          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        ---------------
                                        NO. 03-01-00593-CR
                                        ---------------


                                     Bradley Cantelon, Appellant


                                                    v.


                                     The State of Texas, Appellee




         FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
            NO. 9133, HONORABLE CHARLES E. MILLER, JR., JUDGE PRESIDING




                A confidential informant testified that he purchased marihuana from Bradley Michael

Cantelon. The jury found Cantelon guilty of delivery of a controlled substance; after he pleaded true to two

earlier felony convictions, he was sentenced to serve four years in prison.
                A recent provision of the Texas Code of Criminal Procedure states that a defendant may

not be convicted for such an offense on the testimony of a covert informant Aunless the testimony is

corroborated by other evidence tending to connect the defendant with the offense committed.@ Tex. Crim.

Proc. Code Ann. art. 38.141 (West Supp. 2002). Cantelon contends on appeal that the testimony of the

confidential informant was not sufficiently corroborated. To review this challenge, we turn to the similarly

worded article 38.14 which requires corroboration of accomplice testimony. Tex. Crim. Proc. Code Ann.

art. 38.14 (West 1979). Applying the Atends-to-connect@ standard courts have found sufficient to

corroborate accomplice testimony, we hold that sufficient corroborating evidence tends to connect Cantelon

to the offense charged.


                                           BACKGROUND

                Sergeant Chris Johnson, an investigator with the Narcotics Enforcement Team

employed by the Marble Falls Police Department, testified that he received information from a

confidential informant named Chris Humphries1 that Cantelon was willing to sell marihuana.

Sergeant Johnson and Humphries arranged to meet Cantelon at a Wal-Mart parking lot on June

28, 2000. Sergeant Johnson testified that he searched Humphries to be sure that he had no

marihuana, gave him an audio recording device, and provided the cash to purchase the

marihuana. At the agreed-upon location, Humphries left Sergeant Johnson=s car, entered


        1
           Humphries had entered into a written agreement with the Marble Falls Police Department to serve
as a confidential informant who would buy drugs to incriminate local drug dealers. He did this in order to
have drug charges against him dismissed. Accordingly, at the trial in the present case, he testified under a
grant of immunity.

                                                     2
Cantelon=s car and left after several minutes, walked to a pay phone to divert suspicion, and then

returned to Sergeant Johnson=s car. Sergeant Johnson attempted to videotape Humphries=s

actions, but had to replace the battery in the video recorder at the exact moment of the actual

exchange. When Humphries returned, he delivered the marihuana to Sergeant Johnson, who

again searched him and found he no longer had the cash provided for the purchase. At trial,

Humphries testified that Cantelon delivered the marihuana to him in exchange for $65 plus $5 gas

money.

               Cantelon was found guilty by the jury and sentenced by the trial court. He now

appeals his conviction to this Court.


                                          DISCUSSION

               In his sole issue on appeal, Cantelon complains that the evidence was insufficient

to corroborate the testimony of the confidential informant because no one other than Humphries

testified to the actual transfer of the marihuana; due to a faulty battery, Sergeant Johnson did not

record and did not observe Cantelon or Humphries during this alleged transaction. The

legislature has decided that a defendant may not be convicted by the statements of a confidential

informant unless that testimony is corroborated:


       (a) A defendant may not be convicted of an offense under Chapter 481, Health
           and Safety Code, on the testimony of a person who is not a licensed peace
           officer or a special investigator but who is acting covertly on behalf of a law
           enforcement agency or under the color of law enforcement unless the
           testimony is corroborated by other evidence tending to connect the defendant
           with the offense committed.

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        (b) Corroboration is not sufficient for the purposes of this article if the
            corroboration only shows the commission of the offense.


Tex. Crim. Proc. Code Ann. art. 38.141(a), (b) (West Supp. 2002). There is no case law interpreting

article 38.141, but article 38.14 has long required in strikingly similar language that the State must present

evidence to corroborate the accomplice=s testimony:


        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. Crim. Proc. Code Ann. art. 38.14 (West 1979).2 The enactment of substantially the same language in

article 38.141 suggests that the legislature intended the same standard for corroboration to apply to

accomplice witnesses and confidential informants.




        2
           Before the passage of article 38.141, courts made it clear that an undercover agent or actor
working covertly with law enforcement officials was not an accomplice for purposes of article 38.14. A
Avolunteer@ working on behalf of a criminal investigation is not an accomplice if that person does not bring
about the crime but merely intends to obtain evidence to be used against those committing the crime. See
Parr v. State, 606 S.W.2d 928, 929 (Tex. Crim. App.1980); Alexander v . State, 168 Tex. Crim. 288,
325 S.W.2d 139, 140 (1959); see also Bacon v. State, 762 S.W.2d 653, 656 (Tex. App.CHouston
[14th Dist.] 1988, pet. ref=d).




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                  Furthermore, we believe the purposes of the two articles are similar. Article 38.14 applies

to an accomplice to a crime who, by definition, participated with the accused in the commission of the

charged offense and therefore would have a selfish interest in testifying against the defendant in order to

secure relief from prosecution or a lessened punishment. The purpose of article 38.14 then is to assure that

a jury does not consider an accomplice witness=s testimony unless it finds that the witness is telling the truth

and that other evidence corroborates the discredited witness=s testimony. See McDuff v. State, 943

S.W.2d 517, 520 (Tex. App.CAustin 1997, pet ref=d). AThis requires the jury to receive and act upon

such testimony with caution, considering the selfish interests and possibly corrupt motives of the witness.@

Howard v. State, 972 S.W.2d 121, 125 (Tex. App.CAustin 1997, no pet). Article 38.141 applies to

confidential informants. Informants, as Sergeant Johnson testified in the present case, work with the police

for self-interested reasons. They may have no direct connection with the offense in issue but generally have

an incentive or hope for personal gain. Often they work for compensation or to have charges against them

dismissed. Because an informant, like an accomplice, could fall into the class of a discredited witness with

selfish interests and possibly corrupt motives, the legislature has imposed the same standard of

corroboration for an informant=s testimony. Therefore, to establish a standard for corroborating an

informant=s testimony, we look to case law establishing how much evidence is sufficient to corroborate the

testimony of an accomplice witness.3


        3
            We find it significant that Cantelon agrees with this standard for corroboration of an informant=s




                                                       5
testimony in his brief to this Court. Cantelon insists that applying the accomplice-witness standard, the
testimony of Humphries was not sufficiently corroborated. Inexplicably, the State argues that the article
38.14 line of cases do not apply, but that the testimony was sufficiently corroborated, citing only article
38.14 cases to support this contention.


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               A challenge of insufficient corroboration is not the same as a challenge of

insufficient evidence to support the verdict as a whole. See Cathey v. State, 992 S.W.2d 460, 462-

63 (Tex. Crim. App. 1999). To corroborate accomplice-witness testimony, A[a]ll the law requires

is that there be some non-accomplice evidence which tends to connect the accused to the

commission of the offense. While individually these circumstances might not be sufficient to

corroborate the accomplice testimony, taken together, rational jurors could conclude that this

evidence sufficiently tended to connect appellant to the offense.@ Hernandez v. State, 939 S.W.2d

173, 178-79 (Tex. Crim. App. 1997) (citing Cox v. State, 830 S.W.2d 609, 612 (Tex. Crim. App.

1992); Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. 1981)). To determine the

sufficiency of the corroboration, we eliminate the testimony of the accomplice and ask whether

other inculpatory evidence tends to connect the accused to the commission of the offense, even if

it does not directly link the accused to the crime. See McDuff v. State, 939 S.W.2d 607, 612 (Tex.

Crim. App. 1997); Casias v. State, 36 S.W.3d 897, 901 (Tex. App.CAustin 2001, no pet.). We

must view the corroborating evidence in the light most favorable to the verdict. Knox v. State,

934 S.W.2d 678, 686-87; Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). No precise rule

can be formulated regarding the amount of evidence that is required to corroborate the testimony

of an accomplice witness; each case must be judged on its own facts. Gill, 873 S.W.2d at 48.

Even insignificant circumstances may satisfy the test. See Reed v. State, 744 S.W.2d 112, 126

(Tex. Crim. App. 1988). AAs the court of criminal appeals instructs, the tends -to-connect standard

does not present a high threshold.@       In the Matter of C.M.G., 905 S.W.2d 56, 58 (Tex.


                                                7
App.CAustin 1995, no writ). We shall apply the tends -to-connect standard to the confidential

informant=s testimony in the present case.

              If we eliminate Humphries=s testimony, we are left with the following inculpatory

evidence. Sergeant Johnson established the time and place for the Acontrolled buy@ to occur.

Before executing the plan, Johnson searched Humphries to ensure he had no drugs on him and

then provided Humphries with $70 cash and a recording device. Johnson watched Humphries go

directly from Johnson=s car to Cantelon=s car. Johnson maintained surveillance and videotaped

Humphries with Cantelon, except for the critical moment of the actual exchange when Johnson

was distracted by having to change the battery in the video recorder. Johnson watched

Humphries exit Cantelon=s car, walk to a pay phone and pretend to place a call before he

returned to Johnson=s car. Humphries handed Johnson a bag of marihuana and no longer had the

$70 cash he had been provided to make the purchase. The transaction took only a few minutes.

              In addition to Sergeant Johnson=s testimony, the State played the audio recording,

and the jury was able to hear the actual recording of the exchange between Humphries and

Cantelon during Humphries=s testimony. The State also played the video recording which does

not show Cantelon delivering the marihuana, but does corroborate Humphries=s other actions

from the time he left Johnson=s car until he returned.

              Cantelon contends that this evidence merely establishes that he was present in the

Wal-Mart parking lot on June 28, 2000, along with Humphries and hundreds of other people. We

disagree. The evidence corroborates that Cantelon met Humphries at an agreed-upon time at an


                                               8
agreed-upon place, they spent several minutes together sitting in Cantelon=s car in the parking

lot, Humphries entered the car with a specific amount of cash and an audio recorder, returned

without the cash, then gave Johnson a bag of marihuana and the recording device with a recorded

conversation between Humphries and Cantelon.

                 The trial court correctly instructed the jury that it had to find evidence Athat tends

to connect the defendant with the commission of the offense.@


                 You are instructed that a person may not be convicted of delivery of a
        controlled substance, including marihuana, merely on the testimony of a civilian
        person who is acting covertly on behalf of a law enforcement agency, unless the
        testimony of the civilian is corroborated by other evidence in the case tending to
        connect the defendant with the offense committed, if you find that an offense was
        committed. The corroborating evidence, if any, is not sufficient if it merely shows
        the commission of the offense. The corroborating evidence, if any, must also tend
        to connect the defendant with the commission of the offense, if any, and then from
        all the evidence you must believe beyond a reasonable doubt that the defendant is
        guilty of the offense charged against him.


In any jury trial, the jurors are the triers of fact, the judges of the credibility of the witnesses, and

the judges of the weight to be given the witnesses= testimony. Castellano v. State, 810 S.W.2d

800, 807 (Tex. App.CAustin 1991, no pet.). The jury is entitled to accept or reject all or any part

of the testimony given by the witnesses for the State and the accused; reconciliation of

evidentiary conflicts is solely a function of the trier of fact. Id. Even though Humphries as an

informant may have been a discredited witness with selfish interests and possibly corrupt motives, the

jury was entitled to find that he was telling the truth and that other evidence corroborated his testimony. See

McDuff, 943 S.W.2d at 520; Hunter, 972 S.W.2d at 125.

                                                      9
                We conclude that the corroborating evidence detailed above sufficiently tends to

connect Cantelon with the delivery of marihuana to Humphries. Hernandez, 939 S.W.3d at 178-

79; see also Bacon v. State, 762 S.W.2d 653, 654, 656 (Tex. App.CHouston [14th Dist.] 1988, pet.

ref=d). Therefore, we overrule Cantelon=s sole issue on appeal and affirm the trial court=s judgment.




                                                Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: August 30, 2002

Publish




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