REIDIE JACKSON v. THE STATE OF TEXAS--Appeal from 130th District Court of Matagorda County

   NUMBER 13-03-335-CR AND 13-03-336-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

REIDIE JACKSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 130th District Court

of Matagorda County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

  Appellant, Reidie Jackson, was convicted of burglary of a habitation[1] and aggravated robbery.[2] Jackson was assessed thirty years= imprisonment and a fine of $5,000 for the burglary and forty-two years= imprisonment and a fine of $5,000 for the aggravated robbery. He now appeals his convictions in three issues: (1) the evidence was insufficient to link appellant to either offense, (2) appellant=s conviction for two offenses resulting from a single act placed him in double jeopardy, and (3) the trial court erred in allowing hearsay testimony. We affirm.

Sufficiency

By his first issue, appellant argues that if the testimony from his purported accomplices is disregarded, the remaining evidence is insufficient to link appellant with either offense. Appellant does not specify whether he is challenging the evidence on legal or factual sufficiency grounds. In his prayer for relief, however, appellant specifically requests reversal and acquittal under this issue. Because acquittal is only appropriate when a legal sufficiency challenge is sustained, we will review the evidence under a legal sufficiency standard. See Loredo v. State, 130 S.W.3d 275, 278 (Tex. App.BHouston [14th Dist.] 2004, pet. ref=d). When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury, as trier of fact, is entitled to resolve any conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight to be given any particular evidence.See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Appellant asserts that without the accomplice testimony implicating him, there is insufficient evidence to convict him of either offense. He cites to article 38.14 of the code of criminal procedure, which 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; and the corroboration is not sufficient if it merely shows the commission of the offense.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Testimony from an accomplice Amust be viewed with caution and carefully scrutinized,@ see Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. 1981), and must be coupled with other corroborative evidence to support a conviction. See Wincott v. State, 59 S.W.3d 691, 698 (Tex. App.BAustin 2001, pet. ref=d). That corroborative evidence, however, need not directly link the defendant to the crime or be sufficient in itself to establish guilt beyond a reasonable doubt. See McDuff v.State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997); Gonzalez v. State, 115 S.W.3d 278, 282 (Tex. App.BCorpus Christi 2003, pet. ref=d). There must simply be some non accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment. McDuff, 939 S.W.2d at 613. All of the surrounding facts and circumstances may be looked to for corroboration, and the corroborative evidence may be circumstantial or direct. Gonzalez, 115 S.W.3d at 282. It is not necessary that the accomplice testimony be corroborated on every element of the offense. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001).

Reviewing the evidence in the light most favorable to the verdict we find the following: John Scholten awoke in the middle of the night to discover two armed and masked male trespassers in his home in Matagorda, Texas. These men attacked Scholten and forced him to open his gun safe. They took his collection of guns and $1100 in cash, and fled in a Ford Explorer driven by a female accomplice. During the ensuing police chase, all three occupants of the Explorer jumped from the vehicle and climbed through a barbed-wire fence into an open field. One of the men was apprehended a few minutes later. The driver of the vehicle eluded police by hiding in the field until daylight, at which time she was located and arrested. The two captured accomplices, when questioned individually, each identified appellant as the second masked intruder. Two gold rings and a man=s watch belonging to appellant were found in the abandoned Ford Explorer, along with most of the weapons stolen from Scholten. A keychain that contained a key for an automobile registered to appellant as well as a ABlockbuster Rewards@ video rental card for which appellant was a registered user was also found with the jewelry in the Explorer. In addition, a non-accomplice witness testified that she had seen appellant riding in the Ford Explorer earlier on the day of the home invasion robbery

Appellant was apprehended the next day after fleeing from police in Bay City, Texas. When caught, he was found to be covered in fresh scratches and holding several hundred dollars in cash. Appellant claimed to have been at a mall in the Dallas area at the time of the robbery, but admitted on the stand that he had asked his girlfriend to lie about his whereabouts and provide him with a false alibi, which she had refused to do.

We conclude that the jury could have reasonably found the non-accomplice evidence sufficiently corroborative of the accomplice testimony, and the entirety of the evidence produced at trial was legally sufficient to support appellant=s conviction on both counts. See Gonzalez, 115 S.W.3d at 283. Appellant=s first issue is overruled.

Double Jeopardy

By his second issue, appellant argues that because he was convicted of two offenses that involve identical criminal elements, he was placed in double jeopardy in violation of his constitutional rights. His brief notes, AAppellant is aware of the present state of the law on this issue, but would respectfully invite the Court to revisit this issue.@

The present state of the law on this issue, as appellant points out, has been enunciated by the court of criminal appeals in Cervantes v. State, 815 S.W.2d 569, 573 (Tex. Crim. App. 1991):

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. . . . A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution under the other.

Id.(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). The two offenses with which appellant was charged, aggravated robbery and burglary of a habitation, both involve theft, but also require proof of additional facts, and therefore pass the Cervantes test for double jeopardy. The charge of burglary of a habitation required proof of entry into a habitation. See Tex. Pen. Code Ann. ' 30.02. The aggravated robbery charge did not require such proof, but did require evidence that appellant used or exhibited a deadly weapon or placed a senior citizen in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. ' 29.03.

We conclude that under the law established by the court of criminal appeals, appellant was not placed in double jeopardy by having to face charges for both these offenses, see Cervantes, 815 S.W.2d at 573, and as we are bound by the precedent established by the higher courts of the state, we decline appellant=s request to Arevisit the issue.@ See Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.BFort Worth 2003, pet. ref=d). Appellant=s second issue is overruled.

Hearsay Testimony

By his third issue, appellant argues that the trial court erred when it overruled his hearsay objection to the testimony of Bruce Page, a police investigator, at two points during the trial.

An appellate court reviewing a trial court's ruling on the admissibility of evidence must utilize an abuse of discretion standard of review. See Epps v. State, 24 S.W.3d 872, 879 (Tex. App.BCorpus Christi 2000, pet. ref=d). Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802.

Appellant first complains about the following exchange at trial:

State: You have spoken with Mr. Grice?

Page: Yes

State: And did Mr. Grice tell you that he had B

Appellant: Objection, that=s hearsay.

State: Did Mr. Grice tell you anything about this case?

Page: Not related to this case, no.

To preserve error for appellate review, the record must show that (1) the complaining party made

a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. See Tex. R. App. P. 33.1. Here, we see that appellant objected to the hearsay testimony, but the trial court failed to express a ruling on this objection, and when the question was repeated, appellant did not renew his objection. Having allowed the same question and answer to come in as evidence without objection, appellant has waived the alleged error. See Mendoza v. State, 69 S.W.3d 628, 633 (Tex. App.BCorpus Christi 2002, pet. ref=d) (A[T]he admission of the hearsay evidence was rendered harmless by the introduction of the same or similar evidence without objection.@).

The second exchange complained of involved the same witness, Page, being questioned regarding a conversation he had with a woman named Ray Hobbs about appellant=s whereabouts on the day of the home invasion robbery. Appellant requested a running objection as to hearsay which the trial court denied. Appellant also objected to Page=s testimony about his conversation with Hobbs which the trial court overruled.

Although he successfully preserved his complaint on appeal regarding this portion of Page=s testimony, appellant has failed to demonstrate that any harm resulted from this allegedly erroneous ruling by the trial court. See Tex. R. App. P. 44.2(b); Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003) (A[W]e need not decide the issue of the statements' admissibility [for hearsay] because any error in the admission of the statements did not contribute to the appellant's conviction.@). Page had testified about a series of conversations he had with various people who knew appellant and could possibly account for his whereabouts on the day in question. None of them, including Hobbs, was able to confirm whether appellant had been in the Dallas area on the day in question. Appellant himself admitted that he had tried to convince his girlfriend to lie and say that he had been with her on the day of the robbery, and although he claimed to have actually been in Dallas with another woman, this woman could never be located.

We conclude that appellant failed to demonstrate harm resulting from Page=s testimony. See Simpson, 119 S.W.3d at 269. Accordingly, we overrule his third issue.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not Publish.

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

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

[1]See Tex. Pen. Code Ann. ' 30.02 (Vernon 2003).

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