Kemoria Smith v. State ( 2006 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KEMORIA SMITH,                                             )

                                                                              )     No.  08-03-00198-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     120th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )                      (TC# 71991)

                                                                              )

OPINION  ON REMAND

Appellant Kemoria Smith appeals his conviction for aggravated robbery with an affirmative deadly weapon finding.  Appellant was charged by indictment with two counts of aggravated robbery.  Over Appellant=s not guilty plea, the jury found Appellant guilty of the Count I offense.  The trial court assessed punishment at 26 years= confinement.  On April 21, 2005, this Court affirmed Appellant=s conviction.  Smith v. State, No. 08‑03‑00198‑CR, 2005 WL 957926 (Tex.App.‑-El Paso Apr. 21, 2005, pet. granted)(not designated for publication). Appellant filed a petition for discretionary review, which was granted by the Court of Criminal Appeals.  On February 8, 2006, the Court of Criminal Appeals vacated our prior decision and remanded the case to this Court for consideration of Appellant=s second issue, in which he claims the evidence is factually insufficient to establish his identification as a participant, in addition to his first issue on the sufficiency of the evidence to sustain his conviction based on accomplice testimony.  See Smith v. State, No. PD‑761‑05, 2006 WL 287994 (Tex.Crim.App. Feb. 8, 2006) (not designated for publication). On remand, we affirm the trial court=s judgment.

In our prior opinion, this Court summarized the facts as follows:

On September 30, 1993, store clerk Albert Hanson was working the late night shift at the Circle K on Zaragosa in El Paso, Texas. Around 5:30 a.m., Mr. Hanson was standing behind the counter when three men entered the store in single file. The first to enter was a black male wearing a hood, a baseball cap, and dark clothes.  The second was a short Hispanic male with scars on his face, and the third was a tall, slender Hispanic male.  The men were quiet as they filed in sideways to Mr. Hanson, but then they all turned simultaneously towards him and started screaming at him. The man in the middle pulled out a black revolver.  The men shouted, AThis is a robbery.  Give us your money.  We are not kidding.@  Mr. Hanson was scared and focused his attention on the Hispanic male in the middle who had the gun pointed at his face.  Mr. Hanson kept thinking that the gun could go off by accident and was having difficulty remembering how to open the register with no sale because he was so shaken up.  The men became upset and continued yelling at Mr. Hanson.  Mr. Hanson eventually remembered how to open the register and handed the whole cash drawer to the man in the middle, who then handed it to the black man on the side.  The cash drawer contained United States currency and change.

The man in the middle leaned over the counter, looked at the drop safe, and asked a question about it.  Mr. Hanson could not remember what he said in response.  The man in the middle then took a step back, pointed the gun at Mr. Hanson, and said, ANow you are going to die.@ Mr. Hanson remembered turning to his right and putting his hands in front of his face.  After that, his memory of the event was fuzzy.  He remembered seeing the flash of the gun and thinking that it did not come from the direction from which he thought it would come.  Mr. Hanson had doubts as to whether the shot came from the man in the middle and suspected that the shot came from where the black man had been standing, but he had not seen the black man holding a gun.  Mr. Hanson was shot in the face and his left hand.  He managed to make his way to the back of the store and the store manager called for emergency help.

Officer Gilbert Cedillo was dispatched to the Circle K store at approximately 6 a.m.  When he arrived, he found the store clerk sitting in a chair with gunshot wounds to his face and hand, both of which were bleeding profusely.  The clerk was delirious, in pain, and screaming.  Mr. Hanson described the suspects as three men, one was black and two were Hispanic.  He also described the men as cholo types with baggy clothes.  Officer Cedillo=s partner put out a spot broadcast with information about the possible suspects.  After being transported to the hospital, the clerk told Officer Cedillo that the suspects were two white males and one black male and that he believed it was the short white male who fired the gun because he was the last person he saw holding the gun.

Officer Victor Rosales was patrolling the general area when the dispatch call on the shooting at the Circle K store was issued.  Officer Rosales responded to the call, but another unit arrived before him and put out a spot broadcast, describing the suspects as two Hispanic or white males and one black male wearing dark clothing.  Officer Rosales began patrolling the residential area to the south of the Circle K store, which was the direction in which the suspects were seen running.  About ten to fifteen minutes after the spot broadcast, Officer Rosales and his partner were driving slowly through the residential area when they saw a black teenager walking toward their patrol car on Peter Hurd Street, which is approximately four or five blocks or one‑quarter mile from the Circle K store.  Officer Rosales identified Appellant as the man he encountered. Officer Rosales noticed that Appellant was walking toward Vista Del Sol and that he kept looking back several times as if he was looking for somebody.  When Appellant saw the patrol car, he appeared stunned, hesitated, and then continued walking.  Officer Rosales exited the vehicle and approached Appellant.  At first, Appellant hesitated and then continued.  Officer Rosales observed that Appellant was breathing heavily and was almost in a cold sweat.  Officer Rosales could not recall what Appellant was wearing.

Officer Rosales asked Appellant where he was coming from and Appellant stated that he was coming from a friend=s house in the residential area behind him. Appellant became irritable or irate. Because a gun had been used in the Circle K robbery and it was possible that Appellant had been involved, Officer Rosales asked Appellant to get on the ground, handcuffed him, and patted him down for weapons.  Officer Rosales found no weapons, but Appellant remained in custody during the police investigation.

Officer Efran Silva also responded to the dispatch regarding the shooting and began traveling on foot in an easterly direction from the store in a desert area.  Officer Silva was looking for suspects when he found United States currency behind a home located at 11967 Manuel Acosta.  He also found shoe prints in the yard or area where the money was found.  From there, Officer Silva went back around to the address in the Peter Hurd area, which is near a reservoir.  Once he got to the Peter Hurd area, he found beer cans and other things near a paved drainage area off of Cezanne, a semi‑circle road that leads to Vista Del Sol.  The paved drainage area was between houses through the neighborhood and led down to the reservoir.  At the Cezanne address, Officer Silva found shoe imprints that led to the reservoir. It was later determined that the shoe imprints matched those found at the Manuel Acosta address.  In following the shoe prints to the reservoir, Officer Silva found a black sweatshirt with a hood and a cap in a ponding area. Officer Silva found more shoe prints at the reservoir area that matched the shoe prints at the other two locations.

Crime Scene Unit Officer Kenneth Bauer testified that the shoe prints at the Manuel Acosta and Cezanne locations did indeed match and that there were at least two or three pairs.  He also testified that officers recovered a cash register drawer on Manuel Acosta in the street.  Officer Tom Monday, another member of the Crime Scene Unit, was able to lift one latent print from the cash register drawer, but it was not of evidentiary value.

Detective Jesus Pantoja was assigned as case agent in the investigation of the crime.  He testified that the initial suspects were Tomas Lopez, Michael Sheehan, and Appellant.^[1]  Eric Condrin and Keith Ontiveros were later included as suspects.  Detective Pantoja showed five photo line‑ups, each containing one suspect to Mr. Hanson several hours after the offense, while Mr. Hanson was still being treated in the hospital.  Mr. Hanson looked at the pictures just briefly, but could not make any sort of identification at the time and recalled that Ait was just all a big blur to [him].@  Warrants were secured for the arrest of Appellant, Eric Condrin, and Keith Ontiveros. Appellant was immediately served since he was already detained, and the arrest warrants for Eric Condrin and Keith Ontiveros were executed at a residence located at 1566 Cezanne later that day.  Lopez and Sheehan, both of whom had been interviewed earlier in the morning on the date of the offense, were not arrested.

On October 13, 1993, Mr. Hanson was shown the photo line‑ups again.  This time he was able to identify Ontiveros and Condrin, but was not able to identify Appellant.  Mr. Hanson identified the gun as a Smith and Wesson snub‑nose, .357 Magnum, stainless steel, which Detective Pantoja testified was capable of causing death or serious bodily injury.  Mr. Hanson did not identify Ontiveros as the shooter, but did identify him as having had a large, dark‑colored revolver at the scene of the crime.

At trial, Tomas Lopez testified that on the evening of September 29, 1993, to the early morning of September 30, 1993, Lopez was with Ontiveros, Condrin, Sheehan, and Appellant, along with a few other males and some girls at Ontiveros= house. Lopez stated that he had known Ontiveros for about a year, Condrin for about two years, Appellant for about four or five years, and Sheehan for about a year and a half.  Lopez admitted that he had taken his father=s chrome‑colored, loaded .356 revolver from his father=s bedroom and that he had the gun with him at Ontiveros= house.^[2]  All night, Appellant had been asking Lopez to let him see the gun.  Around three or four in the morning, Lopez gave Appellant the gun.  After he gave Appellant the gun, Ontiveros, Condrin, and Appellant left for the Whataburger because Athey had a free ticket for food.@  Lopez recalled that Appellant was wearing a black‑hooded sweatshirt, a white hat, and tennis shoes.  Ontiveros was wearing a black sweater and Condrin was wearing some cut‑off sweats and a baseball cap.  Lopez identified the black sweatshirt and white cap found by police in the reservoir as items that looked like what Appellant had been wearing that night.

Lopez fell asleep for a while and was awakened by Ontiveros at dawn.  Ontiveros was shaking him and told him that they had robbed a store and showed him the money.  Lopez noticed that Ontiveros was nervous and shaking.  Condrin was quiet, thinking, and shaking as well.  Appellant was not there and Lopez did not know where he was. Neither Ontiveros nor Condrin had his father=s gun and they told him that they had thrown it away.  Lopez decided to leave and walked with Sheehan in the direction of the Lopez residence and through a reservoir.  As they were walking, they were picked up by the police and taken to the Circle K store on Zaragosa.  They were later taken to the police station and interviewed.

Area resident Steven Richie testified that on September 30, 1993, he resided at 11967 Manuel Acosta.  Shortly before 6 a.m. that morning, he heard the south metal gate on the side of his house open and heard individuals walk across the gravel toward the back of the lot.  Mr. Richie was not especially alarmed because children in the neighborhood often used his yard as a short cut to the Circle K.  Out of curiosity, Mr. Richie looked out the window and saw two individuals scaling the wall at the back of his house.  Mr. Richie watched the individuals cross over to the hillside behind his property and then as they began up the rise, he saw that there were three individuals crossing toward the northeast in the direction of the Circle K. They paused at the top of the hillside close to a chain‑link fence.  On the other side of the fence is a large ponding area for run‑off water.

Mr. Richie stopped watching the individuals, but from an open bathroom window he overheard a conversation between two young adult males coming from the general direction that he had seen the individuals stop. Mr. Richie overheard two voices, discussing use of a gun at the Circle K.  Mr. Richie called emergency 911 and informed the dispatcher about the conversation. Several minutes later, the dispatcher called Mr. Richie back and told him that a robbery had just occurred. While he was on the phone with the dispatcher, Mr. Richie heard one or more individuals run through his backyard on the north side of the property.  Mr. Richie estimated that the span of time between when he first saw individuals in his backyard and when he heard the footsteps running through his backyard was about seven to eight minutes.

Dalton David Southern testified that he knew Ontiveros, Lopez, Condrin, and Appellant and considered all of them acquaintances. Southern used to play football with Ontiveros when they were young.  Southern had come to know Lopez and Condrin about eight or nine months ago.  Southern had known Appellant as an acquaintance for about six or seven months.  Southern became reacquainted with Ontiveros around the same time.  He started spending time with all of them around the same time, but spent more time with Appellant than he did with Ontiveros.

On September 30, 1993, Southern was in the county jail. While he was in jail, Appellant was placed in the same cell.  Southern was asleep when Appellant entered the cell.  Appellant woke up Southern and told him about the robbery on Zaragosa and Vista Del Sol.  Southern told Appellant that he had seen it on the news and Appellant stated, AYeah, that was us.@  According to Southern, Appellant told him that he had the gun and that he, Ontiveros, and Condrin went into the store.  Appellant pointed the gun at the clerk, they got the money, and as they were leaving, the clerk started to reach for something, so Appellant shot him and left. Appellant then told Southern that he ran through the desert on the side of the Circle K, ran into a fence, cut himself, dropped the gun, and could not find Ontiveros or Condrin, so he went his own way.  As Appellant was walking down Vista Del Sol, he saw the police and tried to hide. After he came out of hiding, the police arrested him.  Southern did not know what happened after that and had not seen or spoken to Appellant since that one encounter.  Southern identified Appellant in the courtroom.  Southern acknowledged that he was on probation for a felony conviction. He stated that he had not been offered or promised anything in exchange for his testimony.

On cross‑examination, Southern acknowledged that he had been interviewed on tape by a State investigator in June 1994 and had not realized that during the interview he had agreed that he was there to discuss a robbery at a ADiamond Shamrock.@  Southern admitted that he had spoken to Ontiveros= lawyer before he had come forward to speak to the State investigator.  Ontiveros= lawyer had asked Southern if he was willing to testify on Ontiveros= behalf.  Southern recalled the lawyer telling him that his testimony would help Ontiveros out Aas far as being blamed for shooting the clerk.@  Southern admitted that he has known Ontiveros since childhood, however, he decided to come forward because he believed that Ontiveros was not the shooter and because Ontiveros has a child and girlfriend.  Southern admitted that he was currently in the El Paso County jail on a burglary of a habitation charge, but stated again that he had not been promised anything for his testimony.  Southern denied ever seeing Ontiveros in the county jail.

The State called codefendant Ontiveros as a witness. According to Ontiveros, some time before dawn, he, Condrin, and Appellant left his house, traveled through alleys, cut across a reservoir, turned up Manuel Acosta, jumped over a wall, walked next to a pond, and then entered the Circle K.  Ontiveros identified Appellant in the courtroom.  The three men had discussed what they were going to do, but their plan was not Areal organized.@  Ontiveros stated that Appellant was the only one who had a gun that night and that Lopez had lent it.  Ontiveros denied having a gun, despite being aware that the store clerk had identified him as having a gun.  Ontiveros recalled that they were all wearing dark clothing.

Ontiveros testified that he ran into the store first, followed by Condrin, and then Appellant.  Ontiveros recalled yelling at the clerk and demanding money.  Mr. Ontiveros stated that he grabbed the clerk for the money and was the first one out the door.  As he was running out but before he reached the door, Ontiveros heard a gunshot.  Ontiveros testified that he knew Appellant had fired the gun because Appellant had the gun and had been pointing it.  As they left the store, Ontiveros yelled to Appellant and Condrin, who were behind him, to follow him because he was the only one who knew the route back. Ontiveros recalled hearing Appellant say that he had lost or dropped the gun somewhere in their run.  The last time he saw Appellant was when they were running back through the ponding area.  Ontiveros identified Mr. Richie=s backyard on Manuel Acosta as the one he passed through en route to the store and on the way home.  Ontiveros was arrested later that night on the same day that the offense was committed.

Ontiveros had pled guilty to the offense.  Ontiveros explained that in the plea agreement he entered in exchange for his testimony, he is sentenced to ten years, but if Appellant received more or less, he would receive the same sentence as Appellant. If Appellant was acquitted, Ontiveros= sentence would be dropped to seven years. Further, if Appellant received probation, then Ontiveros would also receive probation.  As part of his plea agreement, Ontiveros had to turn over a codefendant and another witness.  While waiting to be released from jail, Ontiveros spoke to Southern and while they were conversing, Southern told Ontiveros that Appellant had been placed in his holding tank on the night of the offense and had bragged about what had happened, what he had done, and the persons involved in the robbery.  Later that day, Appellant was placed into the same holding tank and Ontiveros asked him why Ahe pulled the trigger.@  Appellant told Ontiveros that he had thought the clerk was reaching for a weapon or something.  Appellant did not deny pulling the trigger.  Ontiveros stated that he was testifying because he did not want to be blamed for something he had not done and he was sorry for what happened to Mr. Hanson.  Ontiveros testified that he did not enter into any agreement with Southern for Southern=s testimony.

SUFFICIENCY OF ACCOMPLICE TESTIMONY

In his first issue, Appellant claims that the evidence is legally insufficient to support his conviction because the accomplice witness testimony at trial lacked sufficient corroborating evidence.  An accomplice witness is someone who participated before, during, or after the commission of the crime 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); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986).  It is undisputed that Ontiveros was an accomplice as a matter of law.

Under Article 38.14 of the Texas Code of Criminal Procedure, 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.  See Tex.Code Crim.Proc.Ann. art. 38.14 (Vernon 2005); Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999)(en banc). In conducting a sufficiency review under the accomplice witness rule, we eliminate the accomplice testimony from consideration and then examine the remaining evidence to determine whether there is other evidence that tends to connect the accused with the commission of the crime.  Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001).  It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish the defendant=s guilt; it need only tend to connect the defendant to the offense.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Cathey, 992 S.W.2d at 462.

Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice witness testimony.  Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App. 1992). However, evidence of the defendant=s presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense.  Dowthitt v. State, 931 S.W.3d 244, 249 (Tex.Crim.App. 1996). Evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence.  McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997).  All facts and circumstances in evidence may be looked at to determine whether an accomplice=s testimony is corroborated.  Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App. 1993)(en banc).  If the combined weight of the non‑accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.^[3]  Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991).

In this case there is sufficient non‑accomplice evidence that tends to connect Appellant to the offense.  Mr. Hanson testified that three individuals, two Hispanic males and one black male, committed the robbery at the Circle K.  Mr. Hanson identified Ontiveros and Condrin as two of the robbers, but did not identify the black male.  The spot broadcast described the suspects as two Hispanic or white males and one black male wearing dark clothing.  The police apprehended Appellant about four or five blocks away from the store about ten to fifteen minutes after the spot broadcast.  Police officers found shoe prints in the yard at 11967 Manuel Acosta that matched shoe prints discovered off of Cezanne that led down to the reservoir.  The police officers also recovered a hooded‑black sweatshirt and cap in the reservoir, which Lopez testified resembled the clothing worn by Appellant when he last saw him.

Lopez testified on the evening of September 29, to the early morning of September 30, Appellant was in the company of Ontiveros, Condrin, and others.  Lopez identified Appellant in court.  Lopez stated that he gave Appellant his father=s loaded gun around three or four in the morning. Appellant left the Ontiveros house with Ontiveros and Condrin.  When Ontiveros and Condrin returned at dawn, Ontiveros told Lopez that they had robbed a store.  Appellant did not return with them.

Mr. Richie testified that in the early morning of September 30, two individuals scaled his back wall at his residence at 11967 Manuel Acosta.  He saw three individuals crossing over the hillside in the direction of the Circle K. He overheard a conversation which led him to believe that persons or property were about to be threatened at the Circle K.  Mr. Richie called emergency 911 and minutes later was informed that a robbery had occurred. While on the phone with the dispatcher, Mr. Richie heard footsteps running through his backyard.

Southern testified that when he was awoken by Appellant in his jail cell on September 30, Appellant told him that he was involved in the robbery with Ontiveros and Condrin.  Southern identified Appellant in court.  According to Southern, Appellant told him that he pointed the gun at the clerk, took the money, and then Appellant shot the clerk.  Appellant=s atomic absorption test revealed that all three elements to make a finding of gunshot residue were present, but not in sufficient quantities to make a positive finding scientifically.

After eliminating the accomplice witness testimony from our consideration and then examining the non‑accomplice evidence, we conclude that the non‑accomplice evidence does tend to connect Appellant to the offense sufficiently to corroborate Ontiveros= accomplice testimony.  Issue One is overruled.

FACTUAL SUFFICIENCY

In his second issue, Appellant contends that the evidence was factually insufficient to support, beyond a reasonable doubt, the element of Appellant=s identification as one of the alleged robbers.  We begin the factual sufficiency review with the presumption that the evidence is legally sufficient.  Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996).  In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).  Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust.  Zuniga, 144 S.W.3d at 481.  A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Appellant contends that the evidence to sustain his conviction for aggravated robbery was factually insufficient because there was no credible proof that Appellant was identified as a participant in the robbery, no physical evidence to connect Appellant to the hooded sweatshirt and hat, no evidence that the clothing found was worn during the robbery, no identification of Appellant by Mr. Hanson, Mr. Richie did not identify the individuals involved in the conversation he allegedly heard, there was inconsistent testimony as to the color of the firearm used in the robbery, and there was unreliable testimony by Southern and Ontiveros at trial.

Ontiveros testified that he, Condrin, and Appellant robbed the store clerk and that Appellant was the only one with a gun that night, which Appellant had obtained from Lopez.  According to Ontiveros, Appellant fired the gun as they were leaving the store.  Ontiveros identified Mr. Richie=s backyard on Manuel Acosta as part of the route to and back from the store. Ontiveros testified that they were all wearing dark clothing.  Ontiveros also testified that he had entered a plea agreement in exchange for his testimony. Southern testified that Appellant told him that he had committed the robbery on Zaragosa and Vista Del Sol and had admitted that he had shot the store clerk.  Southern admitted that he knew Ontiveros since childhood and was currently incarcerated, but stated that he had not been offered or promised anything for his testimony.  Despite Appellant=s contention that the testimony of both Ontiveros and Southern is inherently untrustworthy, the jury as the fact finder is the sole judge of the weight and credibility of the witnesses.  See Cain, 958 S.W.2d at 407.

Appellant correctly points out that no physical evidence connected Appellant to the hooded sweatshirt and cap recovered from the ponding area of the reservoir nor was there evidence that this clothing was worn during the robbery.  While it is true that Mr. Hanson was unable to identify Appellant, he was able to identify Ontiveros and Condrin as participants.  Further, Mr. Hanson recalled seeing Ontiveros holding a dark colored revolver, however, he identified the gun used in the robbery as a Smith and Wesson snub-nose, .357 Magnum, stainless steel, which was a similar description to the gun that Lopez testified he had taken from his father and had given to Appellant that night. Appellant also points out that Mr. Richie never identified the individuals he overheard, but Ontiveros= testimony as to their route to the store was consistent with Mr. Richie=s testimony.  After reviewing all the evidence in a neutral light, including the accomplice testimony, we conclude that is was factually sufficient to sustain Appellant=s conviction because the evidence is not too weak to support the guilty finding beyond a reasonable doubt nor is any contrary evidence so strong that guilt could not be proven beyond a reasonable doubt. Issue Two is overruled.

We affirm the trial court=s judgment.

October 19, 2006

DAVID WELLINGTON CHEW, Justice

Before McClure, J., Chew, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)

---

^[1] Atomic absorption test was conducted on the hands of Appellant and Lopez to determine the presence of any gunshot residues. Appellant=s test revealed that all three elements that must be present to make a finding of gunshot residue were present, but not in quantities sufficient to make a positive finding of gunshot residue. Lopez=s test was missing one of the three required elements. Officer Ernest Wade testified that if all three elements are present, that indicates that the person fired a gun or was in the immediate vicinity of someone who fired a gun, but scientifically they cannot conclude the presence of gunshot residue without a sufficient quantity. 

^[2] Lopez=s father, Francisco Lopez, testified that on September 30, 1993, he was working as a Border Patrol agent, but had traveled to Dallas on a trip.  He stated that he had left his loaded Smith and Wesson, model 66, .357 Magnum, short‑barrel chrome‑colored revolver in his bedroom, which was accessible to his wife and all of his sons, including Tomas Lopez.  Lopez=s father no longer had the gun and had never found it thereafter.

^[3] In his brief, Appellant provides the legal sufficiency standard of review for his first issue, however, the sufficiency of non-accomplice testimony under Article 38.14 is a statutorily imposed sufficiency review which is not derived from federal or state constitutional principles that define the traditional legal and factual sufficiency standards.  See Cathey, 992 S.W.2d at 462‑63.