Ivan McWilliams v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00178-CR
IVAN MCWILLIAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 272nd District Court
Brazos County, Texas
Trial Court No. 14-03868-CRF-272, Honorable Travis B. Bryan, Presiding
March 20, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Ivan McWilliams was convicted by a Brazos County jury of the offense
of aggravated robbery with a deadly weapon1 and sentenced to fifteen years of
1 TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2018).
imprisonment.2 He appeals, challenging the sufficiency of the evidence to support his
conviction. We will affirm.
Background
At trial, a supervisor in the College Station Police Department’s Criminal Division
testified to his investigation of a drug deal that turned into a robbery. The victim of the
robbery, Mark Galvan, told the supervisor he was robbed at gunpoint by four men.
Appellant was identified as one of those men.
The robbery occurred at Galvan’s duplex apartment. William Madden had
previously bought marijuana from Galvan3 and, on the night of the robbery, had contacted
Galvan to buy more. Madden asked if some of his friends could also come over and buy
marijuana. Galvan agreed, and Madden later arrived. The four men, including appellant,
arrived together after Madden.
Galvan testified that as he prepared to sell marijuana to the group, he turned
around and saw one of them, identified as “Ant,” holding a black handgun aimed at
Galvan’s face. The man told Galvan to get on the floor, and told Madden the same. Both
complied. Appellant and another man, Levi Jones-Carroll, were near the front door and
the fourth man, Devontae Owens, had left the apartment. Galvan told the jury he saw
two men move around the apartment gathering items to steal. Along with the marijuana,
2This is a first-degree felony, punishable by imprisonment for any term of not more
than ninety-nine years or less than five years and a fine not to exceed $10,000. TEX.
PENAL CODE ANN. § 12.32 (West 2018).
Madden also testified at appellant’s trial, saying he had purchased marijuana from
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Galvan “10, 20 times.”
2
he said, they took his laptop computer and his Playstation. Carroll also told Galvan to
remove his Fossil watch from his wrist. The men took the watch and Carroll later pawned
it.
Evidence showed Madden knew Carroll, Owens, and appellant from high school.
After Madden gave investigating officers names as “possible suspects,” the officers
prepared photo-lineups. Madden confirmed their identities.4 Galvan also picked
appellant’s photo out of a photo line-up presented to him by an investigating detective two
months after the robbery. Carroll and Owens also testified at trial, telling the jury of their
guilty pleas arising from the robbery. Both identified appellant as a participant in the
aggravated robbery, albeit with slightly differing versions of the events. Appellant did not
testify.
Analysis
On appeal, appellant acknowledges he was among the four men who were with
Madden in Galvan’s apartment during the robbery. The issue is what the evidence shows
about appellant’s role in the events. Appellant challenges the sufficiency of evidence to
corroborate the testimony of accomplice witnesses, and argues that, even if corroborated,
the testimony was insufficient to establish his guilt beyond a reasonable doubt.
Standard of Review and Applicable Law
When a defendant challenges his conviction on the ground that the evidence was
insufficient, a reviewing court must affirm the conviction if, “after viewing the evidence in
Although Madden testified he knew “of” the man referred to as Ant, the man was
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never positively identified.
3
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (citation omitted). This standard gives “full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Id.
As charged in the indictment here, to prove appellant guilty of robbery, the State
had to show that, in the course of committing theft and with the intent to obtain or maintain
control over the property, appellant intentionally or knowingly threatened or placed Galvan
in fear of imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a). The offense
may be aggravated if the defendant uses or exhibits a deadly weapon in the course of
committing the robbery. TEX. PENAL CODE ANN. § 29.03(a)(2). A firearm is a “deadly
weapon” as defined by the Penal Code. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West
2018).
A defendant does not need to commit the robbery or aggravated robbery himself
to be guilty of the offense. Sears v. State, No. PD-0264-17, 2018 Tex. Crim. App. Unpub.
LEXIS 622, at *10 (Tex. Crim. App. Sep. 12, 2018). (citations omitted). Instead, it is
enough that the defendant “intends to promote or assist the commission of the offense
and he solicits, encourages, directs, aids, or attempts to aid another person to commit it.”
Id. (citing TEX. PENAL CODE ANN. § 7.02(a)(2)) (internal quotations omitted). While “mere
presence at the scene is not enough to sustain a conviction, that fact may be considered
in determining whether an appellant was a party.” Leadon v. State, 332 S.W.3d 600, 606
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (citations omitted).
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Accomplice-Witness Testimony
Under article 38.14 of the Code of Criminal Procedure, a “conviction cannot be
upheld on the basis of accomplice testimony unless it is 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 2018). See also State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim.
App. 2016) (citing Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011))
(discussing requisites of accomplice-witness testimony). 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. Cocke v. State, 201 S.W.3d 744, 748 (Tex.
Crim. App. 2006) (citation omitted).
In reviewing the sufficiency of the corroborating evidence in the record, we
eliminate the accomplice testimony from consideration and examine the remainder of the
record to determine whether there is any independent 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). See also Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007)
(stating same). The corroborating evidence need not be sufficient to establish appellant’s
guilt; it need only tend to connect appellant to the offense. Castillo, 221 S.W.3d at 691.
The mere presence of appellant at the scene of the crime is insufficient corroboration.
See Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). However, evidence
of such presence, along with proof of other suspicious circumstances can tend to connect
the accused to the offense. Walker v. State, No. 07-12-00416-CR, 2014 Tex. App. LEXIS
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9086, at *7 (Tex. App.—Amarillo Aug. 15, 2014) (mem. op., not designated for
publication) (citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)).
We consider the “combined force of all of the non-accomplice evidence that tends
to connect the accused to the offense.” Smith, 332 S.W.3d at 442. We review a claim
that accomplice-witness testimony has not been sufficiently corroborated in the light most
favorable to the verdict. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App.
1997). 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) (once it is determined that corroborating non-accomplice
evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no
further role in the factfinder’s decision-making).
Searching the record for non-accomplice-witness testimony tending to connect
appellant with the offense, we begin with the testimony of the victim Galvan. During his
testimony, Galvan acknowledged the unlawfulness of his conduct of selling marijuana and
acknowledged that he initially did not tell officers Madden and the four others came to
buy. Appellant vigorously challenged Galvan’s credibility at trial, and continues to do so
on appeal. As we have noted, however, we must consider the evidence in the light most
favorable to the verdict. Hernandez, 939 S.W.2d at 176. It is the role of the jury to
evaluate the credibility of witnesses and to determine the weight to be given the testimony
of a particular witness. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
Jurors were free to accept Galvan’s version of the events.
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Galvan told the jury that Madden first arrived at his apartment, and the four others
he did not know, came later. After he displayed the marijuana and some marijuana
brownies he also had for sale, one of the four men left the apartment. After one produced
the gun and ordered him and Madden to the floor, the two others “immediately” began to
gather the items they took.
The jury was instructed that Madden was an accomplice as a matter of fact and
Carroll and Owens were accomplices as a matter of law. See Zamora v. State, 411
S.W.3d 504, 510 (Tex. Crim. App. 2013) (describing proper accomplice-witness
instruction). Under the court’s instructions, it was left for jurors to determine whether
Madden was an accomplice witness. See Zamora, 411 S.W.3d at 510 (proper instruction
for accomplice as matter of fact “asks the jury to (1) decide whether the witness is an
accomplice as a matter of fact, and (2) apply the corroboration requirement, but only if it
has first determined that the witness is an accomplice”) (citation omitted). Madden
testified he had bought marijuana from Galvan several times before; that he arrived at
Galvan’s apartment before the other men, in a separate car; that he did not know the men
planned to rob Galvan; that Ant held a gun on him just as he did on Galvan; that he
remained at Galvan’s apartment after the robbery; and that after the robbery, Owens
offered him an ounce of marijuana to “be quiet” about the offense. Galvan’s testimony
contains no suggestion that he believed Madden was complicit in the robbery. He said
Madden reacted to the robbery with “disbelief,” “apologized over and over,” for his
acquaintances’ conduct and offered to pay for the items they stole. The testimony
presented by Galvan and Madden permitted the jury to conclude Madden was not an
accomplice to the robbery. See Cocke, 201 S.W.3d at 748-49; Webb v. State, No. 01-
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94-01081-CR, 1995 Tex. App. LEXIS 3087 (Tex. App.—Houston [1st Dist.] Dec. 7, 1995,
pet. ref’d) (mem. op., not designated for publication).
As the testimony of a non-accomplice witness, Madden’s testimony requires no
corroboration and is itself available for use as corroborating evidence. Smith, 332 S.W.3d
at 442; Herron, 86 S.W.3d at 632. See generally, Texas Criminal Pattern Jury Charges,
Accomplice Witness Testimony, § CPJC 3.3, at 53-63, § CPJC 3.4, at 64-77 (State Bar
of Texas 2018). As noted, Galvan testified that, while the gunman watched him, two men
moved around his apartment taking items. Madden’s testimony provided a detail missing
from Galvan’s: the identity of the man who left the apartment before the robbery began.
Madden told the jury it was Owens who, after Galvan offered the “pot brownies” for sale,
said, “well, I don’t have the money here but it’s out in the car.” Madden’s and Galvan’s
testimony provides evidence showing appellant was one of the two men who collected
items during the robbery, establishing more than his mere presence during the offense;
the evidence thus readily tends to connect appellant with its commission.
Appellant’s accomplices Carroll and Owens both also testified for the State. The
corroboration requirement having been satisfied, we are free to rely on their testimony.
See, e.g., Williams v. State, No. 14-13-00708-CR, 2015 Tex. App. LEXIS 10491 (Tex.
App.—Houston [14th Dist.] Oct. 13, 2015, pet. ref’d) (mem. op., not designated for
publication) (discussing accomplice witness testimony in aggravated robbery involving
drugs). Carroll’s and Owens’ versions of the events differed slightly from Galvan’s
version, but both testified to appellant’s involvement in the robbery. Owens also testified
he was the man who went outside to get money out of appellant’s car. He agreed that
when he left the apartment, Madden, Galvan, Carroll, Ant, and appellant were inside.
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Carroll further testified appellant smoked some of the stolen marijuana and that they all,
appellant included, divided the remaining marijuana they took from Galvan.
We overrule appellant’s challenge to the corroboration of accomplice-witness
testimony.
Sufficiency of the Evidence to Support Appellant’s Conviction
Appellant’s challenge to the sufficiency of the evidence, accomplice-witness
testimony included, to support his conviction also focuses on that showing his role in the
robbery. The trial court instructed the jury on the law of parties, and appellant and the
State discuss the evidence in terms of its sufficiency to show appellant was a party to the
offense.
Appellant’s argument again challenges the reliability of testimony offered by
Galvan and other State witnesses, pointing to the State’s reliance on accomplice-witness
testimony, the four-year passage of time between the robbery and appellant’s trial and
witnesses’ inability to recall particular events or to recognize law enforcement officers who
were involved in the investigation, Galvan’s limited opportunity to view events from his
position on the floor, inconsistencies in the versions presented by the four witnesses
present during the offense, and reasons why Galvan’s credibility should be doubted. As
we have noted, it is the jury’s exclusive role to evaluate the credibility and demeanor of
witnesses. When the appellate record supports contradictory inferences, a reviewing
court must presume the jury resolved any conflicts in favor of its verdict, even if not
explicitly stated in the record. Queeman, 520 S.W.3d at 622. Doing so, the jury may
choose to believe all, some or none of the testimony presented. Lancon v. State, 253
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S.W.3d 699, 707 (Tex. Crim. App. 2008) (citation omitted); Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). Appellant’s arguments provide no basis for us
to usurp the role of the jury. Deferring to the jury’s proper role, after review of the entire
record, we find instead that the testimony presented, viewed in the proper light, allowed
the jury rationally to conclude beyond reasonable doubt that appellant, at the least, acted
with the intent to promote or assist the aggravated robbery, and aided or attempted to aid
his accomplices in its commission.
Conclusion
We overrule appellant’s challenge to the sufficiency of evidence to support his
conviction, and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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