Bronchea Gerad Walker v. State

ACCEPTED
06-15-00136-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/30/2015 1:12:03 PM
DEBBIE AUTREY
CLERK

NO. 06-15-00136-CR

FILED IN
IN THE COURT OF APPEALS FOR 6th COURT OF APPEALS
TEXARKANA, TEXAS
THE SIXTH COURT OF APPEALS DISTRICT
12/30/2015 1:12:03 PM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk

BRONCHEA GERAD WALKER,

Appellant
v.
THE STATE OF TEXAS,

Appellee

APPELLANT’S BRIEF
On Appeal from the 19th District Court
of McLennan County, Texas,
Trial Court Cause No. 2013-1937-C1

E. Alan Bennett
State Bar #02140700
Attorney for Appellant

Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Telecopier: (254) 772-9297
Email: abennett@slmpc.com
 Identity of Parties and Counsel

Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides

the following list of all parties to the trial court’s judgment and the names

and addresses of all trial and appellate counsel.

THE DEFENSE:

Bronchea Gerad Walker Appellant

E. Alan Bennett Trial and
Sheehy, Lovelace & Mayfield, PC Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710

THE PROSECUTION:

Hilary Laborde Trial Counsel
Evan O’Donnell
Assistant Criminal District Attorneys

Sterling Harmon Appellate Counsel
Assistant Criminal District Attorney

Abelino Reyna
Criminal District Attorney
McLennan County
219 North Sixth Street, Suite 200
Waco, Texas 76701

Appellant’s Brief Page 2
 Table of Contents

Identity of Parties and Counsel.............................................................................2

Table of Contents ....................................................................................................3

Index of Authorities ................................................................................................5

Statement of the Case .............................................................................................8

Statement Regarding Oral Argument ..................................................................8

Issues Presented ......................................................................................................9

Statement of Facts .................................................................................................10

Summary of the Argument ..................................................................................22

Argument ...............................................................................................................23

First Issue: The evidence is insufficient to corroborate the accomplices’
testimony. .........................................................................................................23

A. An Accomplice’s Testimony Must Be Corroborated. ......................23
B. Examples From Similar Cases Connected the Defendant to the
Robbery. ..................................................................................................25
C. The Other Evidence Does Not Provide Sufficient Corroboration. 26
D. Summary.................................................................................................27

Appellant’s Brief Page 3
 Second Issue: The trial court abused its discretion by admitting text
messages found on an accomplice’s phone. ..................................................29

A. Issues of Admissibility Are Reviewed Under an Abuse-of-
Discretion Standard...............................................................................29
B. The Text Messages Are Inadmissible Hearsay Evidence. ...............29
C. The State Failed to Connect the Text Messages to Walker. ............31
D. Walker’s Testimony Did Not Waive the Error. ................................32
E. The Court Abused Its Discretion by Admitting the Text Messages. .
..................................................................................................................33
F. Walker Was Harmed by This Error. ...................................................34

Prayer ......................................................................................................................37

Certificate of Compliance ....................................................................................38

Certificate of Service .............................................................................................38

Appellant’s Brief Page 4
 Index of Authorities

Federal Cases

Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)
..................................................................................................................................36

Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946) 36

O’Neal v. McAninch, 513 U.S. 432, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995) ...36

Texas Cases

Barshaw v. State, 342 S.W.3d 91 (Tex. Crim. App. 2011) ..................................35

Biera v. State, 280 S.W.3d 388 (Tex. App.—Amarillo 2008, pet. ref’d) ...........24

Black v. State, 358 S.W.3d 823 (Tex. App.—Fort Worth 2012, pet. ref’d) 30, 33

Brown v. State, 189 S.W.3d 382 (Tex. App.—Texarkana 2006, pet. ref’d) 34, 36

Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002) ....................................35

Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015) ............................. 31, 33

Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007) ........................... 23, 24

Chapman v. State, 470 S.W.2d 656 (Tex. Crim. App. 1971) ...............................24

Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006) ........................ 25, 31, 33

Freeman v. State, 352 S.W.3d 77 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d) ........................................................................................................................24

Gaston v. State, 324 S.W.3d 905 (Tex. App.—Houston [14th Dist.] 2010, pet.
ref’d) ........................................................................................................... 26, 27, 28

Golden v. State, 851 S.W.2d 291 (Tex. Crim. App. 1993) ...................................24

Appellant’s Brief Page 5
Hernandez v. State, 454 S.W.3d 643 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) ........................................................................................................................25

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) .............................. 32, 34

Long v. State, 39 Tex. Crim. 537, 47 S.W. 363 (1898)..........................................27

Malik v. State, 953 S.W.3d 234 (Tex. Crim. App. 1997) .............................. 24, 28

Martinez v. State, 188 S.W.3d 291 (Tex. App.—Waco 2006, pet. ref’d) ... 35, 36

McGlothlin v. State, 896 S.W.2d 183 (Tex. Crim. App. 1995) .................... 32, 34

Nelson v. State, 542 S.W.2d 175 (Tex. Crim. App. 1976) ...................................27

Rios v. State, 982 S.W.2d 558 (Tex. App.—San Antonio 1998, pet. ref’d) ......24

Schnidt v. State, 357 S.W.3d 845 (Tex. App.—Eastland 2012, pet. ref’d) 25, 26

Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001) .....................................35

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ...................................31

Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) .................................29

Webster v. State, 26 S.W.3d 717 (Tex. App.—Waco 2000, pet. ref’d) ....... 32, 34

Wincott v. State, 59 S.W.3d 691 (Tex. App.—Austin 2001, pet. ref’d) ..... 27, 28

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) .................................24

Texas Statutes

TEX. CODE CRIM. PROC. art. 38.14 ............................................................ 23, 31, 33

Appellant’s Brief Page 6
 Rules

TEX. R. APP. P. 41.3 ...................................................................................................8

TEX. R. APP. P. 43.2.................................................................................................36

TEX. R. APP. P. 44.2.................................................................................................34

TEX. R. EVID. 801(d)................................................................................................30

Treatises

43 GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL
PRACTICE AND PROCEDURE § 43:5 (3d ed. 2011)..................................................32

Appellant’s Brief Page 7
 Statement of the Case

A jury convicted Bronchea Gerad Walker of aggravated robbery. (CR

59), (4 RR 171) The jury assessed his punishment at twenty-three years’

imprisonment. (CR 70), (5 RR 107) The trial court, the Honorable Ralph T.

Strother, judge of the 19th District Court of McLennan County, sentenced

Walker in accordance with the verdict. (CR 72-73), (5 RR 107-08) Walker

timely filed a notice of appeal in the Waco Court of Appeals. (CR 78) Under

a docket equalization order, the appeal was transferred to this Court.1

Statement Regarding Oral Argument

Oral argument will not aid the Court’s decisional process in this

appeal.

1
In accordance with Rule 41.3, this appeal should be decided in accordance with
the precedent of the Waco Court of Appeals to the extent applicable. TEX. R. APP. P. 41.3.
Accordingly, counsel provides citations to relevant decisions of the Waco Court (and of
this Court) when available.

Appellant’s Brief Page 8
 Issues Presented

First Issue: The evidence is insufficient to corroborate the accomplices’
testimony.

Second Issue: The trial court abused its discretion by admitting text
messages found on an accomplice’s phone.

Appellant’s Brief Page 9
 Statement of Facts

The Testimony

Edgar Llorens owns Eddie’s Tire Shop. 2 (3 RR 13-14) On the occasion

in question, he had several security cameras at this business. (3 RR 15-16) He

installed them in response to a series of robberies and forgeries. (3 RR 17-18)

Llorens explained that men came and held him at gunpoint around

8:00 that morning. (3 RR 22) He allowed them to take a few hundred dollars

that were in his pocket. 3 (3 RR 22-23) One of the men searched the desk in

Llorens’s office and took a camera and a radar detector. (3 RR 23) The State

then published a video recording marked as State’s Exhibit 1 (which had

been admitted without objection) to the jury. (3 RR 19, 24)

After the State played the recording from Camera 1,4 Llorens

explained that the men arrived at around 8:03 and had left by 8:04:18. He

then went outside and called the police. (3 RR 25) The State then played the

recording from Camera 2. (3 RR 25-26) Llorens testified that all three men

2
Llorens also operates a check cashing service at this location. (3 RR 14)

3
Llorens wisely did not volunteer that he had additional money in a safe. (3 RR 23)

4
State’s Exhibit 1 includes recordings from Llorens’s Cameras 1, 2, 7 and 8. (3 RR
24)

Appellant’s Brief Page 10
had guns. (3 RR 26) One of them shoved him after Llorens said he did not

have any money other than the money in his pocket. (3 RR 26-27) This man

had a white t-shirt and a black ski mask. (3 RR 27) Llorens later testified that

this man put a “gun in my face.” (3 RR 30)

The State then played the recording from Camera 7 which is a view of

the street behind the business. (3 RR 27-28) This camera recorded a white

automobile parked near the business as the three men were inside. Then the

men are seen leaving the premises, getting in the car and driving away. (3

RR 28) The recording from Camera 8 also provides an outside view. (3 RR

29) The second man was wearing a cap and bandana around his face. (3 RR

30)

Because the men’s faces were covered, Llorens could not identify any

of them. (3 RR 31) He explained that his only thought at the moment was

concern for his safety. (3 RR 32)

On cross-examination, Llorens testified that the only investigation

conducted by the police at his premises was to collect the video evidence and

his written statement. They did not return with a photo spread or to collect

other evidence like fingerprints. (3 RR 34)

Appellant’s Brief Page 11
 Walker’s co-defendant Oliver Johnson testified that Walker

approached him with the idea “to rob a check cashing place.” (3 RR 37-38)

He claimed that Walker only needed him to provide transportation. Johnson

did not have a car at that time but later borrowed his brother’s car. Johnson

claims he contacted Walker at that point and “[Walker] planned the robbery

from there.” (3 RR 38)

According to Johnson, when they arrived at the location, Walker told

him to drive behind the business. After the three men got out of the car,

Walker told him to make a U-turn and then wait for them. (3 RR 38) The men

then returned to the car, and Johnson drove away. Johnson testified that as

he was driving he looked back and saw a gun in “his lap.” Then “we

dropped him off.” (3 RR 39)

Johnson and Willie Clark then went to enroll at Texas State Technical

College before returning to Johnson’s house. Later, some detectives walked

into the yard after recognizing the car that had been involved in the robbery.

(3 RR 39) After questioning, Johnson accompanied them to the station for an

interview before being arrested. (3 RR 39-40)

In a hearing outside the jury’s presence, the State introduced copies of

text messages purportedly exchanged between Johnson and Walker. (3 RR

Appellant’s Brief Page 12
42-43), (SX 8-18) Defense counsel re-urged a hearsay objection to the content

of the text messages and secured a running objection. (3 RR 42) Before the

jury, the court admitted the text messages over counsel’s running objection.

(3 RR 46)

According to Johnson, the text messages depicted an exchange

between Walker and himself in which Johnson offered to get a vehicle for

some unspecified activity. This exchange occurred on August 9, 2013. (3 RR

46-47), (SX 8) In a later text exchange, Johnson expressed reluctance to

participate if he were to “come out empty handed.” (3 RR 47-48), (SX 9) Later,

Walker purportedly texted Johnson to express concern about whether

Walker could trust a participant recruited by Johnson whom Walker did not

know. (3 RR 48-49), (SX 10)

Early on the morning of August 14, they purportedly exchanged text

messages in which Walker confirmed it was “a Fasho thing” and asked,

“You gt it trap? Already.” According to Johnson, Walker was asking “was

we on for tomorrow?” (3 RR 50), (SX 13) Johnson later texted Walker and

said he wanted to come get Walker. Walker replied that he needed to wait

until 6:45 after Walker’s mother left. (3 RR 50-51), (SX 14) State’s Exhibits 15

Appellant’s Brief Page 13
to 18 were lists of the text messages purportedly exchanged between them.

(3 RR 51-52), (SX 15-18)

Johnson got $15 or $30 out of the robbery. (3 RR 52) Willie Clark

volunteered to participate. (3 RR 53)

On cross-examination, Johnson conceded that he had five prior

convictions for burglary of a vehicle. He cooperated with the police in the

hope they would not arrest him. (3 RR 54) He admitted that he was hoping

for a better plea bargain in exchange for his testimony. (3 RR 54-55) He

testified that he picked Walker up at his mother’s house before the robbery,

but he told the police that he picked him up at an apartment complex. (3 RR

55) Thus, he admitted that he lied to the police. (3 RR 56)

Walker’s other co-defendant Willie Clark has known Oliver Johnson

since Eighth Grade. He has known Walker since middle school. The three of

them also attended Waco High together. (3 RR 60) Clark received a call the

morning of the robbery. He agreed to participate because they were

supposed to collected “a large amount of money” and he had just lost his

job. (3 RR 61) He admitted that he had two prior convictions for burglary of

a vehicle. (3 RR 62)

Appellant’s Brief Page 14
 Clark went into the tire shop during the robbery. Clark testified that,

when he entered, Walker was already holding Llorens at gunpoint. Clark

started rummaging through a desk and a filing cabinet. He got a couple of

cameras but dropped them when he fled the scene. (3 RR 63) So basically, he

came away empty-handed. (3 RR 63-64) Clark claimed that he thought it was

going to be a mere robbery. “I didn’t expect it to be an aggravated robbery.”

According to Clark, he did not know there were any weapons involved until

he entered the shop. (3 RR 65)

Clark testified that, after the robbery, they dropped off Walker; went

by a gas station; went to McLennan Community College for Johnson to

register; went to TSTC for Clark to register; and then returned to Johnson’s

mother’s house. (3 RR 67) When the police arrived, Clark’s initial thought

was to flee, but there were too many officers. He initially denied

involvement until they found him in possession of the scarf. (3 RR 68)

Clark was not given any kind of deal in exchange for his testimony. (3

RR 72)

On cross-examination, Clark insisted that he brought a mask for the

robbery but did not anticipate the use of firearms. (3 RR 75-76) He took

orders from Walker even though he was barely his acquaintance. (3 RR 77)

Appellant’s Brief Page 15
He insisted that he had no expectations that he would receive anything in

exchange for his testimony. (3 RR 77)

Sergeant Mike Miller of the Bellmead Police Department responded to

the dispatch for the robbery along with other officers. (4 RR 8) Because of

prior dealings with Llorens, they first obtained access to his video

surveillance equipment. (4 RR 8-9) From this, they got a clear description of

the car used by the robbers and broadcast that information. Because of

Miller’s knowledgeability regarding automobiles, he was able to identify the

car as a Buick Roadmaster. (4 RR 9) Miller and Detective Haywood Sawyer

drove around the Waco area looking for the car and eventually found it in

the City of Waco. (4 RR 10) They contacted Waco Police because it was in

their jurisdiction. Then they approached the house and made contact with

the occupants of the car. Sawyer and Miller talked to them separately. (4 RR

12) After Sawyer spoke to Johnson, he came and took Clark into custody. (4

RR 13)

They transported the suspects to the Bellmead Police Department and

interrogated them. (4 RR 14-15) During the interrogation, Clark told the

officers that Walker was the first person who walked into the tire shop. Clark

and Johnson referred to Walker as Bshay. (4 RR 17)

Appellant’s Brief Page 16
 They also searched the car. The State offered a series of photographs

of the exterior and interior of the car. (4 RR 15-16), (SX 20) They lifted

fingerprints during the search of the car but were unable to match the prints

to any particular person. (4 RR 18) They also recovered a cellphone from the

car. (4 RR 20) They presented a photo lineup to Clark and Johnson, and both

identified Walker. (4 RR 20-23), (SX 22)

On cross-examination, Miller conceded that Clark lied to the officers

about his involvement. (4 RR 27) The officers never presented a photo lineup

to Mr. Llorens to see if he could identify any of the robbers. (4 RR 28) When

they arrested Walker, they did not find a mask or handgun or anything else

that would connect him to the robbery. (4 RR 28-29)

Detective Sawyer testified that they spotted Clark and Johnson in the

Buick around 1:30 that afternoon. (4 RR 35) Johnson did not use his cell

phone again after the officers began talking with him, and the officers

ultimately took possession of the phone along with other evidence. (4 RR 35-

36) In an attempt to locate the other participants, Sawyer used Johnson’s

phone and sent two text messages to the number assigned to “Bshay”:

• “WHO is that nuggah with you this morning”

• “Bshay way”

Appellant’s Brief Page 17
(4 RR 37), (SX 14)

Sawyer searched for that number on Facebook and came to Walker’s

Facebook page. (4 RR 48-49) He obtained Walker’s identifying information

and requested a photo lineup from the sheriff’s department. (4 RR 49) Miller

and Sawyer showed the lineup to Clark and Johnson. (4 RR 49-50) Sawyer

showed the lineup to Clark, who identified Walker. (4 RR 50-51), (SX 21)

On cross-examination, Sawyer conceded that no physical evidence

recovered from the car connected Walker to the crime. (4 RR 53-54) When

they searched Walker’s home, they likewise found no evidence connecting

him to the crime. (4 RR 55-56) The officers never presented Mr. Llorens with

a photo lineup. (4 RR 58)

The State rested after Sawyer’s testimony. (4 RR 64)

The defense began with Walker’s mother Carol Irvin. (4 RR 65) He

lived in her home at the time of the robbery. His sister and her children also

lived there. Irvin worked for the American Armed Forces Exchange Services

distribution center. She worked from 7:00 to 3:30. (4 RR 66) Her typical

schedule called for her to awaken at 5:45 and leave for work at 6:40 (4 RR 67)

On the morning of the robbery, Walker was asleep in his bed facing the wall

Appellant’s Brief Page 18
when she left for work. In fact, he was snoring. Because he was unemployed

at the time, Walker took care of his nephews during the day while his mother

and sister both went to work. (4 RR 68)

Walker’s sister Lenora testified that her sons were about to turn 7 and

3 at the time of the robbery. (4 RR 84) She worked then at Bush’s Chicken on

19th Street, about a half-mile from the house. (4 RR 84-85) She awakened

around 7:30 that morning for her shift that began at 8:00. (4 RR 85) Walker

was there when she left for work at 7:55. He was responsible for watching

her children while she was at work. (4 RR 87)

Bronchea Walker testified in his own defense. Johnson and he knew

each other from church and school and had known each other seven or eight

years. (4 RR 97) Walker testified about the text messages offered in evidence

by the State. He explained that a message in which Johnson texted “I need

some $$$ too” referred to a time when Johnson was unemployed. (4 RR 98)

Walker was involved in selling marijuana so he thought they could pool

their resources, sell some marijuana and make some money together. (4 RR

99-100) Walker asked Johnson to find them a ride to go get the marijuana. (4

RR 101-02) The messages between them on August 9 referred to a trap. (4 RR

Appellant’s Brief Page 19
102) Walker explained that the term “trap” refers to “a house where people

go to buy and sell drugs.” (4 RR 102-03)

On the morning of August 14, Johnson texted Walker to say he had

some money so they could get some marijuana to resell. (4 RR 103) In

reviewing other text messages exchanged between them that morning,

Walker explained that he was sleeping and texting intermittently. (4 RR 104-

05) About 7:00 that morning, Walker and Johnson talked on the phone.

Johnson said he could not find a car, so they called off the marijuana plans.5

(4 RR 106)

Walker thinks Clark and Johnson are trying to set him up because of a

prior conflict between them and some friends of his. (4 RR 107)

The Trial Proceedings

The indictment alleges that on or about August 14, 2013 Walker did,

“while in the course of committing theft of property and with intent to obtain

or maintain control of said property, intentionally or knowingly threaten or

place EDGAR LLORENS in fear of imminent bodily injury or death, and the

5
Walker planned to have his brother come over and watch his nephews for about
20 minutes or so if they had followed through with these plans. (4 RR 106)

Appellant’s Brief Page 20
Defendant did then and there use or exhibit a deadly weapon, to-wit: a

firearm.” (CR 5)

The jury deliberated for about two hours before returning a guilty

verdict. (CR 50, 59), (4 RR 168)

The Punishment Phase

Walker called several friends and family members as punishment

witnesses and to establish his eligibility for community supervision. (5 RR 5-

69)

The jury assessed Walker’s punishment at twenty-three years’

imprisonment. (CR 70), (5 RR 107)

The trial court sentenced Walker in accordance with the verdict. (CR

72-73), (5 RR 107-08)

Appellant’s Brief Page 21
 Summary of the Argument

Because the State also indicted Oliver Johnson and Willie Clark for the

robbery, they were accomplices as a matter of law. Accordingly, the State

had to offer evidence to corroborate their testimony. However, the record

contains no corroborating evidence. Thus, the evidence is insufficient to

support Walker’s conviction.

Oliver Johnson identified a series of text messages that he claims were

exchanged between Walker and himself. The messages were not properly

authenticated and constituted inadmissible hearsay because the State

presented no evidence connecting them to Walker’s phone.

Appellant’s Brief Page 22
 Argument

First Issue: The evidence is insufficient to corroborate the
accomplices’ testimony.

Because the State also indicted Oliver Johnson and Willie Clark for the

robbery, they were accomplices as a matter of law. Accordingly, the State

had to offer evidence to corroborate their testimony. However, the record

contains no corroborating evidence. Thus, the evidence is insufficient to

support Walker’s conviction.

A. An Accomplice’s Testimony Must Be Corroborated.

Article 38.14 of the Code of Criminal Procedure defines the

accomplice-witness rule.

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. art. 38.14.

Under the accomplice-witness rule, an appellate court disregards the

accomplice testimony and then examines the remainder of the record for any

evidence that tends to connect the defendant with the commission of the

offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The

Appellant’s Brief Page 23
corroborating evidence does not need to suffice standing alone to prove guilt

beyond a reasonable doubt. It does not even need to directly link the

defendant to the offense. Id.

Mere presence with an accomplice at or near the time of an offense

does not, standing alone, provide sufficient corroboration. See Golden v. State,

851 S.W.2d 291, 294 (Tex. Crim. App. 1993); Freeman v. State, 352 S.W.3d 77,

84 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Rios v. State, 982 S.W.2d

558, 560 (Tex. App.—San Antonio 1998, pet. ref’d).

The testimony of one accomplice may not be relied on to corroborate

the testimony of another accomplice. Chapman v. State, 470 S.W.2d 656, 660

(Tex. Crim. App. 1971); Biera v. State, 280 S.W.3d 388, 395 (Tex. App.—

Amarillo 2008, pet. ref’d). Rather, there must be independent, non-

accomplice corroborating evidence.

This statutory analysis is not the same as the constitutionally-

mandated evidentiary-sufficiency analysis of Jackson v. Virginia. See Winfrey

v. State, 393 S.W.3d 763, 770 (Tex. Crim. App. 2013). However, the failure of

the State to adequately corroborate an accomplice’s testimony requires

reversal and rendition of a judgment of acquittal. Malik v. State, 953 S.W.3d

234, 240 n.6 (Tex. Crim. App. 1997).

Appellant’s Brief Page 24
 Here, Johnson and Clark were accomplices as a matter of law so their

testimony had to be corroborated. 6 However, the State failed to do so.

B. Examples From Similar Cases Connected the Defendant to the
Robbery.

In other cases, courts have found sufficient corroboration when the

non-accomplice evidence actually connected the defendant to the robbery.

Here, the State offered no such evidence.

For example, in Hernandez v. State, 454 S.W.3d 643 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d), the victim of the robbery identified the

defendant in a live line-up and at trial “as the man who put a gun to her head

and robbed her.” Id. at 648. This eyewitness identification was sufficient to

corroborate the accomplice testimony. Id. In Walker’s case, however, the

victim was not able to identify any of the robbers.

Or in Schnidt v. State, 357 S.W.3d 845 (Tex. App.—Eastland 2012, pet.

ref’d), the defendant used a credit card stolen in the robbery the next day

and thus had recent possession of stolen property. Id. at 851. This was

6
Because Johnson and Clark were under indictment for the same aggravated
robbery, they were accomplices as a matter of law. See Cocke v. State, 201 S.W.3d 744, 747-
48 (Tex. Crim. App. 2006).

Appellant’s Brief Page 25
sufficient evidence to corroborate the accomplice testimony. Id. In Walker’s

case, however, he was not found to be in possession of anything stolen in the

robbery.

C. The Other Evidence Does Not Provide Sufficient Corroboration.

The remaining non-accomplice evidence does not tend to connect

Walker to the offense. The evidence offered by the State consisted of: (1) the

testimony of the complainant Mr. Llorens; (2) video recordings of the

robbery; (3) the testimony of the accomplices, Johnson and Clark; (4) the text

messages; and (5) the testimony of the investigating officers.

Mr. Llorens could not identify Walker (or anyone) as one of the

offenders.

The video recordings depicting a masked robber do not tend to

connect Walker to the offense. See Gaston v. State, 324 S.W.3d 905, 911 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (video depicting masked robber

with no “distinguishing marks or characteristics of the offender” insufficient

to connect defendant to robbery).

Johnson’s and Clark’s accomplice testimony cannot be considered.

Appellant’s Brief Page 26
 The text messages do not corroborate their accomplice testimony for

two reasons. First, the messages are inadmissible for the reasons stated in

the Second Issue. Inadmissible evidence cannot be relied on to corroborate

accomplice testimony. Long v. State, 39 Tex. Crim. 537, 47 S.W. 363, 364

(1898). And second, the messages at most arguably connect Walker to

Johnson, but not to the commission of the offense. See Wincott v. State, 59

S.W.3d 691, 698 (Tex. App.—Austin 2001, pet. ref’d) (“The mere presence of

the accused in the company of the accomplice ... shortly before or after the

time of the offense is not, in itself, sufficient corroboration of the testimony

of the accomplice.”) (quoting Nelson v. State, 542 S.W.2d 175, 177 (Tex. Crim.

App. 1976)); accord Gaston, 324 S.W.3d at 911.

Finally, the investigating officers testified that they uncovered no

physical evidence connecting Walker to the offense.

For these reasons, the record contains no non-accomplice evidence that

tends to connect Walker to the offense.

D. Summary

The only non-accomplice evidence that even arguably connects

Walker to the robbery are the text messages, but even if those were properly

Appellant’s Brief Page 27
admitted, they at most tend to connect Walker to Johnson on the morning of

the robbery, which is insufficient to corroborate the testimony of the

accomplices. Accordingly, the evidence is insufficient to corroborate

Johnson’s and Clark’s accomplice testimony.

Therefore, the Court should reverse the judgment of conviction and

render a judgment of acquittal. See TEX. R. APP. P. 43.2(c); Malik, 953 S.W.3d

at 240 n.6; Gaston, 324 S.W.3d at 911; Wincott, 59 S.W.3d at 703.

Appellant’s Brief Page 28
Second Issue: The trial court abused its discretion by admitting text
messages found on an accomplice’s phone.

Walker’s accomplice Oliver Johnson identified a series of text

messages that he claims were exchanged between Walker and himself. The

messages were not properly authenticated and constituted inadmissible

hearsay because the State presented no evidence connecting them to

Walker’s phone.

A. Issues of Admissibility Are Reviewed Under an Abuse-of-
Discretion Standard.

An appellate court reviews a trial court’s ruling on the admissibility of

evidence under an abuse-of-discretion standard. Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011). That decision will not be disturbed unless it

lies outside the zone of reasonable disagreement. See id.

B. The Text Messages Are Inadmissible Hearsay Evidence.

“’Hearsay’ means a statement that:

(1) the declarant does not make while testifying at the current
trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.”

Appellant’s Brief Page 29
TEX. R. EVID. 801(d).

Text messages constitute hearsay when offered for the truth of the

matter asserted. Black v. State, 358 S.W.3d 823, 831 (Tex. App.—Fort Worth

2012, pet. ref’d).

When the State seeks to establish that the defendant sent a text

message, the State must in some way connect the text message to the

defendant before the statement of a party-opponent or statement against

interest exception might apply. Id. at 832. Arguably, this is an issue of

authentication. However, it is one degree removed from having the witness

merely testify that the defendant verbally said something to him.

The Fort Worth Court considered a similar complaint in Black and

concluded that, because of a lack of evidence connecting the text messages

at issue to the defendant, the messages constituted inadmissible hearsay.

Because there was no showing that Appellant wrote or ratified
any of the messages, and indeed, no showing that the messages
were written while the cell phone was in Appellant's possession,
the messages did not qualify as statements that he made against
his penal interest and therefore did not fall under that hearsay
exception.

Id.

The same principle applies to Walker’s case.

Appellant’s Brief Page 30
C. The State Failed to Connect the Text Messages to Walker.

Walker’s accomplice Oliver Johnson provided the only testimony

connecting Walker to the text messages. However, his testimony was

uncorroborated with regard to the identity of the person who sent him these

messages. As previously discussed in the First Issue, the testimony of an

accomplice must be corroborated. See TEX. CODE CRIM. PROC. art. 38.14; Cocke

v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006).

Johnson himself conceded that he did not personally witness Walker

sending any of the text messages. But more importantly, the State failed to

perform the rather simple task of subpoenaing the records for the number

that purportedly belonged to Walker and demonstrate that the phone from

which these messages were received in fact was Walker’s phone. See Butler

v. State, 459 S.W.3d 595, 602-03 (Tex. Crim. App. 2015) (“For example, a

cellular-phone company may provide records to show that a text message

originated from the purported sender’s phone ‘under circumstances in

which it is reasonable to believe that only the purported sender would have

had access to the ... cell phone.’”) (quoting Tienda v. State, 358 S.W.3d 633,

640 (Tex. Crim. App. 2012)).

Appellant’s Brief Page 31
 In summary, this was a failure by the State to corroborate Johnson’s

testimony with regard to the identity of the sender of the text messages at

issue or to authenticate that those messages were actually sent by Walker.

D. Walker’s Testimony Did Not Waive the Error.

Walker testified in his own defense in an attempt to explain the text

messages offered against him.

The general rule is that a defendant waives error if evidence to which

he has objected is later offered without objection. However, waiver does not

occur when the defendant offers further evidence to meet, destroy or explain

the evidence to which he previously objected. Leday v. State, 983 S.W.2d 713,

719 (Tex. Crim. App. 1998); McGlothlin v. State, 896 S.W.2d 183, 189 n.9 (Tex.

Crim. App. 1995); Webster v. State, 26 S.W.3d 717, 723 (Tex. App.—Waco

2000, pet. ref’d).

As Professors Dix and Schmolesky have explained, this exception is

“designed to encourage defendants to take trial steps to minimize the impact

on the trial of what those defendants believe was error by trial judges.” 43A

GEORGE E. DIX. & JOHN M. SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL

PRACTICE AND PROCEDURE § 53:158 (3d ed. 2011).

Appellant’s Brief Page 32
 Therefore, Walker did not waive error by trying to explain the text

messages in his testimony.

E. The Court Abused Its Discretion by Admitting the Text Messages.

The text messages at issue were hearsay. Black, 358 S.W.3d at 831. They

might fit within the hearsay exception for a statement of a party opponent

(or some other exception) if they were properly connected to Walker.

However, the State failed to accomplish this.

First, Johnson was an accomplice as a matter of law, so his testimony

must be corroborated. TEX. CODE CRIM. PROC. art. 38.14; Cocke, 201 S.W.3d at

747. However, the State failed to corroborate Johnson’s testimony in any

respect.

Second, the State failed to offer cellphone records or other

documentary evidence that would even connect the text messages to a cell

phone registered to Walker. See Butler, 459 S.W.3d at 602-03.

Sometimes, the context of messages may sufficiently connect the

messages to a particular sender. Id. at 603. Here, however, there is nothing

in the messages themselves to connect them to Walker.

Appellant’s Brief Page 33
 Finally, Walker’s testimony offered to explain the text messages does

not waive his complaint. See Leday, 983 S.W.2d at 719; McGlothlin, 896 S.W.2d

at 189 n.9; Webster, 26 S.W.3d at 723.

For these reasons, the trial court abused its discretion by admitting the

text messages.

F. Walker Was Harmed by This Error.

The victim could not identify any of the robbers. The video evidence

is inconclusive regarding their identity. Therefore, the State relied solely on

accomplice testimony in its attempt to connect Walker to the offense. The

text messages are the only evidence the State had to even arguable connect

Walker to the offense. Therefore, Walker suffered harm by the erroneous

admission of the text messages.

The erroneous admission of hearsay evidence is non-constitutional

error subject to the harm analysis of Rule of Appellate Procedure 44.2(b). See

Brown v. State, 189 S.W.3d 382, 388 (Tex. App.—Texarkana 2006, pet. ref’d).

Such error must be disregarded unless it affects the appellant’s substantial

rights. TEX. R. APP. P. 44.2(b).

[An appellate] court “will not overturn a criminal conviction for
non-constitutional error if the appellate court, after examining
the record as a whole, has fair assurance that the error did not

Appellant’s Brief Page 34
 influence the jury, or influenced the jury only slightly.” In
considering the potential to harm, the focus is not on whether the
outcome of the trial was proper despite the error, but whether
the error had a substantial or injurious effect or influence on the
jury’s verdict. A conviction must be reversed for non-
constitutional error if the reviewing court has grave doubt that
the result of the trial was free from the substantial effect of the
error. “Grave doubt” means that “in the judge’s mind, the matter
is so evenly balanced that he feels himself in virtual equipoise as
to the harmlessness of the error.” “[I]n cases of grave doubt as
to harmlessness the petitioner must win.”

Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex. Crim. App. 2011) (quoting Schutz

v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Burnett v. State, 88 S.W.3d

633, 637-38 (Tex. Crim. App. 2002)) (footnotes omitted) (other citations

omitted); see Brown, 189 S.W.3d at 388; Martinez v. State, 188 S.W.3d 291, 293

(Tex. App.—Waco 2006, pet. ref’d).

This harm analysis is derived from the federal standard. “When a

federal judge in a habeas proceeding is in grave doubt about whether a trial

error of federal law had ‘substantial and injurious effect or influence in

determining the jury’s verdict,’ that error is not harmless. And, the petitioner

must win.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992, 994, 130 L.

Appellant’s Brief Page 35
Ed. 2d 947 (1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.

Ct. 1710, 123 L. Ed. 2d 353 (1993)).7

Because of the total absence of other evidence tending to connect

Walker to the offense, the erroneous admission of the text messages affected

his substantial rights and thus caused him to suffer harm within the meaning

of Rule 44.2(b).

Therefore, the Court should reverse the judgment of conviction and

remand this case for a new trial. See TEX. R. APP. P. 43.2(d); Brown, 189 S.W.3d

at 389; Martinez, 188 S.W.3d at 294.

7
The original source of the internal quotation is Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).

Appellant’s Brief Page 36
 Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Bronchea Gerad

Walker asks the Court to: (1) reverse the judgment of conviction and render

a judgment of acquittal; (2) reverse the judgment of conviction and remand

this case for further proceedings; and (3) grant such other and further relief

to which he may show himself justly entitled.

Respectfully submitted,

/s/ Alan Bennett
E. Alan Bennett
SBOT #02140700
Attorney for Appellant

Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com

Appellant’s Brief Page 37
 Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 6,208

words.

/s/ Alan Bennett
E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this

document has been served by e-mail on December 30, 2015 to counsel for the

State, Sterling Harmon at sterling.harmon@co.mclennan.tx.us.

/s/ Alan Bennett
E. Alan Bennett

Appellant’s Brief Page 38