Johnson v. State

• Decision Date: 01 February 2012
• Docket Number: No. 04–09–00577–CR.,04–09–00577–CR.
• Citation: 354 S.W.3d 491
• Parties: Mark William JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

354 S.W.3d 491

Mark William JOHNSON, Appellant,

v.The STATE of Texas, Appellee.

No. 04–09–00577–CR.

Court of Appeals of Texas, San Antonio.

July 6, 2011.Rehearing Overruled Aug. 10, 2011.Discretionary Review Refused Feb. 1, 2012.

Angela J. Moore, Attorney at Law, Rogers & Moore of Counsel, Boerne, TX, for Appellant.

Crystal D. Chandler, Assistant Criminal District Attorney, Cadena–Reeves Justice Center, San Antonio, TX, for Appellee.

Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.

OPINION

Opinion by: REBECCA SIMMONS, Justice.

Mark William Johnson was convicted of aggravated robbery and sentenced to seventy-five years in prison. Johnson appeals the judgment, asserting that the State failed to corroborate the testimony of an accomplice; the evidence is legally and factually insufficient to support the verdict; and the evidence is insufficient to support the enhancement allegation that he has a prior felony conviction. We affirm the trial court's judgment.

Background

Bryan Springs testified that on March 26, 2008, he and Johnson entered a restaurant in San Antonio to commit a robbery. Springs armed himself with a small gun and wore a ski mask, and Johnson had a revolver and covered his face with a rag. After entering the restaurant, Johnson went to the office, and Springs saw the manager putting money into a bag. When Johnson tried to get the manager's keys, a struggle ensued. During the struggle, the keys fell to the floor, and Springs recovered them. On his way out of the restaurant, Springs heard a gunshot. Springs located the manager's vehicle and drove away without Johnson. The police apprehended Springs after he crashed the vehicle. A gun was found near the scene of the crash, and a black ski mask was found in the front seat of the vehicle Springs was driving. At trial, Springs admitted he had a plea agreement with the State that provided he would receive a prison sentence of no more than twenty-five years in exchange for his testimony.

Simmons Allison, a manager of the restaurant, testified two men entered the restaurant while he was counting the day's receipts in his office. Both men had their faces covered and carried weapons. One of the gunmen came into his office, pointed a pistol at his head, and demanded the money. Allison complied, placing the money in a plastic bag. Allison testified the gunman left the office and then returned demanding his car keys. Allison began to struggle with the gunman, and the bag broke, strewing the money on the floor. He told the jury he felt a pain in his leg, fell down, and later discovered he had been shot in the leg.

Allison identified photographs taken by the restaurant's security camera, and a compact disc containing the photographs was entered into evidence.¹ The camera captured part of the struggle between Allison and the perpetrator, including images of the gunman with his mask pulled down and most of his face exposed. Although neither party asked Allison at trial if he could identify his attacker, the jury viewed the images of the attack including the images of the gunman.

Tammi Sligh, a firearms examiner with the Bexar County Crime Lab, testified that the spent bullet removed from the victim's leg belonged to the .38 caliber class of ammunition. She explained that this meant she could not distinguish if it was a spent round of .38 caliber, .357 caliber, 9mm, or .380 caliber ammunition. Based on markings on the slug, she believed that the bullet may have been fired from a revolver. San Antonio police detective Kevin Nogle testified he went to an apartment the night of the robbery and talked with Johnson's girlfriend. He told the jury he found three rounds of .38 caliber ammunition in Johnson's dresser drawer.

The judge instructed the jury that Springs was an accomplice as a matter of law. The jury returned a guilty verdict, found the enhancement allegation that Johnson had a prior felony conviction to be “true,” and sentenced Johnson to seventy-five years in prison.

Accomplice Witness

A person may not be convicted based on the testimony of an accomplice unless there is other evidence, independent of the accomplice witness, that tends to connect the defendant to the crime. See Tex.Code Crim. Proc. Ann. art. 38.14 (West 2010) (“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....”); Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997). Corroboration is not sufficient if it merely shows the commission of the offense. Tex.Code Crim. Proc. Ann. art. 38.14 (West 2010). “The corroborative evidence, however, need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense.” Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008). Rather, the independent “ ‘evidence must simply link the accused in some way to the commission of the crime and show that rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.’ ” Simmons v. State, 282 S.W.3d 504, 508 (Tex.Crim.App.2009) (quoting Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App.2008)). We view the independent evidence tending to link the defendant to the crime in the light most favorable to the jury's verdict. Brown, 270 S.W.3d at 567.

The parties agree Springs was an accomplice; therefore, we must disregard his testimony in our analysis and determine whether other evidence tends to connect Johnson to the crime. The State contends the independent evidence consists of the surveillance photographs; the victim's testimony about the robbery; the slug recovered from the victim; the expert's testimony that the slug belonged in the class of .38 caliber ammunition; testimony that three live rounds of .38 caliber ammunition were found in Johnson's drawer; and testimony that the slug may have been fired from a revolver. Johnson argues this evidence is insufficient to “tend to connect” him to the crime.

Specifically, Johnson argues that the photographs do not connect him to the crime because they lack sufficient clarity or detail to permit identification of the person depicted. Although the quality of the surveillance photographs is mediocre,² the jury could use this evidence to compare the photographs to Johnson's appearance at trial. The photographs depict the gunman entering the restaurant, struggling with the manager, and retrieving the money that scattered when the money bag broke. The photographs show that the bandana that covered the gunman's lower face was pulled down during the struggle with Allison, and most of the gunman's face is revealed, including his eyes, nose, ears, and facial structure. The jury was thus able to view the photographs and compare them to Johnson's appearance at trial. Because we view corroborative evidence in the light most favorable to the jury's verdict, we hold that the surveillance photographs are sufficient independent evidence tending to connect Johnson to the robbery. See Simmons v. State, 282 S.W.3d 504, 509 (Tex.Crim.App.2009) (holding the issue “is not how an appellate court would independently assess the non-accomplice evidence but whether a rational [jury] could conclude that the non-accomplice evidence ‘tends to connect’ [the] appellant to the offense”). Thus, we may consider the testimony of Brian Springs describing the robbery and identifying Johnson as his co-actor in assessing the sufficiency of the evidence.

The concurrence relies on the statements Springs made to Detective Jones the night of the incident to corroborate Springs's in-court testimony. Detective Jones testified that Springs told him that “White Boy” had participated in the robbery, and that Jones later linked Johnson to the nickname. Notably, the State never raised this theory on appeal and, consequently, Johnson has not had an opportunity to respond to it. We, however, will respond by declining to join the concurrence on this point, chiefly because we lack the authority to overrule the several cases from the Court of Criminal Appeals holding that an accomplice's prior, out-of-court statements cannot corroborate that same accomplice's in-court testimony. ³

The purpose of article 38.14's requirement for corroborative evidence is to require more evidence for a conviction than the testimony of an accomplice who may have an incentive to be untruthful. “The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person.” Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998). “Thus there must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment.” McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997).

The concurrence's reliance on Bingham v. State, 913 S.W.2d 208 (Tex.Crim.App.1995), is misplaced. Bingham concerned the corroboration of a testifying accomplice by the out-of-court statements of another accomplice, not the out-of-court statements of the same accomplice. See id. at 212–13. This distinction was recognized in Maynard v. State, 166 S.W.3d 403 (Tex.App.-Austin 2005, pet. ref'd), which explained that although one accomplice's out-of-court statement may corroborate the in-court testimony of another accomplice, the out-of-court statement of a testifying accomplice could not be used to corroborate his own testimony. Id. at 413–14 & nn. 5–6. Here, the concurrence would hold that Springs's out-of-court statements to Detective Jones corroborates Springs's in-court testimony. The result of such a theory would defeat article 38.14's purpose, which is to require other, non-accomplice, inculpatory evidence to connect the accused to the commission of the offense.

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