Leavy Kennedy v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-124-CR

LEAVY KENNEDY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 3

Dallas County, Texas

Trial Court # F93-65227-J

O P I N I O N

Appellant Kennedy appeals his conviction for aggravated robbery (enhanced by a prior felony conviction), for which he was sentenced to seventy-five years imprisonment plus a $10,000 fine.

About 1:30 P.M. on August 11, 1993, the Service Merchandise Store in Dallas was robbed of $2,000-worth of jewelry by three armed men wearing ski masks. These men made their escape in a van, License HZF-835, driven by a fourth person.

The same van was seen earlier, about 11:00 A.M., on August 11, in a residential area. Four black males were "passing a bottle" and then entered the van which drove away in the direction of Service Merchandise, and then returned to the apartment complex a few minutes later. Two men were seen getting out of the van, exchanging a gun, and then went up an alley. All the men returned to the van and drove off. About 1:30 P.M., the van was spotted and followed by police officers after the police dispatcher reported it involved in a robbery. The van stopped at the apartment complex; four black males exited the van, threw down items of clothing, and took off running. The police chased the men and arrested three of them including Appellant. Another one of the men caught and arrested, Anthony Hill, pled guilty and afterward testified at Appellant's trial that Appellant was one of the participants in the robbery.

The property taken from Service Merchandise was recovered from the back seat of one of the police cars in which one of the men was placed for a period of time. Appellant was indicted, tried under the law of parties, and was convicted. He appeals his conviction on three points of error.

Point one: "The evidence is insufficient to identify Appellant as one of the participants in the aggravated robbery of Service Merchandise."

Point two: "The evidence is insufficient to corroborate the testimony of Anthony Hill, an accomplice witness, as a matter of law."

In reviewing the sufficiency of the evidence we must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789; Jones v. State, 833 S.W.2d 118, 122 (Tex. Crim. App. 1992).

A person commits aggravated robbery if, in the course of committing theft and with intent to obtain control of property, he intentionally or knowingly threatens or places another in fear of bodily injury or death, and he uses or exhibits a deadly weapon. Tex. Penal Code, 29.02, 29.03(a)(3).

Regarding the accomplice witnesses testimony, 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, and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann art. 38.14.

Store manager Christopherson testified that, at about 1:30 P.M., on August 11, he heard smashing sounds and knew what was happening; he saw four black males out front in the van; he got the license number of the van; the value of the jewelry taken was $2,000; the robbers were in the store only 30-45 seconds; and they wore ski masks.

Store clerk Wisterman testified that three figures wearing ski masks came into the store on August 11, yelling profanity and bashed in the jewelry counter; she saw two guns; she saw the leg of one and it was black; and the three ran out and entered a van.

Store PBX-operator Hill testified that, at about 1:30, on August 11, two men wearing ski masks came up to her; one of the men pointed a gun at her head and called her a "bitch"; and one of men, who was black, smashed the jewelry case and dropped the mallet in the store before exiting.

UPS driver Rorie testified he parked next to Service Merchandise on August 11, and that a van pulled up in front of him; he saw four persons in the van; three of them got out; all wore ski masks; he took down the license number of the van, HZF-835, and went next door and to call the police via 911.

Service Merchandise's security video recorded the entire robbery but none of the robbers could be identified from the video.

Witness McMahan testified he was at the Lochwood Apartments about 11:00 A.M. on August 11, and he saw four black males "passing a bottle"; they then entered a parked van and took off; they returned in about six minutes; he saw them with a gun; and he took down the license number of the van. Witness McMahan identified Appellant at trial as one of the men he saw.

Witness Johnson lives at the Lochwood Apartments. She testified she saw four males jump into a van and take off on August 11, at about 1:30 P.M.; one of them fired a gun; and her boyfriend called the police. Witness Johnson identified Appellant as one of the men she saw.

Witness Horner who lives in the Lochwood Apartments testified he saw the van pull up at the curb of the apartments about 2:00 P.M., on August 11; he saw the driver get out of the van and run; three black males got out and pulled off masks and one of them had jewelry in his hand. Witness Horner identified Appellant at trial as one of the men he saw.

Officer Staton testified he was in his car on August 11, and heard the dispatcher say that an aggravated robbery had occurred at Service Merchandise; and that a stolen grey van was involved; he looked up and saw the van and followed the van to the Lochwood apartment complex; four men exited the van and started running; and he gave chase and caught one of them.

Officer Hodges testified that he arrived at the Lochwood apartment complex on August 11, where the van had parked, and found jewelry which the Service Merchandise manager identified as stolen in the robbery.

Officer Cosby arrived at the Lochwood apartment complex on August 11. He testified that he saw the van park and he saw the occupants exit the van; that he chased them and caught Appellant. He also testified that Anthony Hill was caught by another officer.

Anthony Hill, one of the robbers caught, testified that Appellant was one of the planners and one of the participants in the robbery; that he (Hill) had pled guilty at his trial one week earlier, and had testified the same at his own trial.

The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of accomplice witnesses and then examine the other evidence to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).

The testimony of accomplice Hill is sufficiently corroborated through the testimony of the non-accomplice witnesses who identified Appellant. Appellant exited the stolen van when it returned to the apartment complex, he ran and was captured by Officer Cosby.

Applying the Jackson test, the evidence is sufficient to support the conviction.

Points one and two are overruled.

Point three: "The judgment should be reformed to delete the affirmative finding of a deadly weapon as there is no evidence that Appellant personally used a deadly weapon."

Where the State relies on the law of parties, no affirmative finding of a deadly weapon is permissible unless the accused personally used or exhibited a deadly weapon. Travelstead v. State, 693 S.W.2d 400, 402 (Tex. Crim. App. 1985). No witness testified that Appellant personally used or exhibited a deadly weapon. The State concedes that this point should be sustained.

Point three is sustained. The judgment is reformed to delete the deadly weapon finding.

Reformed and affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Reformed and affirmed

Opinion delivered and filed June 21, 1995

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