Kendrick Dewayne Bush v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-06-223 CR ____________________ KENDRICK DEWAYNE BUSH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 95570 MEMORANDUM OPINION A jury convicted appellant Kendrick Dewayne Bush of aggravated robbery and assessed punishment at ten years of confinement. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Bush filed this appeal, in which his sole contention is that the evidence supporting his conviction is insufficient when the testimony of an accomplice witness is excluded. We affirm. Background Lakisha Brooks testified that she, Bush, and two other individuals formulated a plan to rob the victim at the victim's home. Brooks told the victim she would have sex with him for money, and she later went to the victim's home under the pretense of doing so. However, Brooks actually planned for Bush and the other two individuals to come in behind her and rob the victim. According to Brooks, the victim and Linton Cole were at the victim's home when she arrived. Brooks asked the victim to take a bath, and the victim went into the bathroom to do so. Brooks testified that after the victim came out of the bathroom and she and the victim entered the living room, Bush and another individual entered the house with guns in their hands. Brooks testified that Bush began holding Cole hostage and demanding money from him, and Brooks told Bush not to kill Cole because the victim, rather than Cole, had money. Brooks testified that Bush ran over to help one of his accomplices with the victim because the victim "was fighting him too much . . . and he couldn't handle him." According to Brooks, Bush went to the door and began shooting at the victim through the door. Bush kicked the door, and Cole ran out of the house. Brooks testified that she also ran out of the house. She subsequently asked someone to give her a ride, and she returned to Bush's house, where she found Bush and the other individuals who had been there before the robbery. Brooks testified that Bush and the other individuals were counting the money, and Bush had the victim's wallet in his hand. Bush then left with the gun and the wallet. When Bush later returned, he told Brooks he had thrown the gun into a trash pile down the street, and that he had thrown the wallet into a sewer. Bush offered Brooks some of the money, but she refused to accept it. Brooks testified that she called the police two days after the robbery, but she did not give a statement until approximately a year later because she was afraid. Brooks testified that she was not given anything in exchange for her testimony. Linton Cole, who lived with the victim, testified that he heard a knock at the door, and when he opened the door, two men pushed him onto the bed, held guns on him, and asked him where the money was. According to Cole, a girl who was present at the house told the men, "'He don't have no money. It's the other one.'" Cole testified that he did not know the men, and he did not know what they looked like because they were "all covered up." Cole told the police that one of the men was taller, skinnier, and light skinned. Cole explained that he ran out and hid under the house. Dr. Tommy J. Brown, a forensic pathologist, testified that the victim sustained four bullet wounds, and that the victim died as a result. Detective James Underhill of the Port Arthur Police Department testified that he served as the lead detective in the case. According to Detective Underhill, Brooks was the first suspect in the case. While the police were searching for Brooks, they interviewed Bush, and Bush gave a statement in which he denied any knowledge of the robbery. The police arrested Brooks, and she subsequently gave a statement. Brooks's statement led Detective Underhill to three new persons of interest, one of whom was Bush. After the police located Bush, Detective Underhill read Bush his Miranda warnings, and Bush agreed to waive his constitutional rights and gave a statement. (1) In the statement, Bush explained that Brooks came to his apartment and said she had a "lick," which Bush knew "meant that she had a robbery to do." Bush's statement also indicated that two other individuals and Brooks then left his residence. In the statement, Bush explained that one of the other individuals returned to his apartment, and "[h]e gave me the gun and a brown leather wallet and he told me to put the gun up in the Reebok shoe box and put it in my closet and throw the wallet away." Bush's statement further explained he saw that the identification in the wallet indicated it belonged to the victim. Bush stated that he threw the wallet into a drainage ditch. Bush asked Brooks and the other individuals for some of the money from the robbery because he "was hiding the gun" and "getting rid of the wallet," and Brooks gave Bush fifty dollars. Bush further explained that the next morning, he and another individual went to the seawall and disposed of the gun by throwing it into the water. Bush's Issue In his sole issue on appeal, Bush asserts that in the absence of Brooks's testimony, there is insufficient evidence that tends to connect him with the charged offense. We interpret Bush's issue as a challenge to the legal sufficiency of the corroborating evidence. Section 38.14 of the Texas Code of Criminal Procedure provides as follows: "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 (Vernon 2005). "[T]here is no exact rule as to the amount of evidence required for corroboration." Hatley v. State, 206 S.W.3d 710, 714 (Tex. App.--Texarkana 2006, no pet.). The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt, nor must the non-accomplice evidence directly link the accused to the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). Rather, "[t]he accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment." Id.; see also Fare v. State, 1 S.W.3d 928, 931 (Tex. App.--Beaumont 1999, pet. ref'd). We weigh the sufficiency of corroborating evidence by eliminating the accomplice's testimony from consideration, and we then examine the remaining evidence to determine whether there is evidence that tends to connect the accused with the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Excluding Brooks's testimony, the following evidence remains: Bush told police that he knew Brooks intended to commit a robbery. Bush also told police that he disposed of the victim's wallet, that he and another individual disposed of the gun, and that he asked for some of the money obtained from the aggravated robbery. This evidence tends to connect Bush to the offense, and, therefore, sufficiently corroborated Brooks's accomplice witness testimony. We overrule Bush's sole issue and affirm the trial court's judgment. AFFIRMED. STEVE McKEITHEN Chief Justice Submitted on July 23, 2007 Opinion Delivered August 1, 2007 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ. 1. After holding a hearing outside the presence of the jury, the trial court found that Bush made the statement after knowingly, intentionally, and voluntarily waiving his constitutional rights. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). The trial court then admitted the statement into evidence.