Regand Rendell Harris v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00143-CR
______________________________
REGAND RENDELL HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
Trial Court No. 29930
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Regand Rendell Harris appeals his convictions for aggravated robbery and burglary of a
habitation. 1 The indictment alleged Harris intentionally or knowingly entered, without
permission, the residence of Albert Zahn and committed or attempted to commit theft of U.S.
currency. Additionally it was alleged that Harris, while in the course of committing theft with
intent to obtain or maintain control of the property, caused bodily injury to Zahn, age seventy-four.
A jury found Harris guilty of both offenses, and after finding that he had been convicted of two
prior felony offenses, assessed punishment at ninety-nine years’ imprisonment on each count.
The trial court sentenced Harris accordingly to two concurrent ninety-nine-year sentences. Harris
appeals both counts arguing (1) the evidence of guilt is factually insufficient, and (2) there is
insufficient corroboration of the accomplice witness testimony. Finding the evidence to be
sufficient, we affirm the judgment of the trial court.
I. Sufficiency of the Evidence
Harris challenges the factual sufficiency of the evidence. In Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010) (Cochran, J., concurring, Womack, J., joining the concurrence)
(4-1-4 decision), a plurality of the Texas Court of Criminal Appeals abolished the factual
sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its
1
Originally appealed to the Twelfth 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 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
progeny. The plurality and a concurring justice agreed that ―the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.‖ Id. Since the Texas Court of Criminal Appeals
has abolished factual sufficiency review and a plurality of the court held there was no meaningful
distinction between legal and factual sufficiency,2 we will construe Harris’ factual sufficiency
challenge as a legal sufficiency challenge.
A. Standard of Review
In reviewing the evidence for legal sufficiency, we consider the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979). Legal sufficiency is judged not by the quantity of evidence, but by the quality of
the evidence and the level of certainty it engenders in the fact-finder’s mind. Brooks, 323 S.W.3d
at 917–18 (Cochran, J., concurring).
B. Elements of the Offenses
In order to establish Harris committed aggravated robbery, the State was obligated to prove
Harris, in the course of committing theft, ―intentionally, knowingly, or recklessly cause[d] bodily
injury‖ to another person who is sixty-five years of age or older. See TEX. PENAL CODE ANN.
2
In the Brooks plurality opinion, the plurality found ―no meaningful distinction between the Jackson v. Virginia
legal-sufficiency standard and the Clewis factual-sufficiency standard, and these two standards have become
indistinguishable.‖ Brooks, 323 S.W.3d at 902 (4-1-4 decision).
3
§§ 29.02, 29.03(3)(A) (Vernon 2003). The State was obligated, in order to establish Harris
committed burglary, to establish Harris, without effective consent of the owner, entered a
habitation with intent to commit theft. TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003).
―Theft‖ is the unlawful appropriation of property with intent to deprive the owner of the property.
TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2010).
C. Analysis of the Evidence
The evidence established that Jacklyn Burris, Harris’ accomplice, knocked on the door of
Zahn’s residence. Burris had previously worked for Zahn cleaning his residence. Zahn, age
seventy-four, answered the door, admitted Burris into the residence, and Burris asked for money.
After Zahn refused, Harris forced his way into the house. Zahn testified Harris pinned his arms to
the chair he was sitting in and demanded to know ―where is the money at.‖ While Harris held
Zahn in the chair, Burris found Zahn’s wallet. Harris and Burris then left with Zahn’s wallet and
its contents. Zahn testified the wallet contained approximately $150.00.3
Zahn identified Harris in court as the man who robbed him. Zahn testified he did not
invite Harris into his residence. Sergeant Jay Russell, a sergeant with the Anderson County
Sheriff’s Office, testified Zahn had previously identified Harris in a photographic lineup. Burris
also made an in-court identification of Harris as the perpetrator. Zahn testified that Harris caused
him pain when Harris grabbed his arms and that bruises resulted. Sergeant Ronnie Joseph Foster,
3
Sergeant Ronnie Joseph Foster testified Zahn informed him the wallet also contained a Kroger card, Brookshire card,
Zahn’s driver’s license, a Lone Star Card, and Zahn’s social security card.
4
an investigator with the Anderson County Sheriff’s Department, testified the bruises were ―fresh‖
and were bright red and pink.‖ Foster testified the bruises photographed were not ―age spots or
anything like that.‖ The State introduced photographs of Zahn’s injuries into evidence, and
Foster agreed with the State that ―you could see the fingerprints where the defendant allegedly held
the victim down.‖4 Zahn testified he was born in 1935.
Harris argues the evidence is insufficient because there were a number of inconsistencies in
Zahn’s testimony. Harris argues ―[t]he instant case before this Court has the distinct flavor of a
misdirected elderly man, in that Mr. Zahn did not know the perpetrator of the offenses and had to
be led by the police to identify an individual.‖ Zahn’s testimony was inconsistent concerning
whether he was wearing the pants where the wallet was located or whether the pants had been hung
up in the closet. 5 Whether Zahn was wearing the pants is immaterial to Harris’ guilt; the
important issue is whether Harris took the wallet, not where it was located. Zahn was also
4
The photocopy of the exhibit in the record is not sufficiently clear to determine whether such marks were visible on
Zahn’s arms.
5
Zahn testified during direct examination that he was wearing the pants where the wallet was located. On cross-
examination, Zahn responded in the affirmative when asked whether the pants ―were the pants you had had that day‖
and when asked, ―Were they -- You were wearing them?‖ On redirect, the following exchange occurred:
Q. [State]: Were you wearing [the pants] when they came in?
A. [Zahn]: Yes, sir.
Q. You were?
A. No. I wasn’t wearing them.
Q. You weren’t wearing them?
A. They were hanging up.
Q. They were hanging up? Where were they hanging up, sir?
A. In the closet.
5
inconsistent concerning whether Harris knocked him down.6 Because the State’s theory was
based on bodily injury caused when Harris pinned Zahn to the chair, whether Harris knocked Zahn
down is immaterial. The evidence was also inconsistent concerning whether Zahn had identified
Harris in a photographic lineup. 7 A rational juror could have determined Zahn had
misunderstood the prosecutor’s questions or misspoke since he later acknowledged previously
seeing the lineup exhibit and identified his initials on the exhibit. Even if the jury found Zahn’s
testimony contradictory, these inconsistencies do not render the evidence legally insufficient. It
is the jury’s sole province to resolve these contradictions. Based on both Zahn’s and Russell’s
testimony, a rational juror could have believed that Zahn had identified Harris in the photographic
lineup.
A rational juror could have found all the elements of aggravated robbery and burglary
beyond a reasonable doubt. The evidence is sufficient. Harris’ first issue is overruled.
II. The Accomplice Witness Testimony Is Corroborated
Harris next argues the State presented insufficient corroboration of Burris’ testimony.
Burris, who had been charged as a codefendant, agreed with the prosecutor that she was placed ―on
deferred probation because of this offense.‖ Harris notes ―the accomplice testimony completely
6
Zahn first testified that he was sitting down in a rocking chair when Harris pinned his arms to the chair. On direct
examination, Zahn testified he was ―sitting down‖ when Harris grabbed his arms. On cross-examination, Zahn
testified Harris knocked him down.
7
Sergeant Russell testified Zahn had previously identified Harris in a photographic lineup. On direct examination,
Zahn was shown the photographic lineup and asked if he had ―seen this before‖ and answered ―no.‖ On redirect,
Zahn verified he had identified a suspect in a photographic lineup and identified his initials on the exhibit.
6
contradicts the testimony of the victim Mr. Zahn.‖ Although Burris testified Harris had a purple
blanket8 covering part of his face and ―put a knife to [Zahn’s] throat,‖ Zahn denied ―ever see[ing]
a knife‖ and denied that Harris had a towel covering his face. Sergeant Foster testified Zahn
never mentioned a knife being exhibited.
The State has no obligation to corroborate every detail of an accomplice witness’
testimony. Cf. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). ―There must
simply be some non-accomplice evidence which tends to connect appellant to the commission of
the offense alleged in the indictment.‖ Id. The accomplice witness rule ―creates a statutorily
imposed review,‖ Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008), ―concerned with
the sufficiency of the evidence to support the conviction.‖ Bible v. State, 162 S.W.3d 234,
246–47 (Tex. Crim. App. 2005). Under the accomplice witness rule, one cannot be convicted on
the testimony of an accomplice unless that testimony is corroborated by other evidence tending to
connect the defendant with the offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14
(Vernon 2005).
To determine the sufficiency of corroboration, we must view the corroborating evidence in
the light most favorable to the jury’s verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App.
1994). The test for weighing the sufficiency of corroborating evidence is to eliminate from
consideration the accomplice’s testimony, and then examine the remaining testimony and
8
Burris described the blanket as a purple ―baby blanket.‖ Burris testified Harris had tied the blanket around his face
under his nose.
7
evidence to determine if there is evidence that tends to connect the defendant with the commission
of the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Hall v. State, 161
S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref’d). The nonaccomplice evidence does
not have to directly link the accused to the crime, does not have to establish guilt beyond a
reasonable doubt, and need not prove all the elements of the alleged offense. Gill, 873 S.W.2d at
48; Munoz, 853 S.W.2d at 559.
Viewed in a light most favorable to the jury’s verdict and eliminating the accomplice’s
testimony, the corroboration of the accomplice testimony was sufficient. Zahn, a seventy-four-
year-old man, identified Harris as the person who entered his home without permission, pinned his
arms against a chair causing pain, and took Zahn’s wallet which contained approximately $150.00.
The nonaccomplice evidence tends to connect Harris with the burglary and aggravated assault.
Accordingly, we overrule Harris’ remaining issue.
For the reasons stated, we affirm.
Jack Carter
Justice
Date Submitted: January 12, 2011
Date Decided: January 19, 2011
Do Not Publish
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