                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00277-CR


                          ALVIN RAY COOPER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 242nd District Court
                                    Hale County, Texas
             Trial Court No. A19357-1211, Honorable Edward Lee Self, Presiding

                                       May 6, 2014

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Alvin Ray Cooper was convicted of forgery and sentenced to eighteen months

confinement in a state jail facility. He seeks to overturn that conviction by contending

that 1) the trial court submitted an inaccurate accomplice witness instruction to the jury,

and 2) the evidence, excluding that uttered by accomplices, failed to connect him to the

offense. We affirm the judgment.

      Appellant was convicted of forging a check in the amount of $500 written on the

account of his employer, Floydada Livestock, Inc. According to the record, he picked up
Joel Santos, a fellow employee, and drove to Mr. Payroll in Plainview, Texas in his dark

green, four-door truck. Able Vasquez and Steven Posada allegedly accompanied them.

Santos testified that appellant filled out the check, gave it to him to cash, and then

Santos cashed it and gave all the money to appellant.

       Sufficiency of the Non-Accomplice Evidence

       Appellant contends that the non-accomplice evidence failed to connect him to the

offense. We disagree and overrule the issue.

       In addressing appellant's complaint, we eliminate the accomplice testimony and

examine the rest of the record to see if there is evidence tending to connect the

defendant to the commission of the crime charged. Solomon v. State, 49 S.W.3d 356,

361 (Tex. 2001). The evidence does not have to directly tie appellant to the offense or

be sufficient by itself to establish his guilt for same. Cathey v. State, 992 S.W.2d 460,

462 (Tex. Crim. App. 1999).      It need only "'link the accused in some way to the

commission of the crime and show that rational jurors could conclude that this evidence

sufficiently tended to connect [the accused] to the offense.'" Simmons v. State, 282

S.W.3d 504, 508 (Tex. Crim. App. 2009), quoting Malone v. State, 253 S.W.3d 253, 257

(Tex. Crim. App. 2008). So too may it be circumstantial. Gaston v. State, 324 S.W.3d

905, 909 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

       Evidence of record here discloses that appellant worked for the company that

owned the account against which the checks were written, that he did odd jobs including

janitorial work for the business, and that he had "free access" to the buildings. Joel

Santos, his purported compatriot in the scheme, also worked at the same business.

Additionally,   Santos   and   appellant   engaged   in   several   recorded   telephone


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conversations wherein appellant could be heard saying such things as 1) "What did you

say?" when Santos told him that he had been asked about the "checks", 2) Santos

having to protect him, 3) his being unable to help Santos if he (appellant) was in jail), 4)

his offering financial help to Santos, 5) his asking if Santos had said anything about him

(appellant); and 6) wishing he had not brought any others in, and believing he should

have left it to himself, Vasquez, and Santos.       Combined, this was ample evidence

linking appellant "in some way to the commission of the crime" for which he was

prosecuted.

       Accomplice Witness Instruction

       Next, appellant asserts that the trial court submitted an accomplice witness

instruction to the jury that misapplied the law. That is, the court instructed the jury that

“[e]vidence is sufficient to corroborate the testimony of an accomplice if that evidence

tends to connect the defendant, Alvin Ray Cooper, with the commission of any offense

that may have been committed.” (Emphasis added). Using the word "any" was error,

according to appellant, because the evidence must tend to connect him to the particular

offense with which he was charged. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West

2005) (stating that a conviction cannot rest upon the testimony of an accomplice unless

it is corroborated by other evidence tending to connect the defendant to the offense

committed).    While we agree that the passage was an inaccurate statement of the law,

we nonetheless find it harmless.

        No one objected to the inaccuracy at trial. Therefore, it can be considered

reversible error only if it caused appellant egregious harm. See Gelinas v. State, 398

S.W.3d 703, 705 (Tex. Crim. App. 2013). Furthermore, harm is egregious if it denied


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the defendant a fair and impartial trial. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

App. 2011). And, in making that assessment, we consider 1) the entire jury charge, 2)

the state of the evidence including contested issues, 3) arguments of counsel, and 4)

any other relevant information in the record. Gelinas v. State, 398 S.W.3d at 705-06.

With that said, we turn to the record before us.

       Immediately following the contested instruction appeared other statements. The

first specified that “[e]vidence is not sufficient to corroborate the testimony of an

accomplice if the evidence merely shows an offense was committed.”             (Emphasis

added). Via the second, the jurors were told that they could “find the defendant guilty

on the testimony of Joel Santos only if . . . [they] believe[d] that the testimony of Joel

Santos is true and shows the defendant is guilty, and there is evidence, other than the

testimony of Joel Santos, that tends to connect the defendant, Alvin Ray Cooper, with

the commission of the crime charged against him . . . .” (Emphasis added). These

passages informed the jury that the non-accomplice evidence had to tie the accused to

the crime for which he was charged, not simply "any" crime.

       Furthermore, while the State mentioned the contested statement in its closing

argument, the State also referred to the paragraph immediately below it which

instructed the jury that the evidence had to connect appellant to the charged offense.

To that, we add the non-accomplice evidence linking appellant to the offense, which

evidence we described in the first issue addressed above.

       Simply put, the totality of the record fails to illustrate that the misstatement in

question caused egregious harm. So, we overrule the issue.




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Accordingly, the judgment is affirmed.



                                         Brian Quinn
                                         Chief Justice



Do not publish.




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