Opinion
NO. 01-17-00311-CR
05-08-2018
BROWN OKORONKWO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1497838
MEMORANDUM OPINION
A jury convicted appellant, Brown Okoronkwo, of the state jail felony offense of illegal dumping. The trial court assessed appellant's punishment at twenty-four months' confinement in the state jail. The court probated the sentence and placed appellant on community supervision for three years, ordering him to pay a $4,000 fine, complete 200 hours of community service, and serve ten days in the Harris County Jail. In his sole issue on appeal, appellant contends that the State presented insufficient evidence to corroborate the testimony of an accomplice witness.
See TEX. HEALTH & SAFETY CODE ANN. § 365.012(a), (c) (West Supp. 2017).
We affirm.
Background
Appellant owns and operates a car repair business called First Class Autos. Among its services, First Class Autos sells, repairs, and replaces tires. First Class Autos also offers OSHA-certified classes in the operation of industrial equipment, such as fork lifts. First Class Autos is located on Honeywell Road in southwest Houston near the intersection with South Braeswood Boulevard. Barger Road runs parallel to Honeywell and is directly behind First Class Autos. A couple of blocks south of First Class Autos, Barger turns slightly to the west and dead-ends near Keegans Bayou.
On February 5, 2016, Houston Police Department (HPD) Officer T. Cochran was working in the air support division of HPD, providing assistance from the air on a burglary call in southwest Houston. While he was in the air, Officer Cochran noticed a white box truck with the back door opened up parked in front of a pedestrian bridge along Keegans Bayou. Officer Cochran saw a person inside the back of the truck and a person standing on the ground near the truck. He also saw tires sticking out from the back of the truck. Officer Cochran directed additional HPD units to this area to investigate.
Officer D. Polk was responding to the same burglary call with which Officer Cochran was assisting when he was notified that air support had witnessed two people in the area dumping tires into a ditch. Approximately five minutes later, after being guided to the location by air support, Officer Polk arrived at 9900 Barger, where he saw a white box truck parked near a body of water. Two men—later identified as Meelubari Ndebee and Randy McClain—were standing next to the truck, which was full of tires. Officer Polk also saw tires in the ditch as well. Officer Polk testified that the men told him that they worked for the owner of First Class Autos—appellant—who had told them to come to this location and dump tires. Appellant later arrived at the scene while Officer Polk was present, and Polk identified appellant in court.
Officer Polk testified that he spoke with appellant at the scene. Appellant told Officer Polk that he was there because "one of his employees called and said the police were out there with his truck at the bayou, the ditch." Appellant initially admitted to Officer Polk that Ndebee and McClain worked for him, but "then he changed his story" and said that he did not know the men. Officer Polk testified:
[Appellant] was basically saying that he called—they—they called asking for work. He told them—he told them that he had some work to
do to—for them to recycle the tires or dump the tires in a said place. But then he kind of changed his story, said that he didn't tell them to do that. He said he did know the one guy. I don't remember his name.Officer Polk testified that one of the two men told him that they lived with appellant and appellant told them to dump the tires, and the other man told Polk that appellant called them for work and told them to dump the tires. Both Ndebee and McClain told Officer Polk that they were directed to dump the tires in that specific location.
Investigator J. Gonzalez, who worked with the Harris County Environmental Crimes Unit, received a call that HPD had detained three men for illegally dumping tires in a creek. When he arrived at the scene, he saw approximately one hundred tires in the ditch and one hundred more tires inside a white box truck.
Appellant was already at the scene when Investigator Gonzalez arrived. Appellant handed Investigator Gonzalez his business card, told Gonzalez that he owned the tire shop, and denied participating in any illegal activity. When Investigator Gonzalez interviewed Ndebee and McClain, "they told [him] that they were hired or they were offered money by the owner to dump the tires." Both Ndebee and McClain claimed that appellant paid them $15 each to dump the tires. Appellant consistently denied to Investigator Gonzalez that he paid the men to dump the tires, but he did admit that the men were his employees. Investigator Gonzalez testified that it costs about $1.50 per tire to dispose of a tire at an approved waste site and that the bayou is not an approved site. He agreed with the State that by dumping the tires appellant would avoid paying the costs for disposal at an approved site and, thus, appellant would receive an economic benefit from dumping the tires.
Ndebee testified that he had been laid off from his job in January 2016, and he approached appellant, who owned a tire shop across the street from Ndebee's apartment, and sought employment. Ndebee did not have experience working with tires, and appellant told Ndebee that he would hire him but would not pay him until he gained some experience. Several days after Ndebee started working for appellant, and before the incident that is the subject of this case, appellant, Ndebee, and McClain drove a U-Haul truck full of old tires to a nearby waterway and dumped those tires in the water.
Ndebee testified that, on this occasion, he was not aware that dumping tires in this manner was illegal because he was inexperienced in the tire business and he had no idea what to do with used tires. He stated, "I was doing what my boss asked me to do."
Ndebee testified that, around two weeks after the first dumping incident, appellant approached him while he was changing a customer's tire and told him "not to worry about that one, somebody [is] going to take care of that." Appellant then handed Ndebee a truck key and told him to take McClain and the truck to "where [they] went last time" to dump another batch of tires. Ndebee drove the truck to the location on Barger Road, which was about two to three minutes away from appellant's tire shop, and McClain started unloading tires from the truck. Ndebee started to help McClain unload tires, but McClain then saw a helicopter circling overhead, and he became nervous. Ndebee testified that he asked McClain if it would be a problem if the police saw them dumping tires, and McClain responded, "yes." Officers then arrived on the scene and told Ndebee to get out of the truck. Ndebee estimated that around 130 to 140 tires were in the truck for dumping on this date.
Ndebee stated that he told the officers that he was there because his boss told him to go there and dump the tires, and he gave the officers appellant's business card. Appellant showed up at the scene before officers could call him. Ndebee testified that neither he nor McClain called appellant to come down to the dumping location. Instead, appellant arrived on his own because he was wondering why the men had not yet returned to the shop. Ndebee agreed that appellant knew where to go because he had shown them the dumping location on a previous occasion. He also testified that when appellant arrived at the scene appellant told the officers that he did not know Ndebee or McClain and that they did not work for him. Ndebee testified that, eventually, appellant admitted to the officers that Ndebee worked for him. Officers arrested both Ndebee and appellant.
Ndebee testified:
I asked him, So why [did] you have to tell the police that you didn't know me? He said—he told me, I am sorry. I just had to get away with it. I had to say whatever I have to say to get away with it. But, you know, when you-all go to jail, I will come and get you out. But I said,
so why, when we know we both in, you have all the money that we work for, so why didn't you get us both in there?Ndebee stated that appellant did not pay his bond after he was arrested, nor did appellant pay Ndebee $15 to dump the tires. Instead, appellant paid McClain $15, but Ndebee "was just doing what [his] boss asked [him] to do" and was doing "part of [his] job."
Appellant testified on his own behalf. He testified that on the day of February 5, 2016, he was teaching a class at First Class Autos on using industrial equipment. He stated that McClain was a contractor who would sweep his tire shop, but he did not consider McClain to be an employee. Appellant considered Ndebee to be an employee because Ndebee was living at his shop at the time. Appellant denied ever asking McClain and Ndebee to dump tires for him on any occasion. He denied knowing anything about McClain's and Ndebee's actions on February 5, and he testified that he went to the scene because, while he was teaching his class, he received a phone call from Ndebee and he heard police officers talking about a wrecker for the truck. Appellant testified that he had recently obtained the truck but had not yet had title transferred to his name, and he wanted to avoid having the truck impounded. He stated that he asked one of his employees where Ndebee was, and the employee told him that Ndebee had taken the truck "down the alley" around 100 or 150 yards from his shop. Appellant denied telling the officers at the scene that he did not know McClain and Ndebee.
Appellant offered eight exhibits purporting to be manifests between his company and a company called Rock Tire Disposal that were generated every time Rock Tire picked up tires from his business for disposal. The manifests that appellant introduced were dated before and after the dumping incident that is the subject of this proceeding. Appellant testified that he had no reason to ask McClain or Ndebee to dump tires in a ditch.
On cross-examination, appellant stated that he was "completely unaware" that McClain and Ndebee had taken a truck full of tires away from the shop because he was teaching a class at the time. Appellant also stated that the tires inside the truck were good tires that did not need disposal. The State then showed appellant a picture of a tire from the truck that had a tear in it, and appellant conceded that that was not a good tire and that some unusable tires were on the truck.
The jury charge included instructions concerning accomplice witness testimony and the necessity that accomplice witness testimony be corroborated. The charge included the following instruction:
The witness, Meelubari Ndebee, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you first believe that the testimony of Meelubari Ndebee is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the testimony of Meelubari Ndebee tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission,
and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.
The jury found appellant guilty of the offense of illegal dumping. The trial court assessed appellant's punishment at two years' confinement in the state jail. The court probated appellant's sentence, placed him on community supervision for three years, and ordered him to pay a $4,000 fine, complete 200 hours of community service, and serve ten days' confinement in the Harris County Jail. This appeal followed.
Corroboration of Accomplice Witness Testimony
In his sole issue, appellant contends that the State failed to present sufficient evidence to corroborate the testimony of Ndebee, who was an accomplice witness as a matter of law. A. Standard of Review and Governing Law
An accomplice is someone who "participates with the defendant before, during, or after the commission of crime," "acts with the required culpable mental state," and engages in "some affirmative act that promotes the commission of the offense with which the defendant is charged." Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). A witness is an accomplice witness as a matter of law when the witness has been charged with the same offense as the defendant or a lesser-included offense, or when the evidence "clearly shows" that the witness could have been so charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013).
Code of Criminal Procedure article 38.14 provides that "[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 that "the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). This 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.'" Zamora, 411 S.W.3d at 509 (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). The accomplice-witness rule is a "statutorily imposed review" that is not derived from the federal and state constitutional principles that define the general sufficiency of evidence standards. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we eliminate the accomplice testimony itself from our review and examine 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." Id. (quoting Solomon v. State, 49 S.W.3d 356, 561 (Tex. Crim. App. 2001)); Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself. Malone, 253 S.W.3d at 257. Instead, the corroborating evidence must simply link the defendant 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." Id. (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). There is no "set amount" of non-accomplice evidence that is required for sufficiency purposes because each case must be judged on its own facts. Id. (quoting Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)). The non-accomplice evidence does not have to directly link the defendant to the crime; instead, there "must simply be some non-accomplice evidence which tends to connect [the defendant] to the commission of the offense alleged in the indictment." Castillo, 221 S.W.3d at 691 (emphasis in original) (quoting McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997)).
When there are two permissible views of the corroborating evidence—one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense—we 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). Thus, the issue is not how we would independently assess the non-accomplice evidence, "but whether a rational fact-finder could conclude that the non-accomplice evidence 'tends to connect' [the defendant] to the offense." Id. at 509; see Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011) ("[I]t is not appropriate for appellate courts to independently construe the non-accomplice evidence."). We must consider the combined force of all of the non-accomplice evidence that tends to connect the defendant to the offense. Smith, 332 S.W.3d at 442. We view corroborating evidence in the light most favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).
We consider the reliability and the strength of the corroborating evidence's tendency to connect the defendant to the crime. Torres v. State, 408 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)). "Corroborating evidence is reliable if 'there is no rational and articulable basis for disregarding it or finding that it fails to connect the defendant to the offense.'" Id. (quoting Herron, 86 S.W.3d at 633). Apparently insignificant circumstances may constitute sufficient evidence of corroboration, and proof that the defendant 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." Malone, 253 S.W.3d at 257 (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). However, the mere presence of the defendant at the scene of the crime, by itself, is not sufficient to corroborate accomplice testimony. Id. Similarly, motive and opportunity evidence is insufficient on its own to corroborate accomplice testimony, but this evidence may be considered in connection with other evidence tending to connect the defendant to the offense. Smith, 332 S.W.3d at 442. The suspicious conduct of the defendant may sufficiently corroborate accomplice testimony, and "under most circumstances, an admission or confession will be sufficient" to corroborate accomplice testimony. Brown, 270 S.W.3d at 568. B. Analysis
To prove that appellant committed the offense of illegal dumping as charged in the indictment, the State was required to establish that appellant either (1) disposed, allowed, or permitted the disposal of litter or other solid waste, specifically, at least two hundred pounds of tires, at a place that was not an approved solid waste site, or (2) transported litter or other solid waste, specifically, at least two hundred pounds of tires, to a place that was not an approved solid waste site for disposal at the site. See TEX. HEALTH & SAFETY CODE ANN. § 365.012(a), (c) (West Supp. 2017). The jury charge authorized the jury to find appellant guilty of the offense of illegal dumping either as a primary actor or as a party. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011) (providing that person is criminally responsible for offense committed by conduct of another if, acting with intent to promote or assist commission of offense, he solicits, encourages, directs, aids, or attempts to aid other person to commit offense). The jury charge also instructed the jury that Ndebee was an accomplice and that the jury could not convict appellant based upon Ndebee's testimony unless it believed that other evidence in the case tended to connect appellant with the offense of illegal dumping.
Officer Polk testified that, after he began speaking with Ndebee and McClain at the scene, appellant arrived at the scene, claiming that one of his employees had called him and told him that officers were investigating his truck at the bayou. Appellant provided inconsistent explanations to Officer Polk regarding his connection to Ndebee and McClain. Officer Polk testified:
[Appellant] was basically saying that he called—they—they called asking for work. He told them—he told them that he had some work to do to—for them to recycle the tires or dump the tires in a said place. But then he kind of changed his story, said that he didn't tell them to do that. He said he did know the one guy. I don't remember his name.Before "changing his story," appellant admitted to Officer Polk that Ndebee and McClain worked for him and that he had directed them to "recycle the tires or dump the tires in a said place." When appellant spoke with Investigator Gonzalez, he admitted that Ndebee and McClain were his employees, but he denied that he told them to dump the tires and he denied knowledge of any illegal activity. Appellant testified similarly at trial, stating that Ndebee made the decision on his own to take the truck and that the truck was full of good tires that were not to be disposed. Upon examining a picture of a tire from the truck that had a tear in it, appellant conceded on cross-examination that some of the tires in the truck were not good and usable.
Appellant's shop was located near the site where officers discovered Ndebee and McClain dumping tires. Ndebee and McClain told Officer Polk that they worked for appellant, and Ndebee provided one of appellant's business cards, but appellant arrived at the scene on his own initiative, before officers could call him and request to speak with him. Investigator Gonzalez testified that it costs $1.50 per tire to dispose of tires at an approved disposal site and, thus, by dumping tires in a ditch, appellant could save money and obtain a financial benefit. Investigator Gonzalez estimated that there were around a hundred tires inside the truck and a hundred tires in the ditch when he arrived. Appellant would therefore save around $300 by dumping the tires in a ditch instead of having them removed from his shop by an approved disposal company.
Evidence of motive and opportunity is, on its own, insufficient to corroborate accomplice testimony, but this evidence may be considered in connection with other evidence tending to connect appellant to the offense of illegal dumping. See Smith, 332 S.W.3d at 442. In addition to the evidence that appellant had a motive for the illegal dumping—a financial benefit—and the opportunity—his tire shop was near the dumping site—appellant also admitted to Officer Polk that he told Ndebee and McClain to "recycle the tires or dump the tires in a said place," before denying that he told them to dump the tires and claiming that he did not know one of the men. Appellant admitted to Investigator Gonzalez that both of the men did work for him, and he admitted at trial that at least some of the tires on the truck were not good and were not usable, contrary to his insistence earlier in his testimony that Ndebee had taken a truck full of good tires from the shop.
After excluding Ndebee's testimony from our consideration and reviewing the remaining evidence, we conclude that the State presented some non-accomplice evidence that tends to connect appellant to the charged offense of illegal dumping. See Castillo, 221 S.W.3d at 691; see also Malone, 253 S.W.3d at 257 (stating that non-accomplice evidence need not prove defendant's guilt beyond reasonable doubt by itself, but merely must link defendant in some way to commission of charged crime). We hold that, because a rational fact-finder could have concluded that the non-accomplice evidence tended to connect appellant to the offense of illegal dumping, the State presented sufficient evidence to corroborate Ndebee's accomplice testimony. See Simmons, 282 S.W.3d at 509; Malone, 253 S.W.3d at 257.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).