                                          NO. 07-07-0170-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                        NOVEMBER 10, 2008

                               ______________________________


                          WILLIAM DONALD FANCHER, APPELLANT

                                                     v.

                               THE STATE OF TEXAS, APPELLEE


                            _________________________________

               FROM THE 287TH DISTRICT COURT OF PARMER COUNTY;

                   NO. 2510.02; HON. GORDON H. GREEN, PRESIDING

                              _______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

                                     MEMORANDUM OPINION

        In two points of asserted error, appellant William Donald Fancher seeks reversal of

his conviction of felony possession of marijuana and the ensuing sentence of ten years

confinement in the Institutional Division of the Texas Department of Criminal Justice. In

those points, appellant contends: 1) the evidence is insufficient to corroborate the

testimony of Vernon Puckett, an accomplice as a matter of law; and 2) the evidence is


        1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon 2005).
factually insufficient to support his conviction. Disagreeing that reversal is required, we

overrule appellant’s points and affirm the judgment of the trial court.

                                     Factual Background

       On October 16, 2001, Parmer County Sheriff Randy Gerries and his deputies

discovered “hundreds” of marijuana plants growing among corn on a portion of a field

belonging to Ronnie Puckett (Ronnie). Many of the marijuana plants were tied to the corn

stalks as support to keep them straight. Ronnie’s farm consisted of approximately one-half

section of land and the sheriff estimated that the size of the field upon which the corn and

marijuana was located was about ten acres. The surface consisted chiefly of cultivated

fields lying within two contiguous center-pivot irrigation circles. The farm also produced

pumpkins and ornamental gourds that were packaged for resale in a vegetable processing

area located on the farm. On the day of his visit to the site, the sheriff saw several farm

workers packaging products in a shed located on the premises.

       Behind the irrigation circles near the southern boundary of the farm was a barn and

a mobile home which was occupied by Vernon Puckett (Vernon) who was Ronnie’s father.

Vernon’s pickup was located on the property and was found to have small marijuana

plants and stems in its bed. The pickup also contained cords in the bed that were

consistent with the type of cords that were used in the field to tie up the marijuana plants.

It additionally contained three sets of cutters which the sheriff concluded were used to cut

the marijuana plants in the field.

       A search of the barn found what appeared to be a marijuana processing area in its

south area. The door to the barn was painted black and prevented anyone from seeing

inside it. There were wires strung across the processing area that looked like a clothes

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line. Under the lines was a tarp and a bucket. The tarp had marijuana stalks and leaves

on it. The bucket contained marijuana stems with the leaves stripped off. Marijuana

leaves were scattered all over the concrete floor in the processing area, and two small

bags were found that contained marijuana stems and leaves.

       An operating refrigerator was located in the processing area which was found to

contain food, drinks, and bottles of prescription blood pressure and cholesterol pills bearing

the name of appellant. The officers also discovered a basement in the south portion of the

barn which was found to contain marijuana leaves, scissors, and bagging and packaging

materials. There were lights in the basement of the type that might be used to grow

marijuana plants. Additionally, outside the barn was located a non-operable refrigerator

which was found to contain marijuana seeds and residue.

       At trial, the sheriff testified that Vernon had told him that a marijuana harvest had

been done in September. He also averred that he had supervised the destruction of the

growing marijuana plants by Ronnie. A portion of the marijuana was weighed and

analyzed at the Texas Department of Public Safety’s crime laboratory. That analysis

confirmed that the substance submitted was marijuana in an aggregate weight of 66.04

pounds.

       Because the seized prescription bottles bore appellant’s name, the sheriff instituted

a search for him. In the course of that search, it was ascertained that appellant had been

living in Clovis between May and November 2001, and the investigation continued there.

Terry Lynn Cox, a former neighbor of appellant’s in Clovis told the sheriff that shortly before

7:00 a.m. on November 10, 2001, appellant approached her and, without cost to her,

offered to transfer the contract for deed on his home in Clovis.            Cox agreed, the

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assignment was consummated on November 14 and recorded, and appellant left for

California. Ms. Cox averred that appellant had left furniture, a refrigerator, and some food

in the house. The sheriff obtained permission to search the Clovis house in the course of

which he discovered marijuana residue in the carpet. Appellant was arrested in California

and returned to Texas to stand trial.

       As a result of a plea bargain with the State, Vernon pled guilty and received a ten

year probated sentence because of his activities on Ronnie’s farm. Vernon recited that he

and appellant became acquainted when both of them were working in California. They

stayed in contact and, in the spring of 2001, he said appellant and his son came to Texas

because “we was going to plant some marijuana” on Ronnie’s farm. Vernon averred that

he, appellant, and appellant’s son planted some 300 marijuana plants on the farm which

were harvested by appellant and appellant’s wife and son. As the plants were harvested,

they were carried back to Ronnie’s farm in a pickup Vernon owned. After the plants were

delivered to the barn, he said, appellant, his son, and his wife would deliver them to

“whoever was going to travel it further.” Vernon estimated that appellant and the others

spent “about six weeks, five weeks, maybe” on the farm. Vernon said that appellant had

paid him “ten or twelve thousand” dollars as his part of the profit from the sale.

       Appellant chose to testify at trial. He also said that he and Vernon had gotten

acquainted when both of them were working in California. After Vernon moved back to

Texas, he said, he bought a “little place” in Arkansas. As he would go back and forth, he

would stop to see Vernon and would sometimes spend the night although he denied they

ever discussed marijuana. In 2001, he said he bought the Clovis house because he

wanted to get back where there wouldn’t be as many drugs as there were in California. In

                                             4
doing so, he said he borrowed about three thousand dollars from Vernon to pay for the

house because he only had “Social Security and SSI.” He said he had a bad back and

wasn’t able to lift but he had worked some for Ronnie on the farm driving a tractor and

“helped him in the Indian corn and gourds and pumpkins.” He worked five and sometimes

seven days a week for Ronnie, but he denied that he knew anything about the marijuana

project.

       Appellant admitted that he had put his blood pressure and cholesterol pills in the

refrigerator located on Ronnie’s farm, and he admitted that one day as he went to get

some pills, he saw the marijuana located in the barn, took his pills, left the barn, and never

went back in. He averred that when he did work on the farm he used to go home about

noon and whoever brought in the marijuana must have brought it in the evening as he had

no knowledge of it. He said he never used marijuana, although he thought his boys might

have done so.

       Appellant specifically denied that he had ever planted any marijuana and could not

have done so because “[he] was seventy-six years old,” [his] back has been bad for years,”

and he “absolutely did not plant one seed.” Appellant admitted that he had been arrested

in California but vacillated about the nature and result of that arrest although he had ended

up serving eight months and 26 days in a county jail. The jury received evidence that he

had been convicted for marijuana possession and cultivation for which he received a

probated sentence. Appellant said he sold the Clovis house because his boys had gone

back to California. He left the personal property and furniture in the Clovis house because

it “wasn’t worth hauling back . . . .”



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                                         Discussion

       Article 38.14 of the Code of Criminal Procedure 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.” Tex. Code Crim. Proc. Ann. art. 38.14

(Vernon 2005). An accomplice witness is an accomplice as a matter of law if he implicates

himself in an offense. Gill v. State, 873 S.W.2d 45, 47 n.3 (Tex. Crim. App. 1994). In this

case, because Vernon admitted participating in the charged offense, he is an accomplice

as a matter of law. Thus, in order to give sufficient evidentiary weight to his testimony, the

record must contain other evidence tending to connect appellant to the charged offense.

       The evidentiary strength of corroborative evidence is determined by eliminating from

consideration the testimony of the accomplice witness and examining the testimony of

other witnesses to determine if sufficient other evidence exists that tends to connect the

defendant to the commission of the alleged crime. Hernandez v. State, 939 S.W.2d 173,

176 (Tex. Crim. App. 1997).

       It is true that the mere presence of a defendant at the scene of the crime, without

more, is not sufficient to corroborate accomplice testimony. Cox v. State, 830 S.W.2d 609,

611 (Tex. Crim. App. 1992). Even so, such evidence, when coupled with other suspicious

circumstances, may sufficiently tend to connect an accused to the crime so as to furnish

sufficient corroboration to support a conviction. Brown v. State, 672 S.W.2d 487, 489 (Tex.

Crim. App. 1984). It has long been true that apparently insignificant circumstances may

provide sufficient corroboration. Holmes v. State, 70 Tex. Crim. 423, 157 S.W. 487, 493

(1913). Evidence of flight, when coupled with the presence of a defendant at the crime

                                              6
scene has been held sufficient corroborating evidence. Passmore v. State, 617 S.W.2d

682, 684-85 (Tex. Crim. App. 1981), overruled on other grounds by Reed v. State, 744

S.W.2d 112 (Tex. Crim. App. 1988). Moreover, although it may be considered along with

other evidence tending to connect an accused to a crime, evidence of motive or opportunity

to commit a crime by itself is not sufficient to corroborate accomplice testimony. Reed v.

State, 744 S.W.2d at 127.

       In this case, aside from Vernon’s testimony, there was evidence that appellant had

been convicted in California of the offenses of cultivating and possessing marijuana and

destruction of evidence. It was undisputed that appellant had worked on Ronnie’s farm at

least through October 18, 2001. The record also shows that the marijuana on Ronnie’s

farm was harvested in September 2001 and that during that same month, appellant had

placed his prescription bottles in the refrigerator located in the barn in which the processing

of the marijuana was taking place. Additionally, appellant testified specifically that when

“they brought that first load of marijuana in there,” he removed his medications from the

barn refrigerator. He also admitted that he continued to work on the farm for a month after

he had discovered the marijuana in the barn.

       It is axiomatic that the jury is the exclusive judge of the credibility of witnesses and

of the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000). Likewise, reconciliation of conflicts in the evidence is within the sole province

of the jury and it may choose to believe some testimony and disbelieve other testimony.

Id. In this case, the jury chose to accept the State’s testimony. The evidence we have

outlined is sufficient to corroborate the accomplice testimony and to justify the jury’s

verdict. Appellant’s points of error must be, and are hereby, overruled.

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      Accordingly, the judgment of the trial court is affirmed.



                                                John T. Boyd
                                                Senior Justice



Do not publish.




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