                                    NO. 07-04-0305-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                     MAY 4, 2005
                           ______________________________

                                 EDWARD L. MARTINEZ,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-405843; HON. CECIL G. PURYEAR, PRESIDING
                       _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Edward L. Martinez appeals, via three issues, his conviction for burglarizing a

habitation with intent to commit theft. We address only the third for it is dispositive.

Therein, appellant contends that the trial court erred when it refused to provide the jury with

an accomplice witness instruction. We sustain the issue and reverse the judgment.

                                        Background

       The home of A. L. Hawkins, which is located across the street from Monterey High

School in Lubbock, was burglarized during the night of April 23, 2003. Hawkins operated

an insurance business from the abode and often accepted cash payments from his
customers. Appellant knew this since he was employed by a contractor who earlier

remodeled portions of the house. At the time, appellant’s duties allowed him access to

Hawkins’ office during business hours. This also afforded him opportunity to see Hawkins

receive cash from his clients, according to one witness.

       On the night of the burglary, several individuals broke into the home, ransacked it,

and assaulted Hawkins with a knife. According to one of the burglars, the idea to enter this

particular home was appellant’s. Prior to the trial of appellant, the burglars who participated

in the trial had already admitted to or been convicted of the crime.

                       Issue 3 -- Accomplice Witness Instruction

       In his third issue, appellant attacks the trial court’s decision to exclude an accomplice

witness instruction from the jury charge. We sustain the issue.

       Authority holds that a conviction may not rest upon the testimony of an accomplice

unless that testimony is corroborated by other evidence tending to connect the defendant

to the offense. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 1979). The other evidence

contemplated need not directly link the accused to the crime or establish his guilt beyond

a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need

only tend to connect him to the offense. Id. at 613. In addition, the phrase “tending to

connect” has been interpreted as “‘to serve, contribute or conduce in some degree or way

. . . to have a more or less direct bearing or effect,’ and while not contemplating conjecture,

‘has a tendency to prove the averments in the indictment.’” Holladay v. State, 709 S.W.2d

194, 198 (Tex. Crim. App. 1986), quoting Boone v. State, 235 S.W. 580 (Tex. Crim. App.

1922); In re C.M.G., 905 S.W.2d 56, 58 (Tex. App.–Austin 1995, no pet.). This standard

does not present a high threshold but simply reflects a legislative determination that

                                               2
accomplice testimony should be viewed with some caution. In re C.M.G., 905 S.W.2d at

58. More importantly, each case must be decided upon its own facts and circumstances.

Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).

       Next, an accomplice is someone who participated in the crime before, during, or

after its commission. McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996); In

re A.D.L.C., 598 S.W.2d 383, 385 (Tex. App.–Amarillo 1980, no writ).               Moreover,

participation requires the performance of an affirmative act to promote its commission.

McFarland v. State, 928 S.W.2d at 514.

       The dispute at bar concerns whether two particular witnesses were accomplices.

One was Margarita Estrada and the other, Michael Johnson. The former testified that she

lived with James Fox, that Fox and appellant wanted to get some bolt cutters from her so

they could do a “hustle,” and that she acquired the bolt cutters from her closet and gave

them to appellant. This was done by her while knowing that the “hustle” “had to do with

. . . some type of burglary or something like that, . . . a house or building . . . .” From the

act of providing an instrumentality for use in a crime while knowing that it was to be so

used, one could reasonably infer that the individual aided in the commission of the crime

while acting with the intent to promote or assist its commission. And, since that is the

definition of a party, TEX . PENAL CODE ANN . §7.01(c) (Vernon 2003), and because some

evidence illustrates that Estrada so acted, we cannot but conclude she fell into the category

of an accomplice to the burglary.

       As for Johnson, he agreed to drive the group of individuals who committed the

burglary to the area wherein Hawkins lived. Furthermore, not only did an officer testify

(without objection) that one of the burglars informed him that Johnson was to receive a

                                              3
portion of the burglary proceeds, but Johnson also admitted that he was to receive money

for gas in exchange for his services. So, at around midnight, he met two of the group at

a local convenience store, drove them to a house, drove them back to the store and picked

up the remainder of the group. At that time, he noticed that one of the individuals

possessed a set of bolt cutters. Thereafter, he drove them to the designated location.

While professing ignorance of their purpose, Johnson nevertheless responded, “oh, it

occurred to me” when asked: “[s]o, you see four guys who need to go somewhere, at night

. . . one of them carrying . . . bolt cutters, and with your criminal history it didn’t occur to you

that you were driving them possibly to commit a burglary?”1 Given that he so responded,

that he himself had participated in burglaries and, therefore, knew how they were

committed, that it was late at night when he drove the group to the residential area wherein

the burglary occurred, and that he was to receive either gas money or a part of the burglary

proceeds in exchange for his help, a rational person could reasonably infer that he aided

those who actually committed the burglary while intending to promote or assist in the

commission of the offense. And, because one could so infer, it can be said that Johnson

held the status of a party to the crime and, therefore, was also an accomplice.

       Having determined that both Estrada and Johnson were accomplices, we conclude

that the trial court was obligated to instruct the jury about the prohibitions of art. 38.14 of

the Texas Code of Criminal Procedure. Because it did not, it erred. Yet, that does not end

our inquiry for we must also decide if the error was harmless. See Herron v. State, 86

S.W.3d 621, 632 (Tex. Crim. App. 2002) (applying a harm analysis to errors like that before



       1
           His criminal rec ord cons isted o f mu ltiple convictions som e of w hich involved theft and bu rglary.

                                                          4
us). It may fall within that realm if there exists non-accomplice testimony corroborating that

of the accomplice and no rational and articulable basis exists for disregarding it or finding

that it fails to connect the defendant to the offense. Id. at 633. Yet, the problem with

finding the error harmless at bar concerns our inability to find of record any non-accomplice

testimony either placing appellant at the burglary or communicating with the burglars about

the burglary. That information came only from the accomplices and those who admitted

to participating in the crime.2 Moreover, the evidence illustrating that appellant worked at

Hawkins’ abode several months before the burglary and may have seen Hawkins and his

clients exchange cash is of little weight. Indeed, we have held that one’s mere presence

at the scene of a crime when it is committed or near the time of its commission does not

alone tend to connect the individual to the crime. In re A.D.L.C., 598 S.W.2d at 385. If

being present at or near the time it occurred is not enough by itself, then being there some

four months before its occurrence can hardly suffice. Nor did the State direct us to any

non-accomplice testimony tending to link appellant to the burglary. Given this, we cannot

say that the error was harmless.

       Accordingly, we reverse the judgment and remand the proceeding to the trial court.

                                                            Brian Quinn
                                                              Justice

Publish.




       2
           We note that at least one of the burglars actually denied that appellant was involved.

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