John Floyd Mitchell v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

John Floyd Mitchell

Appellant

Vs.                   No. 11-01-00294-CR B Appeal from Taylor County

State of Texas

Appellee

The jury convicted John Floyd Mitchell of the offense of aggravated robbery.  The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 15 years.  We affirm.

The offense in question occurred on the afternoon of Saturday, February 12, 2000.  The victim of the offense was an elderly woman who was attacked after returning to her car from shopping at Drug Emporium. As the victim shut her car door, a female assailant attempted to enter her car and steal her purse.   The record reflects that Pamela Sonner was the female assailant who attacked the victim.  A struggle between the victim and Sonner ensued, resulting in the victim being injured.  The victim testified that the struggle ended when a male sitting in a nearby vehicle instructed Sonner to get back in his car, at which time they left the scene in what the victim observed to be a light tan car.   The victim was only able to see the back of the male=s head. 

Sonner testified that she and appellant had recently been expelled from a halfway house for  drug addiction.^[1]  Sonner testified that she and appellant were romantically involved at the time of the expulsion and that they had lived together after the expulsion in an Abilene motel.  The record indicates that appellant had lost his job a few days prior to the offense.  Sonner testified that, earlier on the day in question, appellant told her that he was going to get some money that day even if he had to hurt someone.   Sonner and appellant subsequently drove to the parking lot of Drug Emporium in appellant=s car.  Appellant parked his car next to the elderly victim=s car.  Sonner testified that it was obvious to her that appellant was waiting for the victim to return to her car from the store so that he could rob her. Sonner decided that she should be the one to steal the victim=s purse because she was concerned that appellant would hurt the victim.  Sonner=s version of the attack was identical to the victim=s account.

Appellant testified in his own behalf.  He denied being present with Sonner at the time the alleged offense occurred. Accordingly, the identity of Sonner=s male accomplice was a disputed issue. Furthermore, the charge of the court required a showing that appellant:

[T]hen and there, acting with intent to promote the commission of the offense, if any, aided or assisted Pamela Sonner to commit the offense, if any, by his own actions and conduct during the commission of said offense.

The State sought to establish these evidentiary elements by offering evidence of an attempted purse snatching which Sonner and appellant committed the next day.^[2]   The subsequent offense occurred on the same parking lot during the afternoon of the next day against a female victim returning from the store to her car.  The only difference between the two incidents was that appellant physically encountered the victim during the extraneous offense while Sonner remained in the car. 

The State argued that the circumstances of the extraneous offense were sufficiently similar to the charged offense to establish appellant=s identity as Sonner=s accomplice as well as to show a common plan or scheme.  The trial court permitted the State to offer evidence of the extraneous offense for the limited purpose of showing the knowledge, preparation, or plan of appellant. The trial court further instructed the jury to consider the evidence of the subsequent offense for these purposes only.   The State elicited testimony from Sonner, an investigating police officer, and the victim of the extraneous offense regarding Sonner=s and appellant=s actions on the following day.

Appellant presents two issues on appeal.  He alleges insufficient corroboration of Sonner=s accomplice testimony in violation of TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979) in his first issue.  His second issue attacks the admission of evidence regarding the subsequent offense under TEX.R.EVID. 404(b).  We first address appellant=s complaint under Rule 404(b).  Rule 404(b) provides in relevant part as follows:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.  See Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App.1991).  This evidence may, however, be admissible when it is relevant to a non-character-conformity fact of consequence in the case.   See Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App.2001); Montgomery v. State, supra at 387.  As noted in Montgomery, evidence of other crimes, wrongs, or acts has relevance apart from character conformity if it: (1) tends to establish some elemental fact, such as identity or intent; (2) tends to establish some evidentiary fact, such as motive, opportunity, or preparation, leading inferentially to an elemental fact; or (3) rebuts a defensive theory by showing, for example, absence of mistake or accident.  Montgomery v. State, supra at 387-88.  The Aother purposes@ listed in Rule 404(b) are neither mutually exclusive nor collectively exhaustive.  Montgomery v. State, supra at 388. 

An appellate court must review a trial court=s admissibility determination under Rule 404(b) under an abuse of discretion standard.  Powell v. State, supra at 438.  This standard requires an appellate court to uphold a trial court=s decision to admit evidence when that decision is within the zone of reasonable disagreement.  Powell v. State, supra at 438.  We, therefore, must determine if the trial court abused its discretion by permitting evidence of the extraneous offense for the purpose of showing the knowledge, preparation, or plan of appellant.  We conclude that the trial court did not  abuse its discretion in this regard.  There were numerous similarities in the specific characteristics of the two offenses, including: (1) both offenses were committed at the same time of day; (2) the  offenses occurred in the same parking lot; (3) only one day separated the commission of the offenses; (4) Sonner accompanied appellant in appellant=s car each time; and (5) the victims were older women.  These similarities are sufficient to justify a determination that both offenses were appellant=s handiwork and to show a common scheme or plan. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Cr.App.1996).  The admission of the extraneous offense addressed the relevant issue of appellant=s knowledge and intent and his aid of Sonner=s actions under the law of parties.  See TEX. PENAL CODE ANN. ' 7.02(a)(2) (Vernon 1994).  Morever, the evidence of the extraneous offense corroborated Sonner=s accomplice testimony.  Evidence of extraneous offenses is admissible to corroborate accomplice testimony.  See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Cr.App.1995), cert. den=d, 519 U.S. 826 (1996).  Appellant=s second issue is overruled.

Under Article 38.14, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it merely proves the commission of the offense. See Cathey v. State, 992 S.W.2d 460, 462 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000).  When considering accomplice testimony in determining the sufficiency of the corroborating evidence, all of the accomplice testimony is eliminated from consideration.  See McDuff v. State, 939 S.W.2d 607, 612 (Tex.Cr.App.), cert. den=d, 522 U.S. 844 (1997).  The remaining evidence is then considered in the light most favorable to the jury=s verdict.  See Gill v. State, 873 S.W.2d 45, 48 (Tex.Cr.App.1994).  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. See Cathey v. State, supra at 462. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.  See Cathey v. State, supra at 462.

The non-accomplice testimony in this case consisted of the victim=s account of what transpired and the evidence of the extraneous offense elicited from the victim of the extraneous offense and the police officer who investigated the offenses.  As noted above, the circumstances of the two offenses were quite similar.  The evidence of the extraneous offense offered by the non-accomplices tended to connect appellant to the charged offense.  Appellant=s first issue is overruled.       The judgment of the trial court is affirmed.

July 11, 2002                                                                           W. G. ARNOT, III

Do not publish.  See TEX.R.APP.P. 47.3(b).                CHIEF JUSTICE

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]Sonner had previously been convicted for her actions arising from the offense in question at the time of appellant=s trial.

     ^[2]Appellant pleaded guilty to the subsequent offense.