Opinion
Nos. 01-04-00473-CR, 01-04-00474-CR
Opinion issued June 30, 2005.
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause Nos. 942823, 961668.
Panel consists of Justices NUCHIA, KEYES, and BLAND.
OPINION
A jury found appellant, Phuong Hoai Cao, guilty of two felony offenses of burglary of a habitation and acquitted Cao of a felony offense of possession of a firearm by a felon. After finding true an enhancement paragraph alleging a previous felony burglary, the trial court assessed punishment at forty years' confinement for each burglary offense, with the sentences to run concurrently. In this appeal, Cao contends the evidence is legally insufficient to support his convictions for burglary of a habitation because the State failed to produce corroborating accomplice testimony as required by Article 38.14 of the Code of Criminal Procedure. We affirm the conviction in cause number 942823 and reverse the conviction and render judgment of acquittal in cause number 961668.
The first indictment, cause number 942823 at trial and 01-04-00473-CR on appeal, alleges that Cao committed burglary of Victor Le's habitation. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). The second indictment, cause number 961668 at trial and 01-04-00474-CR on appeal, alleges that Cao committed burglary of Randy Van Le's habitation. Id.
The Facts
In January 2003, Deputy Craig Clopton of the Harris County Sheriff's Department responded to a report of a burglary at the home of Victor Le, located at 13906 Greenside, Harris County, Texas. Deputy Clopton testified that the windows on each side of the door had been broken in order to force entry into the residence. The intruders ransacked the entire house, including the closets and the mattresses. Victor Le provided a list of missing items, including a Mossberg shotgun. The shotgun had been stored in the master bathroom closet. During trial, Victor Le identified a shotgun, which had been recovered from Cao's apartment, as the one stolen from him in January 2003. Randy Van Le (no relation to Victor Le) owns a home at 8816 Riverwell Circle West, in Harris County, Texas. His son, Vicmor, was home alone at the time of a burglary, and testified to the events he witnessed. On the afternoon of March 11, 2003, Vicmor heard a man knocking on the door and repeatedly ringing the doorbell. Vicmor peered through an upstairs window, but did not recognize the man outside his door. He also noticed an unknown red Honda C.R.V. in the driveway. After Vicmor failed to open the door, the man returned to his car and looked around. The man then moved his car to the street, near the residence's mailbox, and walked toward the home's backyard. Vicmor walked downstairs and heard a window break in his mother's bedroom, whereupon he ran back upstairs and telephoned his parents and the police. Vicmor's mother told him to telephone a nearby aunt, Linda Gates, and ask that she come to the house. Vicmor further testified that he could identify the man knocking at his door. He saw another man in the car, whom he could not identify. Gates testified that she arrived at the home on Riverwell Circle and noticed a maroon-colored Honda C.R.V. parked in front of the home. Gates wrote down the Honda's license plate number and followed the vehicle for a short distance, but then she returned to the home to check on Vicmor. As Gates stood in the front yard, telephoning her sister from a mobile phone, the Honda returned. The occupants of the Honda saw Gates and sped away. Gates testified that she saw two people in the Honda, but that she was unable to identify them. Harris County Sheriff's Department Deputy Puichi Ung responded to the burglary call. Ung testified that the burglars had shattered the master bedroom window, located at the back of the home's first floor. Ung further testified that the Les' bedroom had been ransacked and that several pieces of jewelry were missing. The sheriff's department deputies traced the license plate number from the maroon Honda vehicle to Giang Vu Do. Do admitted that he committed the burglaries at the Greenside and Riverwell residences. Do also told the deputies that Cao helped him to commit the two burglaries. Do admitted that he and Cao stole guns from Victor Le's residence, and that he took the guns to Cao's apartment. The deputies recovered a shotgun stolen from the Greenside residence at Cao's apartment during his arrest. Do pleaded guilty to burglary and received a reduced sentence for testifying against Cao. Do testified that he and Cao burglarized the Greenside and Riverwell residences together. Do stated that he and Cao drove his red Honda C.R.V. to the Riverwell burglary. After the burglaries, Do took the stolen property to Cao's apartment and exchanged it for money. Do further testified that among the items he left with Cao was the shotgun taken from the Greenside burglary.Discussion
Cao contends that the evidence is legally insufficient to sustain his conviction for the Greenside and Riverwell burglaries because the State failed to corroborate Do's accomplice testimony as required by Article 38.14 of the Code of Criminal Procedure. The State responds that corroborating evidence exists that tends to connect Cao to both the Greenside and Riverwell burglaries. Article 38.14 of the Code of Criminal Procedure provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App. 1995); see also St. Julian v. State, 132 S.W.3d 512, 516 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). Corroborating evidence is insufficient if it merely shows the commission of an offense. Tex. Code Crim. Proc. Ann. art. 38.14; Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999); Colella, 915 S.W.2d at 838-39; see also St. Julian, 132 S.W.3d at 516. "In assessing the sufficiency of corroborative evidence, we eliminate the testimony of the accomplice witness from consideration and examine the testimony of the other witnesses to ascertain whether the non-accomplice evidence tends to connect the accused with the commission of the offense." St. Julian, 132 S.W.3d at 516 (citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997)). The non-accomplice evidence need not by itself establish the accused's guilt beyond a reasonable doubt. Id. Rather, some evidence must exist that tends to connect the accused to the commission of the offense. Id. Although Cao complains that the evidence is legally insufficient to sustain his conviction, the Court of Criminal Appeals has declined to impose legal and factual sufficiency standards on a review of accomplice witness testimony under Article 38.14. Cathey, 992 S.W.2d at 462; St. Julian, 132 S.W.3d at 516. The Legislature imposed the accomplice-witness rule sufficiency review, and thus it is not derived from federal and state constitutional principles that otherwise define legal and factual sufficiency review. St. Julian, 132 S.W.3d at 516 (citing Cathey, 992 S.W.2d at 462-63).Greenside Burglary
Victor Le testified that an intruder stole a Mossberg shotgun from his home. The deputies' search of Cao's apartment yielded a Mossberg in Cao's apartment closet. Victor Le identified the shotgun as the one stolen from his residence. While this evidence standing alone does not establish Cao's guilt, it is evidence that tends to connect Cao to the commission of the Greenside burglary. See, e.g., Herron v. State, 86 S.W.3d 621, 633 (Tex.Crim.App. 2002) (stating that appellant's possession of stolen property is factor that connects appellant to offense); Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd) (holding that recovery of trash containing stolen property from outside appellant's apartment is factor that tends to corroborate accomplice testimony). We therefore conclude the non-accomplice evidence is sufficient to connect Cao to the commission of the Greenside burglary, in cause number 942823, as required by Article 38.14. See Hernandez, 939 S.W.2d at 177-79.Riverwell Burglary
Vicmor Le testified that he observed a red Honda C.R.V. in his family's driveway, and later parked on the street in front of his residence. Gates also testified that she saw a maroon Honda C.R.V. parked in front of the Les' Riverwell home. She wrote down the license plate number, which ultimately led law enforcement authorities to Do. Although this evidence corroborates Do's testimony, it does not tend to connect Cao to the burglary, because neither of the witnesses could identify Cao as an occupant of the Honda or otherwise place him at the scene of the burglary. See Hernandez, 939 S.W.2d at 178 (providing that evidence that appellant was in company of accomplice at or near time or place of crime is proper corroborating evidence to support conviction) (citing Jackson v. State, 745 S.W.2d 4, 13 (Tex.Crim.App. 1998)). As its sole argument of a link between Cao and the Riverwell burglary, the State contends that Cao offered an in-court utterance that tends to connect him to the offense. During Do's accomplice testimony, the following exchange occurred:[State]: Who went inside the house?
[Do]: Phuong
[State]: How did he get inside the house?
[The Defendant] [Cao]: Break the glass.Cao's interjection during the State's examination of Do does not connect Cao to the Riverwell burglary. In effect, he may have responded to the State's question to Do regarding the entry into Randy Van Le's home. The record indicates, however, that three previous witnesses already had testified that the glass was broken, thus Cao's statement did nothing but parrot earlier testimony. Ung testified that the glass to the window was broken. Vicmor testified that, when he was upstairs, he heard a window break and that he later walked downstairs and saw the broken window. Gates also testified that a window was broken. Considering all of the prior testimony regarding the broken glass, Cao could have been responding to a question that already had been answered based on the in-court testimony he had heard, rather than on any independent knowledge of the events of the burglary. We hold that Cao's in-court statement under these circumstances — standing alone, as it does, without any other non-accomplice evidence — cannot tend to connect him to the commission of the Riverwell burglary as Article 38.14 requires.