Joseph v. State

OPINION

HEDGES, Justice.

Appellant was found guilty of capital murder and sentenced to life imprisonment. In two points of error, appellant complains that there was insufficient evidence to corroborate the testimony of the accomplice witness and that the trial court erred in not allowing appellant to impeach the accomplice witness with prior inconsistent statements. We affirm.

STATEMENT OF FACTS

The following facts were testified to solely by the accomplice witness, Willie Crockett. Appellant, Crockett, and Wayman Jackson were together on the morning of September 29, 1994, when Jackson suggested that they rob a neighborhood convenience store. Jackson provided the gun. Appellant was to act as the “lookout” to make sure that the store’s doors were not locked during the robbery. The three stole a car1 from a nearby apartment complex and drove it to the store. All three entered the store at about 11:00 a.m. Jackson pointed a shotgun at the clerk, demanded money, and then shot her. The three then fled in the stolen car. They returned to the apartment of Crockett’s aunt, Sherri Crockett, and divided the money.2

Police officers testified that a car like the one the robbers used was recovered the same afternoon. They obtained finger and palm prints of Willie Crockett inside the car and appellant’s prints only on the outside of the car. Appellant’s prints were on the rear fender, the trunk, and the outside of the driver’s side window. A tip from Crime Stoppers led to the arrest of Willie Crockett, Jackson, and appellant.

Corroboration of Accomplice Witness Testimony

In point of error one, appellant argues that there was insufficient independent evidence to corroborate the testimony of an accomplice witness as required by Tex.Code Crim. P. Ann. art. 38.14 (Vernon 1979).3

Standard of Review

In weighing the sufficiency of corroborative evidence, we must first eliminate from consideration the testimony of the accomplice witness. We then examine the testimony of the other witnesses to ascertain if there is independent evidence which tends to connect the accused with the commission of the offense. It is not necessary that the nonaeeomplice evidence establish the accused’s guilt beyond a reasonable doubt. *365Nor is it necessary that it directly link the accused to the commission of the offense. There need be only some nonaccomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App.1997).

Crockett, the accomplice witness, reluctantly testified for the State under a grant of immunity. While contradictory, his testimony clearly implicated appellant as a participant in the robbery and murder.

Other State’s witnesses provided testimony independently corroborating Crockett’s evidence:

Abraham Limone, Jr. testified that he was the only customer in the convenience store before the arrival of the three young men. He saw a small black individual enter first. He described the individual as looking young — 11 or 12 years old. Seconds later, two other black men wearing masks entered the store and demanded money from the clerk. He heard someone yell, “Give me all the money.” He looked up from his paper and saw the three individuals in front of the counter, one of them pointing a shotgun at the clerk. The complainant then raised her hands, and the robber shot her with the shotgun. Fearing for his life, Limone ran from the store. As he fled from the store, he heard two more shots. He then saw the men leave the store and get into a beige Oldsmobile. Limone called 911 from a payphone outside the store. He was unable to identify any of the men.

Elvira Hernandez testified that she pulled into the parking lot of the convenience store shortly after Limone had left the store. He was waving his arms to attract her attention. She testified that she then heard a gunshot and saw three young black males leave the store and get into a beige Oldsmobile. She attempted to drive down the street to a fire station; the Oldsmobile followed her down the street. Fearing for her safety, she turned into a church parking lot while the three men drove past. She proceeded to the fire station, reported the crime, and returned to the convenience store. Ms. Hernandez was unable to identify any of the three men involved in the crime. She identified the Oldsmobile as being similar to the one used by the three.

Officer Cates testified that during his investigation the day of the offense, he recovered an abandoned Oldsmobile near the scene of the crime. The steering column of the car was damaged such that it could be started without its keys.

Officer Schraub testified that after examining the Oldsmobile for latent fingerprints, he found five of appellant’s finger and palm prints on the exterior of the vehicle. He also found Crockett’s fingerprints and palm prints on the interior and exterior of the car. He found no fingerprints belonging to Jackson.

Ms. Crockett testified that Willie Crockett was living with her at the time of the offense. She testified that she was awakened by Crockett at approximately 1:00 p.m. the afternoon of the offense. He arrived at the apartment with Jackson and appellant. Ms. Crockett testified that she asked Crockett if he had any money, and he responded by giving her some food stamps. He claimed that he had obtained them by “hustling,” which she understood to mean selling drugs. She saw appellant pull some money out of his pocket. She testified that appellant was small and appeared to be 11 or 12 years old.

The following testimony tends to connect appellant to the offence sufficiently to independently corroborate the accomplice testimony:

1. Ms. Hernandez identified the Oldsmobile as similar to the one used by the three robbers. She saw three men hurriedly leave the store and three men in the Oldsmobile following her briefly.
2. Officer Schraub testified that he lifted five latent finger and palm prints of appellant from the exterior of the Oldsmobile.
3. Limone saw three black men at the counter at the time of the shooting. He described one as small, appearing eleven or twelve years old.
4. Ms. Crockett saw appellant with Crockett and Jackson at 1:00 the afternoon of the robbery. She described *366appellant’s appearance that morning as small, appearing eleven or twelve years old.
5. Officer Cates testified that the steering column of the abandoned Oldsmobile had been damaged such that it would have been possible to start the automobile without its keys.

We overrule point of error one.

Impeachment of Accomplice Witness

In point of error two, appellant argues that the trial court erred by not allowing him to impeach Crockett’s testimony with prior inconsistent statements he made to his aunt. In appellant’s bill of exception, Crockett admitted speaking with his aunt on the phone approximately one month after he was arrested. Appellant’s counsel asked Crockett if he remembered telling his aunt, during this phone conversation, that he was in the car while Jackson alone went inside the convenience store, he heard shots, he went into the convenience store, and he saw the clerk dead behind the counter. To each of these questions Crockett replied, “Not that I recall.” Crockett denied telling his aunt that he was outside the convenience store during the robbery. Appellant’s counsel asked him, “And in this conversation do you recall telling her that Maurice Joseph — didn’t even mention Maurice Joseph. Do you recall that?” Crockett replied, “Yes.”

In his bill of review, appellant’s counsel next questioned Ms. Crockett. She testified that during a phone conversation after Crockett had been arrested, he told her that he was in the car when Jackson went inside the store with the shotgun, that he entered the store only after hearing gunshots, that he entered the store and found the complainant dead, and that he did not mention appellant during the conversation. On cross-examination Ms. Crockett admitted that in further conversations with her nephew, he had told her that appellant was involved in the robbery situation.

At trial, the prosecutor argued that appellant’s lawyer was never able to specify the time, during one of the many phone conversations, that Crockett allegedly made these inconsistent statements to his aunt. Therefore, the State argued that appellant’s counsel had not laid the proper foundation to introduce the prior inconsistent statements. Tex.R.Crim. Evid. 612(a).4

The purpose of the time and place foundation requirements for rule 612(a) is to put the witness on notice as to which statements are going to be used to impeach his or her credibility. Allen v. State, 788 S.W.2d 687, 640 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). In this case, appellant laid an adequate foundation. “The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing falsehood.” Aranda v. State, 736 S.W.2d 702, 707 (Tex.Crim.App.1987); Garcia v. State, 871 S.W.2d 279, 284 (Tex.App.-El Paso 1994, no pet.). Ms. Crockett testified that the conversation took place after Crockett’s arrest on October 1,1994 and her grand jury testimony on October 10, 1994. He telephoned her at her home. These facts provide an adequate foundation for her testimony. The trial court erred in refusing to allow appellant to impeach Crockett with the prior inconsistent statements recounted by his aunt.

We now must decide whether the error was harmful. Because the error is one of constitutional dimensions (confrontation of witnesses), the judgment must be reversed unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. Tex. R.App. P. 44.2(a); Taylor v. State, 756 S.W.2d 548, 550 (Tex.App.-Houston [1st Dist.] 1988, *367pet. refd). The impact of the error cannot be properly evaluated without examining its interaction with the other evidence. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). The entire record must be considered. Id. The evidence is viewed in a neutral light, impartial, and even-handed fashion, not in the light most favorable to conviction. Id.

We analyze the harm of the trial court’s error under the six part standard set forth in Harris. 790 S.W.2d at 587. In this ease, the source and nature of the error were the trial court’s refusal to allow appellant to impeach an accomplice witness with prior inconsistent statements. The State did not emphasize the error. The probable collateral implication was that the accomplice witness’s testimony was perceived by the jury as more credible than it would have had the impeachment been allowed.

In analyzing the weight a juror would probably have placed on the error, we look at the other evidence of appellant’s guilt. In this case, the accomplice witness’s testimony was the primary evidence of appellant’s guilt. However, the credibility of the witness had already been attacked by appellant. The jury knew that the accomplice witness was testifying reluctantly and under a grant of immunity. Appellant had already impeached Crockett with inconsistent statements he had made at the time of his arrest. The jury knew Crockett had been convicted of offenses arising out of this incident. Ms. Crockett testified that, in later conversations, he implicated Maurice Joseph. Therefore, the jury probably would not have given more than negligible weight to the inconsistent statements, such that their impeachment value was de minimus. Finally, there is no indication that the State could repeat this conduct with impunity. We find that the error made no contribution to the conviction or punishment beyond a reasonable doubt.

We overrule point of error two.

We affirm the judgment of the trial court.

COHEN, J., dissents.

. The only testimony that the car was stolen came from the accomplice, Willie Crockett. No owner testified that the car was stolen, and there was no registration evidence of ownership. The car had a broken steering column that allowed it to be operated without a key.

. Sherri Crockett, who was not an accomplice, testified that the men returned to her apartment between 1:00 and 1:30 p.m. that day. Only the accomplice witness, Willie Crockett, testified about division of the money. He testified that each robber received approximately $180 in cash and food stamps. Sherri Crockett testified that Willie Crockett gave her some food stamps and that she saw appellant pull some money from his pocket. Nothing about the amount, denomination, condition, or appearance of appellant’s money linked it to the money stolen in this robbery.

. Tex.Code Crim. P. art. 38.14, provides that:

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.R.Crim. Evid. 612(a) provides that:

In examining a witness concerning a prior inconsistent statement made by him, whether written or oral, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. ... If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted....