Rice v. State

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

Rice was convicted of conspiracy to commit theft over $10,000. The jury assessed punishment at five years.

Upon original submission, a panel of this Court, with one judge dissenting, reversed *903 the conviction for the State’s failure to corroborate adequately the testimony of an accomplice witness to an extraneous transaction which had been offered to show a continuing scheme to defraud appellant’s insurance carrier. We now grant the State’s motion for rehearing and affirm the judgment.

Because we agree with the dissenting opinion upon original submission that the extraneous transaction involved a conspiracy to commit theft which was corroborated by evidence independent of accomplice testimony, we need not reach the question of the correctness of the underlying assumption of the panel majority, that in barring a conviction based solely upon uncorroborated accomplice testimony, Article 38.14, V.A.C.C.P., the Legislature also barred the admission of such testimony relating to extraneous transactions which amount to offenses. 1

In the instant case the offense charged consisted of a scheme to defraud appellant’s insurance carrier by setting fire to appellant’s place of business and collecting the insurance proceeds.

Evidence of a similar extraneous transaction involving appellant’s barn was properly offered for two related purposes: to show that the burning of appellant’s business was part of a continuing scheme to defraud the insurance carrier, and to show that appellant’s intent was to collect an insurance claim upon the property.

The evidence adduced to prove the extraneous transaction comprised: the testimony of Jack Marshall, who claimed appellant offered him $3,000, to be paid out of insurance proceeds, if any, to burn the barn and that he did so and that appellant did pay him $3,000 in cash; the fact that at about the time Marshall claims to have been paid appellant received an insurance settlement of $11,000, of which he deposited $8,000 and kept $3,000-the amount Marshall claims to have received-in cash; and the fact that one month before the fire a mortgagee was removed from the policy, although subsequent investigation showed his claim still to have been valid at the time of the fire, so that the insurance carrier made a second payment upon the policy to the lien holder, in excess of their original liability upon the claim.

The removal of the mortgagee and failure to satisfy his claim, coupled with the retention by appellant of cash coincident in time and amount to the payoff testified to by Marshall, is sufficient to give rise to the inference that Marshall’s testimony was “more likely than not”, satisfying the test of James v. State, 538 S.W.2d 414 (Tex.Cr.App.1976), and Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975).

Appellant also contends that insufficient evidence was adduced to corroborate Marshall’s testimony about the circumstances of the conspiracy which formed the gravamen of the complaint-the burning for insurance proceeds of Wamble’s Department Store, owned by appellant.

Aside from Marshall’s accomplice testimony, the State adduced, inter alia, evidence that appellant had taken out loans from two banks, pledging to each as collateral the inventory of Wamble’s, but that appellant has signed a declaration of loss *904 after the Wamble’s fire which acknowledged neither of the banks as lien holder and that appellant had, within two weeks before the fire, doubled his insurance coverage on the furniture and fixtures at Wam-ble’s and added a new policy covering Wam-ble’s loss of profits in case of fire.

We hold that Marshall’s testimony about the conspiracy to defraud the insurance carrier by burning Wamble’s was sufficiently corroborated.

The State’s motion for rehearing is granted, and the judgment is now affirmed.

ROBERTS, PHILLIPS and CLINTON, JJ., dissent.

. The panel opinion relied upon Wells v. State, 118 Tex.Cr.R. 355 , 42 S.W.2d 607 (1931), and upon Lankford v. State, 93 Tex.Cr.R. 442 , 248 S.W. 389 (1923), for authority for the rule that uncorroborated accomplice testimony about extraneous transactions is inadmissible. The opinion in Wells does set out that rule, relying in turn upon Lankford but not before disposing of the evidence so admitted by holding that, under the circumstances, evidence of the extraneous transaction involved would have been inadmissible in any event, thus rendering its gratuitous second “holding” obiter dicta. Lankford was reversed because the court refused to instruct the jury that evidence of extraneous transactions was not to be considered by them unless the defendant was proved beyond a reasonable doubt to have been implicated in them.