Kevin Allan Lindsey v. State

Affirmed and Memorandum Opinion filed June 19, 2007

Affirmed and Memorandum Opinion filed June 19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00327-CR

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KEVIN ALLAN LINDSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1059660

M E M O R A N D U M   O P I N I O N

A jury found appellant, Kevin Allan Lindsey, guilty of felony murder and assessed his punishment at forty years= confinement in the Institutional Division of the Texas Department of Criminal Justice, and a $10,000 fine.  In two issues on appeal, appellant contends the evidence is legally and factually insufficient to support his conviction.  We affirm.

Factual and Procedural Background

The relevant facts are drawn from appellant=s trial in April 2006, twenty-two years after the crime for which he was indicted was committed. 

In late February 1984, Elizabeth Gargano, age 71, was found stabbed to death in her home on Maxey Road in east Harris County.^[1] Blood and a pair of slippers were found on the porch, and from the pattern of the blood, it appeared that Ms. Gargano had been dragged inside and left there.  Her home appeared to have been ransacked and her phone was on the floor with its cord ripped out of the wall.  Officers at the scene noted possible points of entry through a window or the living room door, which had glass broken out and appeared to have been forced.  Officer Stephen Fingerhut of the Houston Police Department=s newly-formed Crime Scene Unit took photographs of the crime scene and collected evidence for analysis, including blood and fingerprints.^[2] The evidence gathered was connected to the complainant only; no physical evidence linking any suspects to the crime was found at the scene.  Ms. Gargano=s car, which was missing, was later found about two miles from her home, burned.  An investigation ultimately yielded no suspects.

Seventeen years later, in 2001, a man named Rick Moran identified Gregory Helms and someone named AKevin,@ whose last name was possibly ALindsey@ as suspects in Ms. Gargano=s murder.  Helms and Lindsey were reportedly brothers-in-law.  At appellant=s trial, Officer Paul Motard of the Homicide Division, who had originally investigated Ms. Gargano=s death, testified that Moran was in prison and offered the information in exchange for a transfer to a prison unit closer to his family.  Officer Motard testified that he spoke to Moran and was able to corroborate some of Moran=s information by speaking to Lisa Vinson, who was Moran=s girlfriend in 1984.  Motard testified he eventually found Helms in 2004 living in Montgomery County.  At first, Helms denied involvement, but later admitted involvement and gave a statement.  Motard filed murder charges against him in June 2004.

Motard also located appellant, who was then living in Collinsville, Illinois.  In April 2005, Motard, his partner, Officer Clement Abandado, and a Collinsville police officer, arrived at appellant=s trailer home. Appellant went with them to the police station, but made no admissions during their conversation.  Motard then contacted appellant=s older sister, Debbie Lindsey, who lived nearby, and told her he was investigating a 1984 murder in Houston.  When Motard told Debbie Lindsey that appellant denied any involvement in the murder, she became very emotional and angry.  Debbie called appellant and then led Motard and Abandado back to appellant=s trailer.

Debbie went into appellant=s house, and when they both came out, appellant appeared Anervous, a little rattled, and agitated.@  Motard secretly tape-recorded his conversation with appellant, who was not under arrest at the time.^[3] Motard testified that appellant told him that he was present at Ms. Gargano=s house, he and Helms went there to do a burglary, he helped Helms get into the house through a window, and he went around to the front of the house but did not go in. Appellant also said that he heard a commotion inside the house, and through the front door he saw Helms with a knife and a woman lying on the floor.  At first, appellant denied taking any property from the house and denied riding in Ms. Gargano=s car with Helms. Later, however, appellant said he did ride with Helms in her car part of the way, and then Helms let him out and he walked the rest of the way.  Appellant also made a drawing of the house and the front door, and demonstrated where he said he helped Helms into the window.^[4] Motard testified that appellant told him that this had been bothering him for some time and he had lost a lot of weight.  Motard also testified that appellant=s description was accurate and consistent with the way Motard had seen the scene.  According to Motard, appellant did not say he had a knife that night, and he could not remember if appellant said he knew Helms had a knife.

At trial, Debbie Lindsey testified that, when she lived in Texas, she and Gregory Helms had a daughter together, and at one point, appellant came to live with them at the Mimosa apartments.  During that time, Debbie testified, Helms regularly abused drugs.  Helms also hung out with Rick Moran, whom she did not like.  Debbie remembered hearing of Ms. Gargano=s murder on the news one night.  She also testified that, several years after she and appellant moved back to Illinois, appellant told her Athat him and Greg did a robbery and something went wrong.@  When appellant said this, he seemed Asick@ and Ashaken up.@  Debbie did not inform the police.  She testified that after the homicide detectives from Houston came to talk to her about the case, she called appellant because she wanted him to talk with the police.

The State also called Gregory Helms to testify.  Helms testified that in 1984 he used drugs on a regular basis, mainly marijuana, pills, and occasionally acid.  He also drank beer.  He and Debbie lived at the Mimosa apartments, which were not far from Ms. Gargano=s house. According to Helms, his home Awas a party@ and Rick and Debbie were usually there.  Helms testified that he regularly did drugs with Rick Moran and they would occasionally break into houses together. 

Helms testified that on February 26, 1984, he was hanging out at his apartment with Rick, appellant, Debbie, and their baby.  He and Rick came up with a plan to burglarize Ms. Gargano=s house that evening to get money, and they chose it because Rick had burglarized it before.  Although Debbie denied it at trial, Helms testified that all of them were in the living room when they came up with the plan.  Helms testified he and Rick dressed in dark clothes, oversized shoes (so that footprints could not be accurately measured), and ski masks with holes in them.  Helms also wore gloves and had a pocket knife he always carried.  The knife was a buck knife with a six or seven-inch blade.  He testified the knife was visible from his back pocket because it stuck out about an inch above the top of the pocket.  He had the knife when he went to Ms. Gargano=s house.  Helms testified that when he and Rick got there they broke in through a window.  But, they retreated when they discovered Ms. Gargano was home.

Helms testified he and Rick returned to his apartment, where Helms told appellant and Debbie he and Rick could not get into the house because someone was there.  They sat around smoking marijuana and drinking, and then Helms gave Rick a ride home.  After returning to the apartment, Helms, appellant, and Debbie finished drinking and began discussing going back to Ms. Gargano=s house to break in.  Helms testified he believed Ms. Gargano was possibly still home, but he went back because they needed money to get more drugs, beer, and cigarettes.  According to Helms, appellant freely agreed to go with him.  Helms testified that he was still carrying his knife when he went back the second time.  Like Helms, appellant wore dark clothing, big shoes, a ski mask, and gloves.  Helms testified appellant usually carried a fishing knife, but he did not know if appellant had it with him when they went to break into Ms. Gargano=s house. 

Helms testified he entered Ms. Gargano=s house by breaking the glass in a door with his knife, and appellant went in through a window.  They were looking for money and things they could steal and sell. When they went to the bedroom, they found Ms. Gargano in bed, awake.  According to Helms, she looked like an older lady, and appeared scared.  Helms started yelling at her, demanding money and the keys to her car.  Appellant stood at the foot of the bed.  Helms instructed appellant to keep Ms. Gargano there while he went to the kitchen and started looking around for money.  When Helms returned to the bedroom and began yelling again, Ms. Gargano jumped out of bed, ran by appellant, pulled his mask off, and ran out the front door.  Helms and appellant ran after her, and caught her when she fell off the porch steps.  Ms. Gargano was screaming, and Helms was Afreaking out@ because she had seen appellant=s face and he feared they would be caught.  He then pulled out his knife and began stabbing Ms. Gargano in the back.  Helms testified he did not know if appellant also had a knife at that time.

Appellant stood there as Helms stabbed Ms. Gargano several times.  Appellant and Helms then dragged her into the house.  Ms. Gargano was bleeding and moaning.  Helms then stabbed her five or six more times, he said Ato put her out of her misery quicker.@  However, Helms admitted he did not stab her as an act of mercy; he did it so they would not get caught.  Helms testified he did not know if appellant also stabbed her.  He and appellant then found Mrs. Gargano=s car keys, loaded some of her belongings into the car, and left together. 

Helms testified he drove Ms. Gargano=s car to Rick Moran=s house because Rick could help them get rid of Ms. Gargano=s property.  Helms told Rick he and appellant had killed Ms. Gargano.  Helms also told Rick he thought appellant had raped her, but he admitted he never saw appellant do that.  Rick told them to get rid of everything, so Helms and appellant went to a nearby secluded area and burned the car.  He and appellant threw their bloody clothes in the dumpster of the Mimosa apartments.  Helms also threw his knife into the dumpster.  According to Helms, appellant never told him to stop stabbing Ms. Gargano, he never tried to stop him, and he never ran away.  When they went back to their apartment, Helms testified they told Debbie what had happened.  A few weeks later, appellant returned to Illinois because he and Helms thought it would be better if they split up.

Helms testified he was charged with and pleaded guilty to Ms. Gargano=s murder.  He further testified he was never promised anything in exchange for testifying.^[5] Helms also testified that when he first spoke with Officers Motard and Abandado, and when he was before the judge for sentencing, he continued to maintain that he suspected appellant had raped Ms. Gargano, which was not true.  Helms also falsely said that he saw appellant stab Ms. Gargano.  Helms admitted that he said things that were not true concerning his and appellant=s participation in the crime Ato get easier time.@  According to Helms, after the prosecutor challenged his story, he ultimately told the truth about what happened.

Appellant did not testify.  The jury found him guilty of felony murder and, at the conclusion of the punishment phase, assessed his punishment at forty years= confinement in the Institutional Division of the Texas Department of Criminal Justice, and a $10,000 fine.

Analysis of Appellant=s Issues

In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for felony murder.  The jury was authorized to find appellant guilty as a principal, as a party under Texas Penal Code section 7.02(a)(2), or as a conspirator under section 7.02(b).^[6] For purposes of our review, we will assume the evidence is insufficient to support appellant=s conviction as principal and address whether the evidence is sufficient to support his conviction under the law of parties.

1.       The Legal Sufficiency of the Evidence

A.      Standard of Review

In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  We must resolve any inconsistencies in the testimony in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

On appeal, the same standard of review is used for both circumstantial and direct evidence cases.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  We look at events occurring before, during, and after the commission of the offense and we may rely on actions of the defendant which show an understanding and common design to do the prohibited act.  Id. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.  Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.  Id.

In a sufficiency review, the essential elements of the offense are those of a hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  When the trial court=s charge authorizes the jury to convict on more than one theory, as it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any of the theories.  Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992).

B.      Applicable Law

A person commits the offense of felony murder if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.  Tex. Penal Code ' 19.02(b)(3).  A person commits the felony offense of burglary if, without the effective consent of the owner, he enters a habitation with the intent to commit theft.  Tex. Penal Code ' 30.02(a)(1), ' 30.02(c)(2). 

Under the law of parties, a person may be convicted as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible.  Tex. Penal Code ' 7.01(a).   A person is criminally responsible for an offense committed by another if, 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).  A person is also criminally responsible for an offense committed by the conduct of another if, Ain the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.@  Id. ' 7.02(b).

C.      Analysis of Appellant=s Issue

Appellant contends the evidence is legally insufficient to support his conviction as a party because there is no evidence that he encouraged Helms to stab Ms. Gargano or that he should have anticipated the commission of a murder in the course of the burglary.  Within his discussion of this issue, appellant also argues that Helms=s accomplice witness testimony is not credible and not corroborated, appellant=s confession is insufficient to support his conviction alone or to corroborate Helms=s testimony, and, even if Helms=s testimony and appellant=s confession were sufficient, this evidence proves only that appellant may have been present at the scene of the crime.  We disagree.

Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh=g).  In Loredo v. State, we considered a similar claim of legally insufficient evidence to support a felony murder conviction.  See Loredo v. State, 130 S.W.3d 275 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  In that case, the defendant and two other men set out to burglarize a McDonald=s restaurant.  Id. at 277.  In order to avoid leaving physical evidence at the scene, a co-defendant set fire to the restaurant.  Id. at 278.  As the restaurant began to burn, the fire department was called.  Two firefighters entered the restaurant to ensure no one was trapped inside, and while searching the restaurant, they suffered asphyxia and died.  Id.  On appeal, the defendant claimed the evidence was insufficient to support his conviction as a party to felony murder because starting the fire was an independent act of a co-defendant done without his knowledge.  In determining the evidence was legally sufficient to support the jury=s verdict, this Court considered the fact that the defendant knew the restaurant was on fire and did not try to put the fire out or call the fire department, and that the fire was started to destroy any evidence that the defendant and others participated in a burglary.  Id. at 280. 

The evidence here demonstrates that both appellant and Helms went to Ms. Gargano=s house, uninvited, to steal money and other items, thereby committing the offense of burglary.  In the course of and in furtherance of the commission of the burglary, Helms stabbed Ms. Gargano multiple times, causing her death.  Because Helms told appellant he and Moran had abandoned an earlier attempt to break into Ms. Gargano=s house because she was not home, and yet they planned to return to the house, the jury could have determined that appellant knew Ms. Gargano was home when he and Helms went to her house.  He watched over Ms. Gargano while Helms looked for money in the house.  After Ms. Gargano pulled off appellant=s ski mask and attempted to escape, appellant ran outside to aid Helms in getting her back inside the house.  Once Helms stabbed Ms. Gargano, he and appellant carried her back inside so that no one could see or hear her.  Helms then stabbed Ms. Gargano several more times, and appellant made no attempt to stop Helms, to get help for Ms. Gargano, to leave, or to contact the police.  Instead, appellant and Helms then ransacked the house, stole Ms. Gargano=s property, including her car, and left her for dead.  In a panic, they went to Rick Moran=s house for advice and then decided to burn Ms. Gargano=s car.  Helms testified that he stabbed the gas tank and cut the lines, while both he and appellant put newspapers underneath the seats of the car and lit them on fire. Helms and appellant then disposed of their bloody clothes and Helms=s knife in a dumpster. 

Although appellant contends Helms=s testimony is not credible because he had previously lied under oath, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive providence of the jury to reconcile conflicts in the evidence.  Jones, 944 S.W.2d at 647.  Viewed in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant, while in the course of committing burglary, was a party to the stabbing, an act clearly dangerous to human life, which caused Ms. Gargano=s death.

Likewise, the jury could have concluded the act of stabbing Ms. Gargano was committed in furtherance of the conspiracy to commit burglary, because Ms. Gargano was attempting to escape and could identify appellant.  Her death enabled appellant to avoid prosecution for this crime for over twenty years.  See Flores v. State, 681 S.W.2d 94, 96 (Tex. App.CHouston [14th Dist.] 1984), aff=d, 690 S.W.2d 281 (Tex. Crim. App. 1985) (holding evidence was legally sufficient to support defendant=s conviction when co-defendant=s shooting of complainant who came home during burglary was committed in furtherance of burglary).  And, although appellant claims he could not have anticipated the stabbing, Helms testified he always carried the knife in his back pocket, where it was visible, and he used it that night to break the glass in Ms. Gargano=s door.  This evidence is sufficient to enable the jury to reasonably conclude that appellant should have anticipated the stabbing.  See Hooper, 214 S.W.3d at 14B15 (AJuries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor.@); Loredo, 130 S.W.3d at 281 (holding defendant should have anticipated fire being set to cover conspirators= participation in burglary); Flores, 681 S.W.2d at 281 (holding burglary conspirator should have anticipated shooting of complainant when he knew co-conspirator had gun); see also Green v. State, 682 S.W.2d 271, 285B86 (Tex. Crim. App. 1984) (holding evidence that appellant agreed to burglarize house, participated in robbery during which complainant was murdered, and entered house with a gun was legally sufficient to show appellant should have anticipated murder); Moore v. State, 24 S.W.3d 444, 447 (Tex. App.CTexarkana 2000, pet. ref=d) (holding evidence legally sufficient to support conviction because burglary conspirator should have anticipated co-conspirator might arm himself with items or weapons found in burglarized residence).

Appellant also claims the evidence is legally insufficient because the State did not present evidence to corroborate Helms=s incriminating testimony.  See Tex. Code Crim. Proc. art. 38.14 (AA 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.@). 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).  In conducting a sufficiency review under the accomplice witness rule, the reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to ascertain if there is any 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); Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997).  ATendency to connect@ rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt.  Solomon, 49 S.W.3d at 361; Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999).  Rather, 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.  Cathey, 922 S.W.2d at 462.  All the facts and circumstances in the case may be considered when determining whether the accomplice testimony was properly corroborated.  Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).  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).

Turning to the corroborating evidence, in 2001, Officer Motard received information from Rick Moran, an acquaintance of appellant and Helms, implicating appellant and Helms in Ms. Gargano=s murder.  The information provided Moran corroborated Helms=s version of events.  Additionally, the State presented a recorded statement from appellant in which he admitted going to Ms. Gargano=s house to commit burglary.  Appellant=s statement was consistent with eyewitness and photographic evidence of the crime scene.  Although some of the details varied from Helms=s testimony, the jury was free to weigh the evidence and determine the credibility of the witnesses.  Appellant=s sister, Debbie Lindsey, testified appellant told her he and Helms had committed the burglary and something had gone wrong.  She recalled appellant was very shaken by the incident and she later convinced him to talk to the police about his involvement in the case.  Disregarding Helms=s testimony and reviewing the remaining evidence, we conclude there is some evidence that tends to connect appellant with the offense.  See Flores, 681 S.W.2d at 97; see also Joseph v. State, 960 S.W.2d 363, 365B66 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (holding evidence sufficiently corroborated testimony of accomplice regarding convenience store robbery and murder when evidence placed defendant at the crime scene and a witness testified defendant was with the accomplice on the day of the robbery).

In summary, viewing the evidence in the light most favorable to the verdict, the jury could have found that appellant, acting as a party, committed the offense beyond a reasonable doubt, even in the absence of evidence that he personally stabbed Ms. Gargano.  We overrule appellant=s first issue.

2.       The Factual Sufficiency of the Evidence

A.      Standard of Review

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with unless it represents a manifest injustice even though supported by legally sufficient evidence).  Thus, while we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

B.      Analysis of Appellant=s Issue

In his second issue, appellant contends the evidence is factually insufficient because there was no DNA or fingerprint evidence to connect appellant to the crime.  Appellant also re-urges that Helms=s testimony was not credible and there was no evidence corroborating it.  Again, we disagree.

While scientific evidence is useful, the State can meet its burden without such evidence, especially in light of the evidence of appellant=s guilt in this case.  The lack of scientific evidence does not make the State=s evidence so weak as to be clearly wrong or manifestly unjust, or render the verdict against the great weight and preponderance of the evidence.  A rational jury could have found appellant guilty of felony murder without DNA or fingerprint evidence.  See Santos v. State, 116 S.W.3d 447, 459 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (rejecting argument that lack of fingerprints connecting defendant to robbery rendered evidence insufficient to support conviction); Washington v. State, 127 S.W.3d 197, 205 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d as untimely filed) (rejecting argument that there was no medical or scientific evidence supporting conviction for aggravated sexual assault).

We have already addressed appellant=s complaints about Helms credibility and outlined the evidence corroborating his testimony. Although Helms=s testimony was contradictory at times, reconciliation of conflicts in the evidence is within the exclusive province of the jury.  See Jones, 944 S.W.2d 647; Reed v. State, 158 S.W.3d 44, 51 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  Helms admitted that when he was initially charged with this offense, he told investigators that appellant stabbed Ms. Gargano.  He also accused appellant of raping Ms. Gargano, which was not true.  However, Helms admitted his earlier statements were untrue and he explained that he lied in the hopes of getting a lighter sentence.  Helms also testified that his testimony at appellant=s trial was the truth.  Helms=s trial counsel, Jay Dedrick, and Officer Motard also testified that Helms was not offered or given anything in exchange for testifying against appellant.  By rendering a guilty verdict, the jury chose to accept the truthfulness of Helms=s testimony, despite any inconsistencies.  The jury also was free to consider and weigh the corroborating evidence presented.  On this record, we decline to substitute our judgment for the jury=s on this matter of credibility and weight.  See Marshall, 210 S.W.3d at 625 (appellate court may substitute its judgment for jury=s on matters of weight and credibility only to a very limited degree).  We hold the evidence is factually sufficient to support appellant=s conviction.  Therefore, we overrule appellant=s second issue.

The trial court=s judgment is affirmed.

/s/      Margaret Garner Mirabal

Senior Justice

Judgment rendered and Memorandum Opinion filed June 19, 2007.

Panel consists of Justices Anderson and Frost and Senior Justice Mirabal.^[7]

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  At appellant=s trial, the medical examiner testified Ms. Gargano had a total of eleven stab wounds and one puncture wound.

^[2]  DNA testing was not used at the time; the blood was submitted to determine its type.  In 2005, DNA testing was done on various samples from the crime scene, but nothing connecting to any suspects was found.

^[3]  The tape recording was admitted as a State=s exhibit and played for the jury.

^[4]  The drawing was admitted into evidence.

^[5]  The State also called Jay Dedrick, Helms=s attorney.  Dedrick testified that Helms was never promised anything in exchange for testifying against appellant, and the sentencing was left entirely to the judge.  Likewise, Officer Motard testified that, between June 2004 and April 2005, he had one meeting with Helms before he was sentenced, and Helms was not promised anything in exchange for testifying against appellant.

^[6]  The jury charge also included the lesser offense of burglary of a habitation.

^[7]  Senior Justice Margaret G. Mirabal sitting by assignment.