
                                          NO. 07-10-00456-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                           OCTOBER 10, 2012




                                  LESTER EUGENE CRENSHAW, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE



                            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                              NO. 60,313-C; HONORABLE ANA ESTEVEZ, JUDGE



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


                                          MEMORANDUM OPINION

      Appellant Lester Eugene Crenshaw appeals his conviction for  delivery  of  a  Penalty  Group  1
controlled substance, cocaine, and sentence of eighteen years’ confinement  in  prison.[1]   We  will
affirm.



                                              Background

      Appellant’s case was tried to the bench.   Testimony  showed  two  Amarillo  Police  Department
narcotics investigators arranged for a confidential police informant to  buy  crack  cocaine  from  a
female, Kim Johnson.  The informant and Johnson agreed to meet in the parking lot of a  local  store.
An investigator provided the informant a recording device  and  cash  for  the  drug  purchase.   One
investigator video-recorded the event while the other watched in the store parking lot  from  another
vehicle.  The informant testified that before the buy he was searched by the investigator.

      Instead of Johnson, a black male  was  driving  the  vehicle  that  entered  the  parking  lot.
According to the informant,  he  knew  the  driver  from  prior  drug  transactions.   He  identified
appellant as the driver of the vehicle and the individual who sold him  the  crack  cocaine  on  that
occasion.  He recalled that appellant wore white gloves.  The video recording made  by  police  shows
the driver of the vehicle wearing at least one white glove.  It further shows the informant  entering
the vehicle and remaining there briefly.

      Testimony showed that after the informant left the vehicle and after  appellant  drove  out  of
sight, the investigator and the informant again made contact.   The  investigator  conducted  another
search of the informant, and took the cocaine.  A Department  of  Public  Safety  forensic  scientist
later analyzed the substance and concluded it weighed 1.15 grams and contained cocaine.

      The investigator testified police compared close-up video shots made of the driver  during  the
buy with a “mug shot” of appellant.  They concluded the driver of the vehicle was appellant.

                                               Analysis

      In one issue, appellant argues that the evidence was insufficient to corroborate the  testimony
of the informant.  As noted, the informant testified the cocaine he  delivered  to  the  investigator
was the same substance delivered to him,  and  testified  appellant  was  the  person  from  whom  he
received the cocaine.  Appellant contends those two aspects of the  informant’s  testimony  were  not
corroborated.

      In pertinent part, article 38.141 of the Code of Criminal Procedure provides:

      (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.

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

Tex. Code Crim. Proc. Ann. art. 38.141(a),(b) (West 2005).

      When we evaluate the sufficiency of the evidence for corroboration  under  article  38.141,  we
apply the standard used for  corroboration  under  the  accomplice-witness  rule  of  article  38.14.
Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App. 2008).  Applying  that  standard,  we  “eliminate
the accomplice testimony from consideration and then examine the remaining portions of the record  to
see if there is any evidence that tends to connect the accused with the  commission  of  the  crime.”
Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001).

      Appellant’s argument, specifying particular  aspects  of  the  informant’s  testimony  that  he
contends lack corroboration, overstates the statutory  requirement  for  corroboration  of  informant
testimony.  A challenge to the sufficiency of corroborating evidence is not the same as  a  challenge
to the sufficiency of the evidence to support the verdict as a whole.  Cathey v.  State,  992  S.W.2d
460, 462-63  (Tex.Crim.App.  1999)  (accomplice-witness  rule  is  legislatively-created  sufficiency
review and not derived from federal  or  state  constitutional  principles  defining  sufficiency  of
evidence standards).  The evidence offered in corroboration need only tend to connect  the  defendant
to the offense.  Smith v. State, 211 S.W.3d 476, 478 (Tex.App.--Amarillo 2006,  no  pet.).   It  need
not directly link the defendant to the crime or establish his guilt beyond a reasonable  doubt.   Id.
We review the corroborating evidence in the light most favorable to the verdict.  Id.  The  tends-to-
connect standard does not present a high  threshold.   Cantelon  v.  State,  85  S.W.3d  457,  460-61
(Tex.App.--Austin 2002, no pet.).

      Removing the informant’s testimony from  consideration,  we  find  ample  evidence  tending  to
connect appellant with delivery of  the  cocaine.   The  car  in  which  the  delivery  occurred  was
registered to appellant.  In his testimony,  appellant  acknowledged  his  acquaintance  with  a  Kim
Johnson.  The investigator said the drug buy was arranged with Kim Johnson.  The video  recording  of
the buy depicts the driver of the vehicle the informant entered as  a  black  male  wearing  a  white
glove on his right hand.  His left hand is not visible.  A close-up shot  of  the  driver  reveals  a
small but definite spot or skin imperfection on the left side of the individual’s face.   Appellant’s
“mug shot” admitted at trial shows the imperfection at the same place on appellant’s face.  When  the
spot on appellant’s face was referred to as a “mole” during his testimony, appellant  said  the  spot
on his face is not a mole but the result of a spider bite.  He acknowledged the  spot  was  “similar”
to that shown in the photograph of the driver, but said there were black magic  markers  in  his  car
which someone could have used to create a facial mark.

      Appellant wore gloves at trial.  He explained he suffered a stroke in 2004 or 2005 that  caused
nerve damage, and agreed he always wears gloves.  He  referred  to  the  gloves  he  was  wearing  as
“hospital-issued.”

      The evidence at trial included the video recording made during the drug buy and the photographs
taken from the recording.  As fact finder, the trial court was positioned  to  compare  those  images
with appellant’s appearance at trial.  That evidence,  particularly  when  viewed  in  light  of  the
evidence of the distinguishing mark on appellant’s face,  which  also  appears  in  the  photographic
evidence, rather clearly tends to connect appellant with the drug buy described  in  the  informant’s
testimony.

      Appellant’s specific argument with regard to the informant’s testimony he  delivered  the  same
substance to the investigator that appellant delivered to  him,  focuses  on  the  asserted  lack  of
corroborating evidence that the investigator searched the informant just before the transaction  with
appellant.  The informant gave an affirmative answer when asked  if  the  investigator  searched  him
“before you went out to make that buy.”  Appellant says no evidence corroborated that testimony.

      If it were necessary that the State produce evidence specifically corroborating the informant’s
testimony that the investigator searched him “before  you  went  out  to  make  that  buy,”  we  find
corroborating evidence.  The investigator described in some  detail  his  standard  procedure  during
covert drug buys, which includes a search of the informant for contraband  or  money  “right  before”
the informant meets the target of the operation.  The investigator testified that on  this  occasion,
after the drug transaction, he “conducted another search”  of  the  informant.[2]   The  investigator
explained he searches a confidential informant before a buy to  establish  any  money  the  informant
possesses was provided by the investigator and any contraband was purchased from the  target  of  the
covert operation.  The investigator added that before the buy the informant  did  not  possess  crack
cocaine and after the buy he possessed only what was purchased.

      Viewed in the light most favorable to the  verdict,  and  considered  in  the  context  of  the
entirety of the investigator’s testimony, we conclude without difficulty that the trial  court  would
have understood that the investigator’s  “another  search”  statement  was  made  with  regard  to  a
previous search conducted, in accordance with his described standard procedure,  “right  before”  the
transaction.  The investigator’s later negative response to the question, “Did [the  informant]  have
any crack cocaine on him before the buy?” confirms that understanding of his testimony.

      We find  the  corroborating  evidence,  including  that  of  identity,  sufficient  to  connect
appellant with the charged offense.  Appellant’s issue is overruled.







                                              Conclusion

      Having overruled appellant’s issue, we sustain the judgment of the trial court.



                                        James T. Campbell
                                                 Justice



Do not publish.



-----------------------
      [1] See Tex. Health & Safety Code Ann. § 481.112(a),(c) (West 2010).   An  offense  under  this
section is a second-degree felony.  Based on appellant’s  prior  murder  conviction,  the  punishment
range was enhanced to that of a first-degree felony.  Tex. Penal Code Ann.  §  12.42(b)  (West  Supp.
2012).

      [2] The investigator said, “[The informant] gave me the  crack  cocaine  he  just  bought  from
[appellant].  I conducted another search of [the informant] to conclude the  investigation,  got  the
recording equipment back from him.”


