No. 05-02-01342-CR.
Opinion Issued April 3, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81172-00. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG.
Opinion By Justice LANG
Clinton Lanell Hardemon appeals his conviction, after a bench trial, of aggravated robbery. The trial court assessed punishment at fifteen years confinement. In three points of error, appellant asserts (1) the evidence is legally insufficient to establish that he was the perpetrator, (2) the evidence is factually insufficient to establish that he was the perpetrator, and (3) the trial court erred in denying his motion for new trial in light of newly discovered evidence. For reasons that follow, we overrule appellant's three points of error and affirm the trial court's judgment.
This Court now resolves issues, but because appellant's brief refers to points of error, we use the term "point of error." See Tex. R. App. P. 38.1(e).
Factual Procedural Background
On November 10, 1999, Raul Fonseca-Ortiz, the manager of a Sonic Drive-In in Plano, was robbed at gunpoint as he closed the restaurant and walked towards his car with the day's deposits. The parking lot was dark, and Ortiz purposely did not look at his assailant's face. As a result, he could only tell police that the perpetrator was African-American, what his general size was, and that he had a gun. Police used scent-tracking dogs to try to locate the escape path. The dogs tracked a scent in the direction north and west of the Sonic, but police were unable to find anyone. Due to a lack of further leads in the days that followed, the case was closed. Seven months later, police received a call from Chrissy Stine, appellant's estranged girlfriend. Appellant, who had been married but separated in 1999, had an affair with Stine, and she became pregnant. Appellant lived with Stine until eight months into the pregnancy, when he decided to reunite with his wife. One month later, in April 2000, Stine gave birth to appellant's daughter, Brittney. Within a few months, the baby was in appellant's care, as Stine's parents had ostensibly telephoned him and asked him to take his daughter because Stine had not returned home to care for the child for several days. Stine thereafter made some attempts to regain possession of Brittney but had no success in doing so. In her call to the police, Stine informed Detective Scott Epperson that she knew the identity of the individual who had robbed the Sonic on November 10, 1999. Stine explained that appellant had asked her and her aunt, Brenda Fay James, to drive him to a convenience store near the Sonic on the night of the robbery because he had to "meet somebody." Stine said they did as appellant asked and then waited for him for approximately forty-five minutes in a nearby parking lot to the north and west of the Sonic location. When he returned, appellant ran to the car with a gun and a little black bag in his hand. He claimed he had just robbed the Sonic. Stine told police that later that night appellant bragged to her and several others about the Sonic robbery. Epperson followed-up on Stine's allegations by interviewing James. He found sufficient corroborating detail in both Stine's and James's stories, and appellant became his primary suspect. After police arrested appellant, Epperson telephoned Stine. Within the hour, Stine arrived at appellant's apartment with hopes of taking her daughter. However, appellant's wife, Jan Hardemon, had already taken Brittney to appellant's mother's house. A few days later, Stine did regain possession of Brittney from appellant's mother. Legal Factual Sufficiency of the Evidence
In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence to show he was the perpetrator of the aggravated robbery. Specifically, appellant argues that Stine was an "accomplice witness" whose testimony should not have been admissible because it was not corroborated. Alternatively, appellant argues that even if Stine was not an accomplice witness, her testimony was "so tainted and biased that a rational trier of fact could not have found that [he] was connected to the case beyond a reasonable doubt." A. Standard of Review
1. Legal Sufficiency Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a 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). In reviewing the sufficiency of the evidence, we consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); see also Johnson v. State, 967 S.W.2d 410, 411-12 (Tex.Crim.App. 1998). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). As such, the fact finder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). 2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). In conducting this analysis, our duty is to examine the fact finder's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the fact finder's findings to avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim. App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Id. at 8. We reverse only if (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). B. The Accomplice Witness Rule
A conviction may not rest on the testimony of an accomplice witness unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed; the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2003). Case law has clearly defined who is subject to the "accomplice witness rule." See Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998). A person who is merely present at the scene of the offense is not an accomplice; rather, an affirmative act or omission is required. Id. (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996); Creel v. State, 754 S.W.2d 205, 213 (Tex.Crim.App. 1988)). An accomplice participates before, during, or after the commission of the crime. Blake, 971 S.W.2d at 454. A witness is not deemed an accomplice just because he or she knew of the crime but failed to disclose it or even concealed it. Easter v. State, 536 S.W.2d 223, 225 (Tex.Crim. App. 1976). A witness is an accomplice if he or she could be prosecuted for the same offense as the defendant or a lesser included offense. Blake, 971 S.W.2d at 454-55; Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App. 1991). A person is an accomplice if there is sufficient evidence connecting them to the criminal offense as a "blameworthy participant." Blake, 971 S.W.2d at 455 (citing Singletary v. State, 509 S.W.2d 572, 575 (Tex.Crim.App. 1974)). "The test . . . is whether there is sufficient evidence in the record to support a charge against" the witness alleged to be an accomplice. Morgan v. State, 171 Tex.Crim. 187, 190, 346 S.W.2d 116, 118 (1961). An appellate court should examine the record for evidence of an alleged accomplice's participation in the crime; whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status. Blake, 971 S.W.2d at 455. C. Application of Law to the Facts
1. Accomplice Witness Stine was not actually charged or prosecuted as an accomplice in the Sonic robbery or any other lesser included offense. Therefore, for purposes of the accomplice witness rule, we examine the record to determine if there is sufficient evidence connecting her to the offense. We conclude the evidence in this case does not establish that Stine was an accomplice witness. Although Stine testified that she and her aunt drove appellant to a parking lot near the Sonic, presence at the scene alone does not make her an accomplice. See Blake, 971 S.W.2d at 454. Also, her knowledge and failure to disclose the crime to police for seven months likewise does not make her an accomplice. See Easter, 536 S.W.2d at 225. The record reveals that Stine and James drove appellant to Plano because "he said he had to meet somebody," and appellant didn't give any other reason as to why they needed to go there. We conclude there is insufficient evidence to connect Stine to the offense as a "blameworthy participant." See Blake, 971 S.W.2d at 455. Thus, her testimony may be considered without regard to whether it was corroborated by other proof of appellant's guilt. 2. Evidence That Appellant Was the Perpetrator
a. Legal Sufficiency Stine testified that she and James drove appellant to Plano on the night of the robbery. She further testified that they parked the car to the north and west of the Sonic and waited for appellant to return. Forty-five minutes later, appellant ran back to the car, carrying a pistol and a black bag. Appellant informed Stine and James that he had just robbed the Sonic. Police dogs tracked the perpetrator's scent to the north and west of the crime scene. Ortiz testified that the perpetrator ran in the direction of the nearby parking lot where Stine had claimed she and her aunt were waiting, which was to the north and west of Sonic. Detective Epperson testified that appellant had been arrested in Dallas in March 2000 along with three others for suspicion of a separate robbery. At that arrest, Dallas police discovered a gun under appellant's seat. Epperson testified that before he obtained the arrest warrant for appellant for the robbery at Sonic, he drove to Dallas and obtained the weapon. Ortiz testified that the gun found in Dallas appeared to be the gun the perpetrator used in the Sonic robbery. Finally, although Ortiz intentionally did not look at the perpetrator's face, appellant matched the general description Ortiz provided to police. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was the individual who committed the aggravated robbery of Raul Fonseca-Ortiz. Accordingly, we overrule appellant's first point of error. b. Factual Sufficiency
In response to the above evidence, appellant called several witnesses in his defense. First, appellant's cousin, Erika Williams, testified that she and her then husband, Joshua Wright, shared an apartment with Stine and appellant in November 1999. Williams stated that she never heard appellant brag about committing the Sonic robbery. Williams also testified that after appellant was arrested, Stine called her and stated, "that's what he gets for fucking with me." Next, appellant's wife, Jan Hardemon, testified that she and appellant had cared for Brittney at the request of Stine's parents. She stated they had the baby for "a couple weeks" before Stine called appellant. Jan testified that Stine made an unsuccessful attempt to get her daughter back. Two days later, appellant was arrested for the Sonic robbery. Finally, Jan testified that on the day appellant was arrested Stine arrived just as she was leaving to take Brittney to appellant's mother. Third, Michael Hunter, another cousin of appellant, testified that appellant had not bragged to him about the Sonic robbery. Hunter opined that Stine had a reputation for being an untruthful person. Hunter admitted that he had been arrested with appellant in Dallas in early 2000 for suspicion of robbery. Fourth, appellant called Michael Owen, a detention officer with the Collin County Sheriff's Office. Owen testified that he had been appellant's "pod officer" at the Collin County jail. Owen sometimes worked as a jury bailiff for overtime pay. Owen testified that he had a conversation with Chrissy Stine several months prior to appellant's trial, while Stine smoked a cigarette outside the courthouse. Owen testified that Stine had informed him that she was there to testify against appellant and another man who had robbed a Sonic. Owen said he remembered appellant's name because he had been responsible for securing him at the jail from time to time. Finally, appellant took the stand in his own defense. He testified that he did not commit the robbery at Sonic on November 10, 1999. He stated that he had gone to work as a Sonic employee in March 2000. Appellant completed his training within three weeks at one location, then began employment at the store where Ortiz had been robbed. He stated that he worked at Sonic until just before his arrest for the robbery in question. Appellant testified that after Memorial Day he went to get Brittney after speaking with Stine's parents. He next heard from Stine four days later but refused to release Brittney to Stine's care. Appellant testified that in early June he agreed to meet Stine at a Sonic in Dallas. Then, according to appellant, the three of them drove to the Sonic in Plano, and while appellant went inside to pick up his paycheck, Stine attempted to take Brittney from the car. Appellant stated that he prevented her from taking his daughter, and again refused to release Brittney to Stine's care. Within four days of this incident, appellant explained, he was arrested for the November 1999 robbery at Sonic. The record reflects that police arrested appellant on June 12, 2000. On appeal, appellant argues the evidence is factually insufficient because "Stine's testimony [was] the only evidence offered by the State to connect appellant to this offense." Appellant further argues that Stine's testimony was "motivated by malice." He contends that Stine was a "spurned" lover and mother who would "use any means necessary to recover her child." We acknowledge that Stine herself admitted that absent appellant's refusal to relinquish custody of her child, she would not have called Detective Epperson. However, we do not agree with appellant that the only evidence linking him to the robbery came from Stine. Certainly, her testimony most directly linked appellant to the crime, but it was supported by other circumstantial evidence, as discussed under the legal sufficiency paragraph above. Although appellant called several friends and relatives to testify on his behalf, they did not testify that appellant had not committed the robbery. Rather, they only testified that appellant had not bragged in their presence about committing it. Thus, the competing "versions" of the events at the Sonic in Plano on November 10, 1999 came only from appellant and Stine. The trial court, as fact finder, had all the facts and witnesses before it and was the sole judge of credibility. See Jones, 944 S.W.2d at 647. We conclude the evidence is not so weak that the trial court's verdict was clearly wrong and unjust, nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, the evidence was factually sufficient to show that appellant committed the aggravated robbery of Raul Fonseca-Ortiz. We overrule appellant's second point of error. Motion for New Trial Due To Newly Discovered Evidence
In his third and final point of error, appellant argues the trial court erred in denying his motion for new trial because he was unable to present newly discovered evidence from Brenda Fay James, a "material witness" in the case. A. Standard of Review and Applicable Law
Texas law provides that a motion for new trial must be filed within thirty days after the judgment is signed. Tex. R. Civ. P. 329b(a). If the trial court does not rule on the motion within seventy-five days after judgment, it is deemed denied by operation of law. Tex. R. App. P. 21.8(c). A trial court's decision on a motion for new trial, whether it denies it or allows it to be overruled by operation of law, is reviewed under an abuse of discretion standard. See Mallet v. State, 9 S.W.3d 856, 868 (Tex.App.-Fort Worth 2000, no pet.) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)). Under that standard, we reverse "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Gonzalez, 855 S.W.2d at 695 n. 4 (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim. App. 1992)). B. Application of Law to the Facts
Stine testified that she and her aunt drove appellant to the Sonic on the night in question. Naturally, both the State and appellant wanted to hear James's testimony. The record reveals that both parties relied on the State's subpoena to secure her presence at trial, which was originally scheduled for June 14, 2002. The trial court granted appellant's request for continuance on the morning of trial after James did not show up and issued a writ of attachment. When trial finally did commence on August 1, 2002, James again failed to appear. After the trial ended, appellant filed his motion for new trial. On August 26, 2002, James finally appeared before a visiting judge to answer to the previous writ of attachment, and defense counsel explained that he wanted to obtain her contact information "on the record." James told the court that she had received the subpoena for the September 4th hearing on appellant's motion for new trial, and she promised to show up for it. Accordingly, the trial court did not set a bond securing her appearance, and neither side objected. Nevertheless, James broke her promise and failed to appear on the morning of the hearing. Defense counsel thereafter asked the court for another writ of attachment and obtained a setting for three more hearings, but James could not be located and was not produced. There is no dispute that appellant's August 26, 2002 motion for new trial was timely filed. Appellant scheduled numerous hearings, but each time he asked the trial court to reschedule because James was unavailable. At the final scheduled hearing on October 14, 2002, appellant — mindful that the seventy-five day period would soon expire — asked the trial court to refrain from making its ruling. Specifically, appellant requested, But rather than have the Court rule on [the motion for new trial] with no evidence, I would ask the Court to kind of keep it open and let it — let the legal system take care of it, if you will, in case by some chance we were to get [James] incarcerated between now and the time that it would be overruled. The trial court, pursuant to appellant's wishes, did not rule on the motion on October 14. Instead, appellant's motion was overruled by operation of law on November 11, 2002. In his motion for new trial, appellant argued that James would "provide critical impeaching evidence of the State's primary witness, Chrissy Stine, in that Ms. James would testify that she never saw a gun, never heard the [appellant] threaten her or Chrissy, never heard [appellant] brag about the offense, and never saw the proceeds of the alleged robbery." However, because James never appeared at any of the scheduled hearings on the motion for new trial, there is no evidence in the record to support this claim. Moreover, the testimony at trial seems to contradict this argument, as Detective Epperson testified that James's story was similar enough to Stine's, which soon after made appellant his primary suspect. We conclude the trial court did not abuse its discretion. The denial of appellant's motion for new trial was not "so clearly wrong as to lie outside that zone within which reasonable persons might disagree." See Gonzalez, 855 S.W.2d at 695 n. 4. To the contrary, the trial court acted reasonably, and, furthermore, it did exactly as appellant requested. Conclusion
Having concluded that the evidence was legally and factually sufficient to show that appellant was the perpetrator of the November 1999 robbery of Raul Fonseca-Ortiz, and having further concluded the trial court did not abuse its discretion in allowing the motion for new trial to be overruled by operation of law, we affirm the trial court's judgment.