Opinion
No. 05-16-00623-CR
06-27-2017
MARIUS TYON MILES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F12-62415-U
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges
A jury convicted appellant Marius Tyon Miles of aggravated robbery with a deadly weapon, enhanced by a prior aggravated robbery conviction, and sentenced him to fifteen years' imprisonment. On appeal, he argues (1) the non-accomplice evidence is insufficient to connect him to the offense; (2) the trial court abused its discretion by failing to sua sponte include an accomplice-witness instruction pursuant to article 38.14 of the code of criminal procedure; and (3) the trial court abused its discretion by giving an Allen charge. We affirm the trial court's judgment.
Background
On November 12, 2012, complainant returned to his apartment from work and began unloading bags from the back of his Lexus. A man approached him from behind, put a gun to his back, and demanded his keys, cell phone, and wallet. Complainant described the gunman as a "black gentleman with short buzzed hair wearing a windsuit with - - a black windsuit with like - - like a silvery stripe on the sleeve." He described the gun as a short, gray and black Glock.
The gunman continued to hold the gun to complainant's back and forced him up the stairs to complainant's third-floor apartment. As they walked up the stairs, another man appeared in the breezeway, and complainant silently asked for help. The second man hit him on the head, and told him to shut up. Complainant then realized the second person was an accomplice.
When they entered his apartment, the gunman ordered him to face the couch with his face down and began rummaging through his wallet and asking for credit card pin numbers. The gunman moved complainant from the couch to his bedroom and then back to the living room fireplace. In each location, he threatened complainant with the gun and asked if he "wanted to die this way."
Complainant heard another person enter the apartment and rummage through his belongings. The man repeatedly asked him where he kept his guns, but complainant denied owning any.
Complainant noticed the gunman kept looking out the window, as if looking for someone. The gunman then forced complainant to unplug various electronic equipment and, with the gun still held to his back, carry them downstairs. Men waited at the bottom to take the items. He described one as having dreadlocks and another wearing a hat.
He made approximately six trips down the stairs carrying his property. During the last trip, someone at the bottom of the stairs said he heard a security guard and to, "Hurry up, get upstairs so we can finish him off." Complainant then ran upstairs and locked himself inside his apartment before the gunman reached him again. He quickly called 9-1-1.
Meanwhile, Cortez Lawrence, a courtesy officer, was patrolling the apartment complex. He noticed two unoccupied bags sitting in the drive lane of the parking lot. He thought it was suspicious so he inspected the bags and waited to see if anyone came for them. He eventually called his partner because of the "funny activity going on here."
Lawrence drove a little further down the parking lot and noticed a dark-colored Chevy Blazer backed into a no-parking area. He approached the Blazer and a tall, black male wearing a gray sweat suit appeared in front of him. The man told Lawrence he was helping a friend move. Lawrence began to perform a "courtesy search" of the man and another male exited the Blazer. Eventually, a third male, wearing a hat exited the Blazer. All three men told Lawrence they were helping a friend move.
One of the men told another to "go get what's his name because security is down here tripping." The man walked away and returned with a fourth man. The fourth man indicated the others were helping him move. Lawrence told them to leave, and the four men left in the Blazer.
Six patrol units arrived shortly thereafter. Officers told Lawrence they were responding to a robbery in progress, and he told them about his encounter with the men.
Complainant provided information for dispatch to locate his iPhone, and it "pinged" at a nearby smoke shop. Detective Adam Thayer, working in a plainclothes capacity, responded to the location. He observed the Blazer, with several occupants inside, and a man standing outside flagging people down. Based on his experience, it appeared the man was attempting to sell property. The men eventually left the smoke shop and drove to a gas station. Once the Blazer stopped, uniformed officers made a felony stop.
Officers placed the driver in custody, and appellant got out the front, passenger side. Appellant initially put his hands up, but he then began walking backwards and fled towards a nearby creek. Detective Thayer did not pursue appellant on foot, but parked his car in a secluded location by the creek where he could continue to watch for appellant. Officer Thomas Purdy and other officers set a perimeter around the location.
When appellant came out of the creek, Detective Thayer knocked him to the ground and briefly frisked him for any guns or weapons. He did not find a weapon and did not remember finding anything else during the frisk. If he had found anything, he would have told Detective David Hernandez, who completed the offense report and the arrest report.
Uniformed officers then took over, and Officer Purdy helped handcuff appellant. Officer Purdy searched appellant and found fifteen credit cards with complainant's name on them in his front, right pocket. He thought he relayed that information to Detective Hernandez, but it was not in the offense report. Appellant was later indicted for aggravated robbery with a deadly weapon.
During trial, Najee Chapton, an indicted co-defendant, testified before the jury. He confirmed he was a part of the robbery and that appellant was with him during the incident. Chapton also confirmed he owned and drove the Blazer.
Chapton testified that on the night in question, he picked up appellant and saw appellant's gun. Chapton then picked up J.S., another friend. Chapton said appellant gave his gun to J.S. The fourth individual with Chapton that night was W.W. Chapton confirmed W.W. had dreadlocks, which matched the description of one of the individuals that complainant said was waiting at the bottom of the stairs to take his property.
At the time of the incident, J.S. and W.W. were juveniles.
According to Chapton, W.W. and J.S. sat in the backseat of the Blazer, and he was the driver. They drove to an apartment complex to look for some girls. Although Chapton said no one in the car knew J.S.'s plan, he testified appellant mentioned earlier "something about a drug dealer" and wanting to get "some artillery."
When they reached the apartment complex, J.S. jumped out of the car, pointed the gun at complainant, and left with him. Chapton told W.W. to go get J.S. Although W.W. left to get J.S., the two men did not return so Chapton and appellant drove off.
Appellant encouraged Chapton to return because J.S. had his gun. When they got back to the complex, they saw W.W. in the parking lot and then saw J.S. Appellant told Chapton to pull in backwards, and then appellant loaded property into the car.
Chapton explained a security guard eventually approached, searched him, and told him to leave. When the other men returned, they drove off and went to the smoke shop. Officers later pulled him over at a gas station. He got out and put his hands up per the officer's request, but appellant "took off." Officers arrested the remaining three men and found the stolen property in the Blazer.
Despite appellant's attempts to discredit the officers' testimony and Chapton's accomplice testimony, the jury found him guilty of aggravated robbery and sentenced him to fifteen years' confinement.
Appellant had a previous aggravated robbery conviction from September 2005.
Sufficiency of the Evidence
In his first issue, appellant argues the non-accomplice evidence is insufficient to connect him to the aggravated robbery offense. To convict a defendant of aggravated robbery, the State must prove the defendant intentionally or knowingly, while in the course of committing theft, threatened or placed an individual in fear of imminent bodily injury or death and used or exhibited a deadly weapon during commission of the offense. TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (West 2011). The jury could convict appellant as a party to the offense if the State proved he committed the offense by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).
A conviction cannot rest on the testimony of an accomplice unless corroborated by other evidence "tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Under this rule, the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). "The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt." Id. (citing McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997)). There must simply be some non-accomplice evidence that tends to connect appellant to the commission of the offense alleged in the indictment. Id.
We look at the particular facts and circumstances of each case and consider the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—Dallas 2014, pet. ref'd). Even "apparently insignificant" circumstances may constitute sufficient evidence of corroboration. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). "Judicial experience shows no precise rule can be formulated as to the amount of evidence that is required to corroborate the testimony of an accomplice." Id.
The non-accomplice evidence may be direct or circumstantial. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). "When there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to the view of the evidence chosen by the fact-finder." Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Patterson v. State, No. 05-13-00450-CR, 2015 WL 2400809, at *6 (Tex. App.—Dallas May 19, 2015, pet. ref'd) (not designated for publication) (concluding that despite conflicting testimony, the jury was free to believe one version and non-accomplice testimony tended to connect defendant to offense).
Motive and opportunity evidence is insufficient on its own to corroborate accomplice-witness testimony, but both may be considered in connection with other evidence that tends to connect the accused to the crime. Smith, 332 S.W.3d at 442. Other suspicious conduct of the defendant includes actions indicating the defendant's consciousness of guilt. Simmons, 282 S.W.3d at 510.
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 so as to furnish sufficient corroboration to support a conviction. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993) (en banc); see also Franklin v. State, No. 05-11-00990-CR, 2012 WL 4801522, at *4 (Tex. App.—Dallas Oct. 10, 2012, no pet.) (not designated for publication) (noting non-accomplice testimony placed defendant at or near the scene of the crime at or about the time of its commission under suspicious circumstances).
Proof that connects a defendant to a weapon similar to that used in the offense is another circumstance considered when determining the sufficiency of evidence to corroborate the accomplice. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997).
Viewed in the light most favorable to the verdict, the non-accomplice testimony established appellant was in the Blazer at the apartment complex when the robbery occurred. Complainant described one of the men as wearing a hat. Lawrence testified a male wearing a black hat got out of the Blazer during his brief search of Chapton. A baseball hat was later recovered in the front seat of the Blazer. This evidence established appellant was near the scene of the crime, which indicated opportunity for his involvement as a party to the offense. See Smith, 332 S.W.3d at 442.
When officers stopped the Blazer at the gas station, Officer Purdy testified appellant exited the front passenger side and then ran away. Fleeing may be considered circumstantial evidence indicating guilt. See Salazar v. State, 800 S.W.2d 959, 960 (Tex. App.—Texarkana, no pet.) (unexplained possession of stolen vehicle, along with defendant's flight from officers, raised a permissible inference of guilt). Officer Purdy later discovered credit cards belonging to complainant in his front, right pocket. The complainant's cell phone was found under the front driver's seat. A gun matching the description of the one used in the offense was discovered in the Blazer. See Hernandez, 939 S.W.2d at 178 (weapon connecting defendant to offense may be a circumstance considered when determining sufficiency).
Finally, Chapton testified appellant wanted to rob a drug dealer and try to steal "artillery." Chapton's testimony was corroborated by complainant's testimony that one of the men kept asking him where he kept his guns in the apartment. Accordingly, the record contains "some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment." See Castillo, 221 S.W.3d at 691.
Despite the non-accomplice evidence sufficiently corroborating appellant's conviction, appellant argues the evidence is insufficient because (1) Officer Thayer found "nothing of note" during his initial search; (2) Officer Purdy's testimony was not credible because the police report did not include his discovery of the credit cards; (3) the State failed to offer the credit cards or photographs of the credit cards into evidence; and (4) the State must have doubted Officer Purdy because it did not emphasize the credit cards during closing argument.
Officer Purdy explained a frisk is different than a search incident to an arrest. A frisk "is just a quick pat down for weapons" and does not involve checking pockets. The search incident to the arrest involved "each and every one of his pockets and we pulled everything out." A rational jury could infer Detective Thayer's frisk was sufficient for its purpose—to confirm appellant did not have any weapons. Therefore, Detective Thayer's testimony that he found "nothing of note," did not discredit his or Officer Purdy's later testimony in which Officer Purdy explained he discovered the credit cards in appellant's front, right pocket during the search incident to the arrest.
Further, it was reasonable for the jury, as the exclusive judge of witnesses' credibility and the weight to be given their testimony, to resolve any conflicting testimony regarding the stolen credit cards' omission from the offense report. See McCay v. State, 476 S.W.3d 640, 651 (Tex. App.—Dallas 2015, pet. ref'd). Here, it was reasonable for the jury to believe that Officer Purdy found the credit cards and told Detective Hernandez. Officer Purdy explained he did not write the offense report; therefore, the fact that this information did not appear in Detective Hernandez's report did not discredit Officer Purdy's testimony. Rather, the jury could have concluded it was an inadvertent oversight by Detective Hernandez because he gathered information from several officers on the night of the incident.
The record indicates the State offered, and the trial court admitted, Exhibit 43, which is a photograph of the fifteen credit cards stolen from complainant and recovered from appellant's right, front pocket. His argument to the contrary is without merit.
Finally, appellant incorrectly asserts the State did not emphasize the credit cards during closing argument; therefore, the State must have doubted Officer Purdy's credibility. Although the State did not refer to Officer Purdy, it reminded the jury, "[W]hat does he have in his pockets? The credit cards. Of course he knew what was going on." In rebuttal, the State again mentioned the credit cards. Accordingly, the State relied on appellant's possession of the credit cards as evidence of guilt.
A rational jury could have found the combined force of the non-accomplice evidence "tended to connect" appellant to the aggravated robbery. The evidence is legally sufficient to support his conviction. Appellant's first issue is overruled.
Accomplice-Witness Instruction
In his second issue, appellant argues the trial court erred by failing to sua sponte include an article 38.14 accomplice-witness instruction in the jury charge. See TEX. CODE CRIM. PROC. ANN. 38.14 (West 2005) ("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; and the corroboration is not sufficient if it merely shows the commission of the offense."). The State responds the omission was harmless.
It is undisputed Chapton was indicted for the same offense as appellant; therefore, he was an accomplice as a matter of law. See Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). Because Chapton was an accomplice as a matter of law, the trial court had a duty to instruct the jury accordingly, and failure to do so was error. Id.
Because appellant did not object to the trial court, reversal follows only if the record demonstrates the error resulted in egregious harm. See Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012); see Zamora v. State, 411 S.W.3d 504, 515 (Tex. Crim. App. 2013) (stating an accomplice-witness instruction must be analyzed under Almanza). Under the egregious harm standard, the omission of an accomplice-witness instruction is generally harmless unless the non-accomplice evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Herron, 86 S.W.3d at 632.
The requirement of corroborating evidence must be flexible; therefore, we are instructed to examine (1) its reliability or believability and (2) the strength of its tendency to connect the defendant to the offense. Simmons v. State, 205 S.W.3d 65, 77 (Tex. App.—Fort Worth 2006, no pet.). Corroborating evidence that is exceedingly weak—that is to say, evidence that, while it is legally sufficient to tend to connect, is nevertheless inherently unreliable, unbelievable, or dependent upon inferences from evidentiary fact to ultimate fact that a jury might readily reject—may call for a conclusion that the failure to give the accomplice-witness instruction resulted in harm regardless of whether the deficiency was objected to. Casanova, 383 S.W.3d at 539. However, as the corroborating evidence gains in strength to the point that it becomes implausible that a jury would fail to find that it tends to connect the accused to the commission of the charged offense, then a reviewing court may safely conclude the only resultant harm is purely theoretical and there is no occasion to reverse the conviction. Id. at 540.
As detailed above, the evidence tending to connect appellant to the robbery is far from insubstantial. The officers' and complainant's testimony was not inherently incredible. Thus, the evidence was sufficiently reliable and believable that it would not be implausible for a jury to find that it tends to connect appellant to the robbery. Therefore, any resultant harm from the omitted instruction was purely theoretical. We overrule appellant's second issue.
Allen Charge
In his final issue, appellant argues the trial court erred by giving an Allen charge to the jury. The State responds his issue is not preserved for review, or alternatively, the charge was proper.
An Allen charge is a supplemental charge sometimes given to a jury that declares itself deadlocked. It reminds the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve. Allen v. U.S., 164 U.S. 492, 501 (1896). While such a charge is permissible in both the federal system and Texas courts, trial courts must be careful to word it and administer it in a non-coercive manner. Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006).
In order to preserve error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). Prior to reading the Allen charge, the trial court asked defense counsel if he had any objection, and he responded, "No objection from the defense." When a defendant does not object to the trial court's submission of an Allen charge, error is not preserved. Thomas v. State, 312 S.W.3d 732, 740 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd); see also Gonzalez v. State, No. 04-13-00708-CR, 2014 WL 6979289, at *4 (Tex. App.—San Antonio April 1, 2015, pet. ref'd) (mem. op., not designated for publication); Brooks v. State, No. 05-91-01021-CR, 1992 WL 155570, at *3 (Tex. App.—Dallas July 2, 1992, pet. ref'd) (not designated for publication). Accordingly, Appellant did not preserve his complaint that the Allen charge was coercive. Sparks v. State, No. 2-07-356-CR, 2008 WL 4053021, at *4 (Tex. App.—Fort Worth Aug. 28, 2008, no pet.) (mem. op., not designated for publication) (concluding Allen charge complaint not preserved for review when defense affirmatively stated he had no objection). Appellant's third issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160623F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F12-62415-U.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 27, 2017.