NO. 07-04-0305-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MAY 4, 2005

______________________________ EDWARD L. MARTIN EZ, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2004-405843; HON. CECIL G. PURYEAR, PR ESIDING

_______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. E dward L. Martinez appeals, via three issues, his conviction for burglarizing a habitation with in tent to co mm it theft. We address only the third for it is dispositive. Therein, appellant

contends that the trial court erred when it refuse d to provi de the jur y with an accomp lice wi tness ins truction. We susta in the is sue and r everse th e judgmen t. Background The home of

A. L. Hawkins, which is located across the street from Monterey High School in Lubbock, was burglarized during the ni ght of April 23, 2003. Hawkins operated
an insurance busine ss from theabode a nd often accepted cash pay ments from h i s2

customers. Appellant knew this since he was employed by a contractor who earlier
r e modeled portions

of the ho use. At t he time, a ppellan t’s dutie s allowe d him access to Hawkins’ office during business hours. This also afforded him opportunity to see Hawkins receive cash from h is clien ts, accord ing to on e witnes s. On the night of the burglary, several individ uals bro ke into t he home, ransacke d it, and assaulted Hawkins with a knife. Accordi ng to one of the burglars, the idea to enter this particular

home was

appella nt’s. Pri or to the trial of a ppellan t, the burg lars who participated in the tri al had a lready a dmitted to or been convicte d of the c rime. Issue 3 -- Accomplice Witness Instruction In his third issue, appellant attacks the trial court’s deci s io n to exclude an accomplice witness instruction from the jury charge. We sustain the issue. Authority holds that a conviction may not rest upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to conn ect the defendant to the offen se. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.14 (Vernon 1979). The other evidence contemplated need not directly link the accused to the crime or establish his guilt beyond
a reasonab le doubt

. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need onlytend to connect hi m to the offense. Id. at 613. I n additi on, th e phrase “tending to connect” has been interpre ted as “‘ to serve, contribute or conduce in some degree or way

. . . to hav e a more or less direct bearing or effect,’ and while not contemplating conjecture, ‘has a tendency to prove the averments in the indictme nt.’” Holladay v. State , 709 S.W.2d 194, 198 (Tex. Crim. App. 1986), quoting Boone v . State , 235 S.W. 580 (Tex. Crim. App. 1922); In re C.M.G. , 905 S.W.2 d 56, 58 (Tex. Ap p.–Austi n 1995, n o pet.). T his stand ard does not prese nt a high threshol d but sim ply refle cts a leg islativedeterm ination tha t3

accomplice testimony should be viewed with s ome cauti on. In reC.M.G. , 905 S.W.2d at 58. More importantly, each case must be decided upon its own facts and circumstances. Reed v. S tate , 744 S.W. 2d 112, 1 26 (Tex. Crim. Ap p. 1988). Next, an accompl ice is som eone who participated in the crime before, during, or after its commissi on. McFarlan d v. State , 928 S.W. 2d 482, 5 14 (Tex. Crim. Ap p. 1996); In
re A.D.L.C. , 598 S.W. 2d 383, 3 85 (Tex. App.–Ama rillo 19 80, no wr it). Moreover, participation requires the performance of an affirmative act to promote its commission. McFarlan d v. State , 928 S.W. 2d at 514

. The disputeat bar co ncern s whet her two particular witnesses were accomplices. One was Marg arita Est rada and the othe r, Michael Johnson. The former testified that she lived with James Fox, that Fox and appellant wanted to ge t some bolt cutters from her so they could d o a “hustl e,” and th at she acquired th e bolt cu tters from h er closet and gav e them to appel lant. Th is was d one by he r while k nowing t hat the “h ustle” “h ad to do with

. . . some type of burglary or something like that, . . . a house or building . . . .” From the actof providing an instrumentality f or use in a crime while knowing that i t was to be so used, one could reasonably infer that the indivi dual aided in the commissi on of thecrime while acting w ith the i ntent to p romote or assist it s commiss ion. And, since that is the definition of a part

y, T EX
. P ENAL C ODE A NN
. §7.01(c) (Vernon 2003), and be cause s ome evidence illustrates thatEstrada so acted, we cannot but concl ude she f ell into the categ ory of an accomplice to the burglary. As fo r Johnson, he agreed to drive the group of individua ls who committed the burglary to the ar

ea where in Hawki ns lived . Further m ore, not only did an officer tes tify (wit hout obje ction) that one of the burglars informed him that Johnson was to receive a1 His crim inal rec ord c ons isted o f mu ltiple co nvictio ns s om e of w hich involv ed th eft an d bu rglary. 4 portion of the burglary proceeds, but Johnson also admitted that hewas toreceive money for gas in exchange for his se rv ices. So, at around midnight, he met two of the group at
a local convenience store, drove them to a house, drove them back to the store and picked up the remai nder o f the group. At that time, he noticed that one of the indi viduals possessed a set of b olt cutte rs. There after, he drove the m to the d esignate d location. While professi ng ig norance of their purpose, Johnson nevertheless responded, “oh, it occurred to me” when asked: “[s]o, you see four guys who need to go somewhere, at night

. . . one of them carrying . . . bolt cutters, and with your

criminal history it didn’t occur to you thatyou were driving them possibly to commit a burgla ry?” 1 Given that he so responded, tha t he himself had parti cipated in burgl aries an d, therefo re, knew how they were committed, that itwas late at night when he drove the group to the residential area wherein the burglary occurred, and that he was to re ceive ei ther gas m oney or apart of th e burgla ry proceeds in exchange for his help, a rational person could reasonably infer that he aided those who actu ally com mitted theburglary while i ntending to promo te or assist in the commission of the offense. And, because one could soinfer, it can be said that Johnson held thestatus of

a party to

the crimeand, the refore, wa s also an accompli ce. Having determined that both Estrada and Johnson were accomplices, we conclude thatthe trial court was obligated to instruct the jury abo ut the prohibitions of art. 38.14 of the Texas Code of Criminal Procedure. B ecause it did not, it erred. Yet, that does not end
our inquiry for we mu st also d ecide if the error

was harm less. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2 002) (app lying a harm anal ysis toerrors li ke that before2 We note that at l east one of t he burgl ars act uall y deni ed that appell ant was i nvolve d. 5 us). It may fal l within that real m if thereexistsnon-accomplice testimony corroborating that of the accomplice and no rational and articula ble basis exists for disregarding it or findi ng that it fails to conne ct the def endant to

the offen se. Id. at 633. Yet, the p roblem wit h finding the error harmless atbar concerns our inability to find of record any non-accomplice testimony either placing appellant at the burglary or co mmunicating with the burglars about the burglary. That information came only from the accomplices and those who admitted to participating in the crime. 2 Moreover, the evidence illustrating that appellant wo rked at Hawkins’ abode several months before the burglary and may have seen Hawkins and his clientsexchange cash is of little weigh t. Indeed, we have held that one’s mere presence atthe scene of a crime when it is committed or near the time of its commission does not alone tend to connect th e indivi dual to t he crime. In re A.D.L.C. , 598 S.W. 2d at 385 . If being present a t or near the time i t occurred is not e nough by itself, then bei ng there some four mo nths before i ts occurrence can hardly suffice. Nor did the State direct us to any non-accomplice testimony tending to link appellant to the burglary. Given this, we cannot say that the error was harmless. Accordingly, we reverse the judgment and remand the proce eding to the trial court. Brian Quinn Justice Publish.