NO. 07-07-0254-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 11, 2008
______________________________
MARSHALL MCGALLIARD, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 39TH DISTRICT COURT OF KENT COUNTY;
NO. 806; HONORABLE SHANE HADAWAY, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ON MOTION TO DISMISS
          Pending before the Court is appellantâs motion to dismiss his appeal. Appellant and his attorney both have signed the motion. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.
                                                                James T. Campbell
                                                                          Justice
Do not publish.
her two particular witnesses were accomplices. One was Margarita Estrada and the other, Michael Johnson. The former testified that she lived with James Fox, that Fox and appellant wanted to get some bolt cutters from her so they could do a "hustle," and that she acquired the bolt cutters from her closet and gave them to appellant. This was done by her while knowing that the "hustle" "had to do with  . . . some type of burglary or something like that, . . . a house or building . . . ." From the act of providing an instrumentality for use in a crime while knowing that it was to be so used, one could reasonably infer that the individual aided in the commission of the crime while acting with the intent to promote or assist its commission. And, since that is the definition of a party, Tex. Penal Code Ann. §7.01(c) (Vernon 2003), and because some evidence illustrates that Estrada so acted, we cannot but conclude she fell into the category of an accomplice to the burglary.
As for Johnson, he agreed to drive the group of individuals who committed the burglary to the area wherein Hawkins lived. Furthermore, not only did an officer testify (without objection) that one of the burglars informed him that Johnson was to receive a portion of the burglary proceeds, but Johnson also admitted that he was to receive money for gas in exchange for his services. 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 remainder of the group. At that time, he noticed that one of the individuals possessed a set of bolt cutters. Thereafter, he drove them to the designated location. While professing ignorance 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 that you were driving them possibly to commit a burglary?" (1) Given that he so responded, that he himself had participated in burglaries and, therefore, knew how they were committed, that it was late at night when he drove the group to the residential area wherein the burglary occurred, and that he was to receive either gas money or a part of the burglary proceeds in exchange for his help, a rational person could reasonably infer that he aided those who actually committed the burglary while intending to promote or assist in the commission of the offense. And, because one could so infer, it can be said that Johnson held the status of a party to the crime and, therefore, was also an accomplice.
Having determined that both Estrada and Johnson were accomplices, we conclude that the trial court was obligated to instruct the jury about the prohibitions of art. 38.14 of the Texas Code of Criminal Procedure. Because it did not, it erred. Yet, that does not end our inquiry for we must also decide if the error was harmless. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (applying a harm analysis to errors like that before us). It may fall within that realm if there exists non-accomplice testimony corroborating that of the accomplice and no rational and articulable basis exists for disregarding it or finding that it fails to connect the defendant to the offense. Id. at 633. Yet, the problem with finding the error harmless at bar concerns our inability to find of record any non-accomplice testimony either placing appellant at the burglary or communicating 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 worked at Hawkins' abode several months before the burglary and may have seen Hawkins and his clients exchange cash is of little weight. Indeed, we have held that one's mere presence at the scene of a crime when it is committed or near the time of its commission does not alone tend to connect the individual to the crime. In re A.D.L.C., 598 S.W.2d at 385. If being present at or near the time it occurred is not enough by itself, then being there some four months before its 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 proceeding to the trial court.
Brian Quinn
Justice
Publish.
1. His criminal record consisted of multiple convictions some of which involved theft and burglary.
2. We note that at least one of the burglars actually denied that appellant was involved.