Andre Jamail Gilliam v. State ( 2011 )

Opinion issued July 14, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00674-CR

———————————

Andre Jamail Gilliam, Appellant

V.

State of Texas, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1224664

MEMORANDUM OPINION

Andre Jamail Gilliam was convicted by a jury of aggravated robbery with a deadly weapon and sentenced by the court to 40 years in prison.  In three issues, appellant contests the corroboration of the alleged accomplice’s testimony and the legal and factual sufficiency of the evidence.

We affirm.

Background

In August, 2007, Harris County Sheriff’s Deputy Brooks and other officers were dispatched to a robbery in progress at a “99 Cent Store.”  When they arrived, the officers spoke to the employees present and learned that the suspects were three black males with handguns who, because they wore ski masks, were unidentifiable.  The door to the safe by the front of the store was open and change, boxes and register tills lay strewn about on the ground. 

Officer Brooks reviewed the recording from the store’s surveillance system and saw three masked males enter the store through a loading door at the rear of the store. The video also depicted a female employee (later determined to be Tyresha Richard) walk to the loading dock’s bay door, kneel down where the locking device on the door was located, and do something.  Both Richard and one of the robbers could be seen using their cell phones just before she unlocked the door.

The masked men entered the store shouting and brandishing pistols. Assistant manager Ms. Smith was directed to call the other employees to the back of the store where, at gunpoint, all were required to lie down on the office floor.  Ms. Smith testified that she feared that she was going to die but that Richard, who was on the floor along with the others, never appeared startled or scared throughout the episode.

The $3,000 in stolen cash was never recovered. 

Richard testified that about three weeks prior to the robbery she, her roommate and Gilliam (her roommate’s boyfriend) drove to the store to pick up her paycheck.  En route, Gilliam asked her several questions about the store’s alarm system, surveillance cameras and the location of the safe.  On the day of the robbery, Gilliam called and told her “it was going to happen that day,” which she understood to mean that he would rob the store that day.  He inquired about security guards he had seen in the parking lot, who was in the store, and if a manager was present.  He instructed Richard to unlock the back door and she did.

A few days after the robbery, Sergeant Spurgeon of the Sheriff’s Office reviewed the surveillance tapes and then met with Richard, who gave a statement. The following day Richard called the Sergeant back to provide even more information and to tell him that Gilliam was calling and threatening her family and that Gilliam’s girlfriend (her roommate) had also participated in the robbery.  Following his review of the surveillance tapes and Gilliam’s and Richard’s phone records both before and after the robbery as well as the following day, Sergeant Spurgeon determined that Richard, too, was a participant.

 At trial, Gilliam’s girlfriend, Twanna Jackson, testified that she and Gilliam were home all night on the night of the robbery and she did not recall him being on the phone that night.  The list of calls to and from Gilliam’s phone, however, showed usage.

Sufficiency of Corroborating Accomplice Evidence

In his first issue, Gilliam contends that the trial evidence was insufficient to corroborate Richard’s testimony and cannot support the verdict. 

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  2005). 

The test to weigh the sufficiency of corroborative evidence is to eliminate the accomplice witness’ testimony and then to examine the other evidence to determine if there is any evidence which “tends to connect” the defendant with the commission of the crime.  Longoria v. State, 154 S.W.3d 747, 758 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).   The corroborative evidence “need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense.”  Id.  Instead, the “accomplice witness” rule is satisfied if there exists some non-accomplice evidence that “tends to connect” the accused to the commission of the offense alleged in the indictment. Id. No specific quantum of evidence is required to corroborate accomplice testimony.  Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).   We view the corroborating evidence in the light most favorable to the jury’s verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

Gilliam contends that the only corroborating evidence are phone records showing a series of calls between his and Richard’s phones within a particular time frame.  This, he argues, distinguishes his case from Longoria, supra, in which cell phone records were matched with additional corroborating testimony sufficient to satisfy the accomplice witness rule.  However, Gilliam would have us ignore other telling evidence corroborating Richard’s testimony: the surveillance tape depicting the simultaneous cell phone use of both Richard and one of the robbers as she unlocked the door through which entry was made.

As in Longoria, “[t]he main pieces of corroborative evidence . . . are the cellular telephone records,” Longoria, 154 S.W.3d at 758,  and, also as in Longoria, Gilliam complains that the records reflect no more than that a call was made from one number to another, but not who made the calls “or that there were actual conversations between . . . Gilliam and Richard.”  As the Fourteenth Court expressed in Longoria, however, “[t]here is a natural and permissible assumption that calls from a person’s cellular telephone were made by that person.”[1]  Id.  As this court has held, “[c]all records are strong circumstantial evidence that tends to connect appellant to the offense because it shows that appellant was in direct communication with the actors immediately before and after commission of the crime.”  Cooper v. State, No. 01-05-00764, 2006 WL 2974366, at *4 (Tex. App.—Houston [1st Dist.] Oct. 19, 2006, pet. ref’d) (mem. op.).

Taken in conjunction with the video depiction of Richard and a robber on simultaneous phone calls during the episode, we find that this evidence satisfies the accomplice witness rule.  We overrule Gilliam’s first issue.

Sufficiency of the Evidence

          Gilliam’s second and third issues are complaints that the evidence was legally and factually insufficient to support the verdict.  His discussion of these challenges is made in a single argument and we will so address them.

Standard of Review

The test for factual insufficiency is indistinguishable from that of legal sufficiency.  See Brooks v. State, 323 S.W.3d 893, 901 (Tex. Crim. App. 2010).[2]

In assessing legal and factual sufficiency, we determine whether, based on all of the record evidence viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788-89 (1979);  Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).  Under the Jackson standard, evidence is insufficient to support a conviction when, considering all the evidence admitted at trial in the light most favorable to the verdict, a fact finder could not have rationally found that each element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U. S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). A defendant may establish this under two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence, viewed in the light most favorable to the verdict, conclusively establishes a reasonable doubt.  See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2788–89; Williams, 235 S.W.3d at 750; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).  An appellate court presumes that the trier of fact resolved any conflicts in the evidence in favor of the verdict and must defer to that resolution, provided that the resolution is rational.  See Jackson, 443 U.S. at 326; 99 S. Ct. at 2793. Nor may an appellate court re-evaluate the weight and credibility of the record evidence and substitute its own judgment for that of the fact finder.  Williams, 235 S.W.3d at 750.

A.   Application to Facts

Here, Gilliam was charged with aggravated robbery with a deadly weapon.  A person is guilty of robbery if  “in the course of committing theft . . . 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 (Vernon 2003).  One is guilty of aggravated robbery if he commits robbery with the use or exhibition of a deadly weapon.   Tex. Penal Code Ann. § 29.03 (Vernon 2003). A firearm is considered a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon 2003). 

Gilliam claims that Richard’s testimony is so “spotty, contradictory and unreliable” that it is factually insufficient to support the verdict and points to a number of areas in which Richard contradicts herself and/or changes her story. These contradictions, Gilliam argues, so weaken her testimony that “a reasonable fact finder could not find it credible enough to support a guilty verdict against Gilliam and subsequent forty year prison sentence.”  They include:

1. Whether or not she had ever given statements under oath;

2.  The physical description of Gilliam;

3. Her testimony as to the nature and length of her familiarity with Gilliam;

4. Whether she had been coached to admit the crime;

5. Who initiated the phone calls between Gilliam and her;

6. Her demeanor in trial; and

7. Gilliam’s claim that credibility of the exculpatory testimony of Twanna Jackson was so unassailable that, set against Richard’s “spotty, contradictory, and unreliable” testimony, a reasonable fact finder could not find Gilliam guilty.

Such contentions speak to witness credibility and evidentiary weight: the jury’s province.  Lancon v. State, 253 S.W.3d 699, 704–705 (Tex. Crim. App. 2008).

 The jury heard evidence about the surveillance tapes showing Tyresha Richard using her cell phone, then kneeling down and unlocking the back bay door to the store. The jury further heard of the terrifying particulars of the robbery itself and its effect on other victims, contrasted with Richard’s composure throughout. The phone records confirmed numerous calls between Gilliam and Richard both before and after the robbery as well as the following day.  Moreover, the jury heard and was afforded the opportunity to assess Richard’s own testimony that, as a participant, she provided key information to and acted upon instructions from Gilliam. 

We find this evidence legally and factually sufficient to support the jury’s verdict.

We overrule Gilliam’s second and third issues.

Conclusion

We affirm the judgment of the trial court.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Justice Massengale joins the opinion except for footnote 2.

Do not publish. Tex. R. App. P. 47.2(b).

---

[1]           Gilliam notes that records of texting between Richard and Gilliam were not discussed by the prosecution and extrapolates therefrom that the texts must have harmed the State’s case.  As Gilliam, too, had evidence of text messages and elicited no testimony about the texts, such a conclusion is unwarranted and remains irrelevant to our decision.

[2]            But see, Ervin v. State, 331 S.W.3d 49, 57—58 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (Jennings, J., concurring); and Romero v. State, 331 S.W.3d 82, 85 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (Seymore, J., concurring) contending Brooks contravenes the Texas Constitutional requirement that “[t]he decision of [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error.” Tex. Const. art. V § 6(a).