CLEVELAND BURNETT v. THE STATE OF TEXAS--Appeal from 148th District Court of Nueces County

NUMBER 13-03-600-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CLEVELAND BURNETT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

    Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

A jury convicted appellant, Cleveland Burnett, of aggravated robbery[2] and assessed punishment at ten years in the Texas Department of Criminal Justice-Institutional Division. By one issue, Burnett asserts that the trial court reversibly erred by denying his motion for directed verdict because the State failed to corroborate the accomplice witness testimony. We affirm.

I. BACKGROUND

At approximately 2:20 a.m. on March 8, 2002, Jason Leal parked his vehicle in front of his parents' home. As he exited his vehicle, he saw three men approaching him. Wearing dark clothing, each had their T-shirts pulled over their nose and mouth. One man said, "Freeze, [expletive]." Leal heard a gun cocked and looked down to avoid eye contact. The three men surrounded him. One assailant held the gun to Leal's head, while another demanded money. Leal showed the assailants that he had no money. Leal testified that the man wielding the gun, later identified as Burnett, was wearing shorts and a dark blue shirt. The assailant demanding money, later identified as Robert Speed, was wearing wind pants and a hooded sweatshirt. Speed took Leal's keys and watch, and walked away with Burnett. The third assailant struck Leal, almost knocking him to the ground. Leal observed the men leave in a gray-colored vehicle. Leal's mother called police and Leal provided a description of the suspect vehicle. Leal's sister called police again when no one arrived at the residence to investigate. Leal learned that police were in pursuit of the suspect vehicle. Approximately thirty minutes later, police officer Kevin Bowls took Leal to one of two apartment complexes where Burnett and Speed were apprehended. Bowls testified that Leal told him en route that the man who wielded the gun was wearing blue shorts. As officer Bowls and Leal reached the apartment complex, without prompting, Leal immediately recognized the vehicle as the one the suspects occupied. At the complex, Leal identified Burnett as "the guy who pointed the gun." Burnett was wearing blue shorts but, according to Leal, a different shirt. Leal identified Speed as the assailant who demanded money. Speed was wearing long wind pants and a hooded sweatshirt.

Numerous officers testified about the high-speed pursuit of the suspect vehicle and apprehension of Speed and Burnett.[3] The jury heard that, during the pursuit, persons in the suspect vehicle threw items out the window. Leal's keys and watch were located in the back seat of the suspects' car. Various officers testified that Leal unequivocally identified Burnett as the person who held the gun to his head. Speed, the driver, pleaded guilty to robbery pursuant to a plea agreement. The State called Speed to testify against Burnett. Speed testified that Burnett cocked the gun and pointed it at Leal. Burnett testified on his own behalf. He denied culpability, stating that he was in the vehicle but was asleep until the police pursuit began. He admitted he was in the vehicle from the time Speed picked him up to the time police began pursuit. Burnett admitted he fled from police.

II. DENIAL OF BURNETT'S MOTION FOR DIRECTED VERDICT

In his sole issue, Burnett asserts that the trial court erroneously denied his motion for directed verdict at the close of the State's case-in-chief. Excluding Speed's testimony, Burnett contends the State did not produce evidence that Burnett was the person with the gun. Burnett argues that Speed's testimony was not corroborated. The State replies that other non-accomplice testimony sufficiently corroborated Speed's testimony to implicate Burnett in the crime.

A. Standard of Review

A challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). A legal-sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).[4] This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319.

A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240. With sufficient evidence of Burnett's participation in the commission of aggravated robbery, the indictment supported a jury instruction on the law of parties without a parties allegation in the indictment.[5] See Goff v. State, 931 S.W.2d 537, 544 n.5 (Tex. Crim. App. 1996) (en banc). In determining whether an accused participated as a party in an offense, a fact finder may examine the events occurring before, during, and after the commission of the offense and rely on actions of the accused that show an understanding and common design to commit the offense. Hanson v. State, 55 S.W.3d 681, 690 (Tex. App.BAustin 2001, pet. ref'd). Thus, conviction was authorized under the evidence in this case if a rational jury could find that Burnett participated either as a principal or as a party. See id.

B. Corroboration of Accomplice Testimony

An accomplice is a person who participates in an offense before, during, or after its commission to the extent that the person can be charged with the offense or with a lesser offense. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (en banc) (citing Blake v. State, 971 S.W.2d 451, 454 55 (Tex. Crim. App. 1998) (en banc)). A prosecution witness indicted for the same offense as the accused is an accomplice as a matter of law. Id. (citing Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991) (en banc) (per curiam)).

As an accomplice, Speed's testimony must be "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 (Vernon 2005). We look for corroboration to all non-accomplice evidence, both prosecution and defense. Cook, 858 S.W.2d at 470. The required corroborative evidence may be either circumstantial or direct, and need not directly link the accused to the crime. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993) (en banc); Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988) (en banc). Further, the corroborating evidence need not establish guilt beyond a reasonable doubt. Id.

Finally, "proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984) (en banc). Apparently insignificant incriminating circumstances may afford satisfactory corroboration. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993) (en banc). Evidence that an accused was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence to support a conviction. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (en banc).

C. Inferences of Guilt

Evidence of flight is admissible as a circumstance from which a jury may draw an inference of guilt. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994), overruled in part on other grounds, Tennard v. Dretke, __ U.S. __, 2004 U.S. LEXIS 4575 (2004); see Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (en banc); Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1997) (en banc).

D. Identity

Burnett's argument on appeal focuses on the question of identity. Speed testified that Burnett and two other men participated in the offense. Speed identified Burnett as the sole person, of the four, with the gun and the sole person wearing shorts at the time of the offense. Burnett points out that police officers and Burnett testified Burnett was wearing a blue and white checkered shirt when apprehended approximately thirty minutes after the offense. Burnett emphasizes that Speed's testimony that four persons were involved, along with the disparity in the clothing Burnett wore, render the evidence insufficient to prove identity.

Burnett's own testimony places him in the vehicle at the scene of the offense. We must consider this evidence in determining the legal sufficiency of the evidence, even though Burnett moved for directed verdict at the close of the State's case-in-chief. See Cook, 858 S.W.2d at 470. The rest of the non-accomplice testimony corroborated Speed's testimony. At the apartment complex after Burnett's apprehension, Leal identified Burnett unequivocally as the person wielding the gun to his head. When making the identification at the scene, Leal pointed out that Burnett "wore a different shirt" during the offense.

Leal gave a description to authorities immediately after the incident. He unequivocally identified Burnett approximately thirty minutes later. The defense cross-examined Leal and Speed at length about Burnett's involvement. Accordingly, we conclude that Speed's testimony implicating Burnett as a principal in the aggravated robbery of Leal is amply corroborated. See Hernandez, 939 S.W.2d at 178; see also Munoz, 853 S.W.2d at 559; Brown, 672 S.W.2d at 489. We further conclude that the jury could have inferred that Burnett's actions before, during, and after the aggravated robbery showed an understanding of the offense as a party. See Hanson, 55 S.W.3d at 690. Finally, the jury heard that Burnett fled to escape apprehension. We conclude that the jury could have inferred Burnett's consciousness of guilt from his efforts to avoid apprehension immediately after the offense. See Bigby, 892 S.W.2d at 883; see also Cockrum, 758 S.W.2d at 582.

Considering only the evidence in favor of the verdict, both prosecution and defense, and applying the evidence to a hypothetically correct jury charge on aggravated robbery and the law of parties, we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, we conclude that the trial court did not err in overruling Burnett's motion for directed verdict. We overrule his sole issue.

IV. CONCLUSION

We affirm the trial court's judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 21st day of July, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.

[2] See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003).

[3] Police officers testified that the suspects were pursued both by vehicle and on foot.

[4] The hypothetically correct jury charge would instruct the jury on the elements of aggravated robbery as follows: (1) a person (2) commits robbery as defined in section 29.02 of the penal code, and (3) uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 29.03 (Vernon 2003). A person commits robbery when he (1) in the course of committing theft as defined in chapter 31 of the penal code, and (2) with the intent to obtain or maintain control of the property, (3) intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly places another in fear of imminent bodily injury or death. Id. ' 29.02 (Vernon 2003).

[5] Burnett does not assert charge error.