Opinion by: REBECCA SIMMONS, Justice.
Mark William Johnson was convicted of aggravated robbery and sentenced to seventy-five
Bryan Springs testified that on March 26, 2008, he and Johnson entered a restaurant in San Antonio to commit a robbery. Springs armed himself with a small gun and wore a ski mask, and Johnson had a revolver and covered his face with a rag. After entering the restaurant, Johnson went to the office, and Springs saw the manager putting money into a bag. When Johnson tried to get the manager's keys, a struggle ensued. During the struggle, the keys fell to the floor, and Springs recovered them. On his way out of the restaurant, Springs heard a gunshot. Springs located the manager's vehicle and drove away without Johnson. The police apprehended Springs after he crashed the vehicle. A gun was found near the scene of the crash, and a black ski mask was found in the front seat of the vehicle Springs was driving. At trial, Springs admitted he had a plea agreement with the State that provided he would receive a prison sentence of no more than twenty-five years in exchange for his testimony.
Simmons Allison, a manager of the restaurant, testified two men entered the restaurant while he was counting the day's receipts in his office. Both men had their faces covered and carried weapons. One of the gunmen came into his office, pointed a pistol at his head, and demanded the money. Allison complied, placing the money in a plastic bag. Allison testified the gunman left the office and then returned demanding his car keys. Allison began to struggle with the gunman, and the bag broke, strewing the money on the floor. He told the jury he felt a pain in his leg, fell down, and later discovered he had been shot in the leg.
Allison identified photographs taken by the restaurant's security camera, and a compact disc containing the photographs was entered into evidence.
Tammi Sligh, a firearms examiner with the Bexar County Crime Lab, testified that the spent bullet removed from the victim's leg belonged to the .38 caliber class of ammunition. She explained that this meant she could not distinguish if it was a spent round of .38 caliber, .357 caliber, 9mm, or .380 caliber ammunition. Based on markings on the slug, she believed that the bullet may have been fired from a revolver. San Antonio police detective Kevin Nogle testified he went to an apartment the night of the robbery and talked with Johnson's girlfriend. He told the jury he found three rounds of .38 caliber ammunition in Johnson's dresser drawer.
The judge instructed the jury that Springs was an accomplice as a matter of law. The jury returned a guilty verdict, found the enhancement allegation that Johnson had a prior felony conviction to be
A person may not be convicted based on the testimony of an accomplice unless there is other evidence, independent of the accomplice witness, that tends to connect the defendant to the crime. See TEX.CODE CRIM. PROC. ANN. art. 38.14 (West 2010) ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed...."); Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997). Corroboration is not sufficient if it merely shows the commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2010). "The corroborative evidence, however, need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense." Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim.App.2008). Rather, the independent "`evidence must simply 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)). We view the independent evidence tending to link the defendant to the crime in the light most favorable to the jury's verdict. Brown, 270 S.W.3d at 567.
The parties agree Springs was an accomplice; therefore, we must disregard his testimony in our analysis and determine whether other evidence tends to connect Johnson to the crime. The State contends the independent evidence consists of the surveillance photographs; the victim's testimony about the robbery; the slug recovered from the victim; the expert's testimony that the slug belonged in the class of.38 caliber ammunition; testimony that three live rounds of .38 caliber ammunition were found in Johnson's drawer; and testimony that the slug may have been fired from a revolver. Johnson argues this evidence is insufficient to "tend to connect" him to the crime.
Specifically, Johnson argues that the photographs do not connect him to the crime because they lack sufficient clarity or detail to permit identification of the person depicted. Although the quality of the surveillance photographs is mediocre,
The concurrence relies on the statements Springs made to Detective Jones the night of the incident to corroborate Springs's in-court testimony. Detective Jones testified that Springs told him that "White Boy" had participated in the robbery, and that Jones later linked Johnson to the nickname. Notably, the State never raised this theory on appeal and, consequently, Johnson has not had an opportunity to respond to it. We, however, will respond by declining to join the concurrence on this point, chiefly because we lack the authority to overrule the several cases from the Court of Criminal Appeals holding that an accomplice's prior, out-of-court statements cannot corroborate that same accomplice's in-court testimony.
The purpose of article 38.14's requirement for corroborative evidence is to require more evidence for a conviction than the testimony of an accomplice who may have an incentive to be untruthful. "The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person." Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998). "Thus there must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment." McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997).
The concurrence's reliance on Bingham v. State, 913 S.W.2d 208 (Tex.Crim.App. 1995), is misplaced. Bingham concerned the corroboration of a testifying accomplice by the out-of-court statements of another accomplice, not the out-of-court statements of the same accomplice. See id. at 212-13. This distinction was recognized in Maynard v. State, 166 S.W.3d 403 (Tex.App.-Austin 2005, pet. ref'd), which explained that although one accomplice's out-of-court statement may corroborate the in-court testimony of another accomplice, the out-of-court statement of a testifying accomplice could not be used to corroborate his own testimony. Id. at 413-14 & nn. 5-6. Here, the concurrence would hold that Springs's out-of-court statements to Detective Jones corroborates Springs's in-court testimony. The result of such a theory would defeat article 38.14's purpose, which is to require other, non-accomplice, inculpatory evidence to connect the accused to the commission of the offense.
The case of McDuff v. State, 939 S.W.2d 607 (Tex.Crim.App.1997), which was decided
In his next point, Johnson contends the evidence is legally and factually insufficient to support the jury's verdict. However, after the briefs were submitted in this case, the Court of Criminal Appeals issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010). Although only four judges joined in the plurality opinion, a majority of the judges agreed it is no longer appropriate to conduct a separate review for factual sufficiency in criminal appeals. Brooks, 323 S.W.3d at 912; id. at 926 (Cochran, J., concurring). Accordingly, we review the evidence to determine whether it is legally sufficient under the Jackson v. Virginia standard. Brooks, 323 S.W.3d at 912. Under that standard, we review the evidence for legal sufficiency by looking at all of the "evidence in the light most favorable [to] the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.2005), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367. "We resolve [any] inconsistencies in the testimony in favor of the verdict." Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). We defer to the jury's determination of the weight to be given to contradictory testimonial evidence because resolution of the conflict is often determined by the jurors' evaluation of the witnesses' credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim.App.2000).
Springs testified he and Johnson committed the robbery. The jury was able to view the surveillance photographs and could conclude that Johnson committed the offense depicted. Viewing the evidence in the light most favorable to the jury's verdict, this evidence was legally sufficient to support the jury's verdict.
In his last issue, Johnson contends the evidence was insufficient to prove he was previously convicted of a felony and thus eligible for an enhanced sentence. See TEX. PENAL CODE ANN. § 12.42(c)(1) (West 2010) (minimum sentence for first-degree
To meet its burden of proving a prior felony conviction, the State must demonstrate beyond a reasonable doubt that "(1) a prior conviction exists, and (2) the defendant is linked to that conviction." Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim.App.2007). Although the Court of Criminal Appeals indicates that the "preferred" method of proof is by way of a certified copy of a final judgment, "[n]o specific document or mode of proof is required to prove these two elements." Id.
In the indictment, the State alleged a single prior felony conviction, namely: "on or about the 4TH day of May, A.D., 1991, in Cause No. 90-CR-4048B, in Bexar County, Texas, the defendant was convicted of the felony of AGGRAVATED ROBBERY WITH A DEADLY WEAPON." The State did not introduce any documents at trial to link Johnson to the conviction alleged in the enhancement allegation. Instead, it relied upon the testimony of George Saidler, who was a robbery detective with the San Antonio Police department in the early 1990s.
Saidler testified he investigated two aggravated robberies involving victims Nicole Yamin and Patricia DeWitty. Johnson admitted to Saidler that he participated in both robberies. Saidler testified Johnson was indicted under Cause No. 1990-CR-4048B for the robbery involving Yamin and under Cause No. 1990-CR-4061A for the robbery of DeWitty. Saidler told the jury Johnson pled guilty to both aggravated robberies and was found guilty. Saidler testified the convictions occurred on April 4, 1991.
Johnson's mother testified during the punishment phase and admitted Johnson had been sentenced to serve twelve years in prison for an aggravated robbery. She explained to the jury that another person with her son at the time of the robbery shot the robbery victim. This was an apparent reference to the facts involved in the aggravated robbery involving Yamin under Cause No. 1990-CR-4048B because DeWitty testified during the punishment phase and did not relate that she had been shot. Based on this testimony, the jury was free to conclude that the testimony of Johnson's mother concerning his conviction and sentence for aggravated robbery referred to Cause No. 1990-CR-4048B, the cause in which Yamin was the victim. Saidler's testimony and that of Johnson's mother were sufficient evidence for a reasonable jury to conclude a conviction existed.
Johnson contends that the evidence of his prior conviction is insufficient because Saidler did not explain the basis of his knowledge. Johnson failed to raise this objection in the trial court, and his complaint on this issue is waived. See TEX.R.APP. P. 33.1. Even if we were to consider this complaint, Saidler testified he was the detective involved in the investigation of the robbery and Johnson confessed committing the robbery to him, and he knew Johnson pled guilty to the robbery. This testimony demonstrates Saidler had sufficient knowledge about the prior conviction to allow reliance upon his testimony by a rational jury, and to link Johnson to that conviction. Johnson's last point of error is overruled.
There was sufficient evidence, independent of the accomplice's testimony, tending to connect Johnson to the aggravated robbery. Viewing the entire record in the light most favorable to the jury's verdict, there is sufficient evidence to support the jury's verdict. Also viewing the evidence
Concurring Opinion by: STEVEN C. HILBIG, Justice.
STEVEN C. HILBIG, Justice, concurring.
Although I agree with the majority's ultimate conclusion, I write separately to discuss the majority's failure to consider all available evidence in its analysis. The majority believes the hearsay statement made by the accomplice Bryan Springs to Detective Randy Jones should not be considered in its analysis of the accomplice corroboration and legal sufficiency issues. Because it is debatable whether the remaining non-accomplice testimony "tends to connect" Johnson to the crime, I believe the hearsay statement is properly included in the evidence used to corroborate the accomplice and in the review of the sufficiency of the evidence.
Detective Jones testified that on the night of the robbery Springs told him that "White Boy" had participated in the robbery. The detective determined that the nickname was ascribed to Johnson, and he obtained a photograph of Johnson. Detective Jones testified Springs identified the photograph and Johnson as the second robber.
Clearly, the detective's unobjected-to testimony about the hearsay statement is probative evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005); see also TEX.R. EVID. 802 (Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.). Courts consider such evidence when conducting a legal sufficiency review of the evidence. Poindexter, 153 S.W.3d at 406 (holding that "once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence"); Fernandez v. State, 805 S.W.2d 451, 454-56 (Tex.Crim.App.1991) (holding unobjected-to hearsay is considered when conducting legal sufficiency review).
We may also consider the unobjected-to hearsay of an accomplice in determining whether an accomplice's testimony is sufficiently corroborated.
I recognize that the precise question in this case is whether an out-of-court statement made by the testifying accomplice may be used to "connect" the defendant to the crime. However, because the statement came into evidence without objection,
I acknowledge that opinions from the Court of Criminal Appeals prior to Bingham are contrary to this result.
Id. at 429; see also Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App.1972) (holding statement made by accomplice witness to third party is hearsay without probative value and cannot be used to corroborate same accomplice's testimony).
Id. at 211. Because the court concluded the out-of-court statement of an accomplice is not subject to "the same degree of suspicion" as in-court testimony, it would seem inconsistent to continue the previous line of cases that held such evidence carries no weight as evidence "tending to connect" the defendant with a crime.
Why does any of this matter? Because the majority holds that a series of fuzzy and indistinct photographs
The corroborating evidence must tend to link or connect the defendant with the crime. Simmons v. State, 282 S.W.3d 504, 508 (Tex.Crim.App.2009). "It must be remembered, however, that evidence which does no more than point the finger of suspicion towards an accused is insufficient to corroborate testimony of an accomplice witness." Paulus v. State, 633 S.W.2d 827, 844 (Tex.Crim.App. [Panel Op.] 1981). Here, the only manner in which the photographs could link or connect Johnson to the crime would be if the jury believed it was Johnson depicted in the photographs. The pictures do not have sufficient clarity or detail to permit a reasonably definite identification of the person depicted. Although the jury was able to view the photographs and compare them to Johnson's
An appropriate analogy might be to cases that hold a defendant's proximity to the scene of the crime at the time of its commission is evidence tending to connect the defendant. See, e.g. Romero v. State, 716 S.W.2d 519, 522 (Tex.Crim.App.1986) ("Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime ..."), cert. denied, 479 U.S. 1070, 107 S.Ct. 963, 93 L.Ed.2d 1011 (1987); Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984) (same). No doubt, a defendant's presence in the same block where a crime is committed shortly before or after its commission is some evidence tending to connect him with the crime. But does the same reasoning apply when the defendant is seen five miles away from the crime scene? Pictures that lack discernable details are more akin to a person seen five miles away from the crime than in the same block. Based on the poor quality of the photographs, I am extremely reluctant to hold that a rational jury could find that the pictures tend to connect Johnson to the crime.
Because Springs's accomplice testimony was sufficiently corroborated, the jury was free to consider the testimony in reaching its verdict. I agree with the majority that this evidence is legally sufficient to support the jury's verdict. However, I believe Springs's hearsay statement is also properly available to support the verdict. As pointed out above, "once the trier of fact has weighed the probative value of unobjected-to hearsay evidence in its factfinding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence." Poindexter, 153 S.W.3d at 406.
With these comments, I concur in the judgment.