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Anthony David Okunno v. State ( 2008 )


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  • Affirmed and Memorandum Opinion filed October 16, 2008

    Affirmed and Memorandum Opinion filed October 16, 2008.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-07-00680-CR

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    ANTHONY DAVID OKUNNO, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 268th District Court

    Fort Bend County, Texas

    Trial Court Cause No. 44,339-A

     

      

     

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

    A jury found appellant, Anthony David Okunno, guilty of aggravated robbery.  After finding two enhancement paragraphs true, the jury assessed punishment at thirty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division, and the trial court sentenced appellant accordingly.  In three issues, appellant argues (1) the evidence is insufficient to find appellant guilty of aggravated robbery under the law of parties, (2) appellant=s statement was improperly admitted, and (3) the evidence is insufficient because the testimony of an accomplice witness was not corroborated.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4

    Factual Background

    Michael Tornero owned an auto repair and rental business. Yolanda Vallejo worked for an attorney and referred clients to Michael. On April 23, 2006, a Sunday, Yolanda telephoned Michael and arranged to bring a cake to Michael=s home.   During a conversation the previous Friday, Michael indicated to Yolanda he was Asitting on a lot [of] cash@ because he had recently provided rental cars for a large party.  Although Yolanda phoned Michael Sunday morning and the Torneros were expecting her earlier in the day, she did not arrive at the Tornero home until around nine o=clock that evening.

    When Yolanda arrived, Michael welcomed her into his home. A few minutes later, Michael=s wife, Belda, joined them in the kitchen, and Michael introduced them.  Both Michael and Belda thought Yolanda seemed nervous.  At some point Yolanda left the house and went to her truck to get the cake she purported to give Michael.  Intending to show Yolanda the house when she returned, Michael went into a bedroom to straighten the room.  Belda stayed in the kitchen and called her daughter, on a cell phone, to discuss plans for that evening.

    When Yolanda returned, Michael was still in the bedroom. As Yolanda walked toward the kitchen, Belda saw an Hispanic man, later determined to be Omar Medrano, holding Yolanda and pointing a gun at Belda. Omar told Belda to drop the phone.  She immediately dropped the phone and started screaming her husband=s name.  Omar let Yolanda go and started walking toward the back of the house, pointing the gun and a laser sight Aeverywhere.@

    Michael heard Belda screaming, saw the laser light in the hallway, and knew there was a gun.  Michael got his revolver and pointed it at the foyer.  He then saw Omar with a gun in his hand.  Michael fired at Omar, but thought he had missed because Omar jumped back and fired four or five times.  Michael pressed an alarm panic button which called the police.  As Fort Bend Sheriff=s Detective Tully Mangum arrived, he saw a dark, newer model, Chevrolet Impala, with at least two people, driving away very quickly. Michael and Belda were still in the house.

    Yolanda died of a single gunshot wound.  The medical examiner subsequently determined a shot fired from Omar=s gun had ricocheted off a wall or the floor, striking Yolanda in the head.

    The events leading to and following the robbery, including Omar=s departure from the scene, are set forth in the discussion below.

    Discussion

    I.        The Evidence was Legally and Factually Sufficient to Support Appellant=s Conviction for Aggravated Robbery under the Law of Parties.

     

    In his first issue, appellant argues the evidence is insufficient to support his conviction for aggravated robbery under the law of the parties.  Appellant argues there was no evidence that (1) he did anything or agreed to do anything in connection with the offense before it occurred, (2) he was criminally responsible for the aggravating element of the offense (deadly weapon), and (3) he was criminally responsible for the conduct of Omar, Yolanda, or the other actors.  Appellant frames his argument in Ano evidence@ or legal insufficiency terms, but requests remand for a new trial, the remedy when the evidence is factually, but not legally, insufficient.  We therefore conduct both reviews.

    In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict A>only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.=@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  Before we may reverse for factual insufficiency, we must first conclude with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  As the court of criminal appeals recently explained:

    Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence.  AThe difference between the two standards is that the former requires the reviewing court to defer to the jury=s credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury=s on these questions >albeit to a very limited degree.=@ In reality, a Afactual‑sufficiency review is >barely distinguishable= from a Jackson v. Virginia legal sufficiency review.@

     

    Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (citations omitted).

    A person commits robbery Aif, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003).  The offense is aggravated if the person uses or exhibits a deadly weapon.  Id. ' 29.03(a)(3).  AA person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.@  Id. ' 7.01(a).  AA person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . .@  Id. ' 7.02 (a)(2). 


    A>In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.=@  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).  The State may prove party status with circumstantial evidence.  Id.

    Mere presence at the scene of the offense does not establish guilt as a party to the offense.  Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel Op.] 1982).  Presence at the scene, however, is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that the accused was a participant.  Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1979).  Although flight alone will not support a Aguilty@ verdict, evidence of flight from the scene of the offense is also a circumstance from which an inference of guilt may be drawn.  Id.

    In the present case, appellant=s statements, testimony from co-participant Monica Deleon, and physical evidence connect appellant with the aggravated robbery and establish his responsibility.[1] That evidence relates to events before, during, and after the robbery.

    Events leading to the robbery.  In his statement to Officer Rivera, appellant described how he met Omar a few days before the robbery.  Shortly after they met, Omar told appellant he did not trust his present bodyguard, Guero, but did trust appellant.

    According to appellant, around 6:00 p.m. on the night of the robbery, Omar called appellant and asked, A>Do you want to make some money and ride with us?=@  Appellant admitted he Akind of knew what Omar meant by making some money, because when I first met him he asked me to sale [sic] dope for him, but I told him that I am not interested.@  Appellant then described the following events:  Omar and Aan Hispanic girl@ picked appellant up around 7:00 p.m. at the motel where he was living and drove him to a gas station, where they met people in three other vehicles; they then drove to a Wendy=s, where Omar told appellant what he was going to do, i.e., meet business partners Athat did him wrong and owed him lots of money.@  Appellant stated:

    Omar told me that it was a million dollar deal.  I was sitting in the back seat, Omar was in the front passenger side and the Hispanic girl was driving.  Omar handed me a 40 caliber Glock with no clip and told me Athat=s for you@.  I gave it back to him and told him that I could not go out like that.  Omar told me that all he wanted me to do was watch his back and for me and the girl to be outside in case something when wrong.  He told me that we were not going to be involved.

     

    Appellant further stated that, while they were at Wendy=s, Omar took the Glock from appellant and gave it to Guero.  Appellant moved to the front seat, and Guero returned to the car and put a shopping bag on the floorboard. Appellant looked in the bag and saw what Aappeared to be a 9MM UZI, silver in color.@[2]  An Hispanic male carrying a sawed-off shotgun wrapped in blue sheet got in the back seat.  Omar then told appellant: A>[T]his is the deal, it=s an inside job, the white girl driving the truck is going to deliver a cake to the man who lives at the house we were going to . . . .=  [W]hen the girl went to the door and the man opened it she was going to go inside and when she came back outside that was when he, Guero and Monster were going to go inside.@[3]

    Deleon=s testimony describing events that occurred just before she and Omar met appellant and her arrival at the scene of the robbery generally paralleled appellant=s statement.  Shortly before Deleon and Omar left Omar=s mother=s house the night of the robbery, Omar asked Deleon whether she would like to make some money and told her it was a Amillion dollar mission.@ Omar told her it would not be dangerous; all she had to do was wait by the side of the house for Omar to exit.

    Before Deleon and Omar left to meet appellant, two other vehicles appeared at Omar=s mother=s house.  Frank Medrano, Omar=s brother, and a female were in one of the vehicles.  A woman was in the second vehicle, a green Avalanche truck.

    Deleon and Omar met appellant at the motel where appellant was living.  Deleon was driving her car, a black Camry.  Appellant got in the back seat, and they drove to a gas station, where they met the person in the green Avalanche.  During the trip, Omar was communicating with someone on a walkie talkie.

    From the gas station, they drove to a Wendy=s.  On the way, while Deleon was stopped at a traffic signal, another male entered the vehicle and sat in the back seat.  Deleon initially knew him as ABlack,@ and later as Egbert Trevino.

    After appellant, Deleon, Omar, and Trevino arrived at Wendy=s, two Avalanches appeared.  The woman Deleon had seen earlier in the Avalanche was now accompanied by a male. A blonde woman Deleon later learned was Yolanda Vallejo was driving the other Avalanche, which Deleon described as Alook[ing] just like Omar=s.@  Finally, Frank, the woman who was with him earlier, and a teenager arrived in Frank=s car.  The men got out of the cars and were talking.

    Afterwards, appellant got in the front passenger seat of Deleon=s car, and Trevino got in the back, on the driver=s side.  As Trevino was walking toward Deleon=s car, Deleon saw him carrying a black gun which was wrapped in a blanket.  Omar then brought a Foley=s bag to appellant.  Appellant took the bag and put it on the floor in the front seat.  Appellant removed the gun from the bag, Aa little bit, but not all the way.@  It was a big silver gun.  Deleon also saw bullets in a box in the bag.

    The cars then left Wendy=s.  According to Deleon, Yolanda and Omar left first in one of the Avalanches.  The other Avalanche left next, then Deleon, and finally Frank.  Omar was instructing appellant by means of the walkie talkie.

    At the scene.  In his statement, appellant described the following events that occurred on the way to, and at, the scene:

    When we left the Wendy=s parking lot we drove I-10 west towards the Katy area and took an exit and made [a] left turn to a residential area.  Omar called me on my cell phone and tells me that he wanted me and the guy with the shotgun to meet him half way to the door of the house.  I told Omar, Ano@ that I was not going to get out and do it.  We were still following each other, the truck that the White girl was driving was in front, the Avalanche was [the] second[.] [T]he car I was in was third and Omar=s brother=s Impala was last.  The White girl parked her truck in front of a house and we saw the Avalanche leave.  I saw Omar=s brother driving around. . . .  We were driving around trying to find the Avalanche and then parked where we could see the White girls [sic] truck.   After we parked we heard about three to four gunshots and the Hispanic girl got scared and started the engine and was going to drive off.  After hearing the gunshots we saw Omar walking on the sidewalk walking towards us.  The Hispanic male sitting in the back seat with the shotgun got out of the car and went to Omar.  When Omar got into the back seat of the car, he said something in Spanish. . . . I asked what he said and the Hispanic male said Omar had been shot.

     

    According to Deleon, after they exited the freeway and were in the subdivision, the Avalanche with Yolanda and Omar stopped in the driveway of a house.  The other Avalanche kept going, and Deleon never saw it again.  Deleon also kept driving, but Omar contacted appellant on the walkie talkie and told appellant to direct Deleon to stop.  Deleon initially parked in a cul-de-sac, but Omar told appellant to return and park anywhere near the house.  As Deleon was driving toward the house, she passed Frank=s car.  A video taken by a surveillance camera on the Torneros= front porch showed Yolanda, and also two cars, passing the Torneros= house.

    Less than five minutes after Deleon parked, she saw Yolanda leave the house, go to the truck, and return to the house with Omar holding her by the neck.  When Yolanda and Omar entered the house, appellant and Trevino said, AGet ready.@  Deleon heard two clicks, one to her right, and one behind her.  It sounded like guns being loaded, but she did not see them.  Deleon then heard three  gunshots and saw Omar running from the house.  Omar fell in the grass about a yard from Deleon=s car.  Trevino exited the car, picked Omar up, and put him in the backseat.  Omar was covered with, and coughing up, blood.  Omar told Deleon to go, and she drove straight away.  She did not know where Frank was.  As Deleon was leaving the subdivision, Trevino was trying to contact Frank to tell him Omar was dead.

    The flight.  In his statement, appellant described leaving the scene of the robbery:

    After Omar got into the car we all panicked and the Hispanic girl begins to drive very fast and I had to calm her down, so we could do something, get some help for Omar.  I still had the UZI in front of me it was still in the bag.  As we were driving around I wrapped the UZI in some clothing and tossed it out of the car.  I believe I saw a sign that said Westhemier [sic], but I am not certain.  The Hispanic male with the shotgun also tossed the shotgun out the window somewhere on the feeder road of I-10.

    As we drove around trying to make a decision on what to do, Omar=s brother called the Hispanic male . . . .  The Hispanic male told me that Omar=s brother wanted us to get Omar out of the car and call 911 so that he could be picked up. . . .  I told them that I was going to call 911 and the Hispanic male and Omar=s brother said not to because we would all go to jail.  I decided to call 911 because Omar needed help.

     

    According to Deleon, when they finally were out of the subdivision, they came to a bridge over Akind of like a bayou.@  Appellant opened the window and threw the gun over the bridge.  Trevino did not dispose of his gun at that time.

    Appellant, Deleon, and Trevino eventually stopped at a restaurant parking lot.  Trevino got Omar=s clothes, and, at that point, Deleon saw a bullet proof vest.  Trevino gave Omar=s clothes to  appellant, and he threw them and the bullet proof vest into a dumpster.

    According to Deleon, as they drove on, Trevino and Frank were talking with each other, trying to determine where to meet and what to do.  Trevino eventually called 911 and told Deleon to stop the car.  Trevino and appellant removed Omar=s body from the car and left it by a bush.  Appellant, Deleon, and Trevino then met Frank in another parking lot. Deleon believed that, at some point, Frank called 911.  Everyone returned to Omar=s body, and a few minutes later the police and an ambulance arrived.

    Statements and evidence collected at the site of Omar=s body.  Harris County Sheriff=s Department Investigator Felipe Rivera talked briefly with appellant at the site of Omar=s body.  Appellant told Rivera where he could find the bullet-proof vest.  Appellant also told Rivera about disposing of the UZI somewhere on Westheimer.  Officers recovered a Glock .40 caliber weapon, a laser sight, .40 caliber ammunition, and a Foley=s bag in the area around Omar=s body.  There were two cars present:  a Toyota Camry and an older model Impala.  Officers found blood spatter and live gun shot shells in the back seat of the Toyota.

    Summary.  The evidence established that appellant was with Omar and the other co-participants for at least two hours before the robbery.  Appellant Akind of knew what Omar meant by making some money.@  Appellant knew of the plan to have Yolanda deliver a cake as a means of gaining entry into the Torneros= house.  Appellant knew Omar wanted appellant there to Awatch his back . . . in case something went wrong.@  At least from the point when everyone met at Wendy=s, appellant knew guns were involved.  On the way to the robbery, Omar was giving appellant instructions via a walkie talkie or cellular phone, and appellant was conveying them to Deleon.  Appellant was within arm=s reach of an UZI. While in the car outside the victims= house, appellant would have been in a position to see how Omar held Yolanda as they went toward or into the house.  When Yolanda and Omar entered the house, appellant and Trevino said, AGet ready,@ and Deleon heard two clicks, one to her right, and one behind her. Appellant disposed of the UZI and Omar=s bullet proof vest after the robbery.  Considering all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See King, 29 S.W.3d at 562 .

    The only evidence even potentially contradicting appellant=s intent to promote or assist in commission of the offense (but not contradicting evidence of his knowledge of the nature of the offense to occur) consists of appellant=s statements that (1) he refused to take the Glock from Omar and (2) he told Omar at the scene of the robbery he was not getting out of the car.  Having viewed all the evidence in a neutral light, we cannot conclude the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Watson, 204 S.W.3d at 417.

    In sum, the evidence was legally and factually sufficient to support appellant=s conviction of aggravated robbery as a party to the offense.  Accordingly, we overrule appellant=s first issue.

    II.       The Trial Court Correctly Exercised its Discretion in Admitting Appellant=s Statement

    In his second issue, appellant contends the trial court erred in admitting the statement appellant made to Officer Rivera.  Appellant gave his statement at the Sheriff=s detective bureau office between 8:00 and 9:30 a.m. the morning after Harris County officers had responded to an 11:00 p.m. call regarding Omar Medrano=s homicide and had transported five persons, including appellant, from that location to the bureau office.[4] The officers conducted the interviews in separate cubicles at the bureau office.

    Appellant did not file a pretrial motion requesting the trial court to suppress the statement.  Appellant objected at trial only after defense counsel had referred to specifics of the statement in his opening remarks and Rivera had testified about circumstances under which he took appellant=s statement.  Appellant=s objection, in its entirety, was as follows:

    Your Honor, I=m going to object because [appellant] was being detained at the time, although [Rivera] has testified that he could have stopped this at anytime and he was free to leave, but it=s obvious that he was surrounded by police officers.  He didn=t have a lawyer present.  So whatever consent he gave towards the statement, it was not freely and voluntarily given.  So I=m asking the court the suppress the statement and not allow it into evidence.

     

    Appellant now raises three complaints regarding admission of his statement.  First, he complains that the trial court did not Amake an independent finding outside the presence of the jury as to whether the statement was made under voluntary conditions@;[5] second, that his statement was not freely and voluntarily given because he was in custody at the time he gave the statement; and third, that the trial court did not instruct the jury on the law pertaining to the voluntariness of statements.

    Findings by the trial court.  On April 18, 2008, this court ordered the appeal abated and directed the trial court Ato  reduce its findings of fact and conclusions of law on the voluntariness of appellant=s confession and have a supplemental record containing those findings filed with the clerk of this Court . . . .@  See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004); McKittrick v. State, 535 S.W.2d 873, 876  (Tex. Crim. App. 1976). The trial court has done so.  Therefore, appellant=s first complaint is moot.  Rocha v. State, 16 S.W.3d 1, 10 (Tex. Crim. App. 2000).

    Voluntariness of the statement.  Appellant=s argument that his statement was involuntary rests solely on his contention he was Ain custody@ at the time he gave his statement.  He challenges the officers= testimony to the contrary.  The trial court, however, found that the law officers were credible and the defendant was Anever in custody during the pertinent time periods.@  The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

    Nevertheless, even were we to conclude appellant was in custody at the time he gave his statement, that circumstance would not, in itself, render his statement involuntary.  A statement may be deemed involuntary in three circumstances:  (1) noncompliance with Code of Criminal Procedure article 38.22;  (2) noncompliance with the dictates of Miranda v. Arizona;[6] or (3) a violation of due process or due course of law because the statement was not freely given (e.g., coercion, improper influences, incompetence).  Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996).  A confession is involuntary in violation of due process Aonly if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.@  Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see also Cravin v. State, 95 S.W.3d 506, 510 n.3 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (AThe Texas Due Course of Law provision has not been held to provide any greater protection than that afforded by the United States Constitution=s Due Process Clause.@).  A court bases its determination of whether a confession is voluntary on an examination of the totality of the circumstances.  Ramirez v. State, 116 S.W.3d 55, 58 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  Relevant circumstances for determining whether a defendant=s will has been overborne include Alength of detention, incommunicado or prolonged interrogation, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality.  A defendant=s characteristics and status, as well as the conduct of the police, are important concerns.@  Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985) (citations omitted).

    Contrary to appellant=s representation on appeal, the face of his statement and Officer Rivera=s testimony indicate appellant was read his Miranda and statutory rights and waived them.[7] Uncontradicted testimony supports the trial court=s findings that (1) appellant was not under arrest or handcuffed as he was transported to, or while he was at, the bureau office; (2) he was offered something to drink and a bathroom break when he first arrived at the office; (3) he was read his Miranda and statutory rights; (4) he indicated he understood his rights by placing his initials next to the rights on his written statement; (5) he never invoked any of his rights; and (6) no one coerced appellant to make a statement.  The trial court did not abuse its discretion in denying appellant=s motion to suppress his statement.  See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (AWe review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion.@).  Appellant=s second complaint is without merit.

    Lack of a jury instruction on voluntariness.  AWhen the issue [of the voluntariness of the accused=s statement] is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement.@  Tex. Code Crim. Proc. Ann. art. 38.22  ' 7.  In the present case, however, there was no evidence before the jury raising the question of the voluntariness of appellant=s statement. Accordingly, the trial court was not required to submit an instruction.  See Wiley v. State, 632 S.W.2d 746, 748 (Tex. Crim. App. 1982) (holding no merit in appellant=s contention trial court erred by failing to submit voluntariness issue to jury when the record failed to show request for instruction or that issue was raised before jury); Brownlee v. State, 944 S.W.2d 463, 468 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (same); see also Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994) (A[B]efore the requested instruction is required, some evidence must be presented to the jury which raises the issue of voluntariness.@).

    Having found no merit in appellant=s three complaints related to the voluntariness of his statement to Officer Rivera, we overrule his second issue.

    III.      Appellant=s Conviction does not Rest on the Uncorroborated Testimony of an Accomplice

     

    In issue three, appellant contends the evidence is insufficient to sustain the conviction because the testimony of an accomplice witness was not corroborated.  The witness was Monica Deleon, who drove one of the vehicles to the scene of the Fort Bend robbery and in whose car Omar Medrano fled the scene and died.

    Under the accomplice-witness rule, a defendant cannot be convicted based on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  Corroboration is insufficient if it merely shows commission of the offense.  Id.

    To determine whether sufficient corroboration exists, we eliminate the accomplice witness=s testimony from consideration and then determine whether any of the remaining evidence tends to connect the accused with commission of the crime.  Longoria v. State, 154 S.W.3d 747, 758 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  The corroborating evidence need not directly link the accused to commission of the offense, nor must it be sufficient in itself to establish guilt.  Id. In other words, it is not necessary for the non-accomplice evidence to connect the defendant with every element of the crime.  Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001).  The accomplice-witness rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to commission of the offense alleged.  Longoria, 154 S.W.3d at 758.

    A defendant=s presence in the company of the accomplice before, during, and after commission of the offense coupled with other suspicious circumstances may tend to connect the defendant to the offense.  Thompson v. State, 54 S.W.3d 88, 93B94 (Tex. App.CTyler 2001, pet.ref=d) (citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996)).  A defendant=s confession may sufficiently corroborate an accomplice=s testimony, so long as proof of the confession does not depend on the accomplice=s testimony.  Id. at 94 (citing Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993)).

    In our discussion of legal and factual sufficiency of the evidence above, we separated Deleon=s testimony from the remaining evidence establishing appellant=s guilt.  The remaining evidence consisted primarily of appellant=s oral and written statements.  This non-accomplice evidence clearly connected appellant with commission of the offense.  At a minimum, it established that (1) appellant knew in advance how the robbery was to be conducted, (2) was aware weapons were involved, (3) knew Omar wanted Deleon, Trevino, and appellant to Awatch his back,@ (4) received instructions from Omar on the way to the robbery, (5) had access to a weapon during the robbery, and (6) disposed of evidence after the robbery. Accordingly, we conclude that Deleon=s testimony was sufficiently corroborated.  Appellant=s third issue is overruled. 

    The judgment of the trial court is affirmed.

     

     

     

     

     

    /s/      Charles Seymore

    Justice

     

     

    Judgment rendered and Opinion filed October 16, 2008.

    Panel consists of Justices Yates, Seymore and Boyce.

    Do Not Publish C Tex. R. App. P. 47.2(b).

     

     


    [1]  As discussed in issues two and three, respectively, we conclude the trial court correctly exercised its discretion in admitting appellant=s statement, and Deleon=s testimony was sufficiently corroborated to support appellant=s conviction.

    [2]  Later in his statement, appellant said:

     

    At the time that Omar handed the first gun I said ANO@ and gave it back to him.  When he handed me the second gun that was in the bag, I felt that I could not say no because the guy sitting behind in the car had a shotgun, so I felt that I had to go along with them the best way I could and felt that I was in danger and could be shot if I did not go along with them.

    [3]  Monster is not otherwise identified.

    [4]  Although Officer Fikaris referred to six persons, Officer Rivera referred to only five.

    [5]  In support, appellant cites section 6 of the Code of Criminal Procedure Article 38.22, which provides:

     

    In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions.  If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.  Such order shall not be exhibited to the jury nor the finding thereof made known to the jury in any manner.  Upon the finding by the judge as a matter of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof.  In any case where a motion to suppress the statement has been filed and evidence has been submitted to the court on this issue, the court within its discretion may reconsider such evidence in [its] finding that the statement was voluntarily made and the same evidence submitted to the court at the hearing on the motion to suppress shall be made a part of the record the same as if it were being presented at the time of trial.  However, the state or the defendant shall be entitled to present any new evidence on the issue of the voluntariness of the statement prior to the court=s final ruling and order stating its findings.

     

    Tex. Code Crim. Proc. Ann. art. 38.22 ' 6  (Vernon 2005).

     

    Appellant complains only about the trial court=s not having made a finding on voluntariness outside the jury=s presence, not about the lack of a hearing outside the jury=s presence.  He does not suggest there is any evidence he could have presented other than that elicited from the officers who testified at trial.  That evidence did not raise a question of voluntariness. When an accused gives a statement to law enforcement authorities and testimony at trial does not challenge the voluntariness of the statement, an objection on the grounds of involuntariness, without more, is insufficient to create a fact issue requiring the trial court to conduct an inquiry into whether the statement was made voluntarily.  See Miller v. State, 666 S.W.2d 269, 273B74 (Tex. App.CDallas 1984, pet. ref=d), cited with approval in Moore v. State, No. 14-89-00008-CR, 1990 WL 151285 at *1 (Tex. App.CHouston [14th Dist.] Oct. 11, 1990, no pet.) (not designated for publication).

     

    [7]  See Miranda, 384 U.S. 436, 86 S. Ct. 1602; Tex. Code Crim. Proc. Ann. art. 38.22  ' 2 (Vernon 2005).