Curtis James Wilkerson v. State

• Court: Court of Appeals of Texas
• Decided: May 31, 2007
• Docket: 14-04-00384-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 31, 2007

Affirmed and Memorandum Opinion filed May 31, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00384-CR

CURTIS JAMES WILKERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

 Grimes County, Texas

Trial Court Cause No. 14,085-B

M E M O R A N D U M   O P I N I O N

A jury found appellant, Curtis James Wilkerson, guilty of three counts of aggravated robbery, and the trial court sentenced him to fifty years= confinement.^[1]  In three issues, appellant contends the trial court erred by (1) sentencing appellant for two of the three counts of aggravated robbery because the evidence is legally and factually insufficient, (2) allowing appellant to be convicted on accomplice testimony that was insufficiently corroborated, and (3) admitting into evidence guns which were never identified or properly authenticated.^[2] Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I.  Background

On December 4, 1998, at around 9:30 a.m. two African-American men wearing black ski masks and carrying guns entered A&B Food Mart in Grimes County.  One man remained at the entrance door while the other man approached the cash register counter. The man who approached the cash register asked the employee working at the cash register, Kh Ali Azam, for an adult magazine.  When Azam turned around from retrieving the magazine behind the counter, the man pointed a gun to his head and said, AGive me money or I will shoot you.@  When Azam did not immediately give him money, the man said, AGive me your money. Give me your money.@ 

Store owner, Intekhab Chowdury, and his manager, Muhammed Baqui, were standing behind the deli counter.  They told Azam to give the men the money.  Out of fear for their safety, Chowdury and Baqui, crawled on the floor behind the deli counter to the back room.  Azam slapped the gun that was pointed at him and dropped to the floor behind the counter.  Azam then crawled to the back room.  The armed man at the entrance door fired his gun, hitting the lottery ticket machine approximately two feet from the register.  He also fired a shot toward the back room and hit the upper left side of the door frame.  Chowdury, Baqui, and  Azam stayed in the back room with the door locked until customers knocked on the door and told them the robbers had left the store.  One of the witnesses at the store called the police.  Mark A. Telthorster was the first officer to report to the scene.  Officer Telthorster recovered the two bullets and interviewed Azam and Baqui.  He also interviewed Chris Maldonado, a Pepsi-Cola delivery driver who saw an African-American man with a large tattoo on his leg, talking on the outside pay phone moments before the robbery.  The man with the tattoo yelled at someone on the other side of the building who Apeep[ed] his head out@ and Awent back real quick.@  Officer Mark Bell arrived to collect evidence and assumed the role of lead investigator in the case. 

At the same time, Officer Craig Wiesepape, patrolled the area to look for suspects. Officer Wiesepape  went to Prince Hall Plaza, a nearby apartment complex, where someone told him that Frankie Sanders had recently come by.  Officer Wiesepape saw Sanders and appellant at the apartments and mentioned to them that there had been a robbery at A&B Food Mart.  Sanders told Officer Wiesepape that he had just awakened. Appellant told Officer Wiesepape he and Sanders had been to A&B Food Mart that morning but did not see anyone.  Officer Wiesepape noticed appellant had a tattoo on the calf of his right leg.

Officer Rob Bailey, a canine handler and patrol officer, began a track with his dog.  Bailey followed the dog to a trail behind the store that led to Prince Hall Plaza.  Along the trail, Officer Bailey found a jacket in a tree branch, a set of footprints, and a blue revolver.  When Officer Bell joined Officer Bailey on the canine track and inspected the jacket, a black ski mask fell from the jacket.  Officer Bell found a Achrome semi-automatic@ handgun when he picked up another black ski mask along or near the trail.  Later, Officer Bell returned to the trail to look for more evidence and found a black shirt, a white thermal shirt, and blue coveralls.  He also made plaster casts of footprints on the trail.  

Officer Chad Langdon, who was assisting Officer Bailey, inspected the footprints on the trail.  At Prince Hall Plaza, Officer Bell asked Officer Langdon to inspect the bottom of appellant=s and Sanders=s shoes to determine whether they matched the footprints on the trail.  Officer Langdon confirmed to Officer Bell that the shoes and the footprints matched. Officers searched the apartment where Sanders was staying and found no evidence.  They took Sanders and appellant to the police station.  The items of physical evidence described above were submitted for forensic analysis. 

The forensic experts, investigating officers, eye witnesses, and accomplice Sanders, testified at trial.  Appellant was convicted by a jury for three counts of aggravated robbery.

 II.  Sufficiency of the Evidence

In his first issue, appellant contends the trial court erred by sentencing appellant for two of the three aggravated robbery counts because the evidence is legally and factually insufficient.  Specifically, appellant contends the evidence is insufficient for two of the counts because two of the alleged victims were Amerely bystanders@ who did not have fear of imminent bodily injury.  We disagree. 

In determining legal sufficiency, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v.State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). 

In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict Aonly 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 be able to say, 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).  When reviewing evidence, we must avoid intruding on the fact-finder=s role as the sole judge of the weight and credibility of the witness testimony.   Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).  We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the fact-finder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). 

A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of 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). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. ' 29.03(a)(2) (Vernon 2003).  The unit of prosecution for robbery is each victim because robbery is a form of assault, and the allowable unit of prosecution for robbery should be the same as that for an assault.  Ex parte Hawkins, 6 S.W.3d 554, 560B61 (Tex. Crim. App. 1999).   

Appellant argues that Avictims are not merely bystanders who happen to be in the building.@  They must be subjected to the threat of imminent bodily harm.  Here, appellant was convicted for three counts of aggravated robbery against Chowdury, Baqui, and Azam.  Appellant contends that Azam, standing at the cash register, was the only victim of the aggravated robbery. The robbers= demands were directed towards Azam and a gun was not pointed toward Chowdury and Baqui.  Therefore, appellant contends, Chowdury and Baqui were not victims as they were not subjected to threats when the robber demanded the money.  Appellant argues Athe other alleged victims were merely present in the building, >talking in the back,=@ quoting Chowdury=s testimony.  However, Chowdury and Baqui were in the main area of the convenience store when the robbers entered.  The record reflects when Chowdury testified that he and Baqui were Atalking in the back,@ Chowdury was explaining they were standing behind the deli counter located in the store.  They were not Amerely on the premises@ as appellant contends in his brief.  Moreover, Chowdury testified the man at the cash register pointed the gun at him and Baqui.  He explained that he was Avery scared@ when the man pointed the gun because at any time the man could have shot and killed them.   Chowdury further testified that he was Avery much@ in fear of imminent bodily injury or death.

Baqui testified he saw the robbers for the first time when he heard one of them yell Agive it to me, give it to me.@  He testified that he did not remember whether he ducked before or after hearing shots were fired because Ait just spontaneously happened.@  He was so scared that he was shaking.  He explained that he was in fear of imminent bodily harm after he heard the shot.

Appellant further argues William Wolfe, a customer in the store at the time of the robbery, testified that Chowdury and Baqui began to run to the back room Aalmost immediately@ and that Wolfe did not mention any threats or guns pointed at Chowdury or Baqui.  However, the record reflects that Wolfe did not indicate exactly when they ran to the back room.  Wolfe also testified that the robber told him to Astay back@ before he demanded the money.    

It was the jury=s duty to determine the credibility of the witnesses and the weight to give their testimony. See Garza v. State, 633 S.W.2d 508, 514 (Tex. Crim. App. 1982). The jury could choose to believe or not believe the witnesses or choose to believe or not believe any portion of their testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Rojas v. State, 171 S.W.3d 442, 446 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). We will not engage in a second evaluation of the weight and credibility of the evidence. Muniz, 851 S.W.2d at 246; Harris, 164 S.W.3d at 784.

Viewing the evidence in the light most favorable to the jury=s verdict, we hold a rational trier of fact could have found Chowdury and Baqui were in fear of imminent bodily  injury or death beyond a reasonable doubt.  Viewing the evidence in a neutral light, we conclude that the jury=s verdict is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.  Accordingly, we find the evidence legally and factually sufficient.  We overrule appellant=s first issue. 

III.  Accomplice Testimony

In his second issue, appellant contends the trial court erred by allowing a conviction based on insufficiently corroborated accomplice testimony.  

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 2006).  To determine whether sufficient corroboration exists, we first 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 be sufficient in itself to establish guilt, nor must it directly link the accused to commission of the offense.  Id.  Rather, 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 in the indictment.  Id.

In analyzing a challenge to the sufficiency of corroborative evidence, we view the evidence in the light most favorable to the jury=s verdict and determine whether a reasonable juror could conclude that the non-accomplice evidence, taken as a whole, tends to connect the appellant to the offense.  Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Taken in isolation, suspicious circumstances such as the accused=s presence at the scene of the crime, motive, or opportunity to commit the crime are not by themselves sufficient to corroborate the testimony of an accomplice witness. See id. at 49; Jeffery v. State, 169 S.W.3d 439, 447 (Tex. App.CTexarkana 2005, pet. ref=d). But cumulative suspicious circumstances may tend to connect the accused to the charged offense, even if one of the circumstances is insufficient. Gill, 873 S.W.2d at 49. Viewed collectively, even otherwise insignificant incriminating circumstances may tend to connect a defendant to a crime.  Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).  Accordingly, we review all of the facts and circumstances in evidence to supply the necessary corroboration.  Moore v. State, 700 S.W.2d 193, 203 (Tex. Crim. App. 1985). We then examine Athe combined and cumulative weight of the evidence@ in determining whether the accomplice testimony was corroborated. Cox v. State, 830 S.W.2d 609, 611B12 (Tex. Crim. App. 1992).

Appellant does not dispute that Frank Sanders was an accomplice witness.  However, appellant contends Sanders=s testimony was not sufficiently corroborated because only his testimony affirmatively placed appellant at the scene of the robbery.  Excluding Sanders=s accomplice-witness testimony, the remaining evidence tends to connect appellant with commission of the crime.  See Longoria, 154 S.W.3d at 758. First, witnesses testified that both the man at the cash register holding the silver gun and appellant had a large tattoo on the leg calf.  Officer Craig Wiesepape testified he observed a tattoo on  the calf of appellant=s right leg.  Chris Maldonado, a Pepsi-Cola delivery driver, testified that he observed an African-American man at the outside pay phone.  He was wearing a black hood, pulled half-way up over his ears, baggy shorts, and had a large tattoo on the outside of his right calf muscle Aabout the size of a full hand.@  Later that day, police showed Maldonado a photo of appellant=s tattoo.  He told police that it looked like the tattoo he had seen on the man at the pay phone.  At trial, Maldonado was shown a photo of appellant=s tattoo.  He testified the photo looked like the tattoo because the one he saw on the man Aspread out in kind of a V.@  He thought the AV@ looked like the wings of a bird when he first saw it.  Detective David Bell testified that appellant=s tattoo appears to be a small child with his hands over head and is holding something.  William Wolfe, who was in the convenience store, testified the man at the cash register who had a Asilver@ gun wore dark, baggy shorts and had a Atattoo in dark ink on his calf.@ 

Javier Flores, a forensic analyst at Texas Department of Public Safety Crime Laboratory,  found DNA evidence in saliva in the lower lip of one of the black ski masks that police found on the trail the canine led them to between the store and the apartments.  Flores testified that in DNA testing, he can never conclude there is a definite match in DNA.  He can only determine that someone cannot be excluded as a potential donor.  Flores testified one mask did not have enough DNA to perform a comparison.  However, he retrieved sufficient DNA from the other mask and was able to exclude Sanders as the donor of the saliva but could not exclude appellant as the donor.  Wolfe testified the man at the cash register with a tattoo had a Asilver gun,@ and Officer Bailey testified he found a Achrome gun@ with a black ski mask on the trail between the store and the apartments where appellant and Sanders were arrested.  Flores did not know whether the mask that potentially contained appellant=s saliva was the same mask found with the silver gun.  However, only two masks were found on the trail and both were submitted for DNA testing.

Police found two sets of footprints at two locations on the trail where other evidence was recovered. The footprints matched the Ageneral characteristics@ of appellant=s shoe.  During the initial investigation, Officer Langdon inspected shoes worn by appellant and Sanders.  He told Officer Bell they appeared to match the footprints on the trail.  Officer Bell kept both pairs of shoes as evidence.  He also made plaster casts of the footprints found on the trail.  Juan Rojas, a forensic chemist at the Department of Public Safety Crime Laboratory examined the shoes and plaster footprints.  Rojas testified that Aboth of the shoes could have been the shoes that made the prints on these casts@ because they exhibited Ageneral characteristics@ in the toe and mid-part consistent with the two pairs of shoes in evidence.  Rojas used the term Ageneral characteristics@ because there were not any Aunique@ cuts on the shoes.  Rojas  explained that Ageneral characteristics@ meant the footprints were made by a shoe of the same style and size as the shoes taken from appellant and Sanders.

Appellant contends the guns admitted into evidence were never fingerprinted and no residue testing was performed.  Officer Bell testified he attempted to lift fingerprints from the guns but was unsuccessful.  Rojas testified that he tested hand swabs from both appellant and Sanders for gun residue.  He did not identify any gun residue; however, he explained that a negative test does not exclude the possibility that appellant and Sanders shot guns earlier that day. 

Viewing all the foregoing evidence in the light most favorable to the jury=s verdict, we conclude a reasonable jury could find that the cumulative effect of the non-accomplice evidence tends to connect appellant to the aggravated robberies at A&B Food Mart.  We overrule appellant=s second issue. 

IV.  Admission of Guns into Evidence

In his third issue, appellant contends the trial court erred by admitting guns which were Anever identified or properly authenticated.@  Specifically, appellant argues the state did not elicit testimony that the guns offered into evidence were actually used in the robbery.         We review a trial court=s decision to admit or exclude evidence for abuse of discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). We will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). If the trial court=s ruling is supported by the record and is correct under any theory of law applicable to the case, we uphold that ruling. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

 Azam testified that the man at the cash register pointed a Asilver-colored@ gun at him three to four inches from his head.  He testified that the man at the entrance door had a different kind of gun with a Ared or burgundy@ butt.  Azam explained that the guns being entered into evidence Alooked similar@ to the guns he saw during the robbery because they were the Asame color@ and Asame kind.@  He further testified that he did not know whether they were the Avery same guns@ used in the robbery.

A weapon used or alleged to have been used in commission of a crime is admissible.  Foster v. State, 779 S.W.2d 845, 861 (Tex. Crim. App. 1989) (citing Cole v. State, 450 S.W.2d 661, 662 (Tex. Crim. App. 1970)).  AAn object, such as a weapon, offered in evidence should not be rejected >solely because it is not positively identified as the exact object that was connected with the crime.=@ Id.  A lack of positive identification affects the weight, not admissibility of the evidence.  Id. 

Evidence in the record establishes a sufficient connection between appellant, the guns, and the robbery at A&B Food Mart.  See id.  In addition to Azam=s testimony regarding the guns, Chowdury testified both men carried guns.  William Wolfe, a customer in the store at the time of the robbery who has worked as a law enforcement officer and instructor, testified he saw both guns.  He described the gun used by the man at the cash register as having a Apearl handle@ and Asilver in nature.@  He described the gun used by the man at the entry door as a Ablack snub-nosed, short, brown-handled.@ He testified both guns entered into evidence looked like the guns he saw the gunmen use during the robbery.  Moreover, he testified the man at the cash register who was holding the  Asilver@ gun was wearing shorts and had a tattoo on the calf of his leg.  Chris Maldonado, the Pespi-Cola delivery man, testified he saw someone with a tattoo on the right calf outside the store shortly before the robbery, and  Officer Wiesepape testified he observed a tattoo on the calf of appellant=s right leg. 

In addition, Detective Bell testified a Achrome semi-automatic, small caliber handgun@ fell out of a black ski mask he found on the trail.  Javier Flores  testified he found saliva on the lower lip of the two black ski masks given to him by the Navasota Police Department.  He recovered enough DNA to perform a comparison on one of the masks.  Based on the comparison, he excluded Sanders as the donor of the saliva but he could not exclude appellant.  Officer Bailey also  testified he found a blue revolver on or near the trail.  William Sorrow, a firearms examiner for the Texas Department of Public Safety Crime Laboratory, testified the bullets submitted for testing were fired from the blue revolver because they were of the same caliber and shared the class and characteristics of projectiles fired from the blue revolver.

Accordingly, the State=s evidence established a sufficient connection between the guns, appellant, and this offense.  The lack of positive identification affected only the weight, not admissibility of the guns as evidence. Foster, 779 S.W.2d at 861. Accordingly, the trial court did not abuse its discretion by admitting the guns into evidence.  See id.; Price v. State, No. 05-95-01855-CR, 1998 WL 310504, at *2B3 (Tex. App.CDallas, June 15, 1998, no pet.) (not designated for publication) (finding trial court did not abuse its discretion in admitting into evidence guns used in a grocery store aggravated robbery where witness described three guns as Alooking like a sawed off shotgun,@ a Along gun,@ and a Ashort gun@). 

We overrule appellant=s third issue and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed May 31, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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

---

^[1]  The First Court of Appeals dismissed appellant=s first appeal for want of jurisdiction because the notice was not timely filed.  Wilkerson v. State, No. 01-00-00226-CR, 2000 WL 768846, at *1 (Tex. App.CHouston [1st Dist.] June 15, 2000, no pet.) (mem. op.).  Thereafter, appellant successfully pursued a writ of habeas corpus; the Court of Criminal Appeals granted appellant an out-of-time appeal.  Ex parte Wilkerson, No. 74887, 2004 WL 231504, at *5 (Tex. Crim. App. Feb. 4, 2004).  Appellant filed this appeal pursuant to the out-of-time appeal granted by the Court of Criminal Appeals. 

^[2]  The State did not file a responsive brief.