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Click here for the full text of this decision FACTS:Paul Baccus, arrested after a police search of his home turned up drugs, asked Narcotics Detective Jeffrey Davis if there was anything he could do to avoid going to jail. At Davis’ request, Baccus agreed to contact appellant. Davis testified that Baccus telephoned appellant and set up a meeting to have appellant deliver a quarter of a kilogram of cocaine to Baccus for sale to Davis, who would be undercover at a restaurant in Lewisville. Detective William Scott followed Baccus to a gas station in Dallas. There, he said, Baccus met with appellant and Horace Minafee, who was with appellant in appellant’s vehicle. Davis stated that Baccus, appellant and Minafee then drove on to the restaurant in Lewisville. Once there, Baccus then met with Davis and told him “It’s here; it’s a go,” whereupon Davis told Scott to initiate the arrest. Davis testified approximately nine ounces of cocaine were found rolled inside a newspaper on Minafee, in the sleeve of his jacket. No drugs were found in appellant’s possession or in his vehicle, and it does not appear that any money exchanged hands at any time. Scott testified that at the gas station he observed Baccus meet with appellant and Minafee at the gas pumps. Scott stated the individuals got into their cars, and, as they began to leave, he saw Baccus pull his car up next to the car driven by appellant. Scott testified he “saw a rolled-up newspaper pass from the open passenger window of the Baccus vehicle to [appellant].” The jury charge allowed the jury to convict appellant if they found beyond a reasonable doubt that appellant committed the charged offense either by his own conduct or “with intent to promote or assist the commission of the offense of possession with intent to deliver a controlled substance . . . solicited, encouraged, directed, aided, or attempted to aid Horace Minafee, Jr. in committing the offense.” The jury found appellant guilty. Appellant pled true to an enhancement count, and the jury assessed his punishment at 65 years’ confinement and a $10,000 fine. HOLDING:Reversed and remanded. Article 38.141 of the Texas Code of Criminal Procedure provides that a defendant may not be convicted on an informant’s testimony unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. The underlying premise is that such a witness is a “discredited witness” and that “the testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have, but because her or his testimony is evidence from a corrupt source.” Article 38.141 applies to informants or covert witnesses who work with the police for self-interested reasons. The informant Baccus was indisputably acting covertly on behalf of law enforcement. Accordingly, to determine the sufficiency of the corroboration of the informant, the court stated that it must eliminate all of his testimony and determine whether there is other evidence that tends to connect Appellant to the offense of possession with intent to deliver. After eliminating Baccus’ testimony, it was left with the testimony of Davis and Scott. Viewed in the light most favorable to the verdict, and when coupled with the undisputed evidence that the cocaine was found in the rolled-up newspaper and that appellant was present both for the meeting with Baccus at the gas station and at the scene of the planned “buy,” the court found that rational jurors could conclude that the cumulative suspicious circumstances tended to connect appellant to the offense. The court therefore held that there was some other evidence tending to connect appellant to the offense, satisfying the corroboration requirement of Article 38.141 in order for the jury to be able to consider Baccus’ testimony as evidence of guilt. Appellant also argued that the trial court erred by failing to instruct the jury that a confidential informant’s testimony must be corroborated, in conformity with Article 38.141. The court agreed. “Our holding that there was some”other evidence’ to satisfy the statutory corroboration requirement does not eliminate the need for an instruction. When the State elicits testimony from an accomplice for the purpose of proving a defendant’s guilt, the defendant is entitled to an instruction that a conviction cannot be based on the accomplice testimony unless the jury believes the testimony to be true, and unless there is other evidence tending to connect the defendant to the offense.” The court stated that under “egregious harm” analysis, omission of the instruction to the jury on the requirement of corroborating evidence will generally be harmless “unless the corroborating [ ] evidence is”so unconvincing in fact as to render the state’s overall case for conviction clearly and significantly less persuasive.’” Under the circumstances of the case, the court concluded that the trial court’s failure to give a corroborating-evidence instruction to the jury under Article 38.141 was critical to the outcome and effectively denied Appellant a fair trial, resulting in egregious harm. OPINION:Gardner, J.; Cayce, C.J.; Gardner and McCoy, J.J.

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