      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00190-CR



                                Preston James Korell, Appellant

                                                 v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NO. 7955, HONORABLE JOE CARROLL, JUDGE PRESIDING



                                          OPINION


               A jury found Preston James Korell guilty of possessing methamphetamine in an

amount greater than four grams but less than 200 grams with intent to deliver, a first-degree felony.

See Tex. Health & Safety Code Ann. § 481.112 (West 2003). Korell elected to have the jury assess

punishment, and the jury assessed ten years’ confinement and a $10,000 fine. Korell’s criminal

responsibility for the offense was proved primarily through the testimony of two witnesses,

William Kaman and Kristin Clem. The district court instructed the jury that Kaman was an

accomplice as a matter of law but submitted the question of Clem’s status as an accomplice to the

jury as a fact question. By two points of error, Korell argues that the trial court should have found

that Clem was an accomplice as a matter of law and that, as an accomplice, her testimony could not

be used to corroborate Kaman’s testimony connecting Korell to the contraband. We will affirm the

judgment of conviction.
                                         BACKGROUND

                On January 23, 2006, William Kaman was driving a truck when he lost control and

crashed into the guardrail on the bridge across Antelope Creek on State Highway 190 in western

Lampasas County. Kaman was seriously injured and pinned in the vehicle. One of the first persons

to arrive at the scene was a delivery truck driver, Charles Burns, who actually saw Kaman’s truck

come to rest on the bridge. Burns said that he saw the passenger, who he described as a Hispanic

man, emerge from the wrecked truck and try to assist the injured driver. The passenger then

approached Burns and told him that he needed help in hiding a deer rifle, stating that “he couldn’t

be caught with it.” According to Burns, the passenger then left in the direction of San Saba with one

of “two other Hispanic guys” who had arrived on the scene prior to the arrival of law enforcement.

                Department of Public Safety Trooper Michael Tatum testified that he arrived to

investigate the accident and, after speaking with Burns, began searching the area for the rifle. Tatum

stated that he searched the area under the bridge and found the rifle in the creek bed, alongside a

backpack and a camera bag containing packages of methamphetamine1 and assorted drug

paraphernalia. He testified that the location of the rifle and the bags containing the drugs suggested

that the items had been dropped from the bridge above and slid down an incline into the creek bed.

Prior to Kaman being starflighted to Austin for treatment, Trooper Tatum asked Kaman to identify

the passenger who was with him, and Kaman said, “Mesa.”

                On two separate occasions, law enforcement officials showed Burns photo spreads

containing suspects. The first time, Korell’s photo was not included in the array and Burns identified


       1
           In total, 70.8 grams (about 2.5 ounces) of methamphetamine were recovered at the scene.

                                                  2
one of the men in the photographs as being the passenger. The second time, Korell’s photo was

included in the array. Burns, however, did not identify Korell as the person he had spoken to at

the accident site. There was no physical evidence linking Korell to the accident scene or

to the contraband.

               At Korell’s trial, the State attempted to prove that Korell had been the passenger in

Kaman’s truck and was therefore linked to the drugs found near the accident site through the

testimony of Kristin Clem and William Kaman. Clem testified that on January 23, 2006, she was

at a house in San Saba County, along with Randy Carr and John Storm, when Kaman and Korell

arrived in a truck and purchased two and half ounces of methamphetamine from Carr.2 Kaman and

Korell then left the house together. Later that same day, Clem, Carr, and Storm were at a gas station

in San Saba when a silver champagne Chevy truck driven by a Hispanic man drove up with Korell

as the passenger. According to Clem, Korell told her about the accident and said that he had

“stashed” the methamphetamine and the gun. Clem gave the driver of the Chevy truck twenty

dollars “for gas money for dropping [Korell] off.” Clem and Carr then left in Carr’s vehicle to go

to Dallas; Korell and Storm left the gas station in Clem’s vehicle to return to Austin. Clem testified

that Korell is also known as “Mesa.” Clem further testified that in January 2006 she was employed

as a confidential informant by the Round Rock Police Department working on methamphetamine

cases, although she denied working as a confidential informant on that particular day. She admitted




       2
        The house in question, according to Clem, was a double-wide trailer owned by
Randy Carr’s sister.

                                                  3
to knowing what was going on at the house—that there were illegal drugs present and that Korell

and Kaman were there to purchase drugs from Carr.

               Kaman admitted on the stand that he and Korell had traveled from Austin to San Saba

to pick up a supply of methamphetamine. Kaman said that they both went into the house, Kaman

“got high,” and then he and Korell left together with the drugs that Korell had just purchased.

Kaman said that before they left Austin, Korell had talked to Clem about going to the San Saba

house and getting the drugs. Kaman did not recall much about the accident. He was badly injured

and a portion of his leg had to be amputated. The police talked to him after he was out of the

hospital and he made two written statements that were admitted into evidence at the trial. In his first

statement, Kaman denied being a party to buying drugs and identified his passenger by the name of

Mesa. In a second statement, he identified his passenger as Preston Korell. Both of these sworn

statements contained inconsistences from Kaman’s testimony at trial as to Kaman’s complicity in

the purchase of the drugs.

               At the close of the evidence, defense counsel moved for a directed verdict, arguing

that both Kaman and Clem were accomplices as a matter of law and that there was no other evidence

that tended to connect Korell to the contraband. Specifically, the defense argued that Clem was an

accomplice based on “her testimony that she participated in the original sale of narcotics” that

provided the basis for this prosecution and, further, because she assisted Korell in avoiding

apprehension after the accident. The State admitted that Kaman was an accomplice as a matter of

law but argued that Kaman’s own out-of-court statements identifying the passenger as Mesa and later

as Korell provided sufficient corroboration for his in-court testimony. As for Clem, the State told

the trial court that “she may be an accomplice to an offense in San Saba County but she is not to the

                                                  4
offense committed in Lampasas County.” The trial court overruled Korell’s motion for directed

verdict, making a finding that Kaman was an accomplice as a matter of law; however, the court did

not find that Clem was an accomplice as a matter of law but instead submitted Clem’s status as an

accomplice to the jury to be determined as a fact issue.


                                           DISCUSSION

                Korell contends in his first issue that Clem is an accomplice as a matter of law and

that her testimony cannot be used to corroborate Kaman’s testimony; thus, the trial court erred in

failing to grant Korell’s motion for a directed verdict. In his second issue, he complains that the

evidence was insufficient to allow the jury to find that Clem was an accomplice as a matter of fact.


Standard of Review

                In Texas, a conviction cannot be had upon the testimony of an accomplice unless that

testimony is corroborated by other evidence tending to connect the defendant with the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). The testimony of an accomplice witness is

inherently untrustworthy and should be received and acted on with caution because it is

“evidence from a corrupt source.”3 Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981);

Wincott v. State, 59 S.W.3d 691, 698 (Tex. App.—Austin 2001, pet. ref’d). This accomplice-witness

       3
           Wigmore explained the policy behind the rule as follows:

       The reasons which have led to this distrust of an accomplice’s testimony are not far
       to seek. He may expect to save himself from punishment by procuring the conviction
       of others. It is true that he is also charging himself, and in that respect he has burned
       his ships. But he can escape the consequences of this acknowledgment, if the
       prosecuting authorities choose to release him, provided he helps them to secure the
       conviction of his partner in crime.

       7 Wigmore, Evidence § 2057 (Chadbourn rev. 1978), at 417.

                                                  5
rule creates a statutorily imposed review and is not derived from federal or state constitutional

principles that define the factual and legal sufficiency standards. Druery v. State, 225 S.W.3d 491,

498 (Tex. Crim. App. 2007). Thus, to weigh the sufficiency of the corroborative evidence, we

disregard the accomplice’s testimony and examine the remaining portions of the record to ascertain

whether there is evidence tending to connect the accused with the commission of the crime.

Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Maynard v. State, 166 S.W.3d 403,

410 (Tex. App.—Austin 2005, pet. ref’d). Because the standard is “tendency to connect,” rather than

a rational-sufficiency standard, the corroborating evidence need not be sufficient by itself to establish

guilt beyond a reasonable doubt. Id. If the combined weight of the non-accomplice evidence tends

to connect the defendant to the offense, then the requirement of article 38.14 has been fulfilled.

Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). However, evidence that merely

proves that the offense was committed does not suffice. Id. We review a claim that accomplice-

witness testimony is insufficiently corroborated in the light most favorable to the verdict. See

Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Gill v. State, 873 S.W.2d 45, 48

(Tex. Crim. App. 1994).


Determining Accomplice Status

                “An accomplice is an individual who participates with a defendant before, during, or

after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State,

201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Further, the accomplice witness’s participation must

involve an affirmative act that promotes the commission of the offense with which the defendant is

charged. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). There must be sufficient

                                                   6
evidence to connect the alleged accomplice to the criminal offense as a “blameworthy participant.”

Id. (quoting Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998)). Whether the alleged

accomplice-witness is actually charged or prosecuted for his participation is irrelevant to the

determination of accomplice status; rather, we look to see if there is sufficient evidence in the record

“to support a charge against the witness alleged to be an accomplice.” Blake, 971 S.W.2d at 455.

“Mere presence at a crime scene does not make an individual an accomplice, nor is an individual an

accomplice merely because he has knowledge about a crime and fails to disclose that knowledge.”

Cocke, 201 S.W.3d at 748. Moreover, a person’s complicity with the accused in the commission of

another offense, apart from the offense charged, does not make him an accomplice. Druery,

225 S.W.3d at 498.

                “A witness may be an accomplice either as a matter of law or as a matter of fact; the

evidence in a case determines what jury instruction, if any, needs to be given.” Cocke, 201 S.W.3d

at 747. An individual is an accomplice as a matter of law if he could be prosecuted for the same

offense with which the defendant is charged, or a lesser-included offense of that charge. Druery,

225 S.W.3d at 498; Cocke, 201 S.W.3d at 748. Unless the evidence clearly shows that the witness

is an accomplice as a matter of law, a question about whether a particular witness is an accomplice

is properly left to the jury with an instruction defining the term “accomplice.” Id. at 748. Even if the

evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law, the

trial court may still submit the issue to the jury if it has any doubt as to whether a witness is an

accomplice witness. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).

                If the trial court determines that a witness is an accomplice as a matter of law, the

court is required to provide an accomplice-witness instruction to the jury. DeBlanc v. State,

                                                   7
799 S.W.2d 701, 708 (Tex. Crim. App. 1990). But when the parties present conflicting or unclear

evidence as to whether a witness is an accomplice, the jury must first determine whether the witness

is an accomplice as a matter of fact. Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).

Whether an accomplice-witness instruction is justified requires a case-specific and fact-specific

inquiry. Cocke, 201 S.W.3d at 748.

               Because Clem had not been indicted, she was an accomplice-witness as a matter of

law only if the evidence shows that she could be prosecuted for the same offense as Korell or for a

lesser-included offense of that charge. Korell was charged with the possession of 70.8 grams of

methamphetamine with intent to deliver; a lesser-included offense of that charge would be simple

possession. See Upchurch v. State, 23 S.W.3d 536, 538 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d). A person is guilty of possession if he knowingly or intentionally exercises actual care,

control, custody, or management over a controlled substance. See Tex. Health & Safety Code Ann.

§§ 481.002(38), .115(a) (West Supp 2007); Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2007).

Because of the lack of evidence showing that Clem exercised actual control or management over any

of the drugs at issue, let alone possessed them with intent to deliver, her criminal liability, if any,

must arise under the law of parties. See, e.g., Sewell v. State, 578 S.W.2d 131, 136 (Tex. Crim. App.

1979). A person may be shown by circumstantial evidence to be a party to the possession of a

controlled substance, viewing the evidence of events before, during, and after commission of the

offense. Gutierrez v. State, 628 S.W.2d 57, 66-67 (Tex. Crim. App. 1982). In determining whether

one has participated as a party, reliance may be placed on actions of the parties which show an

understanding and common design to do a certain act. Id. (quoting Tarpley v. State, 565 S.W.2d

525, 529 (Tex. Crim. App. 1978)).

                                                  8
               Based on her own testimony, Clem knew that illegal drugs were in the San Saba

house, was aware of Korell and Kaman’s purpose in coming to the house, and was present during

the drug transaction between Korell and Carr. Further, Kaman testified that prior to leaving Austin,

Korell had a conversation with Clem about going to the San Saba house to purchase drugs.

Reviewing all of the testimony regarding her participation before and during the commission of the

offense, we do not think that the evidence is sufficient to clearly support a charge against Clem for

possession, making her an accomplice as a matter of law. See Blake, 971 S.W.2d at 455. Neither

Clem’s presence at the San Saba house nor her knowledge that Korell was purchasing drugs from

Carr (and failure to report that offense to authorities) makes her an accomplice to Korell’s

possession. See Cocke, 201 S.W.3d at 748. If anything, the evidence that she coordinated Korell’s

meeting with Carr establishes that she was complicit with Carr in the offense of delivery of a

controlled substance;4 however, a person’s complicity in the commission of another offense, apart

from the offense charged, does not make him an accomplice to the charged offense. See Druery,

225 S.W.3d at 498.

               Korell also contends that Clem’s conduct after the accident is evidence that she was

a party to his possession of methamphetamine. In so arguing, he points to the fact that Clem gave

money to the driver who gave Korell a ride from the accident scene and that she provided her own

truck for Korell to use when he needed transportation. Korell maintains that because Clem testified

that Korell told her that he had “stashed the dope,” Clem’s actions are evidence of her participation


       4
           Under the law of parties, Clem’s conduct could arguably be characterized as an effort to
solicit, encourage, direct, aid, or attempt to aid the offense of delivery, based on Kaman’s testimony
that she was in contact with Korell and that she was acting as a go-between for Korell and Carr. See,
e.g., Lecrone v. State, 889 S.W.2d 585, 587 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

                                                  9
in furtherance of his offense because she would have assumed that Korell would try to recover the

stashed methamphetamine. Clem testified, however, that when she allowed Korell to borrow her

truck, Korell “went to Austin.” There is no evidence that Korell actually returned to the accident

scene to recover the drugs, or that Clem believed he would do so. Without evidence that Clem

intended by her conduct to help Korell possess (or repossess) the drugs that were left at the scene of

the accident, we cannot conclude that Clem encouraged or aided Korell in committing the

charged offense.

                While Clem’s testimony might be viewed as inconsistent concerning her role in

Carr’s alleged drug-dealing activities and her involvement with these individuals in her capacity as

a confidential informant for the Round Rock police department, the evidence as a whole does not

clearly establish that she was susceptible to prosecution for possession of a controlled substance or

possession with intent to deliver.5 Because the evidence does not clearly show that Clem was an

accomplice to Korell’s offense or a lesser-included charge, her status as an accomplice was properly

left to determination by the jury as a fact issue. See Cocke, 201 S.W.3d at 748. Accordingly, the

trial court did not err in denying Korell’s motion for a directed verdict on the basis that Clem was

an accomplice as a matter of law and submitting the issue of her accomplice status to the jury. We

overrule Korell’s first issue.



        5
           The defense never contended, nor was there any evidence, that Clem was acting as a
confidential informant on the day in question. If she had been, the code of criminal procedure
requires that her testimony be corroborated “by other evidence tending to connect the defendant with
the offense committed.” See Tex. Code Crim. Proc. Ann. art. 38.141 (West 2005). At least one
court has held that an informant’s testimony may not be used to corroborate an accomplice’s
testimony, and vice versa. See Patterson v. State, 204 S.W.3d 852, 859 (Tex. App.—Corpus Christi
2006, pet. ref’d).

                                                 10
Sufficiency of the Evidence

                In his second point of error, Korell argues that even if Clem was not an accomplice

as a matter of law, the evidence shows that she was an accomplice as a matter of fact. Therefore,

because her testimony could not be used to corroborate Kaman’s testimony—including Kaman’s

identification of Korell as “Mesa,” his passenger—the evidence supporting Korell’s conviction is

insufficient. As we understand it, Korell’s challenge addresses the factual sufficiency of the jury’s

implied finding that Clem was not an accomplice as a matter of fact. Evidence is factually

insufficient if it is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or, after

considering the conflicting evidence, the jury’s verdict is against the great weight and preponderance

of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Unless the

record clearly reveals that a different result is appropriate, we defer to the jury’s determination

concerning the weight to place upon conflicting testimony. Johnson v. State, 23 S.W.3d 1, 8

(Tex. Crim. App. 2000).

                By its verdict, the jury found that Clem was not an accomplice as a matter of fact.

See McDonald v. State, 513 S.W.2d 44, 48 (Tex. Crim. App. 1974). The jury heard evidence that

Korell contacted Clem about going to the San Saba house to purchase drugs, that Clem was present

when Korell purchased the drugs from Carr, and that Clem helped Korell secure transportation back

to Austin after he stashed the drugs at the accident scene. However, there was no testimony

indicating that Clem and Korell had a common scheme or plan to possess or deliver the drugs

together once he acquired them from Carr or that she had any pecuniary interest in Korell’s future

sales of the drugs. Rather, Clem testified that while she was aware that Korell was acquiring drugs

and was present during the sale of 2.5 ounces of methamphetamine, awareness and presence are

                                                   11
clearly insufficient to establish her liability as a party. Moreover, the jury could reasonably have

concluded that Clem’s liability as a party to any of the possible offenses committed ended when

Korell took possession of the drugs and left the San Saba house with Kaman. In addition, the

evidence rationally supports an inference that Korell had already relinquished possession of the drugs

at the accident scene without intending to repossess them by the time he came upon Clem and Carr

at the gas station, undermining Korell’s assertion that she was encouraging, aiding, or attempting to

aid his offense by allowing him to use her truck.

               We have already held that, under the facts of this case, Clem was not shown to be an

accomplice-witness as a matter of law. Thus, her status as an accomplice-witness was a question

of fact, the trial court properly charged the jury on the issue, and the jury resolved that question

against Korell, as it was entitled to do based on the evidence presented. Having reviewed all of the

evidence, giving proper deference to the jury on matters of weight and credibility, we do not think

that the jury’s finding on this issue was clearly wrong, manifestly unjust, or against the great weight

and preponderance of the evidence. Thus, it was appropriate for Clem’s testimony to be considered

for the purpose of corroborati ng Kaman’s testimony. As corroborating evidence, Clem’s testimony

satisfies the requirement of tending to connect Korell to the charged offense.6 See Cathey,

992 S.W.2d at 462. Viewing Korell’s claim in the light most favorable to the jury’s verdict, we hold



       6
         The State argues in the alternative that even if Clem was an accomplice as a matter of law,
Kaman’s testimony was still corroborated by other evidence—namely, Kaman’s own out-of-court
statements that he made to police prior to Korell’s trial when he identified Korell as his passenger.
The State’s argument is flawed, however, because “an accomplice cannot corroborate himself by his
own statements made to third persons.” See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App.
1997) (“hearsay from an accomplice cannot corroborate the accomplice’s trial testimony”); see also
Maynard v. State, 166 S.W.3d 403, 414 n.6 (Tex. App.—Austin 2005, pet. ref’d).

                                                  12
that Kaman’s accomplice testimony was sufficiently corroborated, see Hernandez, 939 S.W.2d at

176; Gill, 873 S.W.2d at 48, and overrule Korell’s second issue.


                                         CONCLUSION

               Because Korell was not entitled to a directed verdict on the basis that the State’s

witness, Kristin Clem, was an accomplice as a matter of law, and because the evidence was sufficient

to support the jury’s finding that she was not an accomplice as a matter of fact, we affirm the

judgment of conviction.



                                              __________________________________________

                                              Diane Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: April 24, 2008

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