Summary
holding evidence sufficient to corroborate where defendant's recorded conversations with accomplice indicated specific knowledge of the facts of the crime and defendant's fear that the phones were tapped
Summary of this case from Smith v. StateOpinion
No. 14-03-00276-CR.
Opinion filed March 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 901,570. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
OPINION
Appellant, Phillip Latrell Green, was convicted by a jury of aggravated robbery. The jury assessed punishment at confinement in the Texas Department of Criminal Justice, Institutional Division, for a term of 42 years and a fine of $10,000. In his sole issue on appeal, appellant complains that there was not sufficient corroboration of the accomplice witness testimony to sustain his conviction. We affirm. Kimberly Gee began working as a temporary employee at the Houston Independent School District Tax Office on Tuesday, January 22, 2002. Gee learned of the position through her mother who was working as a security guard at the tax office. Gee worked at the tax office for only three days. Due to transportation problems, Gee's last day at the tax office was Friday, January 24, 2002. Although Gee knew she would not be returning to work at the tax office, she did not inform anyone at the office of this fact. Gee called appellant because she was upset over her car problems. Gee and appellant had been friends since middle school. When Gee told appellant she had been working at the tax office, he asked her if she handled any money; Gee told appellant she did. Appellant then said he would call Gee back. Appellant called Gee later and said that he and "his partner," Lee Grey, had driven over to the tax office building and looked it over. Appellant asked Gee how late tax office employees stayed and asked Gee if she could help with the door codes. Gee told appellant that some employees stayed late, and she gave him the access code for the employee entrance. Gee testified that appellant told her he was going to rob the tax office and they were going to wear ski masks and carry guns. Appellant also told Gee he was not going to hurt anyone. On January 29, 2002, Merella Richardson and A.C. Miller were working in the tax office. Richardson was at the copy machine when she heard a door open and close. Richardson continued to make copies when a black male, whose head and face were covered, ran towards her. The man put a finger over his mouth, indicating for her to remain quiet. He did not say anything to her, but motioned for her to move away from the copy machine and put a gun in her side. Miller was seated at her desk, facing the door when she heard a voice. When Miller looked up, she saw a black male standing at the door with Richardson. The man told Richardson and Miller that this was a robbery and asked where the safe was. Miller told him the safe was in the back. Miller, Richardson, and the man walked to the room where the safe was located. Miller had the code for the safe and opened it. The man told them to lie face down on the floor with their heads away from the door for five minutes. Richardson and Miller saw three other intruders who were also wearing dark clothing and whose heads and faces were covered. When they no longer heard any noise, Richardson and Miller got up. It was determined that the robbers had taken $36,822.57 in cash. Appellant called Gee and told her that "it's done. We finished." Appellant called back and said he wanted to meet somewhere. Appellant picked up Gee, who was staying at her mother's house, and drove her to her apartment. Appellant gave Gee $4,500, which she used to purchase two cars and clothes for herself and her children. Gee gave one of the cars to the children's father, Tommy Scott. Before the robbery, Gee and appellant had not come to an agreement on how to split the money, but she expected to receive part of the stolen money. At that time, Gee and Scott were not married, but they were subsequently married. Detective Reese and Sergeant Mar of the Houston Police Department received a Crime Stoppers tip that Gee and Tommy Scott were involved in the robbery at the tax office. Once Reese and Mar identified Gee as a suspect, they discovered that she had some municipal warrants out for her arrest. On February 4, 2002, Gee was arrested. Gee told Reese and Mar about her and appellant's involvement in the robbery. Reese and Mar wanted to confirm some things Gee had told them about the robbery. Therefore, Reese and Mar asked Gee to call appellant; they planned to tape record the conversation. Gee agreed to telephone appellant because Reese and Mar allegedly told her that "if they don't have anything to go on saying that [appellant] did it or anything like that, that [she] was going to get in trouble." Gee asked her mother to place a three-way telephone call to appellant. Gee explained that if appellant saw the number on his telephone's caller identification, i.e., that she was calling from the police station, he would not answer the phone or he would say he did not have anything to do with the robbery. When appellant answered the phone, Gee told him that she was scared and that her mother had said that police had been questioning a lot of people. When Gee asked appellant if anyone had gotten hurt, he said, "No." Gee then told appellant that her mother said someone had gotten hurt. Appellant replied, "Kim, they gonna do that. That's normal. They gonna do that s__t cause they know it's an inside deal." Appellant continued and stated that he "tried to prepare [her] for it." Appellant did not want to talk about it because Gee could be under surveillance and the phones could be tapped. Gee told appellant the newspaper said over $30,000 was stolen. Appellant replied, "Hell, no." Gee asked appellant how much was stolen. Appellant responded, "What I told you." When Gee said she was scared, appellant told Gee that his "partner" had said she was going to get scared. After that conversation ended, Gee attempted to call appellant two more times, but he never answered his phone. Reese and Mar confirmed that Gee had purchased two vehicles. Gee pleaded guilty to aggravated robbery, but received no promises about her punishment in that case and did not know what kind of sentence she was likely to receive. She did not agree to testify against appellant because she thought it would help her case; instead, she testified because she "was not going to get in trouble by [herself]." Gee did not know that by giving appellant the door access code that she was committing aggravated robbery, but at trial, she stated that she understood that she was a co-defendant or co-conspirator. "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). The accomplice witness rule is a legislative creation not required by common law or federal constitutional law. Vasquez v. State, 56 S.W.3d 46, 48 (Tex.Crim.App. 2001). The rule reflects a legislative determination that accomplice testimony should be viewed with a measure of caution. Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998). It is not necessary for the non-accomplice evidence to establish the defendant's guilt beyond a reasonable doubt. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). Nor must the non-accomplice evidence connect the defendant to every element of the crime. Vasquez, 56 S.W.3d at 48. Instead, there must be some non-accomplice evidence which tends to connect the accused to the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999). "Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration." Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). When conducting a sufficiency review under the accomplice-witness rule, we must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to determine whether there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). An accomplice witness may participate with a defendant before, during, or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App. 1996). An individual is an accomplice if she could be prosecuted for the same offense as the defendant. Blake, 971 S.W.2d at 454. Gee pleaded guilty to aggravated robbery of the tax office and the trial court, accordingly, instructed the jury that Gee was an accomplice. Richardson and Miller testified that neither one of them could identify any of the perpetrators because their heads and faces were covered. Richardson stated that she had never seen appellant and did not know if appellant was in the tax office the night of the robbery. Reese testified that other than what Gee told him and what is in the tape recorded conversation with appellant, Reese is not aware of any other evidence tending to connect appellant to the robbery. Reese and Mar never located any gun used in the robbery. No fingerprints belonging to the perpetrators were recovered from the scene of the robbery. Appellant contends the only non-accomplice evidence consists of appellant's statements made during the tape recorded conversation with Gee, in which Gee made no mention of the robbery. Appellant argues the tape indicates at most that he may have known about the robbery. We disagree. The non-accomplice witness evidence showed that Gee had worked at the tax office and she had the access code to the doors. The funds collected during the day, including cash, were kept in the desk of a tax office employee, Jo Ann Carroll, until those funds were transferred to the safe for pick up by Brinks. Carroll's desk was jimmied open during the robbery. Because Carroll's desk was located behind a wall, not visible to the public, only a tax office employee would know any money was kept in her desk. Customers were only allowed in the lobby area and had no access to the office in the back. Gee's recorded phone conversation with appellant further revealed that appellant (1) knew no one had been hurt during the robbery; (2) knew "it [was] an inside deal"; (3) "tried to prepare [Gee] for it"; (3) did not want to talk about it over the phone because their phones might be tapped; (5) knew the amount stolen; and (6) had a partner who knew Gee would get scared. We conclude the non-accomplice evidence tends to connect appellant with the commission of the robbery at the tax office and is sufficient to corroborate Gee's accomplice testimony. Appellant's issue is overruled. Accordingly, the judgment of the trial court is affirmed.