Opinion
No. 11-14-00109-CR
04-07-2016
MICHAEL KENNARD HIGGINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 25094A
MEMORANDUM OPINION
The jury convicted Michael Kennard Higgins of the offense of aggravated robbery and assessed his punishment at confinement for thirty years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. In one issue, Appellant challenges the sufficiency of the evidence supporting his conviction by asserting that the accomplice testimony used against him at trial was uncorroborated. We affirm.
Background Facts
On the afternoon of February 9, 2012, Appellant, Hailey Patterson, John Patterson (Hailey's brother), and James Miller, along with C.H. (a juvenile), conspired to lure Lloyd Trey Shelton to the Pattersons' home under the guise of purchasing methamphetamine from him. Miller disliked Shelton—both men had dated Hailey—and planned to "fight" Shelton when he arrived. Hailey testified that Appellant had a plan of his own—to rob Shelton of his methamphetamine and his money. Hailey also testified that Appellant possessed a .22 caliber pistol and that he began waiving it around prior to Shelton's arrival at the Pattersons' home.
Shelton arrived at the Pattersons' home later that night and delivered the methamphetamine to C.H. Shelton was then led by Appellant through the house and up a staircase to a dark room on the second floor where he was to receive payment for the drugs. Unbeknownst to Shelton, Miller was hiding in the upstairs room with the intention of "fighting" Shelton. Shelton testified that Miller tried to fight him but that, rather than sticking around, Shelton retreated down the stairs and into the backyard. Miller and Appellant followed him outside. Shelton testified that Appellant then produced a gun, pointed it at Shelton's head, and demanded all of his money. Shelton, under the mistaken belief that Appellant would not actually shoot him, began walking toward the fence to leave. Miller and Shelton both testified that, as Shelton began to climb the fence, Appellant fired a single shot into Shelton's back. The bullet severed Shelton's spinal cord and left him paralyzed from the waist down.
Analysis
In his sole issue, Appellant asserts that the evidence was insufficient to support his aggravated robbery conviction because no corroborating evidence tended to connect him to the aggravated robbery. We review a sufficiency of the evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
When, as in this case, the jury's verdict could have been based on the testimony of an accomplice, the sufficiency review must incorporate the accomplice witness rule stated in Article 38.14 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In order to support a conviction based upon the testimony of an accomplice, there must be corroborating evidence that tends to connect the accused with the offense. Id.; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). In reviewing the sufficiency of the corroborating evidence, we eliminate the accomplice testimony from consideration and focus on the remaining portions of the record to determine whether there is any evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). The corroborating evidence may be direct or circumstantial and need not be sufficient by itself to establish the defendant's guilt; it is sufficient if the combined weight of the non-accomplice evidence tends to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). We review the corroborating evidence in the light most favorable to the verdict. Taylor v. State, 328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref'd). Once corroborated, testimony of an accomplice may be considered by the jury in the same manner as any other competent evidence. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
The jury was properly instructed that John Patterson, Hailey Patterson, and James Miller were accomplice witnesses and that it could not convict Appellant on the basis of their testimony, even if they were found to be credible, unless their testimony was corroborated by other evidence tending to connect Appellant with the commission of the aggravated robbery. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (an accomplice is a person who participated with the defendant before, during, or after the commission of the crime and acted with the required culpable mental state). Appellant contends that there was no evidence corroborating the testimony of the accomplices. Appellant asserts that the testimony of the accomplices was the only evidence that Appellant fired the shot that struck Shelton and that their testimony was the only evidence linking Appellant to the theft of any property from Shelton. We disagree.
We begin our analysis by eliminating the accomplice testimony from consideration and focusing on the remaining evidence. See Solomon, 49 S.W.3d at 361. The most significant corroborating evidence is Shelton's testimony of what transpired that afternoon. Shelton testified that, when he got past the bottom of the stairs, Appellant "pulled a gun out to the side of [Shelton's] head" and said, "Give me all your money." Shelton testified that he responded to Appellant's threat by walking away because he did not think that Appellant would shoot him. Shelton said, "And that's when I got shot in the back." The prosecutor asked Shelton, "Who shot you in the back?" Shelton replied, "Michael Higgins." The prosecutor also asked Shelton, "Any question in your mind that [Appellant] was the one that shot you?" Shelton replied, "No." Shelton testified that Appellant "ran off" after shooting Shelton. Shelton also testified that no one other than Appellant had a weapon.
Shelton testified that Appellant was present at the scene, that Appellant was the only person that possessed a firearm, that Appellant threatened him with the firearm, that Appellant shot him immediately afterwards as he walked away, and that Appellant fled the scene after the shooting. This non-accomplice evidence permitted rational jurors to conclude that the evidence sufficiently "tended to connect" Appellant to the commission of the offense. Malone, 253 S.W.3d at 257 (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). Viewed in isolation, suspicious circumstances, such as an accused's presence at the scene of a crime and evidence of flight, are not sufficient to corroborate the testimony of an accomplice witness. Gill v. State, 873 S.W.2d 45, 48-49 (Tex. Crim. App. 1994); McDuff v. State, 943 S.W.2d 517, 523 (Tex. App.—Austin 1997, pet. ref'd). However, we view the incriminating circumstances collectively to determine their combined force. Smith, 332 S.W.3d at 442. Furthermore, we view the evidence in the light most favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). "Thus, 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 that view of the evidence chosen by the fact-finder." Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).
Appellant contends that, because Shelton had his back turned to both Appellant and Miller, he could not be certain as to who shot him. He further asserts that Miller was the more likely assailant given Miller's desire to fight Shelton. However, we defer to the view of the evidence chosen by the jury, which in this case is the view that Appellant was the person that shot Shelton and that he did so in connection with his attempt to rob Shelton. See id. As noted previously, Shelton testified that Appellant pointed a gun at Shelton's head and said, "Give me all your money."
Having determined that Shelton's testimony sufficiently corroborated the accomplice witness testimony, we include the accomplice witness testimony in our review of the sufficiency of the evidence. Hailey Patterson testified that Appellant came up with the idea to rob Shelton, that Appellant had a .22 caliber pistol that he was waiving around, and that Appellant shot Shelton. John Patterson testified that Appellant discussed robbing Shelton prior to Shelton's arrival at the Pattersons' house. Miller testified that he witnessed Appellant shoot Shelton in the back with a .22 caliber pistol that Appellant had bought from Miller and that Appellant shot Shelton in an attempt to "take his money or meth." Thus, in addition to Shelton's testimony that Appellant shot him in the course of committing aggravated robbery, the accomplice witnesses also testified to these facts.
Appellant points to Shelton's testimony wherein Shelton stated, "Well, I honestly didn't think [Appellant] would shoot me because we were friends." Appellant also alleges that nothing was taken from Shelton after he was shot, indicating that Appellant did not intend to rob Shelton. However, the jury also heard Shelton testify that Appellant held a gun to his head and demanded all of his money and that Appellant shot him in the back when he tried to leave. To the extent the evidence supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. We overrule Appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE April 7, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.