      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00418-CR




                                    Robert Wincott, Appellant

                                                  v.

                                   The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 00-135-K368, HONORABLE BURT CARNES, JUDGE PRESIDING




               Robert Wincott was indicted on three counts of engaging in organized criminal activity

based on three alleged acts of aggravated robbery. See Tex. Pen. Code Ann. § 71.02 (West Supp.

2001). Wincott pleaded not guilty to all charges. The jury found Wincott guilty on two counts of

aggravated robbery and one count of organized criminal activity, and assessed punishment at three

concurrent prison terms of ninety-nine years each. Both parties agree that Wincott’s conviction

turned on accomplice testimony. Wincott challenges the admission of testimony of a police officer

who allegedly testified as a “Truth Expert” in support of the accomplice. With or without the

officer’s testimony, Wincott argues that the evidence was legally insufficient to satisfy article 38.14

of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979).

Because we hold that the accomplice testimony was insufficiently corroborated, we reverse and

render judgment of acquittal.
                                                FACTS

                From March to December of 1998, five similar robberies were committed near the

Anderson Mill area of Williamson County. Each robbery targeted a take-out pizza restaurant; each

involved a lone gunman wearing a ski mask and clothes that concealed his skin color. The police did

not have a suspect until Saccone’s Pizza was robbed on December 1, 1998. In this incident, a

customer whose wallet was taken chased after the gunman’s getaway vehicle. The gunman shot the

customer. Following this shooting, the Austin Police Department received a Crime Stopper’s tip that

Brad Jones was attempting to escape town via bus. Jones was apprehended at the bus station.

                On December 2, Jones admitted to the Saccone’s robbery but initially denied

involvement in the other crimes. Over the course of this first interrogation and a subsequent

interview on December 4, Jones’s version of events changed. He accepted partial responsibility for

all five of the pizza store robberies, and he implicated Wincott, Aaron Johnson, Shad Williams, and

Gary Olivier. Jones then entered into a plea bargain with the State. According to this arrangement,

Jones pleaded guilty to three counts of aggravated robbery. He was sentenced to life imprisonment

on the first count, but the court agreed to defer assessment of punishment on the remaining crimes

until after Wincott’s trial. The State agreed to recommend that Jones’s sentences be served

concurrently if Jones testified truthfully against his codefendants at trial.

                Jones was the State’s lead witness at Wincott’s trial. According to Jones, Wincott

participated in three robberies in 1998: Papa John’s Pizza on March 29, Pizza Hut Pizza on April 26,

and Dano’s Pizza on May 9.1 Jones testified that he and Wincott planned the robberies after watching


        1
         Jones also implicated Wincott in two robberies of convenience stores, for which Wincott
was not charged. According to Jones, Wincott was the gunman in the robbery of a Texaco gas

                                                   2
the movie “Pulp Fiction” numerous times. He said they first intended to rob a small convenience

store by the house where Jones resided with his aunt. They found a ski mask belonging to the aunt,

and borrowed a semi-automatic handgun with a laser sight from Johnson. 2 According to Jones,

Wincott drove them to the convenience store, but their intended robbery was foiled when they

encountered a police car parked outside.


                                           The Robberies

Papa John’s

               Jones testified that on the way back to his residence he and Wincott passed a Papa

John’s pizza store, which they decided to rob. Wearing the ski mask and carrying the handgun, Jones

robbed the store at gunpoint while Wincott stayed in the truck. When Jones came out, he did not see

Wincott’s truck; thinking that Wincott had panicked, Jones ran home. There he said he encountered

Wincott and they split the stolen money.

               The State presented the testimony of the three employees who were present that night

at Papa John’s. All three testified that a gunman with blond hair sticking out from underneath a blue

ski mask entered the store shortly before they closed. The gunman demanded all of the money in the

Papa John’s safe; the lock had been inadvertently deactivated when an employee turned off the


station, while Jones waited in Wincott’s truck. The other robbery allegedly involved Jones, Wincott,
and Johnson, in which the three used Johnson’s car and Jones robbed an AAMCO gas station with
a gun.
       2
            Jones testified that he borrowed the gun from Johnson but did not tell him that he planned
to use it to commit a robbery; at some point, however, Johnson became interested in participating in
the robberies and allegedly participated with Jones. An investigator with the Williamson County
Sheriff’s Department testified at trial that Johnson later admitted that he knew that his gun had been
used in some of the robberies. Johnson did not testify at Wincott’s trial.


                                                  3
electricity in the store. The robber pointed a gun with a laser sight directly at the forehead of Jason

Steen, the manager in charge. The employees turned over all the cash and checks and were instructed

to lie on the floor. None of the employees saw a getaway vehicle.


Pizza Hut

               The second count of Wincott’s indictment alleged that he had been the gunman in the

robbery of a Pizza Hut. Jones testified that he and Wincott planned the robbery, trying to find a

getaway route they could take on foot, because Wincott did not want to use his truck. Two

employees testified that a lone gunman wearing a ski mask robbed the store around 10:00 or 10:30

p.m. Both Pizza Hut employees testified that the perpetrator used a partially silver gun. In addition,

one estimated that the gunman was between 5'8" and 6'0" and “looked like he had been working out.

He wasn’t all skin and bones . . . so he had some build to him.” The employee estimated the gunman

weighed approximately one-hundred and eighty pounds.3 Jones testified that Wincott was the

gunman in this robbery and that after Wincott robbed the Pizza Hut, he ran back to Jones’s residence.


Dano’s Pizza

               The third count of the indictment alleged that Wincott drove Jones to Dano’s Pizza,

where Jones committed an aggravated robbery. The State called Darren Smalley, a pizza maker at


       3
           The State asserts that the description of the robber’s height was closer to Wincott’s than
Jones’s height. Jones testified that his height was between 5'10" and 5'11" and that he was five to six
inches taller than Wincott. Strother testified that she did not know Wincott’s height, but thought he
was 5'8" or 5'9". Detective Mike Williams of the Austin Police Department testified that Jones was
“probably close to 6 foot, 5'10", 5'11", somewhere in there, probably 160 pounds.” He testified that
Wincott was “5'8", 5'9" somewhere in there,” and said that he thought he could possibly be as short
as 5'5.5" or 5'6".

                                                  4
the time, and Daniel Paciocco, the owner of the establishment; both testified that shortly before

closing, a man carrying a black and silver gun entered the restaurant demanding money. The gunman

told Smalley to lie on the floor and remain there, and then instructed Paciocco to take the money out

of the register. Paciocco removed the entire register till, but the gunman demanded that he place the

money into a small plastic bag. The gunman then told both men to lie down. After remaining on the

floor briefly, Paciocco told Smalley to call 911; Paciocco ran outside to see the perpetrator cross a

privacy fence at the end of the parking lot. Paciocco testified that he heard a car door close but could

not see the vehicle as it drove away.

                Jones testified that he and Wincott decided that the Dano’s robbery would be their

last. He added that the robberies were no longer just a “game” because they were using the proceeds

to pay off their debts to drug dealers.

                Jones admitted that he later robbed two other establishments without Wincott using

a different gun. One robbery involved Williams, who drove Jones to a Mr. Gatti’s pizza store, where

Jones used a stolen revolver. Finally, Jones confirmed that he robbed the Saccone’s pizza store while

using the stolen revolver; this time Olivier was his driver.


                                           DISCUSSION

                                          Expert Testimony

                The State’s final witness was Detective Michael H. Williams. Detective Williams of

the Austin Police Department’s robbery division was assigned to follow up on the Saccone’s robbery.

Williams provided general testimony regarding his interview of Jones after his arrest, and about how

suspects like Jones never tell the truth at first, but if you chip away at them, you get “the complete

                                                   5
story out, the complete truth.” The State asked Williams “whether Brad Jones was one of those

people who started out being not completely truthful or not truthful at all.” He said yes and then

described how he got Jones to tell the truth: “I think as Brad became more familiar with myself and

Detective Staha we started developing a rapport and basically that he needed to tell us the truth. He

was an adult. He was responsible for what he did. And this truth eventually over some several hours

started coming out.”

                Wincott complains that the trial court essentially permitted Williams to testify as a

“Truth Expert” in violation of the rules of evidence, which do not permit an expert to give an opinion

unless it would assist the trier of fact. An expert witness may not testify directly that a particular

witness is truthful. Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993). Permitting such

testimony usurps the role of the jury in determining the credibility of witnesses, argues Wincott. By

testifying about how an investigator “gets the truth out” of a suspect, the detective was permitted to

bolster the testimony of the State’s star witness, after Jones had been discredited, to Wincott’s

detriment.

                On appeal, Wincott argues that Williams’s testimony was improperly admitted in

violation of rule 403, which excludes relevant information if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, and rule

702. See Tex. R. Evid. 403, 702. The State points out that this complaint has not been preserved

because it was not the objection that was raised at trial in response to Williams’s testimony. Rule

33.1 of the Rules of Appellate Procedure requires a specific timely objection at trial to preserve error.

Tex. R. App. P. 33.1. When the State first asked Williams to describe what he does in an interview



                                                   6
with a suspect “to get them to be honest,” Wincott objected that the testimony was not relevant. The

court overruled the objection. The detective continued to testify about how he knows when a suspect

is “trying to be truthful with you.” Wincott raised a hearsay objection, which the court overruled.

The detective continued:


       We get little bits of truth in the beginning. Sometimes we don’t get any in the
       beginning, but sometimes we will get little bits of truth. That’s where our job comes
       in as investigators to start chipping away and getting the complete story out, the
       complete truth.


               Wincott raised a running hearsay objection when the State asked Williams if Jones was

one of these people “who started out being not completely truthful or not truthful at all.” Again the

objection was overruled, and appellant was permitted to make a running hearsay objection to

Williams’s testimony of what Jones said during the interview and how he characterized the

truthfulness of Jones’s testimony. Although we share Wincott’s concerns about the bolstering nature

of the detective’s testimony, we hold that the error raised on appeal was not properly preserved. We

overrule this point of error, and turn to Wincott’s complaint that Jones’s testimony was not

sufficiently corroborated.


                             Corroboration of Accomplice Testimony

               Wincott argues that the State failed to meet its burden under article 38.14 of the Texas

Code of Criminal Procedure, which mandates corroboration of accomplice testimony. 4 See Tex.


       4
           Because Jones was indicted for the same offense as Wincott, Jones is an accomplice as a
matter of law. See Villarreal v. State, 576 S.W.2d 51, 56 (Tex. Crim. App. 1978) (stating that “[a]n
accomplice witness is someone who has participated with another before, during, or after the

                                                  7
Code Crim. Proc. Ann. art. 38.14; Nolley v. State, 5 S.W.3d 850, 852-53 (Tex. App.—Houston [14th

Dist.] 1999, no pet.). We consider this assertion as a challenge to the legal sufficiency of the evidence

to sustain the conviction. Nolley, 5 S.W.3d at 852. The rule governing the use of accomplice

testimony states: “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. Wincott argues that Jones’s testimony was not sufficiently corroborated by

evidence tending to connect Wincott with the robberies.

                The State argues that Wincott supplied the evidence that tended to connect him to the

robberies through his own admissions, particularly the ones he made to his girlfriend at the time of

his arrest. It also contends that Wincott linked himself to the gun which, according to Jones’s

testimony, Jones and Wincott used in the three robberies. Finally, while it acknowledges that the

independent evidence alone may not have been sufficient to convict Wincott of the robberies, the

State maintains that it was sufficient to corroborate Jones’s testimony.

                We begin by voicing the strong policy concerns that weigh against reliance on

accomplice testimony.5 The rule reflects a legislative determination that accomplice testimony

implicating another person should be viewed with a measure of caution, because accomplices often

have incentives to lie, such as to avoid punishment or shift blame to another person. Nolley, 5


commission of a crime. . . . [o]ne is not an accomplice witness who cannot be prosecuted for the
offense with which the accused is charged”) (citations omitted); Nolley v. State, 5 S.W.3d 850, 853
(Tex. App.—Houston [14th Dist.] 1999, no pet.).
        5
         The rule for corroboration of accomplice testimony has remained unchanged since the first
Texas Code of Criminal Procedure. Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981).

                                                   8
S.W.3d at 852-53 (citing Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). The

accomplice’s motives in testifying against the accused may well include malice or an attempt to curry

favor from the state in the form of a lesser punishment, or perhaps, no punishment. Id. The Texas

legislature has determined that because the testimony of an accomplice is inherently untrustworthy

and should be viewed with caution, uncorroborated testimony of an accomplice, standing alone, is

not enough to support a criminal conviction. Id.

               The court of criminal appeals has described an accomplice as a discredited witness.

Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981). No matter how complete a case may

be established by an accomplice witness, a conviction is not permitted unless the accomplice’s

testimony is corroborated. Id. The testimony of an accomplice witness is untrustworthy and should

be received and acted on with caution. Id. It should be carefully scrutinized not only because of the

potential self interest of the accomplice, but because such testimony is evidence from a corrupt

source. Id.

               These considerations, which form the basis for the requirement that accomplice

testimony be sufficiently corroborated, also inform the skepticism with which courts view evidence

that tends to connect the accused only with the accomplice, rather than with the charged offense.

“The mere presence of the accused in the company of the accomplice . . . shortly before or after the

time of the offense is not, in itself, sufficient corroboration of the testimony of the accomplice.”

Nelson v. State, 542 S.W.2d 175, 177 (Tex. Crim. App. 1976). Courts have rejected guilt by

association as corroborating evidence because if “such testimony [placing the defendant and the

accomplice together] be corroborative, then accomplices might be held corroborated in their claim



                                                 9
of the guilt of any person upon whom they might seek to fasten a crime, by mere proof that such

parties had been seen together.” Weatherred v. State, 272 S.W. 471, 472 (Tex. Crim. App. 1925).

Association with the admitted criminal may be corroborative, however, if offered in conjunction with

other facts and circumstances that sufficiently connect the accused with the commission of the crime.

Cherb v. State, 472 S.W.2d 273, 280 (Tex. Crim. App. 1971). Examples of such corroborating

circumstances include subsequent flight, possession of the fruits of the crime, and presence at or near

the scene of the crime at an unreasonable hour. Id.; Cawley v. State, 310 S.W.2d 340, 342 (Tex.

Crim. App. 1957).

               In evaluating the sufficiency of the evidence to corroborate accomplice testimony, we

consider each case on its own facts and circumstances, and look to all facts in seeking corroboration.

Nolley, 5 S.W.3d at 853. The corroborative evidence may be circumstantial or direct. Reed v. State,

744 S.W.2d 112, 126 (Tex. Crim. App. 1988). On appeal, we determine whether the jury heard

proof of material facts tending to connect the accused with the commission of the offense. Edwards

v. State, 427 S.W.2d 629, 632-33 (Tex. Crim. App. 1968). We first eliminate from consideration the

evidence of the accomplice witness. Id. at 632. We then examine the other inculpatory evidence to

ascertain whether it tends to connect the defendant with the offense. Id.; see also Burks v. State, 876

S.W.2d 877, 887 (Tex. Crim. App. 1994). While it is true that the non-accomplice evidence may be

circumstantial rather than direct, it still must tend to connect the accused to the offense. See Burks,

876 S.W.2d at 888. If the State fails to produce any non-accomplice evidence tending to connect the

defendant to the offense, then the defendant is entitled to an acquittal. See Tex. Code Crim. Proc.

Ann. art. 38.14; Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2000). Setting aside Jones’s



                                                  10
testimony, we will examine the non-accomplice inculpatory evidence, which the State urges tends to

connect Wincott to the commission of the three robberies.

                The State proffers twelve fact scenarios, which it argues tend to connect Wincott to

the robberies. The State maintains that this evidence provides compelling evidence, direct and

circumstantial, of Wincott’s guilt. The State essentially argues that Wincott related facts only a

participant in the robberies would know, made certain admissions, and then made “transparent

attempts to qualify those admissions” thereby expressing guilt for his participation. Finally, the State

argues that these facts alone need not be sufficient to convict to corroborate accomplice testimony.

The State relies on Casias v. State, 36 S.W.3d 897 (Tex. App.—Austin 2001, no pet.), to argue that

the corroborating evidence in that case was “nowhere near specific enough to identify a particular

offense or victim,” yet this Court held the evidence was “sufficient to tend to connect appellant with

the murder.” Id. at 902. The State posits that the evidence as a whole shows Wincott’s

consciousness of guilt. See Torres v. State, 794 S.W.2d 596, 598-99 (Tex. App.—Austin 1990, no

pet.).


Facts Only a Participant Would Know

                The State first contends that Wincott revealed “significant facts regarding the

robberies that likely could have been known by only a participant.” In particular, the State claims that

Wincott linked himself to the gun used in the three robberies. The State repeatedly emphasized this

evidence at oral argument as it appears to be the State’s strongest argument.

                Morgan Strother was Wincott’s girlfriend from May 1998 until his arrest. She

testified that after Aaron Johnson was arrested, Wincott told her “that Aaron was—he had some gun,

                                                  11
I guess, and was supposed to get rid of it. And instead he went home before he got rid of it, and the

cops were at his house.” When asked if Wincott had told her how Johnson was supposed to get rid

of the gun, Strother responded that “[h]e was supposed to throw it maybe off—it was either the dam

or a bridge. I don’t remember.” According to Strother, Wincott grew concerned about being

arrested only after Johnson was arrested.6 Strother testified that Wincott told her “[t]hat Aaron was

the type of person that would pretty much give up anybody to save himself,” and that Wincott was

concerned that Johnson would implicate him in something. The State argues that the timing of

Wincott’s concern about being arrested provided the link between the gun that was used in the

robberies and Wincott’s participation in those robberies.

               In addition to the evidence emphasized by the State, the record also reveals that

Wincott generally kept company with Jones and the other suspects. Strother testified that although

Wincott did not seem worried after Jones was arrested, Wincott “was trying to make sure [he] didn’t

come into contact really with Shad or Gary or, you know, trying to stay away from the other people

who were involved.” She stated that Wincott specifically became worried about the robberies after

Johnson was arrested, but she also explained that after both Jones and Johnson were arrested,

Wincott “was concerned that he’d be arrested.” The prosecution asked her how she knew that.

Strother answered, “Because everybody else, you know, the whole group of people that

predominantly hung out together, had already been arrested.”7 When put into context, Strother’s

       6
           Jones was arrested first, then Johnson.
       7
           The State also relied on Strother’s testimony that she knew Wincott drove a black Ford
truck, the same truck that, according to Jones, he and Wincott used during the three robberies. Only
Jones, however, connects Wincott’s truck to the crimes. In analyzing whether evidence is
corroborating, we must not consider the accomplice’s testimony. Edwards v. State, 427 S.W.2d 629,

                                                 12
testimony tends to connect Wincott to Jones, Johnson, and the other suspects. Evidence that raises

guilt by association, however, is insufficient to tend to connect Wincott to the robberies. See

Weatherred, 272 S.W. at 472.

                The State urges that in a letter to Jones, Wincott admitted a fact only a participant

would know: “As far as Tiffany goes, I don’t know what you told her. The fact that she wasn’t at

any of the crimes makes a big difference.”8 Jones testified, however, that Johnson and Williams knew

details about the first three robberies even though they were not involved. The reasonable conclusion

is that all these individuals who “predominantly hung out together” knew about the robberies,

whether or not they were participants. Such evidence may raise a suspicion that some combination

of these individuals participated in any of the five robberies, but even a strong suspicion is insufficient

to corroborate the testimony of the accomplice witness. See Umsted v. State, 435 S.W.2d 156, 158

(Tex. Crim. App. 1968) (“The testimony . . . raises a strong suspicion or probability of . . . guilt, but

such does not constitute proof of . . . guilt. The evidence is not sufficient to corroborate the

testimony of the accomplice witness. This being true, the mandatory provisions of Art. 38.14 . . .

prohibit this court from permitting the conviction to stand.”); Thomas v. State, 313 S.W.2d 311, 313

(Tex. Crim. App. 1958). Thus, the evidence does not reveal facts that only a participant would know



632 (Tex. Crim. App. 1968). In setting aside Jones’s testimony, we conclude that Strother’s
testimony does not tend to connect the truck to the robberies. Further, no robbery victim saw a
getaway vehicle. “The accomplice may state any number of facts, and these facts may all be
corroborated by the evidence of other witnesses; still, if the facts . . . do not tend to connect the
defendant with the crime . . . this would not be such corroboration as is required by the code.”
Umsted v. State, 435 S.W.2d 156, 157 (Tex. Crim. App. 1968). Jones’s claim that Wincott’s truck
was used in the robberies was not corroborated.
        8
            Tiffany McMillan was Jones’s girlfriend at the time of his arrest.

                                                    13
and fails to corroborate Jones’s testimony. We have no more than a suspicion that culminates from

the association of these individuals. We reject the effort to equate guilt by association with

corroboration. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 178 (1951)

(Douglas, J., concurring) (“guilt by association [is] one of the most odious institutions of history. .

. . Guilt under our system of government is personal.”).


Admissions by Wincott

                The State relies heavily on Wincott’s communications, primarily letters, with Strother

and another woman, Amber Ramirez, to assert that Wincott made admissions that tend to connect

him to the robberies. The State specifically refers to Wincott’s statement to Strother while discussing

the robberies that he had done some “bad things” and his expression of relief over being arrested.

The State also points to Wincott’s letters to Strother expressing sorrow for the bad things he had

done.9 The State urges that the “bad things” referred specifically to these three robberies and not to

other misdeeds such as his drug use.10 The State also notes a letter Wincott wrote to Ramirez saying

that they should not talk about his arrest because he was ashamed of it. The State then accuses

Wincott of attempting to qualify his admissions. The State asserts that only after his arrest did

Wincott try to influence Strother into believing that his reference to “bad things” referred to his drug

use.




        9
             He also stated in one letter that he hoped Jones would commit suicide.
        10
           Wincott wrote in a letter to Strother that he did not get in trouble every time he was
wasted, but that every time he did get in trouble he had been wasted.

                                                  14
                Moreover, the State points to letters Wincott wrote to Jones while both were

imprisoned in the same facility, saying they portray Wincott’s attempt to manufacture testimony for

his benefit. The State argues the letters reflect guilt. For example, Wincott gave Jones advice about

how to deal with witnesses and to prepare for his own trial, 11 but then told Jones not to disclose that

Wincott was advising him. The State asserts that this proves that Wincott knew that if Jones revealed

this communication, it would incriminate Wincott in the robberies. Such an inference is only one of

many that could be drawn from Wincott’s request that Jones not publicize Wincott’s advice. Wincott

also urged Jones to sabotage the State’s case by not testifying against Wincott. The State urges that

Wincott’s communications imply that Jones had information that could convict Wincott of the

robberies. But they just as forcefully infer that Wincott thought Jones was falsely accusing Wincott

in order to curry favor with the State in Jones’s own prosecution.

                Although the State tries to equate Wincott’s admitted “bad things” to the robberies,

the testimony at trial is inconclusive at best.


        [Strother]: [Wincott] made a statement that he had done some bad things in the past
                    and that he and Brad had done some bad things in the past, but that was
                    –

                    ....

        [State]:    Did he specify at that point what he was talking about?

        [Strother]: No.




        11
          In one instance, Wincott wrote a letter, which he had another inmate handcopy, that urged
Jones to write and sign a letter saying that Jones had lied in implicating Wincott. The letter also
encouraged Jones to notify his attorney about Johnson’s involvement with the handgun.

                                                  15
                  ....

       [State]:   In December, before he was arrested when he was talking about worrying
                  about being arrested for the bad things that he and Brad had done, was he
                  putting that in the context of having done drugs together? Or was it in the
                  context of the robberies and everybody being arrested?

       [Strother]: He didn’t say it in any context really. I mean we were talking about
                   several things, and we were talking about the robberies. . . .


Strother was pregnant with Wincott’s child at the time he was arrested. They were discussing that

pregnancy, among other things, when Wincott brought up the bad things he had done. Strother

stated that in a later phone call Wincott told her he was referring to his drug use when he had

expressed remorse for having done some bad things.

           In their vague context—a conversation involving various subjects any of which could be

construed as “bad things”—his statements do not tend to connect him to the crimes with which he

was charged. At most, they raise a mere suspicion that he is referring to his participation in the

robberies. As noted, even a strong suspicion is insufficient to satisfy article 38.14. Umsted, 435

S.W.2d at 158.

           Likewise, the communications that the State characterizes as attempts to manufacture

favorable testimony raise no more than a suspicion that Wincott participated in the robberies. His

statements to Jones refer not only to the crimes with which Wincott was charged, but also to other

robberies in which Wincott was not implicated. There was evidence in letters that Jones considered

Wincott the only person capable of giving him wise counsel. Jones wrote to Wincott:


       When we were free, you were the only person on the planet that I respected. Believe
       it because it’s true. The fact that I actually heard your wise words, no matter what

                                                16
        you think, I always at least thought about what you said. The fact that when you
        talked I did listen, to me, is a sign of how I looked up to you.


This relationship of trust may explain Wincott’s attempt to guide Jones through his legal travails as

much as motive to manipulate evidence. Such an explanation is supported by the fact that, as the

State acknowledged, Wincott must have known that all of these communications would be

intercepted and serve as potential evidence in his trial. Wincott’s letters reflect his reasonable concern

about the outcome of his own trial, but they do no more than link Wincott to Jones. They do not link

him to the particular crimes with which he was charged. Evidence of guilt by association does not

suffice as corroborating evidence. See Weatherred, 272 S.W. at 472.


Consciousness of Guilt

                The State contends, nonetheless, that Wincott’s letters encouraging Jones not to

testify are attempts to manipulate evidence that indicate a sense of guilt and as such, they present

circumstances tending to prove he committed the crimes with which he is charged. Conduct on the

part of a person accused of a crime subsequent to its commission may indicate a consciousness of

guilt for that crime. See Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983). Additionally,

the State argues that in Casias, this Court found sufficient corroboration in evidence that, as here,

did not specifically identify an offense or victim. See Casias, 36 S.W.3d at 902. The State maintains

that the evidence as a whole sufficiently corroborates Jones’s testimony.

                The cases involving attempts to manipulate evidence cited by the State, however, are

distinguishable. For example, the court of criminal appeals found that the defendant’s possession of

a gun and his threats to kill the victim’s family constituted an effort to suppress and destroy evidence

                                                   17
against him. Brown, 657 S.W.2d at 119. Similarly, this Court held that the defendant’s threats to

his wife to take away her military benefits and her children’s military identification cards if she

testified reflected a consciousness of guilt, and was therefore admissible. Torres, 794 S.W.2d at 598.

In yet another case, the defendant threatened the prosecution, “I’ll get you if it’s the last thing I’ll

do.” Johnson v. State, 583 S.W.2d 399, 408-09 (Tex. Crim. App. 1979).

                Wincott’s protestations of innocence, even in the form of asking Jones to admit that

he lied or to not testify altogether, are far different from the threats that indicate a consciousness of

guilt. The evidence on which the State relies only persuades us that Wincott sought to bring out what

he perceived to be the truth in the case. He did not threaten Jones, nor did he ask Jones to tell a

different version of the events. Wincott’s actions, asserting his innocence, do not amount to

manipulation of evidence that indicates a consciousness of guilt and are not sufficiently corroborating.


Evidence as a Whole

                Finally, the State urges that the evidence as a whole is similar to that in Casias, in

which we found sufficient corroboration of the accomplice’s testimony. See Casias, 36 S.W.3d at

902. The chief corroborating evidence in Casias included testimony from an inmate, Vernon Walker,

incarcerated with Casias. Walker testified that Casias told him that he had ordered a hit on “some

Blood or white dude,” but that the gunman chickened out and accidentally shot another person. Id.

This non-accomplice testimony alone tended to connect Casias to the murder. Walker’s testimony

was combined with other, ambiguous inculpatory evidence and together we found it sufficient to

corroborate the accomplice. Here, there is no single piece of inculpatory evidence other than Jones’s




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testimony. That alone will not suffice. Because the State failed to produce non-accomplice testimony

tending to connect Wincott to the three robberies, we sustain Wincott’s first point of error.


                                         CONCLUSION

               We hold that Wincott failed to preserve error regarding the bolstering nature of

Detective Williams’s testimony. Nonetheless, we hold that the State’s evidence did not tend to

connect Wincott to the crimes. Although the State introduced a substantial amount of evidence

attempting to prove Wincott’s participation in the robberies, the non-accomplice testimony merely

connected Wincott to the accomplice and other suspects but not to the offenses themselves. Because

suspicion alone does not satisfy the State’s burden to corroborate Jones’s testimony, we reverse the

conviction and render judgment of acquittal.




                                               Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Reversed and Rendered

Filed: June 7, 2001

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