                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00535-CR


Mario H. Yovanovitch                      §   From Criminal District Court No. 2

                                          §   of Tarrant County (1238882D)

v.                                        §   March 7, 2013

                                          §   Opinion by Justice Dauphinot

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS




                                       By_________________________________
                                         Justice Lee Ann Dauphinot
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00534-CR
                            NO. 02-11-00535-CR


MARIO H. YOVANOVITCH                                             APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

     A jury convicted Appellant Mario H. Yovanovitch of two cases of

aggravated robbery with a deadly weapon, each charged in a separate multi-

count indictment, and assessed his punishment at seventy years’ confinement,

enhanced by a prior felony conviction, in each case. The jury also returned an

affirmative deadly weapon finding in each case.     The trial court sentenced

     1
      See Tex. R. App. P. 47.4.


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Appellant accordingly. In his sole issue, Appellant argues that the trial court

erred by refusing to grant an instructed verdict of acquittal because the evidence

is insufficient to convict him of the aggravated robbery offenses in that the

accomplice testimony was not corroborated. Because we hold that the evidence

is sufficient to support the jury’s verdict in each case and that the accomplice

testimony was adequately corroborated, we affirm the trial court’s judgments.

Brief Facts

      On April 14, 2009, Appellant began working at a Dairy Queen in Arlington,

Texas. The manager, Virginia McCoy, terminated his employment on May 10,

2009. On the morning of May 11, 2009, McCoy was counting money in the back

of the restaurant when a masked gunman entered her office and demanded the

money in sight and also that hidden in the drawer. McCoy testified that, based

on the robber’s knowledge of where the additional cash was kept, she believed

that he was a former employee.

      On May 23, 2009, there was another robbery at the Arlington Dairy Queen,

but this time two men committed the robbery. McCoy testified that the man who

came to the back where she was again counting money was the same robber

who had committed the first robbery and that he asked for the visible and hidden

money in the same manner. Finally, although she had never before suggested

that she recognized the voice of either robber, McCoy testified that after

reviewing the tapes of the second robbery, she had determined that she

recognized the voice of the robber who demanded the money and that it was


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Appellant’s.   She acknowledged on cross-examination that although she had

reviewed the tapes after the robbery, before trial she “couldn’t put the voice with

the face” and that she “just knew the voice was familiar.”

      Appellant’s accomplice in the second robbery, Sean Rafferty (Rafferty),

agreed to testify against Appellant at trial in exchange for a fifteen-year sentence.

Rafferty testified that he had known Appellant for several months when Appellant

approached him for help in robbing the employees at the Dairy Queen. Rafferty

also testified that Appellant’s sister, Roxanne Yovanovitch, acted as their

getaway driver in her gray Suburban.         Rafferty further testified that he and

Appellant put on masks, entered the restaurant, and stole the money at gunpoint.

Finally, Rafferty testified that Appellant also told him about the previous Dairy

Queen robbery that Appellant had committed.

      Roxanne testified at trial that she drove the getaway car for the first

robbery and again for the second, which Appellant committed with Rafferty.

      The State also called Matthew McCarty, who testified that he was working

at Dairy Queen when both robberies occurred; during the first robbery, the robber

seemed to have inside knowledge; and following the second robbery, McCarty

saw the men get into a gray Suburban. McCarty testified that the man who

committed the first robbery was one of the two who committed the second

robbery.

      The State also called Rafferty’s mother, Yvonne, who testified that her son

and Appellant were friends, Appellant’s sister Roxanne drove a grey Suburban,


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and the police recovered Appellant’s hat from Yvonne’s apartment. Throughout

the trial, Appellant was referred to as both Mario Hernandez and Mario

Yovanovitch. Yvonne explained that she knew him as Yovanovitch.

Sufficiency of the Evidence

      The accomplice-witness rule is a statutorily imposed sufficiency review and

is not derived from federal or state constitutional principles that define legal

sufficiency standards.2 The accomplice-witness rule, which is set out in Article

38.14 of the code of criminal procedure, 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.3

      When evaluating the sufficiency of corroboration evidence under the

accomplice-witness    rule,   we   “eliminate   the   accomplice   testimony   from

consideration and then examine the remaining portions of the record to see if

there is any evidence that tends to connect the accused with the commission of

the crime.”4 To meet the requirements of the rule, the corroborating evidence




      2
      Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999), cert.
denied, 528 U.S. 1082 (2000).
      3
       Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).
      4
      Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting
Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)).


                                         5
need not prove the defendant’s guilt beyond a reasonable doubt by itself. 5 Nor is

it necessary for the corroborating evidence to directly link the accused to the

commission of the offense.6 Rather, the evidence must simply link the accused

in some way to the commission of the crime and show that “rational jurors could

conclude that this evidence sufficiently tended to connect [the accused] to the

offense.”7

      There is no set amount of nonaccomplice corroboration evidence that is

required for sufficiency purposes; “[e]ach case must be judged on its own facts.” 8

Circumstances that are apparently insignificant may constitute sufficient evidence

of corroboration.9

      Accomplices Rafferty and Roxanne both testified about both robberies.

Rafferty provided details about the second robbery that occurred on May 23,

2009, the one in which he participated, and also testified that Appellant told him

that he had committed the first Dairy Queen robbery. Roxanne testified that she

was the getaway driver for both robberies.

      5
       Malone, 253 S.W.3d at 257; Trevino v. State, 991 S.W.2d 849, 851 (Tex.
Crim. App. 1999); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).
      6
       Cathey, 992 S.W.2d at 462.
      7
       Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); see
McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.), cert. denied, 522 U.S.
844 (1997).
      8
       Malone, 253 S.W.3d at 257 (quoting Gill, 873 S.W.2d at 48).
      9
       Trevino, 991 S.W.2d at 852.


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      McCoy testified that the man who, on May 23, 2009, came to the back of

the Dairy Queen and robbed her where she was counting money was the same

robber who had committed the first robbery and that he asked for the visible and

hidden money in the same manner.         She also testified that she recognized

Appellant’s voice from the surveillance tapes of the second robbery.         Her

testimony tends to connect Appellant to both offenses. Whether the jury found

her testimony credible in light of her testimony on cross-examination was an

issue for the jury alone.

      Additionally, Appellant was left-handed and had worked at that Dairy

Queen before the first robbery. The May 23 robber held the gun in his left hand.

The evidence further suggested that the man who committed the May 23 robbery

also committed the first robbery and that that man was sufficiently familiar with

the practices of the employees and the locations of the money to suggest that he

had been an employee. In the video of the second robbery shown to the jury, the

left-handed robber was wearing a hat that Yvonne identified as the same hat the

police had found at her house and that she had identified as being worn by

Appellant. She also identified the robber in the video as Appellant.

      Officer Wright testified that he was able to connect the robberies to

Appellant and his accomplices through the store videos. Witnesses on the scene

of the second robbery testified that Appellant escaped in the vehicle Yvonne

identified as belonging to Roxanne.

      Applying the appropriate standard of review, we hold that the evidence


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was sufficient to support the jury verdicts and that the accomplice testimony was

adequately corroborated. Consequently, the trial court did not err by overruling

Appellant’s motion for instructed verdict. We overrule Appellant’s sole issue and

affirm the trial court’s judgments.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 7, 2013




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