courts to

independently construe the non-accomplice evidence. /d. at 509.

           Each set of non-accomplice evidence must be judged on its own merits, but some examples




     1 The United States Supreme Court has held th~t when there are two permissible views of the evidence. the fact finder's choice between

them cannot be clearl!" erroneous. See Anderson v. Ciry of Bessemer. 470 U.S. 564, 574 ( 1985).


                                                                       "
                                                                      -.)-
of slll:h ~vidcnc~ hav~ bl:t:n discussed by other courts of appeal and by our court of criminal appeals.

,,;z: Hernandez v_ .\'tate. 939 S. W.2d 173. 17S (Tex. Crim. App. 1997) (evidence ofguiltydemeanor);

Reed v. .\'tate. 744 S. \V.2d 112, l27-2S (Tex. Crim. App. 1988)(suspicious circumstances, coupled

with defendant's presence during commission of the crime, and discrepancies in stories); Johnson

v.   State. 234 S.W.Jd 43, 55 (Tex. App.-El Paso, 2007, no pet.) (consciousness of guilt);

Undenvood v. State, 967 S. W.2d 925 (Tex. App.-Beaumont 1998, pet. ref' d) (contradictory

explanations for traveling); Spra/1 v. Stale, 881 S. W.2d 65, 66-67 (Tex. App.-El Paso 1994, no

pet.) (furtive behavior).

                                 APPLICATION OF LAW To FACTS


         Appellant, citing Holladay v. State, 109 S. W.2d 194, 199-200 (Tex. Crim. App. 1986),

contends the non-accomplice evidence raises only extraneous matters that do not sufficiently connect

him to the commission of the offense. It is true that facts not material to the case are not sufficient,

alone, to satisfy the corroboration requirement of article 38.14. Holladay, 709 S. W.2d at 200. But

Holladay is not directly applicable to this case because it addresses the proper article 38.14 jury

instruction in capital murder cases where a defendant is alleged to have committed a predicate felony

along with a murder. I d. at 196. The court in Holladay specifically held the question of whether non-

accomplice evidence was sufficient to corroborate the accomplice testimony must be decided on an

ad hoc basis. ld. at 200. So any holding regarding the quantum of corroborating evidence in

Holladay is dicta.

         In this case, the only issue to be decided is whether the evidence corroborating the

accomplice testimony is sufficient to sustain appellant's conviction. To that end, the State offers in

its brief examples of corroboration of Hodges's testimony that appear in this record, and were

outlined earlier in this- opinion. Shouse testified that appellant displayed more than the usual


                                                  -4-
nervousness typically   s~cn   in a trartic stop and that was more in line of consciousness or criminal

:tctivity. Appellant and Hodges provided Shouse with contradictory travel plans and contradictory

places of residence. Appellant and Hodges at tirst provided Shouse with contradictory information

conccming who had rented the subject vehicle. Appellant offered an unsolicited comment to Shouse,

before Shouse indicated he had found the marijuana, "that's not even mine". Appellant was in

proximity to a quantity of marijuana that far exceeded possession tor personal use. Finally, appellant

made a cell phone call shortly after the stop to Raven Gregory, the person named on the car rental

agreement. None of these factors, if considered alone and in a vacuum, would arguably provide

sut1icient corroboration of Hodges's testimony to sustain appellant's conviction. But taken together,

they would supply adequate corroboration for Hodges's testimony when viewed in the light most

favorable to the prosecution. See Simmons, 282 S. W.3d at 508. Appellant's sole point of error is

overruled.

       The judgment of the trial court is affirmed.




                                                         CHARLES F. C
                                                         JUSTICE, ASSI


Do Not Publish
TEX. R. APP. P. 47
110015F.U05




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