In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00001-CR ______________________________
QUINCE LADAYNE THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 20160
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Quince Ladayne Thomas was convicted of aggravated sexual assault and sentenced to eighteen years' confinement in the Texas Department of Criminal Justice-Institutional Division. On appeal, Thomas contends the evidence was insufficient to corroborate the accomplice witness' testimony, and without the accomplice testimony, Thomas asserts the remaining evidence was insufficient to support the verdict.
On September 4, 1997, the victim, S. H., attended a junior varsity football game at Leonard High School. After arriving at the game, S. H. accepted an invitation to take a ride with Heath Baxter in his car. During the course of their ride, S. H. consumed large quantities of tequila. As a result, S. H. became extremely inebriated. When the game concluded, Wesley Stevenson convinced S. H. to ride home with him. Then Stevenson and S. H. accepted a ride from Tony Hailey. At the time they accepted the ride, Thomas was riding in the passenger seat of Hailey's vehicle. Stevenson testified that after leaving the stadium Hailey drove to what was commonly known as the "rock pits" or "Hangman's tree," which requires driving on a gravel road. S. H. testified that, because of her drunken state, she did not remember specific details about the ride or the assault. However, S. H. testified she remembered hearing the sound of rocks hitting the car as they drove. After arriving at the "rock pits," it was Stevenson's testimony that Hailey picked up S. H., placed her on the hood of the car, and raped her. DNA evidence taken from S. H. during her rape kit examination conclusively established the presence of Hailey's semen. Stevenson testified that Thomas also had intercourse with S. H., but did not ejaculate. Further, Stevenson testified that throughout the assault S. H. was unable to stand up and seemed unaware of what was happening. Stevenson also testified that during the assault Thomas said, "man this bitch is liable to file a rape charge on us, but she probably wouldn't remember anyway."
After the assault, Stevenson testified Thomas and Hailey picked up S. H. by the arms, put her clothes back on her, and placed her in the car. Hailey drove back to Leonard, and Thomas, Stevenson, and Hailey left S. H. in the street approximately one block from her house. Approximately five days after the assault, Officer Rex Clark found at the crime scene a pair of underwear which matched the description given by S. H. and her mother. S. H.'s mother testified that, in the months following the assault, Thomas made intimidating gestures toward her on numerous occasions and repeatedly directed disparaging comments toward her daughter, including calling her a "bitch" and a "whore." Based on the above evidence, the trial court convicted Thomas of aggravated sexual assault.
On appeal, Thomas complains the accomplice witness testimony was not properly corroborated, and absent Stevenson's testimony, the remaining evidence was insufficient to connect him with the offense. Article 38.14 of the Texas Code of Criminal Procedure provides, "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. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994). Accordingly, we must eliminate Stevenson's testimony and consider only the remaining evidence.
The State elicited nonaccomplice testimony that Thomas was in Hailey's car when Stevenson and S. H. accepted a ride from Hailey. Further, in Thomas' own statement to the police, he admitted he was with Hailey, Stevenson, and S. H. from the time they left the game until they left S. H. on the side of the road. (1) The State produced ample evidence that the crime was committed during the time period Thomas admitted being with S. H. (2)
The State also introduced corroboration testimony from S. H. During direct examination, the State elicited the following:
[State]: Do you know who Quince Thomas is?
[S. H.]: Yes.
[State]: Would you point him out?
[S. H.]: Right there.
[State]: Is he the man sitting at the end of counsel table?
[S. H.]: Yes.
[State]: Can you tell this jury that he raped you?
[S. H.]: He raped me.
S. H. also testified that she remembered feeling someone having sex with her and that she remembered falling off of the car and two different people picking her up by her arms and squeezing very hard. (3)
In addition to the foregoing, the State produced testimony Thomas repeatedly harassed S. H. and her mother after the assault. For example, S. H.'s mother testified Thomas repeatedly directed names such as "bitch" and "whore" toward her daughter after the assault. See Burks, 876 S.W.2d at 888 (incriminating statements made after offense could be taken into consideration when determining corroboration).
All the facts and circumstances in the case, both factual and circumstantial, may be considered when determining whether the accomplice testimony was properly corroborated. See Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). In the present case, the State produced nonaccomplice testimony that an offense was committed, that Thomas was present during its commission, and that he made derogatory comments of a sexual nature to S. H. after the assault. Additionally, S. H. identified Thomas as one of the men who raped her. Based on the foregoing, there was sufficient evidence tending to connect Thomas with the crime, and the trial court did not err by admitting the accomplice testimony. Furthermore, because the accomplice testimony was properly before the jury, the evidence was sufficient to support the conviction.
For the reasons stated, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 15, 2003
Date Decided: February 27, 2003
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1. "Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984).
2. While merely showing the commission of an offense is not alone sufficient to corroborate an accomplice witness, the court may consider it as a factor along with other possible factors to determine whether there was sufficient nonaccomplice corroboration. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
3. S. H.'s mother testified S. H. showed significant bruising on her arms after the assault. The mother's testimony logically tends to connect Thomas with the offense, albeit slightly.
requirement of Article 49.09 of the Texas Penal Code. Id. Hollen objected to permitting the prosecutor to read the stipulation before the jury, claiming the exclusion of extrinsic evidence of the convictions was not enough; the state should be prohibited from mentioning any of the prior jurisdictional convictions, including reference to Hollen's stipulation, during the guilt/innocence stage of the trial. Id. at *1-2. The state read the stipulation to the jury, and Hollen was convicted. The Fort Worth Court of Appeals reversed Hollen's conviction, holding the trial court erred by permitting the state to read the stipulation to the jury and such error was harmful. Hollen, 87 S.W.3d at 158-59.
On petition for discretionary review, the Texas Court of Criminal Appeals reversed. Hollen, 2003 Tex. Crim. App. LEXIS 302, at *12. The court reviewed its holding in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), and noted the court had previously held "prior convictions beyond the two jurisdictional elements should not be read or proven during the State's case-in-chief." Hollen, 2003 Tex. Crim. App. LEXIS 302, at *6 (quoting Tamez, 11 S.W.3d at 202-03).
The court then reviewed its opinion in Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). Hollen, 2003 Tex. Crim. App. LEXIS 302. In Robles, the appellant offered to stipulate to the existence of the two prior convictions and requested the trial court prevent the state from introducing evidence of those convictions. His request was denied. The Texas Court of Criminal Appeals held that the stipulation should have been approved and the state prevented from entering into evidence the judgments of the jurisdictional prior convictions. The court noted that each judgment was for a DWI-third offense, and the jury could have discerned from those judgments that the present trial was for Robles' fifth alcohol-related offense. However, the court (in Hollen) then went on to distinguish Robles on the basis that "Robles did not address whether the jury may be informed of the stipulation or whether the stipulation itself may be admitted into evidence." Id. at *8-9. The court then reaffirmed its prior holding that "the two prior convictions are jurisdictional elements that must be proven to obtain a conviction for the offense of felony DWI" and held it was not error to inform the jury of the stipulation. Id. at *9 (citing Old Chief v. United States, 519 U.S. 172, 186 & 191 (1997); Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003); and Barfield v. State, 64 S.W.3d 446, 448-49 (Tex. Crim. App. 2001)). In this case, proof of Blankenship's prior convictions was necessary to establish the jurisdictional elements of the crime. The trial court therefore did not err by permitting the State to read the stipulation regarding Blankenship's prior jurisdictional convictions into evidence before the jury.
We affirm the trial court's judgment.
Donald R. Ross Justice
Date Submitted: October 28, 2003
Date Decided: October 29, 2003
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