Perry Green v. State ( 2012 )

Affirmed and Memorandum Opinion filed May 8, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-10-01085-CR
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PERRY BERNARD GREEN, Appellant,
V.
THE STATE OF TEXAS, Appellee.
On Appeal from the 177th District Court
Harris County
Trial Court Cause No. 1211703
MEMORANDUM OPINION
A jury found appellant Perry Bernard Green guilty of the offense of aggravated
robbery and, after finding two enhancements true, assessed his punishment at twenty-five
years’ confinement in the Texas Department of Criminal Justice, Institutional Division. On
appeal, Green contends the evidence is insufficient to support his conviction because an
accomplice’s testimony was not corroborated by other evidence and the trial court erred by
admitting a letter and certain testimony constituting inadmissible hearsay. We affirm.
I
On the night of March 20, 2009, Erika Martinez got off work at the Stein Mart store
in the Meyerland Plaza shopping center and walked toward a nearby Target store while
talking on her cell phone. As she walked, a man came up behind her and grabbed her purse.
They struggled briefly, and the man threatened to hit Martinez if she did not let go of the
purse. The man took the purse and jumped into the passenger seat of a waiting car.
Martinez did not see the driver. The man who took Martinez’s purse was later identified as
Sam Hughes, the accomplice witness in this case. The driver was identified as Green.
As soon as she was attacked, Martinez began screaming. Around the same time,
Michael Morris was walking out of a store near the Target with his fiancée when he heard
Martinez’s screams and saw Hughes take her purse. According to Morris, Hughes then
jumped into a white Toyota that was waiting for him with its passenger door open. Morris
attempted to stop the vehicle, but it accelerated toward him. Morris jumped onto the hood
of the vehicle so he would not be run over. Morris pounded on the windshield and told
Green to slow down so he could get off, but Green, whose face Morris could see, shook his
head and continued driving through the shopping-center parking lot, swerving several
times. Eventually Green had to slow down to turn at a blocked exit, and Morris slid off.
Green and Hughes sped away. Morris received chiropractic treatment for minor injuries he
received.
Morris got the license plate number of the vehicle and gave it to the police. Officer
John Varela, an investigator with the Houston Police Department, determined that the
vehicle was registered to Earnest Burnett. Varela interviewed Burnett, who did not match
the physical descriptions of the suspects. Burnett told Varela that he had lent the vehicle to
Green. At trial, over Green’s objection, Varela testified that Burnett lent his car to Green in
exchange for crack cocaine.
Varela obtained a photo of Green, placed it in a photo array, and showed it to
Morris. Morris identified Green’s photo as that of the driver. Varela then obtained a
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warrant for Green’s arrest. After Green was arrested, Varela showed Morris a CD video
lineup including Green, and Morris again identified Green as the driver of the vehicle used
during the robbery. Morris also identified Green in court.
Varela interviewed Green, who identified Hughes as his accomplice. Varela
obtained a photo of Hughes, placed it in a photo array, and showed it to Martinez, who
immediately selected Hughes’s photo and identified him as the man who stole her purse.
Varela then obtained a warrant for Hughes and arrested him.
Hughes admitted during the trial that he stole Martinez’s purse, but he did not recall
what he said to her as he grabbed it. According to Hughes, it was Green’s idea to make
some “quick money” by stealing purses and Green agreed to split the money with Hughes.
Hughes testified that he intended to use his share of the money to buy drugs from Green.
Green picked up Hughes and they drove to Meyerland Plaza, where they circled the
parking lot several times looking for someone whose purse they could steal.
Hughes acknowledged that he had been convicted of robbery before, and had other
convictions for theft and shoplifting. He also acknowledged that he entered a plea of
“guilty” to aggravated robbery in the charged offense in accordance with a plea agreement
with the State. The agreement was for a maximum sentence of twenty years. On
cross-examination, however, Hughes agreed that he “hoped” the State would request a
lesser sentence if he testified.
Hughes also testified that that while he was in jail he received two threatening
letters. The prosecutor showed him a letter which Hughes identified as one of the two he
had received. As discussed in an earlier bench conference, the prosecutor sought to offer
the letter for a limited purpose, but defense counsel objected to the letter’s “admissibility”
and on Texas Rule of Evidence 403 grounds.1 The trial court instructed the jury that the
1
Outside the presence of the jury, defense counsel questioned Hughes about the letters. Hughes
testified that he received two threatening letters while in jail, but he did not have the other one. When
Hughes confirmed that he had never seen Green’s handwriting before, counsel objected to the admission of
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exhibit was “not going to be admitted for the truth of the statements therein” but would be
admitted “for the limited purpose of showing the effect that the words had on [Hughes’s]
state of mind at the time that he received it.”
Hughes then read the contents of the letter to the jury. In the letter, Hughes was
instructed to execute an accompanying affidavit and return it. The letter included threats of
harm if Hughes did not follow the instructions. The proposed affidavit included the
following statement: “I take full responsibility for the aggravated robbery that occurred on
March 20, 2009. And that Mr. Perry B. Green didn’t hav[e] nothing to do with it or had any
knowledge of what I did.” Hughes testified that the letter made him nervous and scared
because he was locked up and he feared that he might be attacked. On cross-examination,
Hughes acknowledged he did not know who actually sent the letter.
II
In his first issue, Green contends that because the testimony of Hughes, the
accomplice witness, was not corroborated as required by Texas Code of Criminal
Procedure article 38.14, the evidence is insufficient to support the jury’s verdict. Green
argues that the only evidence that Green was a party to a theft comes from Hughes.
Excluding Hughes’s testimony concerning the theft, Green argues, the only offense proved
is aggravated assault on Morris. Without Hughes’s testimony, Green maintains, there is
nothing to connect Green to the theft of Martinez’s purse.
A
A person commits robbery if “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 § 29.02(a)(2).
the letter because Hughes could not identify Green’s writing and “anyone could have written these letters.”
The prosecutor responded that even if Hughes could not prove Green wrote the letters, they were relevant to
show their impact on Hughes’s state of mind and his credibility before the jury. After some discussion, the
trial court ruled that the letter would be admitted for the limited purpose of state of mind and not for the
truth of the matter asserted. Defense counsel then objected to the letter on Rule 403 grounds.
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A person commits theft if “he unlawfully appropriates property with intent to deprive the
owner of property.” Tex. Penal Code § 31.03(a). To prove aggravated robbery, the State
must prove robbery plus an aggravating factor, such as the defendant “uses or exhibits a
deadly weapon.” Id. § 29.03(a)(2).2 The robbery element of “in the course of committing
theft” is defined as “conduct that occurs in an attempt to commit, during the commission,
or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1). The jury
was authorized to convict Green for aggravated robbery, either as a principal or a party.
Article 38.14, titled “Testimony of Accomplice,” requires that before a conviction
may rest upon the testimony of an accomplice witness, the accomplice’s testimony must be
corroborated by independent evidence tending to connect the accused with the crime. Tex.
Code Crim. Proc. art 38.14; Simmons v. State, 282 S.W.3d 504, 505 (Tex. Crim. App.
2009). In our review, we eliminate all accomplice-witness testimony from consideration
and then determine whether the remaining non-accomplice-witness testimony and
evidence tends to connect the accused with the commission of the crime. Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008); Yost v. State, 222 S.W.3d 865, 872 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d). When there are two views of the
evidence—one tending to connect the accused to the offense and the other not—then
appellate courts should defer to the fact-finder’s view of the evidence. Smith v. State, 332
S.W.3d 425, 442 (Tex. Crim. App. 2011); Simmons, 282 S.W.3d at 508.
To meet the requirements of the rule, the corroborating evidence does not need to be
sufficient in itself to establish guilt. Malone, 253 S.W.3d at 257. Nor is it necessary for the
non-accomplice evidence to directly link the accused to the commission of the offense. Gill
v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). The evidence must simply link the
accused in some way to the commission of the crime, and show that rational jurors could
2
In this case, the indictment reflected that Green “while in the course of committing theft of
property owned by ERIKA MARTINEZ, and with intent to obtain and maintain control of the property,
intentionally and knowingly threaten[ed] and place[d] MICHAEL MORRIS in fear of imminent bodily
injury and death” and that Green used or exhibited a deadly weapon, namely a motor vehicle. Officer
Varela testified that a motor vehicle can be a deadly weapon.
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conclude the evidence sufficiently tended to connect the accused to the offense. Simmons,
282 S.W.3d at 508. Each case must be decided on its own facts and circumstances. Smith,
332 S.W.3d at 442; Gill, 873 S.W.2d at 48. All facts, both direct and circumstantial, may be
examined in ascertaining whether sufficient corroboration exists. Gosch v. State, 829
S.W.2d 775, 777 (Tex. Crim. App. 1991).
B
Green contends that, apart from Hughes’s testimony, there is (1) no evidence that he
had any knowledge of Hughes’s intentions or actions, (2) no testimony that he was driving
around the parking lot before the theft, and (3) no testimony that he received any of the
stolen property. Therefore, Green posits, the evidence is insufficient to support his
conviction for aggravated robbery.
Morris, an eyewitness and complainant, testified that he saw the man who stole
Martinez’s purse get in a white Toyota car that was waiting for him with its door open.
Morris also testified that he got a good look at the driver of the car used in the robbery.
Additionally, Morris provided police with the license-plate number of the car, which led
them to Burnett, who said he had lent the car to Green the night of the robbery. Morris
positively identified Green as the driver from a photo array and a video lineup. Green was
arrested and questioned, and the police obtained the name of the accomplice, Hughes.
Martinez then identified Hughes from a photo array containing his photo, and at trial
Martinez positively identified Hughes as the person who stole her purse. Morris positively
identified Green at trial as the driver of the car used in the robbery.
Thus, the evidence apart from Hughes’s testimony, including Morris’s positive
identification of Green as the driver of the vehicle used during the robbery, tends to
connect Green with the offense of aggravated robbery.3 See McAfee v. State, 204 S.W.3d
3
The authorities Green relies on as support for his contention on appeal are distinguishable
because in those cases, no eyewitnesses other than the accomplices connected the appellant to the crime.
See Gaston v. State, 324 S.W.3d 905, 909–11 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d), and King
v. State, 334 S.W.3d 818, 822–23 (Tex. App.—Beaumont 2011, pet. ref’d).
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868, 871–72 (Tex. App.—Corpus Christi 2006, pet. ref’d) (holding that eyewitness
testimony of police officers who watched appellant meet with informant at scene of
pre-arranged drug transaction and discovery of contraband found on other occupant in
appellant’s vehicle during traffic stop immediately after transaction was sufficient to
corroborate testimony of accomplice and informant); Green v. State, 72 S.W.3d 420,
424–25 (Tex. App.—Texarkana 2002, pet. ref’d) (holding eyewitness testimony and
appellant’s close proximity to illegal drugs were sufficient to tend to connect appellant to
offense of manufacture of methamphetamine). We conclude the evidence is sufficient. We
overrule Green’s first issue.
III
Green briefs his second and third issues together. In these issues he contends the
trial court abused its discretion by admitting, over his objections, (1) hearsay evidence
consisting of a letter Hughes received in jail and (2) Varela’s testimony that Burnett told
him he lent his car to Green in exchange for illegal drugs. Green further argues that the
errors were not harmless.
A
We review a trial court’s decision to admit evidence under an abuse-of-discretion
standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court
does not abuse its discretion unless its ruling lies outside the zone of reasonable
disagreement. Id.
Hearsay, a statement made by the declarant other than while testifying and offered
to prove the truth of the matter asserted, is generally inadmissible. Tex. R. Evid. 801(d);
Tex. R. Evid. 802. An extrajudicial statement or writing which is offered for the purpose of
showing what was said rather than for the truth of the matter stated therein is not hearsay.
Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995).
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B
1
Green first argues that Varela was allowed to testify over objection that (1) Burnett
lent his car to Green, and (2) Burnett gave the car to Green in exchange for cocaine. Green
maintains these statements could only be relevant for the truth of the matter asserted. He
alleges that the State needed the first to show that Green had that particular car on the night
of the offense and the second to argue that Green “was a robbing, assaultive, drug dealer.”
Green contends that the State argued these statements as truth in its closing argument and
they were “available to the jury as substantive evidence.”
When the prosecutor asked Varela who Burnett said had his vehicle on the night of
the offense, defense counsel objected to the answer as hearsay. The trial court asked the
prosecutor why the testimony was sought, and the prosecutor replied, “It’s offered for the
purpose of how he obtained the [d]efendant’s name.” The trial court overruled the
objection and Varela answered, stating, “He told me the suspect’s [sic] or the person that he
let borrow the car that night was a man by the name of Perry and gave me Perry’s address
and the license plate number to the vehicle.” Later, the prosecutor asked Varela what
reason Burnett gave for lending his car to Green. Defense counsel also objected to this
testimony as hearsay. The trial court asked why the State wanted the testimony, and the
prosecutor explained that it was sought for the purpose of finding out why Burnett said that
he had lent his car to Green, and it was not being offered for the truth of the matter asserted.
After the prosecutor represented to the trial court that she would be able to show that
Varela took action as a result of the receipt of this information, the trial court allowed the
testimony. Varela then testified that Burnett said he lent the car to Green for crack cocaine.
Varela also testified that he followed up on that information when he interviewed Green,
and his interview “was consistent” with the information.
Although a police officer’s testimony may be inadmissible due to hearsay, an
officer may describe statements made by others for the purpose of showing why the
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defendant became a suspect and to explain the events and circumstances leading to the
defendant’s arrest. Dinkins, 894 S.W.2d at 347; Lacaze v. State, 346 S.W.3d 113, 121 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). Varela’s testimony that Burnett told him he
lent his car to Green explains how Green became a suspect and therefore the trial court did
not abuse its discretion in admitting it. See Lacaze, 346 S.W.3d at 121.
Green also complains that the trial court’s admission of the second statement
enabled the State to argue that he was a “robbing, assaultive, drug dealer” as a motive for
the crime. Inadmissible evidence can be rendered harmless if other evidence at trial is
admitted without objection and it proves the same fact that the inadmissible evidence
sought to prove. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); Mayes v.
State, 816 S.W.2d 79, 88–89 (Tex. Crim. App. 1991). The testimony that Burnett lent his
car to Green in exchange for cocaine is substantially similar to Hughes’s un-objected-to
testimony that he intended to use his share of the money from stealing purses to buy drugs
from Green, as both suggest that Green was a drug dealer. And the testimony by Morris
was evidence that Green was a party to robbery and assault. Therefore, any error in
admitting the second statement was harmless. See Mayes, 816 S.W.2d at 88–89.
2
Green also contends the trial court should not have admitted the letter Hughes
testified he received while in jail because it constituted hearsay. At trial, Green objected
that the letter was not admissible because it was not authenticated and on Rule 403
grounds, but he did not object that the letter constituted hearsay. Consequently, any claim
he may have had that the exhibit was hearsay was not preserved for appeal. See Tex. R.
App. P. 33.1; Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000); see also
Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (“[A]ll existing authority
holds the admission of hearsay must be preserved with a timely and specific objection to
the evidence.”).
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3
Finally, Green contends that the trial court’s admission of hearsay evidence was
harmful because it deprived him of his right to confront witnesses in violation of the
Confrontation Clause of the United States Constitution. See Crawford v. Washington, 541
U.S. 36, 68 (2004). But Green did not object to any of Varela’s testimony or the admission
of the letter on the ground that he was deprived of the right to confront and cross-examine
witnesses; therefore, his complaint is not preserved. See Reyna v. State, 168 S.W.3d 173,
179 (Tex. Crim. App. 2005); Lacaze, 346 S.W.3d at 122 (“[A]n objection to hearsay does
not preserve error based on a violation of the Confrontation Clause.”).
We therefore overrule Green’s second and third issues.
***
The trial court’s judgment is affirmed.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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