Opinion issued March 10, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01275-CR
MICHAEL LYNN HOLBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 912403
MEMORANDUM OPINION
Appellant, Michael Lynn Holbert, was convicted by a jury of capital murder. The trial judge sentenced appellant to life imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.
Background
At trial, Rashard Mays testified against appellant. Mays stated that, on the night of April 1, 2002, appellant and T. Wilridge picked him up in a stolen Ford Expedition. Wilridge had bought a Beretta nine millimeter gun from J. Marroquin, and the three of them decided to commit a robbery with the gun. They stole another car before the robbery so that they would not be caught in the Expedition. Appellant chose to rob the Royal Food Mart because it was empty. Wilridge stayed with the car, while Mays and appellant went into the store. All three men were wearing gloves to avoid getting prints on the stolen car. Mays was wearing a red pullover shirt, and appellant was wearing a dark-colored hooded shirt.
Mays testified that appellant had the Beretta when he got out of the car. Appellant went into the store first and got a Gatorade. Mays went into the store after appellant. Appellant pulled out the Beretta and told the complainant, Sukhdev Singh, to open up his cash register and give them the money. Mays testified that he told the complainant, “Do like he says.” The complainant did not open the register, but picked up the stool he was sitting on and started swinging it. Mays testified that he saw appellant shoot the complainant. Mays stated that both he and appellant left the store without taking any money. After getting into the car driven by Wilridge, appellant told them never to talk about their actions.
While in the store, appellant had seen a surveillance camera and shot at it. Neither appellant nor Mays realized that there was another camera and that a videotape was recording their actions. Deputy M. Staudt, a patrolman for the Harris County Sheriff’s Department, testified that he found the security videotape. B. Gorr, from the Forensic Audio Video Laboratory at the Houston Police Department, testified that the videotape was not a continuous recording; instead it captured time-lapsed images from the two video cameras in the store. Gorr stated that he made still photographs from the videotape at the request of Detective P. Klim.
Klim, assigned to the Homicide Division in the Harris County Sheriff’s Department, testified that she was the lead investigator on the case. She testified that she had watched the videotape multiple times, and that it showed a black male with braided hair, wearing a dark-colored shirt, pointing a gun at the complainant. The tape also showed another male, wearing a red hooded shirt. Klim stated that in the next image the complainant was holding a stool up in a defensive manner. Klim testified that, in her opinion, the shooting happened during a lapse in taping.
Deputy J.T. Wagner, of the Harris County Sheriff’s Department, testified that he was one of the crime scene units who investigated the shooting. When he arrived at the scene, he saw a Gatorade sitting on the counter. He recovered nine millimeter bullet casings from the store.
P. Boucher testified that on April 3, 2002, he saw appellant and four others pull into the Taco Bell parking lot at Deerbrook Mall. He saw appellant pull out a gun, which appeared to be a semi-automatic, and waive it over the dashboard of the Ford Expedition appellant was driving. Fearing that appellant was going to rob the Taco Bell, Boucher called 911. Boucher stated that appellant’s hair was in corn-rows.
Officer E. Squier, of the Humble Police Department, responded to Boucher’s 911 call. Squier, with police back-up waiting outside, went into the Taco Bell and asked appellant’s group who was driving the Expedition. Appellant denied driving the car and stated they had walked over from the mall. Appellant’s response made Squier suspicious that the Expedition was stolen. Squier then ran the vehicle identification number (VIN) of the Expedition and discovered that it had been stolen from Montgomery County. When Squier looked into the car to obtain the VIN, he saw a gun, with the handle pointing up, wedged between the driver’s seat and the middle console. With the help of his back-up, Squier arrested appellant and the members of his group. Boucher identified appellant as the driver of the car and as the person who had waived the gun around.
Upon searching the Expedition, Squiers found a Beretta nine millimeter gun, several different types of bullets, one bullet casing, and a pair of sporting gloves. The Beretta was brought to the Harris County Regional Firearms Laboratory for analysis and documented into the Integrated Ballistics Identification System (IBIS). IBIS is a nationwide computerized database for firearms, bullets, and cartridge casings. IBIS allows evidence recovered from an incident involving a firearm to be compared to other incidents in the database to determine whether the same firearm was used in another incident. M. Clements, a firearms and tool mark examiner with the Harris County Sheriff’s Office, conducted the analysis and documentation for the Beretta and entered his results into IBIS.
Deputy R. Anderson, assigned to the identification division of the Harris County Sheriff’s Office, analyzed and documented the bullet casings recovered from the Royal Food Mart. After entering the information on the casings into IBIS, Anderson discovered that a firearm possibly matching the weapon that had been used at the Royal Food Mart had been entered into IBIS by his department. Anderson testified that he obtained the information from IBIS and conducted a side-by-side microscopic analysis; he determined that the weapon from Clement’s analysis was the same firearm that was used to kill the complainant at the Royal Food Mart.
Klim was notified that the firearm that had been used in the shooting at the Royal Food Mart had been located and recovered from an arrest in Humble. She contacted a detective from the Humble Police Department and requested the names of the people arrested at the Taco Bell. The detective gave Klim the following names: Michael Holbert, Rashard Mays, Patricia Palacios, Gregory Brown, and Jonathan Hooper. Klim pulled photographs from the Harris County Sheriff’s and Montgomery County’s databases. She testified that she immediately recognized appellant as the man who had shot the complainant. Klim identified appellant in court, stating that his hair was shorter at trial than it was on the tape. Klim testified she believed that appellant was the person who had shot the complainant. Klim also stated that she recognized Mays from the videotape as the man who was wearing red. Based on her identification, Klim went to Mays’s home to arrest him. At the time of his arrest, Mays was wearing the same red shirt he had worn on April 1, 2002. Mays gave Klim a statement and the gloves he had worn during the shooting. Based on this information, Klim filed capital murder charges against Mays and appellant.
In addition to testifying at trial about the murder at the Royal Food Mart, Mays testified that, two days after the shooting, appellant drove three others and himself to Taco Bell. Appellant took the Beretta out of his waistband and put it between the Expedition’s seats. However, the members of the group were apprehended before anything happened in the store. Mays testified that he was charged as a juvenile, but was certified to stand trial as an adult for the capital murder of the complainant. The State offered to lessen the charge to aggravated robbery if Mays would testify against appellant.
Appellant’s mother and brother testified that they saw the videotape and the still photographs and that, in their opinion, appellant was not the man who shot the complainant. Appellant’s aunt testified that she did not braid appellant’s hair into corn-rows on April 1, 2002; she braided his hair on the 2nd.
Discussion
In two issues, appellant argues that the evidence is legally and factually insufficient to support his conviction for capital murder because the State did not prove beyond a reasonable doubt that appellant was guilty due to insufficient corroboration of Mays’s, the accomplice witness, testimony.
Article 38.14 of the Code of Criminal Procedure governs the testimony of accomplice witnesses. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Article 38.14 states, “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.” Id.
The Court of Criminal Appeals has declined to impose the traditional legal and factual sufficiency standards on a review of accomplice witness testimony under article 38.14. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from the state or federal constitutional principles that otherwise govern legal and factual sufficiency review. Id. at 462–63. Instead, the Legislature established the burden that the non-accomplice witness evidence must tend to connect appellant with the offense. Id. at 463.
The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then to examine the testimony of other witnesses to determine whether there is evidence that tends to connect the accused with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). The non-accomplice testimony does not have to prove beyond a reasonable doubt that the defendant is guilty of the offense. Id. Nor does the non-accomplice testimony have to directly link the defendant to the commission of the offense. Id. “The accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment.” Id. (emphasis in original). Even apparently insignificant incriminating circumstances may be sufficient corroborative evidence to satisfy the accomplice witness rule. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
The non-accomplice witness evidence establishes that appellant was seen in possession of the same Beretta that killed the complainant. Proof that connects appellant to the weapon used in the offense is proper corroborative evidence. Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988). Even evidence that connects the appellant to a weapon merely similar to the weapon used in the offense may corroborate the accomplice witness’ testimony. Id. The surveillance videotape and the photographic stills depict appellant and Mays committing the robbery; and Klim identified appellant and Mays as the two men on the videotape and in the stills. When considered jointly, the testimony of the non-accomplice witnesses is more than sufficient to tend to connect appellant with the capital murder of the complainant.
We overrule appellant’s first and second issues.
Conclusion
We affirm the judgement of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).