Antonio Silva, Jr. v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

No. 04-99-00257-CR

Antonio SILVA, Jr.,

Appellant

v.

The STATE of Texas,

Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. K-94-00634-D3

Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 30, 2000

AFFIRMED

Antonio Silva appeals his conviction for aggravated robbery. On appeal, Silva challenges the legal sufficiency of the evidence. We affirm the judgment of the trial court.

Factual and Procedural Background

On June 1, 1994, at six o'clock in the evening, Juanita Flores heard a gunshot. She immediately responded to an alarm from the store that she and her husband owned and operated in Laredo, Texas. Upon entering the store, Mrs. Flores found her husband fatally wounded on the floor. The official cause of death was a gunshot wound to the chest.

During the investigation of the crime scene, the police recovered both a .25 caliber casing and a .25 caliber bullet. No latent fingerprints were recovered on either piece of evidence, nor was the gun recovered. The investigation further revealed that the cash drawer was out of place and that some money was missing.

At trial, the State called Graciela Gonzales who testified that at 5:50 p.m. on June 1, 1994, she left Laredo Community College and was enroute to her grandmother's house. At approximately six o'clock, she arrived at the intersection where the Flores' store was located. Gonzales began a left hand turn and almost struck two males walking hurriedly across the street, towards the Flores' store. She made eye contact with one of the men for approximately 15 seconds. Gonzales testified that she watched the two males in her rear-view mirror and then turned around and saw them standing at the store entrance. She further testified that the two males looked around nervously as they entered the store. Five minutes later, she heard sirens from an ambulance passing through the neighborhood.

An hour later, Gonzales left her grandmother's house and again passed by the store. She observed police taking out a body from the store and decided to notify the police about potential suspects. Gonzalez contacted the police, gave a statement, and described to a police artist the one male she had made eye contact with. Two days later, Gonzales was shown a photographic line-up of six males. She identified Silva from the array as the individual she made eye contact with on June 1. Based on Gonzalez's identification, Silva was arrested.

At trial, the State called Ronald Lemos, Silva's co-conspirator. He testified that on the evening in question, he left a friend's house and was approximately two blocks from Flores' store when he ran into Silva and they began walking and talking togther. Lemos testified that when they arrived at the store, Silva entered and told Lemos to wait outside. Thereafter, Lemos started to enter the store, but he stopped when he heard the gunshot and saw Silva pointing a gun at the victim. Seconds later, Silva left the store. Silva pointed the pistol at Lemos and told him that if he told anyone what happened, Silva would kill him and his family. Lemos then returned to his friend's home. Lemos testified that he informed his friend, Luna, that, "he gave an old man a slug," implying that someone other than Lemos pulled the trigger, but not mentioning Silva by name. Lemos also testified that he informed another friend, Villanueva, that "they killed an old man." Conversely, Luna and Villanueva testified that Lemos told them that he (Lemos) had killed someone.

After interviewing Luna during the course of the investigation, the police approached Lemos at his home and asked him to accompany them to the police station to be interviewed in connection with the criminal investigation. After several hours of questioning, Lemos was placed under arrest. He then signed a written confession in which he confessed to shooting Benjamin Flores.

Silva and Lemos were both indicted for the offenses of murder and aggravated robbery. The jury found both Silva and Lemos guilty of aggravated robbery, but returned not guilty verdicts on the charge of murder. Silva appealed the judgment and this court reversed and remanded on the grounds that Silva's trial should have been severed from Lemos's trial. (1) After remand, the jury again returned a conviction for aggravated robbery, sentencing Silva to thirty years imprisonment. In this appeal, Silva argues in the absence of the accomplice witness testimony, the evidence is legally insufficient to support the judgment.

Accomplice Witness Rule

A person is defined as an accomplice if he could have been prosecuted for the same offense as the defendant, or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). If the evidence clearly demonstrates that a witness is an accomplice witness as a matter of law, the trial court must instruct the jury on the law governing accomplice testimony. See Blake, 971 S.W.2d at 455; Long v. State, 10 S.W.3d 389, 393 (Tex. App.-Texarkana 1999, pet. ref'd).

Under Article 38.14 of the Code of Criminal Procedure, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence which tends to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Id. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of 38.14 has been fulfilled. Id. The "tend to connect" requirement, however, is not reviewed under standards of either legal or factual sufficiency of the evidence. Id. at 462-63. Rather, it is a statutorily imposed sufficiency review requiring only that there be other evidence "tending to connect the defendant with the offense." Id. at 463. Evidence of the defendant's presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to tend to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Similarly, evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence. Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988). However, an accomplice cannot corroborate himself by his or her own statements to a third party. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).

We review non-accomplice testimony in the light most favorable to the jury verdict. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Ayers v. State, 879 S.W.2d 176, 178 (Tex. App.-Houston [14th Dist.] 1994, no pet.). The jury is the sole trier of fact, and it may judge the credibility of the witnesses, reconcile conflicts in the testimony, and accept or reject any or all of the evidence on either side. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). In order to obtain a conviction for aggravated robbery, the State must prove, beyond a reasonable doubt, the following six elements: (1) a person, (2) in the course of committing theft, (3) with the intent to obtain or maintain control of the property, (4) intentionally, knowingly, or recklessly, (5) causes bodily injury to another or threatens or places another in fear of imminent bodily injury or death, (6) and uses or exhibits a deadly weapon. Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980).

Here, Ronald Lemos testified for the State and previously received a conviction for aggravated robbery of Flores. Accordingly, the trial court properly charged the jury on the accomplice witness rule. See Blake, 971 S.W.2d at 454 (requiring instruction on corroboration requirement of accomplice witness rule only when accomplice witness is called by the State); Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990) (holding when evidence clearly shows that witness is an accomplice as a matter of law the trial court must so instruct jury).

Accomplice Witness Testimony

Ronald Lemos testified that close to six o'clock on the night in question he went to Flores' store with Antonio Silva. When the two arrived at the store, Lemos stated that Silva went inside but instructed him to wait outside. Lemos stated that when he opened the door, he saw Silva shoot Flores. Immediately after the shooting, Lemos testified that Silva put a gun to his stomach and threatened that if he told anyone about the shooting, Silva would kill both Lemos and Lemos' family. Shortly thereafter, both he and Silva fled the scene in different directions. After his arrest, Lemos gave a statement to the police where he initially stated he shot Flores. Later at trial, he stated that Silva shot Flores. Non-Accomplice Testimony

Excluding the testimony of Lemos, we find the non-accomplice witness testimony tends to connect Silva to the crime. Graciela Gonzales, the State's strongest witness, testified that close to six o'clock she was driving to Flores' store for a soda. As she approached the intersection facing the store, she almost ran into Silva and another companion. She testified that when she almost hit Silva, he placed one hand in front of him as if to stop the vehicle, but the other he placed at his waist. While the State argued that Silva's reaction of placing one hand at his waist when Gonzales almost struck him in the street, constituted suspicious behavior, Gonzales denied that she saw any weapon. She then decided not to stop at the store because she had a "bad feeling." She testified that the men looked suspicious as they glanced around nervously before entering the store.

Gonzales further testified that she arrived at her grandmother's house at six o'clock in the evening. She stated the time with absolute certainty because she recalled her grandmother remarking that she arrived just in time for the start of a six o'clock novela. Within five minutes, Gonzales stated that she heard ambulance sirens passing by the house.

Approximately an hour later, Gonzales passed by the store and observed a body taken out of the store. She stated that she "put everything together" and deduced that she likely saw the perpetrators of the crime enter the store. See generally Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Although Gonzales positively identified Silva at the store, she was unable to identify Lemos as the accomplice.

Jorge Almazan, the officer who interrogated Silva, testified that Silva denied entering the store. Further, the officer testified that Silva stated that it was impossible for the police to implicate him of the crime because the store was not equipped with a video camera. To this statement, the officer questioned how Silva knew of the existence of video equipment if he had never been in the store. Almazan testified that Silva gave no reasonable explanation in response.

Finally, Apolinar Navarro, a civilian ride-along with an officer responding to the store shooting, testified that he observed two males at approximately 6:14 running down the street where the store was located. He was not able to identify either individual.

Viewed in a light most favorable the jury verdict, we hold that the non-accomplice evidence tends to connect Silva with the instant offense. The close proximity of time from which Gonzales observed Silva at the store with the police response to the shooting, Juanita Flores's confirmation of the hour of the shooting, and Silva's suspicious behavior during interrogation tend to connect Silva with the crime. Moreover, the jury received the proper instruction on the necessity of the accomplice witness rule corroboration requirement. As such, we presume from the evidence in the record, the jury concluded the testimony from Gonzales corroborated the testimony of Lemos. See Blake, 971 S.W.2d at 454 (recognizing that for over one hundred years, the jury has assessed the credibility of accomplice witness testimony). We overrule Silva's legal sufficiency challenge and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. Silva v. State, 933 S.W.2d 715, 716 (Tex. App.-San Antonio 1996, no pet.).