No. 14-04-00372-CR
Memorandum Opinion filed June 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 10th District Court, Galveston County, Texas, Trial Court Cause No. 03CR2017. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
In this appeal of a jury conviction for aggravated robbery, we determine whether the evidence is factually sufficient to support appellant's conviction. We hold the evidence is factually sufficient and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
At approximately 6:45 a.m. on the morning of June 18, 2003, Jesse Ortiz began his daily walk to work in Galveston, Texas. As Ortiz walked, a vehicle pulled alongside him, and a woman, later identified as Ebony Cox, exited the vehicle and approached Ortiz from behind. Cox pressed a handgun into Ortiz's back and demanded his wallet. After Ortiz gave her the wallet, Cox got back into the vehicle and the driver sped away. Although he was unable to identify the driver or the passenger, Ortiz memorized the vehicle's license plate number and within minutes gave it to police. A short time later, officers observed a vehicle that matched the description and license number reported by Ortiz driving toward Houston on Interstate 45. The officers pursued the vehicle, and the pursuit ended in an accident in the parking lot of a business. As Cox hid near the accident scene, the passenger, later identified as appellant, fled the scene and hid in the backyard of a nearby residence. Police recovered two handguns, a pellet gun, and Ortiz's wallet from the vehicle. Both Cox and appellant were subsequently arrested and charged with aggravated robbery. A jury convicted appellant and, after he pleaded guilty to one enhancement paragraph, sentenced him to 18 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed. II. DISCUSSION
In his sole issue, appellant claims the evidence is factually insufficient to sustain his conviction for aggravated robbery because Ortiz did not identify appellant as one of the robbers, no physical evidence connects him to the crime, and no one apart from Cox — an "accomplice witness" — identified him as one of the robbers. We begin our discussion by first addressing whether Cox's accomplice-witness testimony is sufficiently corroborated to serve as a basis for appellant's conviction. A. Cox's Identification of Appellant as a Participant in the Robbery
1. Accomplice Witness Testimony An accomplice witness is a person who participated before, during, or after the commission of an offense and could be prosecuted for the offense with which the defendant was charged. See Blake v. State, 971 S.W.2d 451, 454-55 (Tex.Crim.App. 1998). Because Cox was convicted of the same offense as that with which appellant was charged, her status as an accomplice is established as a matter of law. See DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990) ("A State's witness who has been indicted for the same offense as the defendant is considered to be an `accomplice as a matter of law.'"). Article 38.14 of the Texas Code of Criminal Procedure prohibits convicting a defendant based solely on the testimony of an accomplice witness unless the testimony "is corroborated by other evidence tending to connect the defendant with the offense committed." TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005); see Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). If the corroborating evidence merely shows that the offense was committed, it is insufficient. TEX. CODE CRIM. PROC. ANN. art. 38.14. Determining whether accomplice testimony is sufficiently corroborated requires us to eliminate the accomplice testimony from consideration and then examine the record to ascertain whether any inculpatory evidence exists that tends to connect the accused to the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). The corroborating evidence need not directly connect the defendant to the crime nor be sufficient on its own to establish guilt; it must only tend to connect the defendant to the offense. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). 2. Is there sufficient corroboration for Cox's testimony? Mere presence of the defendant at the scene of the offense is insufficient to corroborate accomplice witness testimony. Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992). Evidence of the defendant's presence at the scene, however, combined with other suspicious circumstances, may be enough to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). For example, evidence that the defendant was in the presence of the accomplice at or near the time or place of the crime is proper corroborating evidence, as is subsequent flight. Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App. 1997); McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997). If the combined weight of the non-accomplice evidence tends to connect the defendant with the offense, the Article 38.14 requirement is fulfilled. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991). Here, there is evidence independent of Cox's testimony that tends to connect appellant to the crime. Appellant testified that he and a group of friends went to Galveston on June 17 to attend a party and, after one of his friends had an argument with his girlfriend, the group departed, leaving appellant alone in Galveston with no means of transportation. Appellant stated that sometime before dawn on June 18, he called Cox and asked her to drive to Galveston and drive him back to Houston. He further testified that after he got into Cox's vehicle and the two drove toward Houston on Interstate 45, he noticed three or four police vehicles chasing them. Appellant stated he asked Cox to allow him to exit the vehicle, but she refused. Finally, appellant testified that after the vehicle was involved in an accident, he fled because he was frightened by the entire ordeal. Appellant's testimony that Cox arrived in Galveston on June 18 to pick him up sometime around 18 places him in Cox's vehicle at or near the time Ortiz was robbed. Ortiz testified that he gave the license number of the robber's vehicle to police. Based on this information, officers pursued Cox's vehicle on Interstate 45 within the next few minutes, and the chase ended in an accident from which appellant fled and hid. We conclude appellant's presence in Cox's vehicle at or near the time of the robbery and at the conclusion of the police pursuit, coupled with his subsequent fleeing and hiding from police, is evidence tending to connect him to the crime and, therefore, is sufficient corroborating evidence to fulfill the Article 38.14 requirement. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Hernandez, 939 S.W.2d at 178; Burks v. State, 876 S.W.2d 877, 888 (Tex.Crim.App. 1994) (noting the "tending to connect" standard may be satisfied by evidence of flight and guilty demeanor, coupled with other corroborating circumstances). Having concluded Cox's testimony is corroborated, we turn to appellant's sufficiency challenge. B. Factual Sufficiency of the Evidence
1. Standard of Review A factual sufficiency review begins with the presumption that the evidence is legally sufficient to support the conviction. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). When conducting our review, we view the evidence neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt; or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In our review of the evidence, we must be deferential to the jury's findings and resist intruding on the jury's role as the sole judge of witness credibility and the weight to be given evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Our standards of review remain the same whether the evidence we consider is direct or circumstantial. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). 2. Is the evidence sufficient to support the conviction? a. Relevant Law A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02(a)(2) (Vernon 2004); Page v. State, 125 S.W.3d 640, 645 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The robbery is aggravated if a deadly weapon is used or exhibited during the commission of the offense. TEX. PEN. CODE ANN. § 29.03(a)(2); Page, 125 S.W.3d at 645. The Texas Penal Code defines "in the course of committing theft" as conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the commission of theft. TEX. PEN. CODE ANN. § 29.01(1). One may be convicted as a party to a crime if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid [an]other person to commit the offense." Id. § 7.02(a)(2); Ahrens v. State, 43 S.W.3d 630, 633 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). When a defendant is present during the commission of an offense and contributes toward its commission by words or agreement, evidence is sufficient to convict under the law of parties. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996). Guilt under the law of parties may be proved by circumstantial evidence, and we may look at events occurring before, during, and after the commission of the crime, as well as actions by the defendant that demonstrate an understanding or common design to commit the offense. Id. Each fact need not directly and independently point to appellant's guilt, so long as the cumulative effect of the incriminating facts is sufficient to support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Appellant argues the evidence is factually insufficient because (1) Ortiz could not identify appellant as a participant in the robbery, (2) the investigating officers discovered no physical evidence linking appellant to the crime, and (3) only Cox identified appellant as a participant. Appellant's argument suggests that Cox's testimony coupled with some circumstantial evidence cannot support his conviction. As discussed above, however, accomplice testimony may underpin a conviction so long as it is corroborated in compliance with Article 38.14. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Vasquez, 67 S.W.3d at 236. Further, it is axiomatic that a conviction may be based on circumstantial evidence. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (stating a conviction may rest on the cumulative strength of all incriminating circumstances). Cox testified that early in the morning on June 18 appellant asked her to "ride [from Houston] to Galveston with him because he had to take care of business." She stated appellant believed she was a narcotics informant, and he wanted her to rob someone in order to prove her trustworthiness. After the two drove the streets of Galveston seeking a victim, they happened upon Ortiz. Cox further testified that as the vehicle pulled alongside Ortiz, she jumped out of the vehicle, pointed a gun at him, demanded and obtained his wallet, and then got back into the vehicle. After driving away, appellant stopped the vehicle and the two changed seats, so that Cox could drive back to Houston. Cox also stated that as officers began to pursue them, appellant encouraged her to drive faster. As traffic began to build, Cox exited Interstate 45, and the chase ended with Cox getting into an accident. As noted, appellant testified that he fled the scene of the accident because he was frightened and wanted to get as far away from Cox as possible. Viewing the appellate record neutrally, we cannot conclude the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, nor are we convinced the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Cox's properly corroborated testimony, coupled with appellant's presence in the same vehicle as Cox and his subsequent flight from police, is sufficient evidence to convict appellant as a party to the aggravated robbery of Ortiz. See TEX. PEN. CODE ANN. § 7.02(a)(2), 29.01(1), 29.02(a); Guevara, 152 S.W.3d at 49; see also Cawley v. State, 166 Tex. Crim. 37, 310 S.W.2d 340, 342 (Tex.Crim.App. 1957) (stating flight "amounts in effect to a quasi admission of guilt of the offense charged"). Although appellant presented a different version of the facts than did Cox, the jury, in its role as the sole judge of witness credibility and the weight to be given their testimony, was free to disbelieve the testimony of appellant and accept Cox's testimony as true. See Sharp, 707 S.W.2d at 614. Accordingly, we overrule appellant's sole issue and affirm the judgment of the trial court.