Bronchea Gerad Walker v. State ( 2016 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00136-CR
BRONCHEA GERAD WALKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2013-1937-C1
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Edgar Llorens was robbed at Eddie’s Tire Shop, his business in McLennan County, 1 by
three men, each armed with a handgun and each having his face at least partially covered. Though
video surveillance cameras recorded the robbers and Llorens, Llorens could not identify any of the
men. Bronchea Gerad Walker was charged with aggravated robbery, along with Oliver Johnson
and Willie Clark, who by definition are accomplices. Much evidence came from Johnson’s
testimony concerning the robbery and regarding text messages exchanged between Walker’s and
Johnson’s cell phones. From his conviction for which he received a sentence of twenty-three
years’ incarceration, Walker appeals, urging two points of error, both related to the status of
Johnson and Clark as accomplices.
We affirm the judgment of the trial court because (1) text messages from an accomplice’s
cell phone were properly admitted and (2) there was sufficient corroboration of the accomplice-
witness testimony.
(1) Text Messages from an Accomplice’s Cell Phone Were Properly Admitted
Walker argues that text messages from Johnson’s cell phone were not sufficiently
authenticated and therefore constituted inadmissible hearsay, as there was insufficient evidence to
connect those messages with Walker.2 We disagree.
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
2
Johnson and Walker exchanged a series of text messages on August 9 and August 14, 2013, in which they ostensibly
discussed plans for the robbery that took place on August 14, 2013.
2
We review the admissibility of evidence for an abuse of discretion and will reverse the trial
court’s decision only if its ruling lies outside the zone of reasonable disagreement. Butler v. State,
459 S.W.3d 595, 600 (Tex. Crim. App. 2015); Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim.
App. 2011). A text message, a short, typed communication typically sent and received using
cellular telephones, is, like other evidence, authenticated when evidence supports a finding that it
is what its proponent claims it to be. Butler, 459 S.W.3d at 600–01; see TEX. R. EVID. 901(a)
(proponent must produce evidence sufficient to support finding that item is what proponent
claims). While a text shown to have originated from a particular individual’s cell phone might
point to him or her as the probable author of that message, the proponent needs other authenticating
information, given that someone else could have used the individual’s phone. Butler, 459 S.W.3d
at 601–02. The proponent of a text message as evidence could authenticate the message in various
ways, including use of a witness who has knowledge about the message or pointing out distinctive
characteristics of the message that tend to connect it to a particular person. Id. at 601; see TEX. R.
EVID. 901(b)(1), (4). Here, the State provided both types of authenticating evidence.
In addition to evidence that the number of the cell phone originating the messages was
linked to Walker,3 within the messages themselves is information that tends to connect them with
Walker as the author. The author of the messages knew when Walker’s mother left the house for
3
Johnson testified that the text messages originated from “Bshay,” identified by Johnson as Walker. Haywood Sawyer,
who at the time of trial was an investigator with the Bellmead Police Department, testified that he extracted Walker’s
cell phone number from Johnson’s cell phone by looking at the contacts and getting the number for “Bshay.” Sawyer
then ran this number through a Facebook search engine. Sawyer explained that the search engine will tie the number
to a person with a Facebook account, if that person listed his telephone number on Facebook when the account was
initiated or updated. The number Sawyer extracted from Johnson’s cell phone for “Bshay” matched Walker’s
Facebook account, and Sawyer was able to obtain a correct spelling of Walker’s name.
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work and the fact that Walker did not own a car. Johnson testified from his years of dealing with
Walker and from the fact that intervening voice calls came from the same telephone4 that Walker
was originating the text messages and calls from that number, as was his custom.
Walker claims that, since Johnson was an accomplice, his testimony authenticating the text
messages, without corroboration, cannot be used to support Walker’s conviction. We disagree.
The authentication rule requires the proponent of evidence to supply supporting information
sufficient to support a finding that the item of evidence is what the proponent claims it is. TEX. R.
EVID. 901. Here, we are concerned solely with Johnson’s testimony that the text messages he
received were from Walker. The purpose of the authentication rule is to ensure the trustworthiness
of the information offered into evidence. See Venable v. State, 113 S.W.3d 797, 800 (Tex. App.—
Beaumont 2003, pet. ref’d). There is no rule that would require the trial court to permit only those
witnesses whom it finds credible and sufficiently disinterested to testify regarding authentication.
The credibility of a witness is a question for the jury. The trial court has discretion to admit
evidence that a reasonable juror could find sufficiently identified. Druery v. State, 225 S.W.3d
491, 504 (Tex. Crim. App. 2007).
In contrast, the policy underlying the accomplice-witness rule is to make sure that a
conviction is not based solely on testimony of a biased accomplice who perhaps has good reason
to incriminate the defendant. Accomplices often strike bargains with the State, in which the State
4
Johnson testified that he and Walker discussed plans for the robbery on their cell phones during the time they were
also discussing these plans via text messages. Johnson and Walker exchanged twenty-seven cell phone calls on August
10 through August 12, and nine additional calls on August 13 and 14. The cell phone record reflecting this series of
calls was an accurate depiction of an image from Johnson’s cell phone showing the history of calls between Johnson
and the contact known as “Bshay.”
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agrees to a favorable sentencing recommendation in return for the accomplice’s testimony against
the defendant. See Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim. App. 1998). Additionally,
“those accused of crimes tend to try to place the responsibility for the commission of the crime on
the other participants while downplaying their own participation, often in order to avoid the
consequences of criminal acts.” Id. Consequently, the rule was designed to prevent a defendant
from being wrongly convicted. Id.
The authentication rule and the accomplice-witness rule thus fulfill different purposes at
trial. The authentication rule is an evidentiary rule that guards against admitting evidence unless
it is supported by evidence suggesting that it is what the proponent claims it is. The accomplice-
witness rule is not an evidentiary rule, but is designed to protect the defendant from being
wrongfully convicted on the testimony of an accomplice alone. We see no reason to append the
additional requirement of corroboration to the authentication rule when the authentication
testimony is offered by an accomplice, and decline to hold that such a requirement is mandated
either under the authentication rule or the accomplice-witness rule.
Because the trial court acted within its discretion to find that the text messages were
properly authenticated, they were properly admitted into evidence.
(2) There Was Sufficient Corroboration of the Accomplice-Witness Testimony
Walker asserts that there is no evidence corroborating the trial testimony of accomplices
Johnson and Clark and that, therefore, his conviction cannot stand. There is no dispute that
Johnson and Clark were accomplices. Walker’s claim is that no, or insufficient, evidence in this
record, other than accomplice testimony within the meaning of Article 38.14 of the Texas Code of
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Criminal Procedure, tends to connect Walker with the commission of the charged offense. See
Id.5 We find in this record sufficient evidence tending to connect Walker with the robbery in
question.
The corroborating evidence needed to allow use of accomplice-witness testimony need
only tend to connect the defendant with the crime; it need not be sufficient alone to establish guilt.
Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007); Medrano v. State, 421 S.W.3d
869, 883 (Tex. App.—Dallas 2014, pet. ref’d). Instead, the evidence must only link the defendant
in some way to the commission of the offense such that rational jurors could conclude that this
evidence sufficiently tends to connect the defendant to the offense. Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008). Such corroboration may come from small details. Trevino v.
State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999); Medrano, 421 S.W.3d at 883. Based on the
particular facts and circumstances of each case, our analysis involves the combined force of all the
non-accomplice evidence that tends to connect the accused to the offense. Smith v. State, 332
S.W.3d 425, 442 (Tex. Crim. App. 2011); Medrano, 421 S.W.3d at 883.
Officers were able to gain access to Johnson’s cell phone containing text messages and
voice call logs reflecting communications with a “Bshay,” whom officers were able to identify
independently as Walker. The text messages are communications between Johnson and Walker,
ostensibly planning the robbery. Walker contends that the text message evidence is inadmissible
and therefore cannot be used to corroborate the accomplice-witness testimony. We have
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“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 an offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14.
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determined that the text messages were admissible. Even if they were improperly admitted, they
should be considered in our review of the sufficiency of corroborating evidence. Medrano, 421
S.W.3d at 882–83. Walker next argues that, at most, the text messages connect Walker to Johnson,
but not to the commission of the offense. We disagree.
The text messages from Friday, August 9 reveal (1) that Walker and Johnson were looking
for some “wheels” and the time at which those wheels would be needed at Walker’s house early
that morning, (2) that Walker reassured Johnson that they would not come out “empty handed,”
(3) that they both needed money, (4) that Walker was skeptical about letting someone he did not
know drive, even though that person would not say anything, (5) that Walker stated that he would
wait, rather than to get it done on that morning with a driver he did not know, and that they could
“go anytime of the week.” The text messages from Wednesday, August 14 reveal (1) that, at 2:17
a.m., Walker told Johnson, “We [are] on 4 2mrrw,” (2) that Walker told Johnson that he was up at
6:17 a.m., but asked Johnson to wait until about 6:45 to leave, and (3) that, when Johnson told
Walker he was on his way at 6:50 a.m., Walker told him, “[W]ait till My [mother] leave[s].”
Johnson explained that Walker was asking him to wait until his mother left for work. The robbery
took place at 8:00 a.m. that morning.
These text messages establish that Walker needed a car for the purpose of getting money,
that he did not trust someone that he did not know to drive the car, even though he was assured
that the driver would not talk, and that he did not want Johnson to pick him up until his mother left
for work on the morning of August 14, slightly more than one hour before the robbery took place.
Additional non-accomplice evidence showed that Walker’s mother was scheduled to arrive at work
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on the morning of the robbery at 7:00 a.m., that she worked her usual shift that day, and that
Johnson was at the scene of the robbery that morning. Walker testified in his own defense and
admitted to having known Johnson for several years and having texted Johnson as reflected in the
messages introduced into evidence. He explained that the text messages reflected his agreement
to front Johnson marihuana so Johnson could sell it to get money. Walker further testified that he
and Johnson were set to do a drug deal the morning of August 14 at the same time the robbery
happened. The jury could have found this testimony lacked credibility and was simply an attempt
to explain away incriminating evidence. The totality of this evidence would permit a reasonable
fact-finder to conclude that the text messages tend to connect Walker to the robbery. See Cerna
v. State, 441 S.W.3d 860, 866 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (among other
things, fact that defendant exchanged text messages with accomplice just before murder
corroborated testimony of accomplice).
Also, Walker’s physical characteristics are said to be consistent with physical
characteristics of one of the robbers captured by the video recordings of the robbery, other than
Clark and Johnson. That, too, tends to connect Walker with the crime.
We find sufficient corroboration of Clark’s and Johnson’s testimony at trial to allow its
admission and, thus, Walker’s conviction.
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We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 18, 2016
Date Decided: April 21, 2016
Do Not Publish
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