In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00277-CR
ALVIN RAY COOPER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. A19357-1211, Honorable Edward Lee Self, Presiding
May 6, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Alvin Ray Cooper was convicted of forgery and sentenced to eighteen months
confinement in a state jail facility. He seeks to overturn that conviction by contending
that 1) the trial court submitted an inaccurate accomplice witness instruction to the jury,
and 2) the evidence, excluding that uttered by accomplices, failed to connect him to the
offense. We affirm the judgment.
Appellant was convicted of forging a check in the amount of $500 written on the
account of his employer, Floydada Livestock, Inc. According to the record, he picked up
Joel Santos, a fellow employee, and drove to Mr. Payroll in Plainview, Texas in his dark
green, four-door truck. Able Vasquez and Steven Posada allegedly accompanied them.
Santos testified that appellant filled out the check, gave it to him to cash, and then
Santos cashed it and gave all the money to appellant.
Sufficiency of the Non-Accomplice Evidence
Appellant contends that the non-accomplice evidence failed to connect him to the
offense. We disagree and overrule the issue.
In addressing appellant's complaint, we eliminate the accomplice testimony and
examine the rest of the record to see if there is evidence tending to connect the
defendant to the commission of the crime charged. Solomon v. State, 49 S.W.3d 356,
361 (Tex. 2001). The evidence does not have to directly tie appellant to the offense or
be sufficient by itself to establish his guilt for same. Cathey v. State, 992 S.W.2d 460,
462 (Tex. Crim. App. 1999). It need only "'link the accused in some way to the
commission of the crime and show that rational jurors could conclude that this evidence
sufficiently tended to connect [the accused] to the offense.'" Simmons v. State, 282
S.W.3d 504, 508 (Tex. Crim. App. 2009), quoting Malone v. State, 253 S.W.3d 253, 257
(Tex. Crim. App. 2008). So too may it be circumstantial. Gaston v. State, 324 S.W.3d
905, 909 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
Evidence of record here discloses that appellant worked for the company that
owned the account against which the checks were written, that he did odd jobs including
janitorial work for the business, and that he had "free access" to the buildings. Joel
Santos, his purported compatriot in the scheme, also worked at the same business.
Additionally, Santos and appellant engaged in several recorded telephone
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conversations wherein appellant could be heard saying such things as 1) "What did you
say?" when Santos told him that he had been asked about the "checks", 2) Santos
having to protect him, 3) his being unable to help Santos if he (appellant) was in jail), 4)
his offering financial help to Santos, 5) his asking if Santos had said anything about him
(appellant); and 6) wishing he had not brought any others in, and believing he should
have left it to himself, Vasquez, and Santos. Combined, this was ample evidence
linking appellant "in some way to the commission of the crime" for which he was
prosecuted.
Accomplice Witness Instruction
Next, appellant asserts that the trial court submitted an accomplice witness
instruction to the jury that misapplied the law. That is, the court instructed the jury that
“[e]vidence is sufficient to corroborate the testimony of an accomplice if that evidence
tends to connect the defendant, Alvin Ray Cooper, with the commission of any offense
that may have been committed.” (Emphasis added). Using the word "any" was error,
according to appellant, because the evidence must tend to connect him to the particular
offense with which he was charged. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West
2005) (stating that a conviction cannot rest upon the testimony of an accomplice unless
it is corroborated by other evidence tending to connect the defendant to the offense
committed). While we agree that the passage was an inaccurate statement of the law,
we nonetheless find it harmless.
No one objected to the inaccuracy at trial. Therefore, it can be considered
reversible error only if it caused appellant egregious harm. See Gelinas v. State, 398
S.W.3d 703, 705 (Tex. Crim. App. 2013). Furthermore, harm is egregious if it denied
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the defendant a fair and impartial trial. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.
App. 2011). And, in making that assessment, we consider 1) the entire jury charge, 2)
the state of the evidence including contested issues, 3) arguments of counsel, and 4)
any other relevant information in the record. Gelinas v. State, 398 S.W.3d at 705-06.
With that said, we turn to the record before us.
Immediately following the contested instruction appeared other statements. The
first specified that “[e]vidence is not sufficient to corroborate the testimony of an
accomplice if the evidence merely shows an offense was committed.” (Emphasis
added). Via the second, the jurors were told that they could “find the defendant guilty
on the testimony of Joel Santos only if . . . [they] believe[d] that the testimony of Joel
Santos is true and shows the defendant is guilty, and there is evidence, other than the
testimony of Joel Santos, that tends to connect the defendant, Alvin Ray Cooper, with
the commission of the crime charged against him . . . .” (Emphasis added). These
passages informed the jury that the non-accomplice evidence had to tie the accused to
the crime for which he was charged, not simply "any" crime.
Furthermore, while the State mentioned the contested statement in its closing
argument, the State also referred to the paragraph immediately below it which
instructed the jury that the evidence had to connect appellant to the charged offense.
To that, we add the non-accomplice evidence linking appellant to the offense, which
evidence we described in the first issue addressed above.
Simply put, the totality of the record fails to illustrate that the misstatement in
question caused egregious harm. So, we overrule the issue.
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Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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