Anthony Barnes v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00495-CR
Anthony Barnes, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO.0991880, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
This appeal is taken from a conviction for aggravated robbery. See Tex. Pen. Code
Ann. § 29.03(a)(2) (West 1994). After the jury found appellant Anthony Barnes guilty, the trial
court1 accepted appellant’s plea of “true” to the two enhancement paragraphs of the indictment,2 and
assessed appellant’s punishment at eighteen years’ imprisonment.
Points of Error
Appellant advances four points of error. In the first two points, appellant challenges
the legal and factual sufficiency of the evidence to sustain the conviction, noting the application of
the law of parties. Appellant further blends into these points of error the claim that the evidence is
1
The trial judge at the penalty stage of the trial was Judge Charles Campbell.
2
The prior convictions alleged for enhancement of punishment were for aggravated
possession of cocaine and possession of cocaine. Both convictions occurred on the same date and
in the same court.
insufficient to corroborate the testimony of the accomplice witness, which we will treat separately but
as a part of our sufficiency discussion.
In the third point of error, appellant contends that the trial court erred in including in
the judgment an affirmative finding of the use of a deadly weapon when the jury, as trier of fact, made
no such affirmative finding. In the fourth point of error, appellant urges that the trial court erred in
failing to submit a jury instruction requiring the jury to determine, if appellant acted as a party, that
appellant knew that a deadly weapon would be used or exhibited in the commission of the offense
charged. After modification of the judgment to delete the affirmative finding of the use of a deadly
weapon, we will affirm the conviction.
Facts
In view of the challenges to the sufficiency of the evidence, the facts become vitally
important. In April 1999, Elvira Combs was employed at the International House of Pancakes
(IHOP) restaurant at 1101 S. MoPac Expressway in Austin. On a Thursday, Friday, Saturday, and
Sunday, she was involved, inter alia, in training appellant to be a “manager on duty” at IHOP. She
recalled that during this training period, appellant jumped ahead of the training schedule, asking where
the receipts each day were deposited, how many employees were involved in making the daily
deposit, the location of the bank, and mode of transportation used. Combs thought it was unusual
because appellant repeatedly asked these questions.
On Monday, April 5, 1999, Combs was the only manager on duty. Appellant was not
scheduled to work, but he called three times asking how busy the restaurant was that day, how much
2
money had been made, and whether Combs was the only manager on duty. Combs thought the
number of times appellant called was unusual for an employee who had worked only a week and a
half.
About 5:30 p.m. on April 5, Combs left the restaurant to make the IHOP’s daily
deposit. She had $3,000 or more in her purse. Her husband, Gary, and their two daughters had
arrived to take her to the bank. The eight-year-old daughter came into the restaurant to get her
mother while the three-year-old daughter remained in the Combs’ maroon car with her father. As the
eldest child got in the front seat and Elvira Combs was getting in the back seat, Gary Combs yelled
“Elvira, we’re about to get robbed.” A man had been seen getting out of a gray car in the parking
lot of the restaurant. He was carrying a gun and wearing a greenish ski mask. Combs heard her
husband’s scream, and turned to see a masked man waving a black gun at her daughter in the front
seat.3
Elvira Combs moved in front of her daughter and the gunman pointed the gun at
Comb’s head and demanded: “Hand me your bag.” She could not recognize the voice as the man was
whispering. The man weighed about 150 pounds, was of medium height from 5'6" to 5'10", had a
medium to husky build, was wearing denim jeans, a white hooded shirt, and a dark colored mask with
speckles. The man grabbed Combs’s purse with the deposit money and ran. The gunman ran across
3
The mask was identified as State’s exhibit number one and the gun was identical in
appearance or similar to State’s exhibit number three.
3
the adjoining parking lot of the steak house next door and in the direction of an access road next to
Zilker Park. The gray car drove around the IHOP restaurant apparently to meet the gunman. Elvira
Combs went to call “911” and Gary Combs, with the family out of the car, began to pursue the
gunman.
Gary Combs almost hit the gunman with his car. The gunman took off his mask,
threw it down, then slipped and fell on the side of the road. Combs briefly saw the face of the
gunman and observed that it was an African-American man whose teeth were red from his bloody
lip, apparently from his fall. Combs did not get a good look at the man before the man ran off into
the thick woods of Zilker Park. Combs drove his car back onto the access road, drove over a hill and
saw the gray car. It had pulled into a park entrance off the access road and made a U-turn to face
the access road. Combs drove his vehicle right up next to the driver of the gray car and got a good
look at the driver from a distance of three to four feet. The driver was an African-American man with
a light complexion or a Mexican-American man with a dark complexion, who had short hair, a thin
face, and a goatee. Combs wrote down the license plate number of the gray car. Another car pulled
up behind the gray car and the gray car’s driver, who was putting on a mask, “took off.” Combs
returned to the IHOP restaurant and gave the license number and a description of the gray car to
Officer Michael Metcalf. The officer determined the license plate number was registered to a Jenkins
Johnson. Other police units were alerted over the radio to be on the lookout for a gray car with the
license plate number reported.
4
Dalton Renner, a motorist at the intersection of MoPac and Bee Caves Road, observed
the robbery. As the gunman fled, Renner turned into a driveway in order to impede the masked ski
mask flew into the air and he fled into the Zilker Park woods.
Danette Contreras, another motorist, observed the robbery from the frontage road
next to IHOP and saw the gunman flee. She did not get a good look at his face though he removed
his mask as he fled. Contreras observed the gunman being pursued by a maroon car when a gray car
approached as if to pick up the gunman. Then, Contreras saw the gunman head into the woods after
he was unable to get into the gray car. Contreras then called “911” on her cell phone. She described
the gunman as an African-American, 5'7" tall, husky build, wearing a white sweatshirt with a hood.
Later, on the other side of Zilker Park, she saw the “silver” car again on Barton Springs Road and
got a good look at the driver and described him as a “light-complected black man, skinny.” Contreras
was still on the phone with “911” and gave “the license plate number from the silver car.” She was
instructed to return to IHOP where she identified Jenkins Johnson as the driver of the gray or silver
car she had seen. She was unable to identify the gunman but knew appellant was not the driver of
the gray car.
The co-defendant, Jenkins Johnson, was the State’s principal witness. Johnson
testified that he had been granted testimonial immunity; that his testimony in the instant case could
not be used against him in his own trial for aggravated robbery. Johnson stated that on April 5, 1999,
he did not know appellant’s last name though appellant was married to Johnson’s cousin, and that
he had loaned appellant $600 which had not been repaid. On April 5, Johnson received a telephone
call from appellant who stated he had “a way” of repaying Johnson the $600 due on the loan.
5
Johnson drove to appellant’s house where he learned appellant planned to get the money “from his
job,” but that they would need a gun. The two men drove to the home of Johnson’s friend, Alejandro
Alcantara, to borrow a gun. On the way, appellant intimated to Johnson that the gun would be used
to commit a robbery at appellant’s place of employment. Johnson and appellant borrowed a nine
millimeter Baretta handgun from Alcantara and then drove to the Oshman’s store in Northcross Mall
to purchase ski masks and gloves. Johnson tried on one of the masks prior to purchase and then did
so again later in the car. Johnson did not know whether he tried on the same mask both times.
According to Johnson, appellant may have tried on one of the masks, either in Oshman’s or later in
the car. Johnson said appellant was wearing a dark colored turtleneck shirt.
From Oshman’s, Johnson related they drove in his gray 1983 Chevrolet Impala to the
IHOP where appellant worked, arriving about 4:50 or 5:00 p.m. They drove around the restaurant
to “scope out the area.” Appellant told Johnson that a female employee would be leaving the
restaurant with the money to be deposited. They finally parked in the IHOP parking lot to wait.
Appellant then told Johnson that Johnson had to commit the robbery because appellant would be
recognized by his voice. Appellant agreed to meet Johnson in Johnson’s car on the other side of the
steakhouse adjoining IHOP after the robbery. Both men then donned their masks.
When a lady came out of the restaurant, appellant indicated to Johnson that she was
the right person. Johnson testified that he got out of his car, ran towards the woman, and grabbed
her purse. Johnson was wearing a white hooded shirt and the gun was in his pants. He may have
slightly displayed the gun. After obtaining the purse, he ran to the other side of the steakhouse, but
appellant was not there with the car. Someone in another car tried to hit him and barely missed.
6
Johnson stumbled and fell. He took his mask off. At this time, appellant drove up in Johnson’s gray
car, got out of the car and stood there looking at Johnson. Johnson said that he made no attempt to
get into the car but ran into the woods where he dropped the white shirt, the purse, and the gun. He
denied that he kept the IHOP money but threw it down with the other items.
Johnson walked through the woods to a Zilker Park bathroom. When he came out,
a police officer asked him for identification and arrested him. He was taken back to the IHOP so
witnesses could identify him. Later, he was taken to jail and booked.
Alcantara, who had loaned the gun to Johnson, testified that Johnson came to
Alcantara’s house on the afternoon of April 5, 1999, and asked to borrow the Baretta handgun to go
hunting. Appellant was with Johnson but did not engage Alcantara in conversation. Alcantara did
not believe the hunting story, but felt Johnson needed the weapon for “protection,” and allowed
Johnson to borrow it. Alcantara identified appellant at trial as well as the gun recovered from Zilker
Park as the weapon that he gave to Johnson.
Lieutenant James O’Leary was the police officer who apprehended Johnson and
learned that Johnson was the individual to whom the getaway car was registered. In a search of the
woods of Zilker Park, the police recovered a ski mask, a nine millimeter Baretta gun, a white hooded
shirt and Elvira Combs’ purse with $131. The IHOP money was never recovered. Johnson’s car was
located on April 7, 1999, and on April 15, the police executed a search warrant and found inside the
car a second ski mask, and an Oshman’s shopping bag with receipts and tags for ski masks and gloves
shown to have been purchased at Oshman’s at 4:39 p.m. on April 5, 1999. The car was processed
for fingerprints. Johnson’s palm prints and fingerprints were lifted from the interior of the car and
7
identified as his by a fingerprint expert. Johnson’s known thumb print matched a latent print on a
clothing tag found in the car. Appellant’s known palm print matched two latent palm prints lifted
from the exterior trunk of Johnson’s car. The expert could not tell how old appellant’s latent prints
were, but based upon the details of the prints, believed them to be of recent origin.
Michael Villegas, an IHOP manager, testified that appellant never returned to work
after April 5, 1999, and never returned to claim his paycheck. Jane Burgett, a DNA serology analyst
with the Texas Department of Public Safety, testified that she conducted a comparison of the DNA
extracted from a skin cell taken from the ski mask found in the woods and the DNA extracted from
appellant’s blood sample. Appellant’s DNA matched the DNA extracted from the ski mask to a
“reasonable degree of scientific certainty.” Burgett, of course, did not know when the skin cell was
left on the mask. Burgett excluded Johnson as a possible contributor of the DNA found in the mask
recovered from the woods. She also tested the DNA taken from the ski mask found in Johnson’s car
which contained “a mixture of at least two individuals.” Appellant was excluded as a possible
contributor of the DNA found in this mask, but Johnson could not be excluded as a contributor of
the DNA.4
Detective Elsa Gilchrest interrogated Johnson shortly after the robbery. He denied
any involvement in the offense and claimed not to know “Anthony’s” last name. Appellant
surrendered to authorities on May 5, 1999, a month after the charged offense. Gilchrest identified
the gun in question as a firearm, a deadly weapon.
4
The State notes that Johnson testified that he tried on one of the masks at Oshman’s and
that the masks were available to other potential customers to do the same thing.
8
After the State rested its case, appellant did not testify. He only recalled State’s
witness Detective Perry Madison, to establish that Madison had taken a saliva sample from appellant
but not from Jenkins Johnson.
Indictment
The indictment, omitting its formal parts and the allegations as to the prior
convictions, provided in pertinent part that appellant, on or about April 5, 1999:
did then and there, while in the course of committing theft of property and with intent
to obtain and maintain control of said property, intentionally and knowingly threaten
and place Elvira Combs in fear of imminent bodily injury and death, and Anthony
Barnes did then and there use and exhibit a deadly weapon, to-wit: a firearm.
It is clear that the indictment charged appellant as a primary actor. There were no
allegations charging appellant as a party to the offense. This was unnecessary because the law of
parties may be applied to a case even though no such allegation is contained in the indictment.
Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995); Pitts v. State, 569 S.W.2d 898, 890
(Tex. Crim. App. 1978); Howard v. State, 966 S.W.2d 821, 824 (Tex. App.—Austin 1998, pet.
ref’d); Pesiva v. State, 949 S.W.2d 374, 377 (Tex. App.—San Antonio 1997, no pet.); see generally
43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.197
(2d ed. 2001).
Parties
A person is criminally responsible as a party to an offense if the offense is committed
by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a)
9
(West 1994). A person is criminally responsible for an offense committed by the conduct of another
if, acting with intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).
Under the law of parties, the State is able to enlarge a defendant’s criminal
responsibility to acts in which he may not be the primary actor. See Goff v. State, 931 S.W.2d 537,
544 (Tex. Crim. App. 1996); Romo v. State, 568 S.W.2d 298, 300 (Tex. Crim. App. 1977) (op. on
reh’g). When an accused promotes or assists in the commission of an offense, he also shares the
criminal responsibility. See Haddad v. State, 860 S.W.2d 947, 950 (Tex. App.—Dallas 1993, pet.
ref’d). If the State is to prove the accused’s guilt as a party, it must first prove the guilt of another
person as the primary actor. See Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App.1993);
Forbes v. State, 512 S.W.2d 72, 79 (Tex. Crim. App. 1974); Godwin v. State, 899 S.W.2d 387, 389
(Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). In order to establish liability as a party, it must
be shown that, in addition to the illegal conduct by the primary actor, the accused harbored the
specific intent to promote or assist the commission of the offense. See Lawton v. State, 913 S.W.2d
542, 555 (Tex. Crim. App. 1995); Tucker v. State, 771 S.W.2d 523, 530 (Tex. Crim. App. 1988);
Garcia v. State, 871 S.W.2d 279, 281 (Tex. App.—El Paso 1994, no pet.) (holding evidence must
show conduct constituting the offense plus an act or acts by accused done with the intent to promote
or assist such conduct). The accused must know that he was assisting in the offense’s commission.
See Amaya v. State, 733 S.W.2d 168, 174-75 (Tex. Crim. App. 1986); Price v. State, 911 S.W.2d
129, 131 (Tex. App.—Corpus Christi 1995, pet. ref’d). The agreement, if any, must be before or
contemporaneous with the criminal event. See Beier v. State, 687 S.W.2d 2, 3-4 (Tex. Crim. App.
1985); Miranda v. State, 813 S.W.2d 724, 732 (Tex. App.—San Antonio 1991, pet. ref’d). The
10
evidence must show that at the time of the commission of the offense, the parties were acting
together, each doing some part of the execution of the common design. See Brooks v. State, 580
S.W.2d 825, 831 (Tex. Crim. App. 1979); Thomas v. State, 915 S.W.2d 597, 599-600 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); Cornejo v. State, 871 S.W.2d 752, 755-56 (Tex.
App.—Houston [1st Dist.] 1993, pet. ref’d).
While an agreement of the parties to act together in a common design seldom can be
proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct
or circumstantial evidence, an understanding and common design to do a certain act. See Burdine
v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Ex parte Prior, 540 S.W.2d 723, 727-28
(Tex. Crim. App. 1976); Bratcher v. State, 771 S.W.2d 175, 183 (Tex. App.—San Antonio 1989,
no pet.). Circumstantial evidence alone may be sufficient to show that one is a party to the offense.
See Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977); see also Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987).
The State must show more than mere presence to establish participation in a criminal
offense. See Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981). Mere presence or even
knowledge of an offense does not make one a party to the offense. See Oaks v. State, 642 S.W.2d
174, 177 (Tex. Crim. App. 1982); Acy v. State, 618 S.W.2d 362, 365 (Tex. Crim. App. 1981); see
also Monroe v. State, 81 S.W.2d 726, 727 (Tex. Crim. App. 1904) (holding the mere fact that
defendant, who was present but did not participate or aid in homicide, concealed the offense for a
time or failed to report killing, did not make him guilty of an offense). Nevertheless, mere presence
is a circumstance tending to prove that a person is a party to the offense, and when taken with other
facts, may be sufficient to show that he was a participant. See Wygal, 555 S.W.2d at 469. In
11
determining whether an accused participated in the offense as a party, the fact finder may examine
the events occurring before, during, and after the commission of the offense. See Thompson v. State,
697 S.W.2d 413, 416 (Tex. Crim. App. 1985); Diaz, 902 S.W.2d at 151-52.
We will next examine the standard of review applicable to determining the legal
sufficiency of the evidence to sustain the conviction.
Legal Sufficiency
The standard for reviewing the legal sufficiency of evidence is whether, viewing the
evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found
beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443
U.S. 307, 319 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App.—Austin 1994, pet. ref’d).
The standard of review is the same in both direct and circumstantial evidence cases. King v. State,
895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.
App. 1992). The State may prove its case by circumstantial evidence if it proves all of the elements
of the charged offense beyond a reasonable doubt. Easley v. State, 986 S.W.2d 264, 271 (Tex.
App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319). The sufficiency of the evidence
is determined from the cumulative effect of all the evidence; each fact in isolation need not establish
the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is
important to remember that all the evidence the jury was permitted, properly or improperly, to
consider must be taken into account in determining the legal sufficiency of the evidence. Garcia v.
State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.
Crim. App. 1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.).
12
The jury is the exclusive judge of the facts proved, the weight to be given the
testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury is free to accept or reject any or all of the
evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
The jury maintains the power to draw reasonable inferences from basic facts to ultimate fact. Welch
v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, no pet.); Hernandez v. State, 939
S.W.2d 692, 693 (Tex. App.—Fort Worth 1997, pet. ref’d). Moreover, the reconciliation of
evidentiary conflicts is solely within the province of the jury. Heiselbetz v. State, 906 S.W.2d 500,
504 (Tex. Crim. App. 1995).
Under the Jackson standard, the reviewing court is not to position itself as a thirteenth
juror in assessing the evidence. Rather, it is to position itself as a final due-process safeguard insuring
only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
It is not the reviewing court’s duty to disregard, realign, or weigh the evidence. Id. The jury’s
verdict must stand unless it is found to be irrational or unsupported by more than a “mere modicum”
of evidence, with such evidence being viewed in the light of Jackson. Id. The legal sufficiency of the
evidence is a question of law. McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996,
pet. ref’d).
Discussion—Legal Sufficiency
The State established through Jenkins Johnson, its principal witness, that he (Johnson)
was the primary actor in the aggravated robbery; that with a borrowed gun and wearing a mask, he
13
alone accosted Elvira Combs and took her purse which she said contained the money to be deposited
for IHOP. Johnson made clear that he was aided and assisted in this ill-fated endeavor by appellant,
who was driving Johnson’s car and who agreed to pick up Johnson after the robbery. In fact,
Johnson stated that the robbery was appellant’s idea. This finds support in testimony that appellant
prematurely asked questions in training about how IHOP’s receipts were deposited and his three
telephone calls to IHOP on the day of the robbery. Appellant told Johnson a gun would be needed
and he was with Johnson when they obtained a gun from Johnson’s friend. Appellant was with
Johnson when Johnson purchased the ski masks and gloves. Johnson reported that he and appellant
drove to the IHOP’s parking lot. It was here, according to Johnson, that appellant backed out of his
role as gunman for fear of recognition and insisted that Johnson execute the robbery. Appellant
pointed out Elvira Combs to Johnson who then committed the offense charged. Johnson related his
flight from the scene, and his escape into the woods.
Here, the State offered evidence of the guilt of the primary actor and offered proof
of appellant’s specific intent to assist and of assisting in the commission of the offense, each party
doing some part of the execution of the common design. Intent and knowledge can be inferred from
the acts, conduct, and words of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App.
1988); Skillern, 890 S.W.2d at 880. There was evidence, both direct and circumstantial, that
appellant knew of Johnson’s intent to commit the robbery and, being present, acted with the intent
to assist in the commission of the offense at the very time the offense occurred.
There, of course, were some conflicts in the evidence. Johnson said that he was the
gunman and eventually fled into the woods of Zilker Park without ever getting back into his car.
Greg Combs and Contreras each identified Johnson as the man who was driving the gray car after the
14
robbery occurred. Neither could identify the gunman they saw fleeing the scene after the robbery.
There was a conflict between the physical description of the gunman and the man seen driving the
gray car subsequent to the robbery. The DNA found in the ski mask abandoned in the Zilker Park
woods where Johnson said he discarded several items matched appellant’s DNA, not Johnson’s. Yet
Johnson was apprehended near Zilker Park walking away from a restroom. The gray car was not
discovered for several days. Reconciliation of evidentiary conflicts is solely that of the trier of the
facts—in this case, the jury. Heiselbetz, 906 S.W.2d at 504; Miranda v. State, 813 S.W.2d 724, 733-
34 (Tex. App.—San Antonio 1991, pet. ref’d).
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that
a rational trier of fact could have found beyond a reasonable doubt all the essential elements of
aggravated robbery and appellant’s guilt as a party to the offense. When different theories of liability
are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one
of the theories. See Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1995).
Factual Sufficiency
In his second point of error, appellant also challenges the factual sufficiency of the
evidence. A review of the factual sufficiency of the evidence begins with the presumption that the
evidence supporting the judgment was legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134
(Tex. Crim. App. 1996). In such a review, we consider the evidence without employing the prism
of “in the light most favorable to the verdict.” Id. at 129. A reviewing court must consider all the
evidence impartially, comparing evidence that tends to prove the existence of a disputed fact or facts
with evidence that tends to disprove that fact or those facts. Santellan v. State, 939 S.W.2d 155, 164
15
(Tex. Crim. App. 1997). The verdict or judgment is to be set aside only when the factual finding is
against the great weight and preponderance of the evidence so as to be clearly wrong and unjust.
Clewis, 922 S.W.2d at 129. In the factual sufficiency analysis, it must be remembered that the trier
of fact is the sole judge of the weight and credibility of the testimony. Santellan, 939 S.W.2d at 164.
Appellate courts should be on guard not to substitute their own judgment in these matters for that
of the trier of fact. Id. One principle of the factual sufficiency analysis is deference to the findings
of the jury or other fact finder. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
Moreover, “[a] decision is not manifestly unjust merely because the jury [or fact finder] resolved
conflicting views of the evidence in favor of the State.” Id. at 410.
In the latest clarification of the standard of review involved, the Court of Criminal
Appeals made clear that the Clewis criminal factual sufficiency review encompasses both formulations
utilized in civil jurisprudence. Thus, in conducting a Clewis sufficiency review of the elements of a
criminal conviction, an appellate court must ask whether a neutral review of all the evidence, both
for or against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
the confidence in the jury’s determination, or that the proof of guilt, although adequate taken alone,
is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
We have already found the evidence legally sufficient to support the conviction. Our
neutral review of all the evidence under this point of error, both for and against the finding, does not
demonstrate that the proof of appellant’s guilt as a party to the offense is so obviously weak as to
undermine confidence in the jury’s verdict, or that proof of his guilt as a party, although adequate
taken alone, is greatly outweighed by contrary proof. The second point of error is overruled.
16
Accomplice Witness Rule
Appellant raises another sufficiency issue under points of error one and two that could
properly be a separate point of error in view of recent case law. Appellant contends that the evidence
is insufficient under article 38.14 of the Code of Criminal Procedure which provides:
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.
Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979).
The accomplice witness rule imposes a sufficiency review that would not otherwise
be conducted by appellate courts. Taylor v. State, 10 S.W.3d 673, 684 (Tex. Crim. App. 2000).
Legal and factual sufficiency standards do not apply to a review of accomplice witness testimony.
Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); Hernandez v. State, 10 S.W.3d 812,
824 (Tex. App.—Beaumont 2000, no pet.). The rule is not derived from federal or state
constitutional principles that define the legal and factual sufficiency standards. Cathey, 992 S.W.2d
at 462-63. Moreover, uncorroborated accomplice witness testimony can be sufficient to support a
conviction under legal and factual sufficiency standards. See Taylor, 10 S.W.2d at 684. On the other
hand, under the state statutory law, if the prosecution fails to produce non-accomplice evidence
tending to connect the accused to the offense charged, then the accused is entitled to an acquittal on
appeal. See Tex. Code Crim. Proc. Ann. art. 38.17 (West 1979); Munoz v. State, 853 S.W.2d 558,
559-60 (Tex. Crim. App. 1993). Appellate review requires that the evidence meet the demands of
the statute. 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure § 31.241 (2d ed. 2001).
17
The test as to the sufficiency of corroboration of the accomplice witness is to eliminate
from consideration the evidence of the accomplice witness and then to examine the evidence of the
non-accomplice witnesses with the view to ascertain if there be inculpatory evidence, that is, evidence
of an incriminating character, which tends to connect the defendant with the commission of the
offense. If there be such evidence, the corroboration is sufficient; otherwise, it is not. Reed v. State,
744 S.W.2d 112, 125 (Tex. Crim. App. 1988); Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim.
App. 1968); see also Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). It is not
necessary that the corroborating evidence directly connect the defendant to the crime or that it be
sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey,
992 S.W.2d at 462. Even apparently insignificant evidence of incriminating circumstances may
sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852
(Tex. Crim. App. 1999). All facts and circumstances in evidence may be looked to as furnishing the
corroboration necessary. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983). And each
case must be considered on its own merits. Munoz, 853 S.W.2d at 559. The combined cumulative
weight of the incriminating evidence from the non-accomplice witnesses which tends to connect the
accused with the commission of the offense furnishes the test. Mitchell, 650 S.W.2d at 807.
In the instant case, the trial court in its charge designated Jenkins Johnson as an
accomplice witness as a matter of law and further instructed the jury in accordance with article 38.14.
We put aside Johnson’s testimony and examine the evidence of the non-accomplice witnesses to
determine if there was sufficient corroboration. That evidence shows that a robbery occurred in the
parking lot of IHOP about 5:30 p.m. on April 5, 1999. The victim was Elvira Combs who had the
IHOP receipts of $3000 or more in her purse. The purse was taken by a masked gunman with a black
18
handgun. Another man in a gray car was aiding and assisting the masked gunman. Appellant was
a recent employee of IHOP, but was not on duty on April 5. During his on-the-job training the
previous four days, appellant repeatedly asked premature questions about how the restaurant’s
receipts were handled, by whom they were deposited, and the mode of transportation to the bank.
On April 5, while off duty, appellant telephoned Combs three times to inquire about the day’s
receipts, and what managers were on duty. Alcantara placed appellant in the company of Johnson
shortly before the robbery when they borrowed the handgun, which was identified as being similar
to the gun used and exhibited in the robbery and was found in the woods with other items related to
the robbery. Testimony that a defendant was with the accomplice witness shortly before the robbery,
Stevenson v. State, 997 S.W.2d 766, 769 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d), and
proof connecting the defendant to the weapon used to commit the crime, Hernandez v. State, 939
S.W.2d 173, 178 (Tex. Crim. App. 1997); Lopez v. State, 960 S.W.2d 948, 952 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d), are circumstances to be considered in determining
sufficient corroboration of the accomplice witness. Mere presence of the defendant at or near the
scene of the crime is insufficient to corroborate the accomplice witness, but the defendant’s presence,
shown by direct or circumstantial evidence, may be sufficient when coupled with other suspicious
circumstances. Trevino v. State, 991 S.W.2d 849, 851-52 (Tex. Crim. App. 1999).
Two ski masks and two pairs of gloves were purchased at Oshman’s shortly before
the robbery. One of the ski masks was found in the woods with the gun, the purloined purse, and
other items relating to the robbery. The DNA from the skin cell found in the mask matched
appellant’s known DNA profile. Recently made palm prints found on Johnson’s gray car matched
appellant’s known palm prints. After the robbery, appellant never reported for work at IHOP and
19
never returned to claim his employment check. An arrest warrant was issued for appellant shortly
after Johnson was interviewed by the police. Appellant did not surrender to authorities until a month
after the robbery. The IHOP money was never recovered.
All evidence, direct or circumstantial, may be considered in determining the sufficiency
of the evidence to corroborate the testimony of the accomplice witness. Juarez v. State, 796 S.W.2d
523, 525 (Tex. App.—San Antonio 1990, pet. ref’d).
Analyzing the instant cause on its own facts and circumstances, we conclude that the
non-accomplice evidence tends to connect appellant to the offense charged and corroborates the
accomplice witness’s testimony. Appellant’s contention to the contrary is overruled.
Deadly Weapon Finding
In his third point of error, appellant contends that the trial court erred in including an
affirmative finding of the use of a deadly weapon in the judgment when the jury, the trier of facts,
made no affirmative finding in its verdict. The entry of an affirmative finding of the use or exhibition
of a deadly weapon in the judgment affects a defendant’s parole eligibility. Tex. Gov’t Code Ann.
§ 508.145(d) (West Supp. 2001).5 Thus, the improper entry of an affirmative finding is of vital
importance to a convicted defendant in many cases, although it may be immaterial when the defendant
is convicted of aggravated robbery as in the instant case. See id.; Tex. Code Crim. Proc. Ann. art.
42.12, § 3(g)(1)(A), (C), (D), (E), (F) or (H) (West Supp. 2001). Persons convicted of certain
serious offenses, including aggravated robbery, or those convicted of any offense where the judgment
5
The current code is cited for convenience. The statute in effect at time of the charged
offense was Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.01, 1997 Tex. Gen. Laws 327, 425-
26 (Tex. Gov’t Code § 508.145(d), since amended but unchanged).
20
contains an affirmative finding of the use or exhibition of a deadly weapon carry the same statutory
parole eligibility. Tex. Gov’t Code Ann. § 508.145 (West Supp. 2001).
Nevertheless, we do not know the effect an improper affirmative finding may have on
appellant’s parole eligibility under the guidelines established by the Board of Pardons and Paroles.
See id. § 5.08.144 (West 1998); Rachuig v. State, 972 S.W.2d 170, 179 (Tex. App.—Waco 1998,
pet. ref’d). Thus, we will determine the validity of the affirmative finding complained of by appellant.
The indictment charged appellant as the primary actor in an aggravated robbery by
using and exhibiting a deadly weapon “to wit: a firearm,” one of the several statutory means which
elevate the offense of robbery to the offense of aggravated robbery. Tex. Pen. Code Ann. § 29.03
(West 1994). Appellant raises no issue about lack of notice that the State intended to seek an
affirmative finding in view of the indictment’s allegations. After conclusion of the evidence at the
guilt/innocence stage of the trial, the trial court submitted a charge authorizing the jury to find
appellant guilty as a primary actor or as a party to the charged offense. As noted earlier, the
indictment did not charge appellant as a party. It was not required. See Pitts, 569 S.W.2d at 890.
Having been charged on the law of parties, the jury returned a general verdict: “We, the Jury, find
the defendant, Anthony Barnes, guilty of the Offense of Aggravated Robbery.” It is not possible to
tell whether the jury found appellant guilty as a primary actor or as a party. When different theories
are submitted to the jury in the disjunctive as in the instant case, a general verdict is sufficient if the
evidence supports one of the theories of liability submitted. See Ladd v. State, 3 S.W.3d 547, 557
(Tex. Crim. App. 1999); Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992); Kitchens v.
State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1991). As previously noted, we found the evidence
21
sufficient to support appellant’s conviction as a party to the charged offense. The jury as the trier of
fact returned only the general verdict.
Article 42.12, section 3g(a), places limitations on the right of a trial court to grant or
order community supervision or probation. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a) (West
Supp. 2001). In addition to certain designated offenses, the statute provides that the trial court may
not grant community supervision:
(2) to a defendant when it is shown that a deadly weapon as defined in Section 1.07,
Penal Code, was used or exhibited during the commission of a felony offense or
during immediate flight therefrom, and that the defendant used or exhibited the
deadly weapon or was a party to the offense and knew that a deadly weapon
would be used or exhibited. On an affirmative finding under this subdivision,
the trial court shall enter the finding in the judgment of the court. On an
affirmative finding that the deadly weapon was a firearm, the court shall enter
that finding in its judgment.
Id. § 3g(a)(2) (emphasis added).
At the guilt/innocence stage of the trial, there was no affirmative finding by the jury
that appellant had personally used a deadly weapon or knew that one would be used or exhibited as
required by statute.
The State urges that the trial court was the trier of fact at the punishment hearing and
that it had the authority to enter the necessary affirmative finding. However, Judge Lynch presided
at the jury trial at the guilt/innocence stage and Judge Campbell presided at the punishment hearing.
At this latter hearing, only evidence on punishment was offered and no affirmative finding was
discussed or made by Judge Campbell.
22
The formal judgment contained an affirmative finding and was signed by Judge Lynch,
but he was not the trier of fact at either stage of the bifurcated trial. The judgment recites in pertinent
part:
Findings on Use of a Deadly Weapon: YES, THEREUPON THE COURT
FURTHER FOUND THAT A DEADLY WEAPON, TO WIT: A FIREARM; WAS
USED BY THE DEFENDANT IN THE COMMISSION OF THIS OFFENSE
Punishment Assessed by: Court
The record does not reflect that this finding was made by the trial court at either stage
of the trial but appears to have been simply added to the judgment. This is not the only addition made
by the formal judgment. The words “as alleged in the indictment” were added to the jury’s verdict.
It is unclear whether this gratuitous addition was intended to support the affirmative finding in the
judgment.
If appellant’s guilt depends upon being a party to the offense, as it does, there is no
recitation in the judgment finding that he knew that a deadly weapon would be used or exhibited. It
simply asserts that appellant personally used a firearm in the commission of the aggravated robbery.
The evidence does not support the theory that appellant as a party personally used a firearm to aid
and assist Johnson in the commission of the offense, nor is the evidence sufficient to show that
appellant used or exhibited a firearm so as to sustain his conviction as a primary actor to the
aggravated robbery charged.
Our situation here is somewhat unique and can be distinguished from most cases
dealing with affirmative findings. When the trial court includes a party charge in its jury instructions,
the jury must specifically find that the defendant used or exhibited a deadly weapon or knew that the
23
same would be used or exhibited. Taylor v. State, 7 S.W.3d 732, 740-41 (Tex. App.—Houston [14th
Dist.] 1999, no pet.); Broden v. State, 923 S.W.2d 183, 191 (Tex. App.—Amarillo 1996, no pet.).
The jury did not do that here nor was there a special issue submitted on the use of a deadly weapon
which might have authorized the finding. See Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App.
1995). Even if it could be argued that the trial court as trier of fact at the penalty stage of the trial
could have entered such finding, see Flores v. State, 690 S.W.2d 281, 283 (Tex. Crim. App. 1985),
the trial judge at the penalty stage here did not do so.
Article 37.12 requires the trial court to enter “the proper judgment.” Tex. Code Crim.
Proc. Ann. art. 37.12 (West 1981). Such judgment must accurately recite any affirmative finding as
to the use or exhibition of a deadly weapon. Id., art. 42.01, § 21, art. 42.12, § 3g(a)(2) (West Supp.
2001). The affirmative finding improperly entered in the instant judgment will be deleted as well as
the improper addition to the jury’s verdict set forth in the judgment. We sustain appellant’s third
point of error.
Jury Charge
In his fourth point of error, appellant contends that the trial court sua sponte erred in
failing to submit a jury instruction requiring the jury to find, if it determined that appellant was a party
to the offense, that appellant knew a deadly weapon would be used or exhibited. In view of our
disposition of point of error three and the modification of the judgment, the issue presented is
rendered moot.
The judgment is modified to delete therefrom the affirmative finding that a deadly
weapon was used by appellant during the commission of the offense and the phrase “as alleged in the
24
indictment” from the jury’s verdict as set forth in the judgment. As modified, the judgment is
affirmed.
John F. Onion, Jr., Justice
Before Justices Kidd, B. A. Smith and Onion*
Modified and, as Modified, Affirmed
Filed: November 29, 2001
Publish
25
*
Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
26