No. 14-05-01047-CR.
Opinion filed February 22, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 997,274.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
WANDA MCKEE FOWLER, Justice.
A jury found appellant, Kevin Christian L. Martin, guilty of capital murder and sentenced him to life in prison. Appellant raises two issues on appeal. First, he attacks the legal sufficiency of the evidence adduced at trial, claiming that it did not corroborate accomplice witness testimony sufficiently to sustain a conviction. His second issue is an attack on the factual sufficiency of the evidence on the same grounds. We affirm.
Factual and Procedural Background
Appellant worked as a closing supervisor for a Jason's Deli in Houston, until he was demoted for doing poor work. Appellant was subsequently fired by his supervisor, Ryan Martin, for fraudulently using customers' credit card information. As a closing supervisor, appellant had a key to the store, as well as alarm codes and safe access. When appellant was fired, Martin changed the alarm code and safe combination, but at no point did he recover appellant's key. While appellant was visiting his girlfriend and his daughter in San Antonio, he met up with Aaron Charles and Mark Garrett. During their initial encounter, appellant told Charles he had been suspended from work for credit card abuse. Charles and appellant discussed their respective money troubles, and appellant shared with Charles his plan to go to the Jason's Deli and take a large amount of cash out of the safe. Charles was enthusiastic about the plan, and later that day Garrett agreed to take part as well. During the late night of August 3 and early morning of August 4, 2004, appellant, his girlfriend, Sonia Lisa, their son, and appellant's brother drove to Houston, followed in another car by Garrett, his girlfriend, Alicia Atchiason, and Charles. The group arrived at appellant's apartment between 2:00 a.m. and 3:00 a.m. on the morning of August 4, 2004. Shortly after arriving, Lisa and Atchiason left the apartment to visit a friend of Lisa's and to go to the store, leaving the four men and Lisa's son in the apartment. While Lisa and Atchiason were gone, appellant, Garrett, and Charles left the apartment to go to Jason's Deli. When the three men arrived at Jason's Deli, they saw that a truck belonging to general manager Ryan Martin was there. Martin was in the kitchen preparing a large order of box lunches to be delivered by the company's catering service later that day. Appellant did not want to go into the store because he thought that Martin would recognize him, so he instructed Garrett and Charles in how they should proceed. Charles and Garrett went to the door of the restaurant and knocked on the glass to lure Martin toward the front of the store. Then the two of them unlocked the door and went into the restaurant. Garrett brandished a pistol, and demanded Martin's cell phone. Shortly after Martin handed over his cell phone, the pistol was fired, shooting Martin in the neck. The shot killed him. Garrett and Charles then fled to the waiting truck. But appellant insisted on going back into the restaurant to see if his code would still open the safe. Appellant was unsuccessful in getting the money from the safe, so the three fled the scene, disposing of Martin's cell phone and the key to the restaurant along the way. After the three men made it back to appellant's apartment, the decision was made to take everyone to the beach in Galveston. On the way to Galveston the group stopped and bought a bottle of bleach, which was used to wipe the gun down. Once they had arrived at the beach, Garrett convinced Atchiason to swim out into the ocean with the gun and drop it. Following the disposal of the gun, the group drove back to San Antonio. Eventually appellant was arrested and tried for capital murder. He was found guilty by a jury of his peers, and sentenced by the court to life in prison. Analysis
I. The Accomplice Witness Rule and Standard of Review Article 38.14 of the Texas Code of Criminal Procedure states that A[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.@ TEX. CODE CRIM. PROC. art. 38.14. AThe 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). In conducting a sufficiency review under the accomplice witness rule, the reviewing court eliminates the accomplice testimony from consideration and then examines the remaining record to see if there is inculpatory evidence that tends to connect the accused with the commission of the crime. See Thompson v. State, 691 S.W.2d 627, 631 (Tex.Crim.App. 1984). Legal and factual sufficiency standards derived from federal and state constitutional principals do not apply. Cathey v. State, 992 S.W.2d 460, 462B63 (Tex.Crim.App. 1999). Corroborating evidence need not directly link the accused to the crime. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). Nor is it necessary for the corroborating evidence itself to establish guilt beyond a reasonable doubt. Id. ATendency to connect@ is the standard established by the legislature. Cathey, 992 S.W.2d at 463. Therefore, rather than conducting separate legal and factual sufficiency reviews, we conduct a single review to determine if the combined weight of the non-accomplice evidence tends to connect the defendant to the offense. There is no bright-line rule for when non-accomplice evidence sufficiently corroborates accomplice testimony. The Court of Criminal Appeals has held that a variety of showings are individually insufficient to corroborate accomplice testimony. See, e.g., Beathard v. State, 767 S.W.2d 423, 428 (Tex.Crim.App. 1989) (stating that evidence merely placing defendant at the scene of the crime is insufficient to corroborate); Reed v. State, 744 S.W.2d 112, 127 (Tex.Crim.App. 1988) (stating that evidence merely showing motive or opportunity alone is insufficient); Castaneda v. State, 682 S.W.2d 535, 538 (Tex.Crim.App. 1984) (stating that evidence merely pointing the Afinger of suspicion@ to an accused is insufficient). However, showings that are individually insufficient to corroborate may be cumulated with other circumstances to constitute sufficient corroborative evidence to sustain a conviction. See, e.g., Mitchell v. State, 650 S.W.2d 801, 808 (Tex.Crim.App. 1983) (holding presence of the accused with the accomplice may, when coupled with the other circumstances, be sufficient to corroborate accomplice testimony); Paulus v. State, 633 S.W.2d 827, 846 (Tex.Crim.App.[Panel Op.] 1981) (holding evidence showing motive or opportunity can be considered in connection with other evidence tending to connect the accused with the crime); see also Hernandez v. State, 939 S.W.2d 173, 178B79 (Tex.Crim.App. 1997); Burks v. State, 876 S.W.2d 877, 888 (Tex.Crim.App. 1994); Richardson v. State, 879 S.W.2d 874, 880 (Tex.Crim.App. 1993); Reed, 744 S.W.2d at 127. And it has been further held that even apparently insignificant evidence of incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App. 1999). With these standards in mind, we turn to the non-accomplice testimony in the present case. II. Evidence Was Sufficient to Support Verdict
A. Presence with Accomplice After eliminating the testimony of Aaron Charles, we find several pieces of evidence tending to connect appellant with the crime. First, the appellant was in the company of the accomplice when the crime was committed. Atchiason testified that when she and Lisa came back to appellant's apartment, after going to the store and to visit a friend, her car was gone, and appellant, Charles, and Garrett were no longer in the apartment. She then testified that later, early in the morning, the three men returned to appellant's apartment together. This testimony places appellant in the presence of the accomplice at the time the crime occurred. B. Motive and Opportunity
Second, the testimony of Zandras Varela provides evidence of both motive and opportunity to commit the crime. Varelas, an acquaintance of both Martin and appellant, had a conversation with appellant while Varelas and his wife ate dinner at Jason's Deli one evening. Varela testified that during his conversation with appellant, appellant told him to Abe careful because [Martin] was the type of person that after he gets what he wants, he won't need you no more.@ He then said he intended to rob the Jason's Deli, that he had keys, and that he knew Ahow to get in and out.@ These statements show that appellant had access to the restaurant, he had an intent to commit a burglary, and he had a possible revenge motive for wanting to burglarize the restaurant. Further, Varela testified that his conversation with appellant happened only a Acouple of weeks@ before Martin's murder. There was also testimony from Russell McDonald, a first assistant manager with Jason's Deli, that similarly provided evidence of possible motive and opportunity. McDonald testified that appellant was given a key to the front door of Jason's Deli pursuant to his promotion to closing supervisor, and also that appellant did not turn in his key upon being fired. McDonald also testified that appellant was demoted from his position as closing supervisor because of sub-par performance, and that appellant was upset about the demotion and felt that his career opportunities in management were being taken away from him. Finally, in addition to the testimony regarding appellant's possession of a key, there was testimony from Officer Riverra that the Jason's Deli showed no signs of forced entry. No glass was broken and no locks were damaged. This, of course, is consistent with the theory that appellant's key was used to gain entry to the restaurant. C. Involvement in Disposing of Weapon
Finally, Atchiason testified that appellant was at the beach, along with Garrett and Charles, when Garrett asked her to dispose of the murder weapon. Atchiason testified that, A[Appellant, Charles and Garrett] were concerned that I would be the one to, you know, get away and go tell on them for being in Houston or whatever. They were scared that I was upset. And they felt that if I did that, then I wouldn't tell.@ Appellant's involvement, even though he was not the one asking Atchiason to dispose of the gun, is some evidence tending to connect him to the murder of Martin. The cumulation of each independent piece of corroborative evidence mentioned above tends to connect appellant to the offense of capital murder of Ryan Martin. Therefore, we hold that the non-accomplice testimony was sufficient to corroborate the testimony of Charles. Appellant's sufficiency issues are overruled. Conclusion
Having overruled appellant's issues, we affirm the judgment of the trial court.