Opinion issued September 24, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-13-00947-CR
                           ———————————
                   GERMAIN LAWON DAVIS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1330760



                         MEMORANDUM OPINION

      A jury convicted appellant Germain Lawon Davis of capital murder and

found that a deadly weapon was used in the commission of the offense. See TEX.

PENAL CODE § 19.03(a)(2). The trial court pronounced a sentence of life in prison
without the possibility of parole. In three issues, Appellant challenges the

sufficiency of the evidence to support the jury’s verdict. He argues that the

evidence was generally insufficient, and he specifically argues that there was

insufficient evidence to corroborate the testimony of an accomplice witness or to

show that he was guilty as a party to the crime.

      We affirm.

                                    Background

      In October 2011, Appellant Germain Lawon Davis and his friend Javon

Bryant-Metoyer were sharing the use of a black Chevrolet Avalanche. Just before

9:00 p.m. on October 23, they ran out of fuel close to the Houston Galleria. They

abandoned the vehicle and they entered an apartment complex parking lot on foot

through an open security gate. An apartment complex resident who worked as a

tow truck driver was responding to an unrelated call for assistance when he noticed

the abandoned Chevrolet Avalanche and saw the men walk toward the parking lot.

      Because this appeal presents a challenge to the sufficiency of the evidence to

corroborate an accomplice’s testimony, it is necessary to distinctly set forth the

evidence presented by different witnesses. Gloria Chavez lived in the apartment

complex with her husband, Esvin Luis-Sapon. In the parking lot they encountered

the two men, who followed them to their car. Gloria testified that although she

initially got into the car, one of the men pulled her from it and held her at gunpoint



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while the other man held Esvin at gunpoint. The armed men ordered Gloria and

Esvin not to look at them and threatened to kill the couple if they attempted to flee.

Esvin offered them money and his car keys. Gloria heard a struggle and a gunshot

from her husband’s side of the car. She ran to Esvin, who had been shot in the

back. He was bleeding profusely and unable to speak. The man who had held

Gloria at gunpoint took Esvin’s cash, and the other man took his car keys. One of

the men also took Gloria’s purse, which held her mobile phone. Both men ran

away. Gloria remained with her husband until the police arrived. Esvin was taken

to a hospital and later pronounced dead.

      Javon, who pleaded guilty to the murder of Esvin, testified that he was with

Appellant in southwest Houston on the night of October 23. He said that Appellant

was driving a black Chevrolet Avalanche, and when the vehicle ran out of gas,

they decided to “plot a scheme, try to go rob somebody else.” They approached

Gloria and Esvin and held them at gunpoint. Javon said that he pulled Gloria from

the vehicle before hearing Esvin resisting and struggling with Appellant. He

testified that he walked to the driver’s side and shot Esvin in the back at close

range. He denied having any intent to kill Esvin, saying, “If I wanted to kill him, I

would have shot him more than one time. I shot him one time.” After the shooting,

Javon fled on foot; he later took a bus to the Villa Americana apartments.




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      That night Appellant called a close friend, Phillip Smith, to ask for a ride

home from the southwest side of Houston. Phillip picked up Appellant a few

blocks from the apartment complex where Esvin was shot. Phillip testified that

Appellant told him he had been with a girlfriend but wanted to leave because she

was “tripping.” Phillip drove Appellant to the Villa Americana apartments in

southeast Houston.

      The next day, a Crime Stoppers tip identified Appellant as a possible suspect

in the shooting and informed law enforcement officers that he and physical

evidence pertaining to the crime could be found at apartment 12 in the Villa

Americana apartments. The specified apartment was leased to Appellant’s cousin,

Tera Turnipseed. Law enforcement officers began surveillance of the apartment.

      The surveillance team observed people loading boxes into a car that was

parked on the driveway and owned by Tera’s sister, Rosie. Tera and Rosie drove

the car away from the apartments, and then law enforcement officers stopped them.

Both Tera and Rosie gave officers consent to search the vehicle. In the car, officers

found a plastic container and a laundry basket containing men’s clothing and

toiletries, a mobile phone belonging to Gloria Chavez, a pair of Nike “Air Force 1”

athletic shoes, an assortment of ammunition, a battery for the telephone, and a

loaded 9-mm semiautomatic handgun. A police officer testified that a brown spot




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on the left toe of the shoes appeared to be blood. Laboratory testing and DNA

analysis later confirmed that the spot was Esvin’s blood.

         Appellant’s friend, Cedric Mason, testified that the day before the shooting,

Appellant tried on and purchased a pair of Nike “Air Force” athletic shoes.

         When officers determined that Appellant was in apartment 12, they

approached the apartment to take him into custody. Meanwhile Javon, who was

also present, fled through a back window and was later apprehended.

         Tera testified that the day after Esvin’s murder, she helped bring some of

Appellant’s packed belongings from her apartment to Rosie’s car, which she

sometimes borrowed. She offered two explanations for putting Appellant’s

belongings in the car: first, she said she was helping him move; later, she testified

that she wanted his belongings removed from her apartment because of concern

about some statements Javon made after the shooting. Tera testified that she knew

Javon, did not like him, and did not permit him to stay in her apartment. But she

said it was possible that some of his possessions were commingled with

Appellant’s belongings because the men sometimes shared clothing and other

items.

         The court’s charge instructed the jury on capital murder as charged in the

indictment and on aggravated robbery. The court also instructed the jury on the law




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of parties, conspiracy, and the accomplice-witness rule. The jury found Appellant

guilty of capital murder, and he appealed.

                                     Analysis

      Appellant contends that the evidence was insufficient to support the jury’s

verdict. The court instructed the jury that it could find Appellant guilty of capital

murder in one of three ways: (1) as the primary actor, if he intentionally shot and

killed Esvin while in the course of committing robbery; (2) as a party to the

offense, if he aided or encouraged Javon to murder Esvin while in the course of

committing robbery; and (3) as a co-conspirator, if while carrying out a conspiracy

to commit robbery, Javon murdered Esvin. On appeal, Appellant argues that there

is no evidence to show that he was the primary actor. He further argues that

Javon’s “accomplice-witness” testimony is the only evidence that placed him at the

scene of the crime and that there was insufficient corroborating evidence that

tended to connect him to the offense. Therefore he contends that the evidence was

insufficient to support the conviction for capital murder as a party or a co-

conspirator.

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);



                                         6
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to

the responsibility of the factfinder to fairly resolve conflicts in the testimony, to

weigh evidence, and to draw reasonable inferences from the facts. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. In so doing, we

may not reevaluate the weight and credibility of the record evidence and thereby

substitute our own judgment for that of the factfinder. Williams, 235 S.W.3d at

750. This standard applies equally to circumstantial and direct evidence. Laster v.

State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).

      A person commits capital murder if he intentionally commits murder while

in the course of committing or attempting to commit robbery. TEX. PENAL CODE

§ 19.03(a)(2). A person commits murder if he “intentionally or knowingly causes

the death of an individual.” Id. § 19.02(b)(1). A person commits robbery if “in the

course of committing theft and with intent to obtain or maintain control of . . .

property, he intentionally, knowingly, or recklessly causes bodily injury to another;

or intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death.” Id. § 29.02(a)(1)–(2). Theft is the unlawful appropriation

of property with the intent to deprive the owner of the property. Id. § 31.03(a).

      It is not enough for a court reviewing the sufficiency of evidence to consider

whether the defendant himself has been shown to have committed the elements of

the offense. This is so because a person may be charged with an offense if it is



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committed by his own conduct, by the conduct of another for whom he is

criminally responsible, or both. Id. § 7.01(a), (b). The law of parties is codified by

section 7.02 of the Penal Code, which provides, in relevant part, that:

      (a) A person is criminally responsible for an offense committed by the
          conduct of another if:

      ....

             (2)   acting with intent to promote or assist the commission of
                   the offense, he solicits, encourages, directs, aids, or
                   attempts to aid the other person to commit the offense; or

      ....

      (b) If, in the attempt to carry out a conspiracy to commit one felony,
          another felony is committed by one of the conspirators, all
          conspirators are guilty of the felony actually committed, though
          having no intent to commit it, if the offense was committed in
          furtherance of the unlawful purpose and was one that should have
          been anticipated as a result of the carrying out of the conspiracy.

Id. A factfinder may determine that an individual is a party to an offense when the

evidence shows that there was “an understanding and common design to commit

the offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). This

evidence may be circumstantial and need not point directly to the guilt of the

defendant. Id.

      Under the conspiracy theory of the law of parties, “the intent to participate in

a conspiracy to commit an underlying felony supplies the mens rea for another

felony actually committed in furtherance of the unlawful purpose.” Turner v. State,



                                          8
414 S.W.3d 791, 797 (Tex. App.—Houston [1st Dist.] 2013), aff’d as modified,

443 S.W.3d 128 (Tex. Crim. App. 2014). A defendant charged with capital murder

under the conspiracy theory of the law of parties thus may be convicted without

any proof that he intended to commit murder. See Ex parte Martinez, 330 S.W.3d

891, 901 (Tex. Crim. App. 2011); Turner, 414 S.W.3d at 797; Love v. State, 199

S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (defendant may

be convicted of capital murder solely on conspiracy theory of culpability).

      The trial court’s charge authorized the jury to convict Appellant of capital

murder either as a principal actor or as a party to the offense, and the trial court

instructed the jury on the law governing the conspiracy theory of culpability. See

TEX. PENAL CODE § 7.02(b). Under section 7.02(b), the jury was not required to

find that Appellant himself caused or intended to cause Esvin’s death. Rather it

could convict Appellant if it found that (1) he conspired with Javon to rob Esvin

and Gloria, (2) Javon committed the murder while carrying out the conspiracy to

commit robbery, and (3) he should have anticipated Javon’s actions could arise as

a result of carrying out the conspiracy. See id.

      Javon testified that when the Avalanche ran out of fuel, he and Appellant

made a plan to commit robbery. From this evidence, a rational jury could find that

they had “an understanding and common design” to commit robbery. See Gross,

380 S.W.3d at 186. Javon further testified that while in the course of robbing



                                           9
Gloria and Esvin at gunpoint, Esvin began resisting and struggling with Appellant.

Javon admitted that he then shot Esvin at close range for refusing to give up the

money or car keys. Esvin later died from this gunshot wound. A rational jury thus

could find that Javon intentionally killed Esvin while in the course of committing

robbery, i.e., attempting to deprive him of money and car keys while threatening

his life.

       Testimony from Javon and Gloria established that both Javon and Appellant

brandished guns while in the course of committing robbery. “Evidence that a

defendant knew his co-conspirators might use guns in the course of the robbery can

be sufficient to demonstrate that the defendant should have anticipated the

possibility of murder occurring during the course of the robbery.” Love, 199

S.W.3d at 453. Because the evidence showed that there was an agreement and plan

to commit robbery and that both men were armed, a rational jury could find that

Appellant should have anticipated Javon’s actions could result from carrying out

the conspiracy. Thus, taking Javon’s testimony into account, we conclude that the

evidence was legally sufficient to support the jury’s verdict. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789.

       However, Appellant contends that the evidence is legally insufficient

because Javon was an accomplice witness and his testimony was not sufficiently

corroborated. “A conviction cannot be had upon the testimony of an accomplice



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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. Unlike legal

sufficiency, the accomplice-witness rule is not derived from federal or state

constitutional principles. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim.

App. 2007). Therefore, the standard of review for sufficiency of corroborating

evidence is “tendency to connect” rather than rational sufficiency. See Cathey v.

State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999).

      In reviewing the sufficiency of the corroborating evidence, we exclude the

accomplice-witness testimony from our consideration and determine whether there

is any independent evidence that tends to connect the defendant with the

commission of the offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim.

App. 2008). The evidence must link the accused in some way to the commission of

the offense and show that rational jurors could conclude that the evidence

sufficiently tended to connect the accused to the offense. Simmons v. State, 282

S.W.3d 504, 508 (Tex. Crim. App. 2009); Malone, 253 S.W.3d at 257. “[W]hen

there are conflicting views of the evidence—one that tends to connect the accused

to the offense and one that does not—we will defer to the factfinder’s resolution of

the evidence.” Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).




                                        11
Corroborating evidence may be direct or circumstantial, and it need not be

sufficient by itself to establish guilt. Id.; Cathey, 992 S.W.2d at 462.

      Appellant argues that Javon’s testimony is the only evidence placing him at

the scene of the crime and connecting him to the murder. The non-accomplice

witness evidence includes testimony from Gloria and from the tow truck driver

establishing the presence of two men at the apartment complex on the night of the

shooting. Gloria was unable to identify Appellant because it was dark, but she

testified that two men followed her and Esvin and robbed them at gunpoint. The

tow truck driver also testified that he saw the Chevrolet Avalanche and two men

entering the apartment complex parking lot on the night of the shooting. The non-

accomplice witness evidence also placed Appellant in the vicinity of the shooting

on the night of the murder. Phillip testified that Appellant called him that night

seeking a ride home from a location that was merely blocks away from the scene of

the shooting and far from the Villa Americana apartments.

      Non-accomplice evidence pertaining to events before and after the shooting

also tends to connect Appellant to the offense. Prior to the shooting, Appellant was

seen driving the Avalanche, which Tera said he shared with Javon, and which was

found abandoned at the apartment complex where Esvin was killed. The day before

the shooting Appellant tried on and purchased Nike Air Force 1 athletic shoes, the

same type of shoes later found in Rosie’s car.



                                          12
      Law enforcement officers testified at trial that a Crime Stoppers tip

identified Appellant as a possible suspect in this crime and informed them that he

could be found in apartment 12 at the Villa Americana, along with evidence of the

crime. Apartment 12 was leased to Tera, Appellant’s cousin, who testified that she

helped put his possessions in her sister’s car the day after the shooting. When that

car was searched, a firearm, Gloria’s mobile phone, and the Nike Air Force 1 shoes

with Esvin’s blood were found among men’s clothing and other belongings.

Moreover, Appellant himself was apprehended in apartment 12 the day after the

murder.

      Appellant contends that neither the evidence that he shared the Avalanche

with Javon nor the presence of Esvin’s blood on the Nike shoes that he may have

shared with Javon connects him to the offense. However, in reviewing the

evidence to determine whether it tends to connect Appellant to the offense, we

must consider the evidence in the light most favorable to the jury’s verdict. See

Smith, 332 S.W.3d at 442. Appellant’s arguments rely on considering the evidence

in a manner contrary to the jury’s verdict. While there was testimony that Javon

sometimes drove the Avalanche, there was also evidence that the men shared the

vehicle. Appellant’s argument suggests a theory that Javon acted alone or in

concert with someone other than him. To the extent that the evidence gives rise to

conflicting views, we must defer to the jury’s resolution of the conflict in the



                                        13
evidence. See id. Similarly, while there was testimony that the men sometimes

shared clothing and shoes, there was no evidence that Javon ever wore the Nike

shoes that Appellant tried on and purchased the day before the shooting.

Appellant’s argument relies on Tera’s testimony that he and Javon sometimes

shared clothing. This argument would require us to resolve conflicting views of the

evidence—i.e., that the shoes belonged to Appellant or that he shared them with

Javon. Again, we must defer to the jury’s determination that the evidence as a

whole tended to connect Appellant to the crime. See id.

      Having eliminated the accomplice-witness testimony from our consideration

and having examined the non-accomplice witness evidence, we conclude that there

is some non-accomplice witness evidence that linked Appellant to the commission

of the offense of capital murder. See Simmons, 282 S.W.3d at 508; Malone, 253

S.W.3d at 257. Accordingly, we further conclude that Javon’s testimony was

corroborated, and the jury properly considered his testimony in reaching its verdict.




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                                    Conclusion

       Having considered Appellant’s arguments, we conclude that the non-

accomplice witness evidence tended to show his connection to the offense, and the

evidence, including Javon’s testimony, was legally sufficient to support his

conviction for capital murder under a conspiracy theory of culpability.

Accordingly, we overrule all of Appellant’s issues, and we affirm the judgment of

the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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