# Rice v. State > Court of Criminal Appeals of Texas · October 17, 1979 · 587 S.W.2d 689 URL: https://www.frixlaw.com/law-library/cases/9646543 ## Case - **Full name:** Leo Burbin RICE, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 17, 1979 - **Citations:** 587 S.W.2d 689; 1979 Tex. Crim. App. LEXIS 1674 - **Precedential status:** Published - **Opinion:** On rehearing by Douglas - **Judges:** Douglas, Onion, Phillips, Davis - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646543 ## Opinion text OPINION ON STATE’S MOTION FOR REHEARING DOUGLAS, Judge. On original submission this cause was reversed on the ground that the evidence was insufficient to corroborate the testimony of accomplice witnesses. 1 Two prior convictions were alleged for enhancement. The court assessed the punishment at life. The record reflects that Gloria Caldwell overheard some conversation in her bar in Freeport which led her to believe that a large amount of cash was being kept in a safe in the private residence of Mr. and Mrs. Eddie Dyer. She conceived a plan to steal the money and enlisted the aid of two longtime friends, Joe Rucker and Kenneth Bishop. She also sought out someone who knew something about a safe and was placed in touch with Oscar Bowen by a pool hustler. Bowen agreed to participate in the plan and brought in an associate, Leo Rice, the appellant. On March 26, 1976, two days before the robbery, all five of the parties met in Houston where they bought a police radio scanner and Bowen volunteered to provide a van to be used in the robbery. The following day, all met in a house trailer at a fishing camp in the vicinity of the Dyer residence, went over plans for the robbery and installed the police scanner in the white van provided by appellant and Bowen. On the day of the robbery, all five of them met again in the house trailer and all left at the same time to commit the robbery. Bishop drove the white van with appellant, Bowen and Rucker with him and Gloria Caldwell drove her car to a designated place to act as a lookout. She was in contact with the van by C.B. radio and the van was in contact with appellant, Bowen and Rucker, all of whom went into the Dyer residence, by walkie talkie. *694 Rucker, who had disguised himself by wearing a pair of mirrored sunglasses and a black wig and darkening his moustache, entered the Dyer residence first and held a gun on Mrs. Dyer, a visiting neighbor and two children. Appellant and Bowen, both of whom were armed with pistols, came into the house shortly thereafter wearing ski masks. They took the contents of the safe found in the master bedroom closet and Mrs. Dyer’s rings off her finger, tied up Mrs. Dyer, the neighbor, and the two children with tape and departed in the van. All five of them met back at the house trailer, argued violently over the apparent insignificant amount of money that was in the safe and left in different vehicles. Bishop was arrested a few minutes later after he was observed driving the white van. He, Gloria Caldwell and Rucker all agreed to, and did, testify for the State against Bowen and appellant. Bishop and Gloria Caldwell each received two years’ confinement and Rucker received twenty years in return for their agreement to testify- Appellant contends in his sole ground of error that the evidence is insufficient to corroborate the testimony of the accomplice witnesses because at best the State’s evidence shows nothing more than his presence with the accomplices before and after the time of the offense. The trial court correctly instructed the jury that Caldwell, Rucker and Bishop were accomplice witnesses as a matter of law and that a conviction could not be had upon their testimony unless that testimony was corroborated by other evidence tending to connect appellant with the offense committed, and the corroboration was not sufficient if it merely showed the commission of the offense. See Article 38.14, V.A.C.C.P. The well established test as to sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witnesses and then examine the other evidence to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978); Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Etheredge v. State, 542 S.W.2d 148 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975). Further, in Carrillo v. State, supra, we quoted with approval the following from Bentley v. State, supra: “The mere showing that an offense occurred is not sufficient corroboration. Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test. Perkins v. State, 450 S.W.2d 855 (Tex.Cr.App.1970); Windham v. State, supra; Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt, Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Reynolds v. State, supra; Rainey v. State, 401 S.W.2d 606 (Tex.Cr.App.1966); it need only make the accomplice’s testimony more likely than not. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).” The testimony and evidence other than that provided by the accomplices Caldwell, Bishop and Rucker may be briefly summarized as follows: Mrs. Dyer testified that she was robbed by three men in the early afternoon of March 24, 1976 and that three men were in her house for about twenty to thirty minutes. She was able to identify Joe Rucker as one of them in spite of his black wig, darkened moustache and mirrored sunglasses, but she could not identify the other two because each of them wore a ski mask. She heard another male voice on the walkie talkie on two occasions. Rucker was wearing blue coveralls, the other two wore jeans, and Rucker was wearing one surgical glove. Mr. and Mrs. Carter, who operated a restaurant at the trailer park where the camp *695 trailer was located, testified that appellant was with the other four parties when they arrived at the camp trailer on the day before the robbery. Both testified that appellant and Bowen each made a collect long distance call on their telephone in the restaurant. Mr. Carter heard appellant’s cryptic conversation which he testified consisted only of a statement to the effect that he had made contact, everything was lovely, and he would call the following night. The telephone conversation of Bowen was basically the same. Mr. Carter was suspicious of the men because of the odd telephone conversations and because they were overly dressed for where they were, and he went outside to pretend he was working on a piece of machinery so as to obtain the license number of the van. He did obtain the number and while there observed appellant and Bowen installing a radio in the van. He called the sheriff’s office to have them check on the license number but received no immediate response to his inquiry. This van was identified as the one used in the robbery. Mrs. Carter testified that on the day of the robbery she observed appellant and the other four parties arrive at the house trailer in the late morning, saw all of them leave together about noon and then return again about 2:00 p. m. At that time she saw them take what appeared to be three brown grocery-type bags from the vehicles into the house trailer. Appellant was not carrying one of the bags. All of them left a short time later and she saw no one at the trailer until the next day when the police officers came with a warrant to search it. Police officers who searched the house trailer found personal papers which had been taken from the Dyers’ safe in the robbery, some blue coveralls, a black wig, black eyelash makeup, moustache wax, a moustache wax brush with black wax on it, surgical gloves and a pair of mirrored sunglasses. The owner of the white van testified that it was stolen in Houston two days before the robbery. While appellant argues that the non-accomplice evidence merely shows that he was present with the accomplices before and after the offense and that sufficient corroboration is thus not shown, we do not view the evidence in such a narrow manner. Appellant made a highly suspicious telephone call shortly after arriving at the trailer camp after looking over the scene, he was observed installing radio equipment in a stolen van which was used in the robbery, he left the trailer with the robbers shortly before the robbery, four men participated in the robbery, he returned with them shortly after the robbery and was present when the fruits of the robbery were brought from the vehicles into the house trailer. We hold that the presence of appellant with the accomplices before and after the robbery, coupled with the other cited circumstances, is sufficient to corroborate the testimony of the accomplices. See Nelson v. State, 542 S.W.2d 175 (Tex.Cr.App.1976); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976); Ayala v. State, 511 S.W.2d 284 (Tex.Cr.App.1974); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). This ground of error is overruled. The State’s motion for rehearing is granted; the judgment is now affirmed. PHILLIPS, J., dissents for the reasons stated in the opinion on original submission. . The conviction of Oscar Franklin Bowen in Cause No. 57,330, based on the same evidence, was affirmed September 20, 1978 in a per cu-riam opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646543. Public record. Not legal advice.