Bonner, Joseph Antwan v. State

Affirmed and Memorandum Opinion filed December 15, 2005 Affirmed and Memorandum Opinion filed December 15, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00797-CR ____________ JOSEPH ANTWAN BONNER, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 968,543 __________________________________________________________________ M E M O R A N D U M   O P I N I O N Challenging his conviction for aggravated robbery, appellant Joseph Antwan Bonner asserts that the trial court reversibly erred in admitting evidence of an extraneous offense and that the evidence supporting his conviction is legally and factually insufficient because the accomplice testimony offered by the State was not sufficiently corroborated. We affirm. I. Factual and Procedural Background Shortly after midnight on November 17, 2003, Dierdre Williams drove into her apartment complex. Williams noticed that a white Mazda Protege had followed her through the open gate and around to the back of the complex where her apartment was located. The white Protege pulled into a parking space near where she parked. Williams exited her vehicle and opened the back door to retrieve some items. At this time, a light-skinned tall black male, later identified as appellant, approached her from the side, pointed a gun at her neck, and said, AB----, give me the keys or you=re going to die.@ The man had his face covered. Another man grabbed the keys from Williams, and she ran to her apartment. Williams heard the men trying to operate her vehicle, and then ultimately abandon the pursuit because they could not work its standard transmission. Williams went back to the parking lot, and watched while the two men who had approached her drove away with two other men in the white Protege. She made eye contact with one of the men, wrote down the vehicle=s license plate number, and called the police. Houston police officer Guy Majors arrived on the scene approximately twenty minutes later, talked to Williams, and issued a general radio broadcast with the car=s description. Officer Peter Comer received the broadcast and spotted the white Protege, matched the license number, and saw that four black men were inside the vehicle. Officer Comer ran the license plate in his computer and learned the Protege had been stolen the day before. The occupants of the car drove away at a high rate speed and crashed into a parked vehicle. All four occupants abandoned the Protege and fled on foot. Officer Greg Jelin helped establish a perimeter around the area and joined in a search for the suspects. Officer Jelin found appellant, who was holding a sawed-off pump-action shotgun wrapped in some sort of material. Officer Jelin ordered appellant to Astop and get down.@ Appellant attempted to escape and went underneath a fence. Officer Jelin could not fit under the fence because of the bulkiness of his on-duty gear. Shortly thereafter, a private citizen found appellant hiding behind some bushes. Appellant apparently discarded the shotgun. Police officers and dogs conducted a search but were unable to retrieve it. Williams was presented with a videotaped line-up from which she positively identified one of the line-up participants as the lighter-skinned black male who was sitting in the Protege=s back seat and with whom she had made eye contact. She could not identify the other lighter-skinned black male that held the shotgun on her because she never saw his face. Williams testified that although she could not be completely positive, she was fairly confident that appellant was the one who had held the gun. She based this identification on his height, complexion, and hair. Two of appellant=s accomplices, Floyd Stevenson and Tommy Allison, also testified. Stevenson stated that he and appellant had stolen the white Protege from Michelle Ranum the night before they robbed Williams. Neither individual had worn masks or gloves while stealing Ranum=s vehicle. They targeted Ranum when she drove her car into her apartment complex. They approached Ranum when she exited her car. Appellant took the keys from Ranum, and appellant and Stevenson got into the car and drove away. Stevenson further testified that the following evening Allison and another man (Derrick Dancer) joined appellant and him at Stevenson=s house. The four of them conspired to commit another robbery, got into the stolen Protege, and went to Allison=s house to retrieve a gun. Appellant then drove them to the area of Williams=s apartment complex where he told them that they were going to rob some drug dealers. They decided that they should steal another car and abandon the stolen Protege. Stevenson testified that they followed Williams into her apartment complex. Appellant and Allison got out of the car and approached Williams with a gun in an attempt to steal her car. Stevenson testified that they were unable to steal the car because none of them could operate a standard transmission. After being followed by a police officer, and hitting a parked vehicle, they all abandoned the Protege and fled on foot. Stevenson testified that he believed appellant carried the shotgun with him as he ran away. Next, Allison testified that he met appellant, Stevenson, and Dancer on November 17, 2003, and had a discussion about robbing someone. Allison further testified that they all got into the white car, retrieved a shotgun from his house, and appellant drove them to an area of town to rob Asome drug dealers.@ Allison testified that they approached Williams and attempted to steal her car. He stated that appellant wore a mask, held a gun to Williams, and demanded the keys to her car. Allison testified that he took the keys from Williams but faced away as much as he could because his face was not covered. When they realized that they could not operate Williams=s car, they returned to the white Protege and left the complex. Finally, Michelle Ranum (the owner of the white Protege and victim of the first robbery) testified that shortly after midnight on November 16, 2003, appellant and Stevenson (their faces uncovered) approached her. She testified that they asked her for a cigarette and light. When she replied that she did not have any cigarettes, they walked away. Ranum got out of her car and walked to her apartment. Appellant approached her again and demanded her keys. After a struggle, appellant took her keys and purse. Ranum testified that appellant and Stevenson drove away in her car and she called the police. Ranum viewed a line-up in which she immediately identified Stevenson and appellant as her assailants. A jury found appellant guilty of aggravated robbery. After appellant pleaded Atrue@ to an enhancement, the trial court assessed appellant=s punishment at thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division. II. Issues Presented Appellant asserts four issues on appeal: (1) The trial court committed reversible error in allowing testimony that the appellant had obtained the white Protege during an unrelated offense, and this extraneous offense was not relevant to any issue in the case. (2) The trial court committed reversible error in allowing testimony that the appellant had obtained the white Protege during an unrelated offense, and the probative value of this extraneous offense was substantially outweighed by unfair prejudice.[1] (3) The evidence is legally insufficient to support his conviction for aggravated robbery because there was no corroboration of the accomplice testimony of Floyd Stevenson and Tommy Allison. (4) The evidence is factually insufficient to support his conviction for aggravated robbery because there was no corroboration of the accomplice testimony of Floyd Stevenson and Tommy Allison.[2] III. Analysis A. Did the trial court abuse its discretion in admitting evidence of an extraneous offense? In his first two issues, appellant argues that the trial court abused its discretion in allowing testimony from Stevenson, Allison, and Ranum in regard to the stolen Protege. Appellant argues that the trial court should have excluded the evidence that appellant was driving a stolen vehicle during the robbery of Williams. Appellant=s only attempt at preserving this complaint was during a pre-trial motion in limine hearing: [Trial Court]: All right. You have a couple of motions you want to talk about? [Defense Counsel]: Thank you, Your Honor. We have filed a motion in limine in this case; and I believe Ms. Shipley, the prosecutor, has agreed to everything except for No.2, which involves the testimony by Michelle Ranum involving the extraneous robbery that occurred the night before this robbery. And in discussions with the Court, it=s my impression that is going to come in as part of their tryingCyou know, corroboration as far as the co-defendant=s testimony. And what I would like to do is just make it clear that she=s agreed to everything else. Is that correct? [Prosecutor]: I haven=t officially read through the motion in limine, but I think that you told me that it was just plain vanilla otherwise. If that motion in limine is what you told me it is, then I have no other disagreement with your motion in limine. I do not intend to go into the defendant=s record unless he gets up on the witness stand. I will advise all of the witnesses to not go into any previous convictions of the defendant of any kind. Kyle had said something like the State acting like they=ve got the white hat and the defense having the black hat; I wouldn=t go into anything like that. Oh, and gang membership, I would not go into that in my case in chief. . . . [Trial Court]: Make your objection. Go ahead. [Defense Counsel]: As far as Ms. Ranum, I would like to object under 404(b) of the Texas Rules of Evidence because I don=t think it=s necessary to the State=s case in a probative value [sic]. Under 403 it is significantly outweighed by the prejudicial effect and the fact that she=s going to say he committed a robbery the night before this robbery. I think the prejudicial effect is obvious. I think it greatly outweighs any kind of probative value. I would also object under the Fifth Amendment to the Constitution, Article 1, Section 19, of the Texas Constitution. It=s a violation of the due process rights, his right to be tried on the occasion [sic] for which he=s charged and not some other case. And what I would ask is thatC [Trial Court]: That objection is overruled. And what I will allow you to do is I will have that objection stand during that testimony so that you don=t have to get up in front of the jury and constantly make objections. It will be preserved from that standpoint. [Defense Counsel]: Thank you, Your Honor. That=s all I have . . . Appellant did not make any further objections during the testimony of Ranum, or that of Stevenson or Allison. As to the testimony of Stevenson and Allison regarding the stolen Protege, appellant did not voice any objection in the trial court and thus did not preserve error. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Presuming for the sake of argument that appellant preserved error as to the admission of Ranum=s testimony and that it was an abuse of discretion to allow such testimony, the error would be harmless because the same evidence was admitted through Stevenson=s testimony without objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Stevenson=s testimony in regard to the robbery of Ranum and her white Protege was substantially similar to that of Ranum=s testimony: Q: Okay. Let=s talk about it. Did you and B-Down go out on November 16th of 2003 and get a white Mazda Protege together? A: Yes, ma=am. Q: Did you talk about getting it before you did? A: Not really. Q: Did you say that you wanted to go get a car or did he say he wanted to go get a car? A: Actually, it was kind of made up at the spur of the moment. It wasn=t like we planned it out; it just sort of happened. Q: So, just sort of a spur-of-the-moment thing? A: Yes ma=am. Q: Do you remember what area of town you were in when you got that white Mazda Protege? A: The southwest. Q: Southwest? A: Uh-huh. Q: Do you remember the address that you were at? A: If I=m not mistaken, I think Westheimer probably. . . . Q: Who was inside the white Mazda Protege? A: Ms. Michelle. Q: And that=s the person that you now know as Michelle Ranum? A: Yes, ma=am. Q: Did you know her before this night? A: No, ma=am. . . . Q: Well, tell me, what did you do in getting the car from Michelle Ranum? A: I took the keys and drove off. Q: Did you talk to Michelle? A: Not to my knowledge. I don=t remember, no. Q: You don=t remember talking to her? A: Huh-uh. Q: Did Joseph Bonner talk to Michelle Ranum? A: Yes, ma=am. Q: What did he say to her? A: I don=t remember. He just demanded it. . . . Q: Do you remember specifically what he said? You can quote him. A: AGive me the keys.@ Because appellant did not object to the admission of the same evidence through Stevenson, we conclude that any error in admitting Ranum=s testimony regarding the stolen Protege was harmless. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Accordingly, we overrule appellant=s first two issues. B. Is the evidence legally and factually insufficient to support appellant=s conviction of aggravated robbery? In his third and fourth issues, appellant argues that the accomplice testimony of Stevenson and Allison was not sufficiently corroborated and therefore should have been excluded. Appellant further argues that without their testimony, the remaining evidence is not legally or factually sufficient to support his conviction. Appellant does not contest that the evidence is legally and factually sufficient with their testimony. We conclude that Stevenson=s and Allison=s testimony was sufficiently corroborated and that the evidence (with or without this testimony) is legally and factually sufficient to support his conviction. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). As charged in this case, a person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. See Tex. Pen.Code Ann. '' 29.02(a), 29.03(a) (Vernon 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. Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 1994). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986) (emphasis added). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to commit the offense. Id. Further, circumstantial evidence may be used to prove party status. Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994). Article 38.14 of the Code of Criminal Procedure provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Colella v. State, 915 S.W.2d 834, 838 (Tex. Crim. App. 1995); see also St. Julian v. State, 132 S.W.3d 512, 516 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). Corroborating evidence is insufficient if it merely shows the commission of an offense. Tex. Code Crim. Proc. Ann. art. 38.14; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). In assessing the sufficiency of corroborative evidence, we eliminate the testimony of the accomplice witness from consideration and examine the testimony of the other witnesses to ascertain whether the non‑accomplice evidence tends to connect the accused with the commission of the offense. St. Julian, 132 S.W.3d at 516. The non‑accomplice evidence need not by itself establish the accused=s guilt beyond a reasonable doubt. Id. Rather, some evidence must exist that tends to connect the accused to the commission of the offense. Id. The trial testimony tends to connect appellant to the aggravated robbery of Williams, even without the testimony of Stevenson and Allison. Proof that a defendant was at or near the crime scene at or about the time the crime occurred, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense. Dowhitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). In this case, the police officers testified at trial that they spotted the white Protege a short time after the description of the car was broadcasted. The occupants in the vehicle crashed into a parked vehicle, and the Protege=s four occupants fled on foot. Officer Jelin found appellant holding a wrapped up sawed-off pump action shotgun. He ordered appellant to Astop and get down,@ but appellant escaped under a fence. Soon thereafter, a private citizen found appellant hiding behind some bushes in a nearby location. Evidence of flight evinces a consciousness of guilt and therefore would tend to provide suspicious circumstances that is coupled with appellant=s presence near the crime scene. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Logan v. State, 510 S.W.2d 598, 600 (Tex. Crim. App. 1974) (holding that when unexplained, flight has long been deemed indicative of a Aconsciousness of guilt@); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.CAustin 1990, no pet.) (holding that a Aconsciousness of guilt@ is perhaps one of the strongest kinds of evidence of guilt). We conclude that this evidence tends to connect appellant to the commission of the robbery of Williams. See, e.g., Herron v. State, 86 S.W.3d 621, 633 (Tex. Crim. App. 2002) (stating that appellant=s possession of stolen property is a factor that connects appellant to offense); Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (holding that the state connected the defendant to the offense by offering evidence that (1) a few months before the murder the defendant had been in possession of a gun similar to that used in the murder (a twelve gauge shotgun), and that (2) the defendant fled the area without explanation after the offense); Jackson v. State, 745 S.W.2d 4, 13 (Tex. Crim. App. 1988) (concluding that the State connected the defendant to the offense through the fact that the defendant was driving the deceased=s car the day after the murder, and the defendant was found in possession of a watch similar to one owned by the victim). Article 38.14 requires only some non‑accomplice evidence tending to connect the defendant with the crime, not non‑accomplice evidence for every element of the crime. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001). Therefore, we conclude that the non‑accomplice evidence is sufficient to connect appellant to the aggravated robbery. See Hernandez, 939 S.W.2d at 177B79. The testimony presented by the State shows that appellant encouraged and aided in the commission of the aggravated robbery of Williams. The evidence presented in this case is both legally and factually sufficient to support appellant=s conviction of aggravated robbery. Accordingly, we overrule appellant=s third and fourth issues. Having overruled all of appellant=s issues, we affirm the judgment of the trial court. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed December 15, 2005. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] We address issues one and two together because of their similarity. [2] We address issues three and four together.