Bledsoe v. State

• Decision Date: 31 May 2000
• Citation: 21 S.W.3d 615
• Parties: (Tex.App.-Tyler 2000) TOREY BLEDSOE, APPELLANT V. THE STATE OF TEXAS, APPELLEE NO. 12-99-00151-CR
• Court: Texas Court of Appeals

Page 615

21 S.W.3d 615 (Tex.App.-Tyler 2000)

TOREY BLEDSOE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

NO. 12-99-00151-CR

IN THE COURT OF APPEALS TWELFTH DISTRICT TYLER, TEXAS

May 31, 2000.

APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consisted of Ramey, Jr., C.J., Hadden, J., and Worthen, J.

HADDEN , Justice

A jury convicted Torey Bledsoe ("Appellant") of aggravated robbery and the trial court assessed his punishment at thirty years' confinement in the Texas Department of Criminal Justice - Institutional Division. In issue one, Appellant complains that the evidence is legally insufficient to sustain his conviction. In issue two, Appellant challenges the factual sufficiency of the evidence to support the jury's verdict. In issue three, Appellant contends that the trial court erred when it gave the jury an "Allen" charge. In issue four, Appellant argues that the trial court erred in overruling his motion for mistrial when the jury failed to reach a verdict after "four hours and forty-nine minutes" of deliberations. In issue five, Appellant complains of the introduction of testimony that implied an extraneous offense. We will affirm the trial court's judgment.

BACKGROUND

Jimmy Burks ("Burks") testified that around 11:30 p.m. on June 10, 1998, he drove to a night depository at a Bank One motor bank in Tyler to deposit his paycheck. As he was completing a deposit slip, an individual reached through the driver's window, placed a gun to his stomach and demanded "the bag." Burks testified that the assailant was wearing a long, orange-brown wig with no bangs. After Burks informed the assailant that he did not have a "bag," the assailant demanded and took his paycheck and wallet. Burks identified Appellant in open court as the individual who robbed him.

Candace McQueen ("McQueen"), an accomplice witness, testified that on June 10, 1998, she, Bryan Walker and Appellant discussed plans to commit a robbery at the Bank One motor bank. They drove to the bank around 10:00-10:30 p.m. They waited for someone to rob for fifteen to twenty minutes, but when no customers arrived, they left and went to Appellant's house. After thirty to forty-five minutes, they returned to the bank. When a car pulled into the motor bank, Appellant ran up to the driver's side. McQueen testified that she believed Appellant was carrying a gun because of the way Appellant held his shirt as he ran to the car. To avoid being "recognized" by the surveillance camera in the motor bank, he wore a long, honey-blond wig with bangs. When Appellant returned to their car, he had a wallet and a check. The wallet did not contain any money. That same night, Appellant forged Burks' signature on the check and McQueen cashed it using the driver's license they found in Burks' wallet. McQueen testified that she pled guilty to the aggravated robbery in exchange for ten years' deferred adjudication, 180 days in jail and a $1,000.00 fine. She also received immunity from prosecution for any other offense arising out of the aggravated robbery charge. Further, as part of her plea agreement with the State, McQueen agreed to testify against Appellant.

LEGAL SUFFICIENCY

In issue one, Appellant argues that the evidence is legally insufficient to support his conviction because the non-accomplice evidence presented by the State is insufficient to corroborate McQueen's testimony. The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the jury's verdict, 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Cr. App. 1998), cert. denied, 525 U.S. 1108, 119 S.Ct. 878, 142 L.Ed.2d 777 (1999). "The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury." Whitaker, 977 S.W.2d at 598. An appellate court should uphold the jury's verdict "unless it if found to be irrational or unsupported by more than a 'mere modicum' of the evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Cr. App. 1988).

A conviction cannot be had upon the testimony of an accomplice witness unless corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The corroboration is not sufficient if it merely shows the commission of the offense. Id. In considering whether the corroboration is sufficient, 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. Cr. App. 1994); Utsey v. State, 921 S.W.2d 451, 453 (Tex. App. - Texarkana 1996, pet. ref'd). No precise rule can be devised as to the amount of evidence that is required to corroborate the testimony of an accomplice witness. Id. Each case must be analyzed on its own facts and circumstances. Gill, 873 S.W.2d at 48; Munoz v. State, 853 S.W.2d 558, 559 (Tex. Cr. App. 1993). All facts and circumstances may be looked to as furnishing the necessary corroboration. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Cr. App. 1983).

In order to weigh the sufficiency of corroborative evidence, we must "eliminate from consideration the testimony of the accomplice witness and then examine the testimony of the other witnesses to ascertain if there is evidence which tends to connect the accused with the offense." Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Cr. App. 1997); Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Cr. App. 1988). The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses may be sufficient if it tends to connect the accused to the offense. Reed v. State, 744 S.W.2d 112, 126 (Tex. Cr. App. 1988). It is not necessary that the corroborative evidence directly link the accused to the offense or be sufficient in itself to establish guilt beyond a reasonable doubt. Id.; see also Hernandez, 939 S.W.2d at 176. Accordingly, to sufficiently corroborate accomplice testimony, the State must merely present "some non-accomplice evidence which tends to connect the appellant to the offense." Hernandez, 939 S.W.2d at 176.

The State contends that Burks' testimony not only "tends to connect" Appellant to the crime, it "absolutely connects" Appellant to the crime. Appellant asserts that Burks' testimony lacks the "indicia of reliability" because Burks testified that he picked someone other than Appellant out of a pre-trial photographic array shown to him by a police officer. However, Burks also testified that he picked Appellant's picture out of a different photographic array. Greg Roberts, the police officer who showed Burks these photographs, testified that on July 24, 1998, he showed only one array to Burks and that Burks positively identified Appellant as the perpetrator. Thus, Roberts' testimony indicates that Burks may have been mistaken when he testified that he selected someone other than Appellant out of a photographic array. As indicated above, Burks also identified Appellant as the robber in court. He testified that he got a "good look" at the person who robbed him. Despite Burks' testimony that he selected someone other than Appellant out of a photographic array, his testimony as a whole tends to connect Appellant to the offense. Accordingly, we conclude that such non-accomplice evidence sufficiently corroborated McQueen's testimony. We also conclude that the evidence is legally sufficient to support Appellant's conviction. Issue one is overruled.

FACTUAL SUFFICIENCY

In issue two, Appellant challenges the factual sufficiency of the evidence to support the verdict. When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex. Cr. App. 1997). We set aside the verdict only if it so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Cr. App. 1996). In conducting our analysis, our duty is to examine the trier of fact's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex. App. - Dallas 1996, no pet.). We consider all the evidence in the record related to an appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Cr. App. 1997); see also Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Cr. App. 1999) (?). Because we consider all of the evidence in conducting a factual sufficiency review, we necessarily consider any reasonable alternative hypothesis raised by the evidence. Ates v. State, No. 12-98-00282-CR, 21 S.W.3d 384, 391 (Tex. App. - Tyler January 31, 2000, no pet.); Richardson v. State, 973 S.W.2d 384, 387 (Tex. App. - Dallas 1998, no pet.). However, the mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Ates, at 391; Richardson, 973 S.W.2d at 387.

Because the jury is the sole judge of the facts, we must give deference to jury findings. Cain, 958 S.W.2d at 407. What weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Id. at 408-09. We are not free to reweigh the evidence and set aside a jury verdict merely because we feel that a different result is more reasonable. Id. at 407. We cannot reverse the verdict if reasonable minds could differ about the conclusions to be drawn from the evidence. Richardson, 973 S.W.2d at 387. We find the evidence factually insufficient only where necessary...