Full Opinion (html_with_citations)

                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                   ________________________

                                        No. 07-14-00005-CR
                                   ________________________

                                RAFAEL FISCAL, JR., APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 100th District Court
                                     Childress County, Texas
                     Trial Court No. 5504; Honorable Stuart Messer, Presiding


                                          December 30, 2014

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


        Appellant, Rafael Fiscal, Jr., was convicted by a jury of the offense of forgery,

enhanced by two prior felony convictions.1               The jury set Appellant’s punishment at

imprisonment for a term of twenty years and a fine of $10,000. By a single issue,

        1
           TEX. PENAL CODE ANN. § 32.21(b) (West 2011). Where, as here, the forged instrument is a
check, an offense under this section is a state jail felony. Id. at § 32.21(d). Double enhanced, an offense
under this section is punishable as a felony of the second degree. Id. at § 12.425(b). As such, the
offense was punishable by imprisonment for any term of not more than 20 years or less than 2 years, and
by a fine not to exceed $10,000. Id. at § 12.33.
Appellant contends the corroborating evidence tending to connect him to the crime was

insufficient to satisfy the accomplice-witness rule. We disagree and affirm.


                                      BACKGROUND


      Appellant was charged by an amended indictment with the state jail felony

offense of forgery, alleged to have been committed on or about November 23, 2012.

The indictment alleged that Appellant “did then and there, with intent to defraud or harm

another, alter, make, complete, execute or authenticate a writing so it purported to be

the act of Kenneth W. Malone, who did not authorize the act . . . .” Specifically, the

indictment described a $285 check drawn on the account of Kenneth Malone. When it

came time for trial, Appellant was tried as an accomplice to Courtney Shelby, a person

who had previously pled guilty to the same forgery offense.


      At trial, Courtney testified that she originally received the forged check from

Appellant in the parking lot of a Wal-Mart store while the two of them sat in her vehicle.

She testified that Appellant gave her the $285 check and asked her to cash it for him.

According to her testimony, the check had the date, amount, and signature already filled

out and she did not write anything on the check. Courtney further testified that after

Appellant gave her the check, both of them drove to the McDonalds where she worked

and she went inside and cashed the check. She then returned to Appellant in the

parking lot and gave him $265, keeping $20 for herself.


      Mr. Malone testified that his house had been previously burglarized and that in

the burglary several items were taken, including a Crown Royal bag full of cigarette



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lighters and an old checkbook. He further testified that the forged check was a check

from that checkbook and that none of the handwriting on the check was his.


      A closing manager at McDonald’s, Richard Pryor, testified that Courtney came

into the restaurant and cashed a $285 check drawn on the account of Mr. Malone. He

testified that he wrote “McDonalds” on the “pay to the order” line of the check after

Antonio Lugo, an assistant manager, approved the cashing of the check. Mr. Lugo

testified that, contemporaneously, he saw Courtney in the driver’s seat of her vehicle in

the parking lot at McDonald’s.     Mr. Lugo also testified that Appellant was in the

passenger seat of the same vehicle at the time.


      Officer Michael Warren of the Childress Police Department testified that on

January 6, 2013, pursuant to Appellant’s arrest on an offense unrelated to the forgery

charge, he conducted an inventory search of the vehicle being driven by Appellant.

During that search, Officer Warren found a bag of cigarette lighters in a hidden

compartment in the center console of the vehicle. The bag of lighters was identified as

the bag taken from Mr. Malone’s residence.


                  CORROBORATION OF ACCOMPLICE W ITNESS TESTIMONY


      Our law provides that a person may not be convicted based on the testimony of

an accomplice witness unless there is other evidence, independent of the accomplice

witness, that tends to connect the accused to the crime. See TEX. CODE CRIM. PROC.

ANN. art. 38.14 (West 2005); Smith v. State,
332 S.W.3d 425, 439
 (Tex. Crim. App.

2011); Hernandez v. State,
939 S.W.2d 173, 176
 (Tex. Crim. App. 1997) (“A conviction

cannot be had upon the testimony of an accomplice unless corroborated by other

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evidence tending to connect the defendant with the offense committed . . . .”). Mere

evidence that an offense was committed is insufficient to corroborate an accomplice’s

testimony.    Smith,
332 S.W.3d at 439
.       It is not necessary that the corroborating

evidence directly connect the accused to the crime or that it be sufficient in and of itself

to establish guilt, just so long as it tends to connect the accused to the offense. Cathey

v. State,
992 S.W.2d 460, 462
 (Tex. Crim. App. 1999). In conducting a review under

the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony

from consideration and then examine the remaining portions of the record to determine

if there is any evidence that tends to connect the accused with the commission of the

crime.     Id.; Cook v. State,
858 S.W.2d 467, 470
 (Tex. Crim. App. 1993) (citing

Thompson v. State,
691 S.W.2d 627, 631
 (Tex. Crim. App. 1984)).


         Here, the charge of the court allowed the jury to convict Appellant under the law

of parties. The charge also contained an accomplice witness instruction advising the

jury that Appellant could not be convicted upon Courtney’s testimony unless that

testimony was “corroborated by other evidence tending to connect the [Appellant] with

the offense charged.” The charge went on to instruct the jury that “corroboration is not

sufficient if it merely shows the commission of an offense, but it must tend to connect

[Appellant] with its commission.”


         As to the sufficiency of the evidence corroborating Courtney’s accomplice

witness testimony, the State presented evidence that Appellant was physically present

at the McDonald’s restaurant when the check was cashed and that he and Courtney

were together at that time. Having even a greater tendency to connect Appellant with

the forged check, the State presented evidence that Appellant was in possession of

                                             4
stolen goods, the bag of cigarette lighters, which was taken from the Malone residence

at the same time as the checkbook from which the check in question was taken. While

this evidence, independent of Courtney’s testimony, would not directly connect

Appellant with the forgery in question, it certainly had a tendency to connect him to the

crime. Appellant’s sole issue is overruled.


                                       CONCLUSION


      The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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