                                          NO. 07-05-0282-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL E

                                        JULY 25, 2007
                               ______________________________


                                    JARED DANIEL LITTRELL,

                                                                           Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

                FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                       NO. 50,983-B; HON. JOHN BOARD, PRESIDING
                            _______________________________

                                    Memorandum Opinion
                             ________________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

        Jared Daniel Littrell appeals his convictions for murder, aggravated robbery, and

unlawful possession of a firearm by a felon. Through five issues, he contends that 1) the

evidence was legally and factually insufficient to support any of the convictions, 2) the

convictions violated his right to be free of double jeopardy, 3) the trial court erred in



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        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.002(a)(1) (Vernon Supp. 2006).
admitting evidence of an extraneous offense, and 4) the trial judge should have recused

himself. We affirm the judgment.

                                       Background

       On the night of November 9, 2003, Eric Seuss picked up Kissy Stiger, a prostitute,

on Amarillo Boulevard and took her to his motel room at the Executive Inn in Amarillo

where they engaged in sex. Seuss then drove Kissy back to the Inn of Amarillo. After

using cocaine with one of her friends, Kissy went looking for another customer. She

encountered her friend Anthony Gilbreath, and they agreed to obtain more drugs after he

retrieved his car. While waiting on Gilbreath, appellant, who was driving a loud, older two-

toned Chevy pickup truck with a hood ornament of a bulldog, approached Kissy and asked

where he could obtain cocaine. Kissy entered the truck, and the two proceeded to drive

away. While doing so, they passed Gilbreath and stopped so he too could get in. Around

that time, Kissy noticed that appellant had a small gun that fit into the palm of his hand.

       Kissy, appellant, and Gilbreath drove around town making several purchases of

cocaine. Thereafter, appellant asked if there was anyone they could “jack” or rob. Kissy

told him of Seuss who she knew had a large amount of money. They then drove to the

Executive Inn to accost him.

       According to the record, appellant and Kissy climbed the stairs to Seuss’ room, at

which point Kissy tried to persuade Seuss to open the door. Thereafter, appellant forced

his way into the room and began to fight with Seuss. During the brawl, Kissy grabbed

Seuss’ wallet, ran from the room, and left the area. Eventually, appellant attempted to flee

as well. As he did, Seuss followed. At that point, a gunshot rang out, a .22 caliber bullet



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struck Seuss in the abdomen, and he fell down a set of stairs outside his room. Appellant

then ran to his truck and left. The wound suffered by Seuss proved fatal.

       One or more of the hotel guests heard an argument between several men and a

woman shortly before the shooting. So too did one or more hear the shooting and see

Kissy and a white man wearing a hood flee. The hooded man was also seen entering a

two-toned Chevy pickup, which truck had a bulldog ornament on it much like that of

appellant’s. And, while none of the bystanders testified that they saw a gun, appellant was

known to own a .22 caliber handgun small enough to fit within the palm of his hand. Kissy

and Gilbreath saw appellant with it shortly before the shooting while others saw appellant

with it days earlier.

                           Sufficiency of the Evidence

       Appellant questions the legal and factual sufficiency of the evidence supporting his

conviction. His focus lies upon the accomplice witness rule and the circumstantial nature

of the case. Simply put, he believes that the only evidence of his guilt was provided by

accomplices, and there existed no independent evidence sufficient to corroborate that

accomplice testimony. We overrule the points.

       It is true that a defendant cannot be convicted upon the testimony of an accomplice

unless it is corroborated by other evidence. TEX . CODE CRIM . PROC . ANN . art. 38.14

(Vernon 2005). In assessing whether this rule was satisfied, we eliminate the accomplice

testimony from consideration and examine the record to see if any evidence tends to

connect the defendant to the commission of the offense. Solomon v. State, 49 S.W.3d

356, 361 (Tex. Crim. App. 2001). More importantly, the evidence need not directly link the



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defendant to the crime or establish his guilt beyond a reasonable doubt. McDuff v. State,

939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need only tend to connect him to it.

        Irrespective of whether Kissy or Gilbreath were appellant’s accomplices, sufficient

independent evidence exists that tends to connect appellant to the crime. It consists of

third parties seeing 1) appellant’s two-toned pickup truck with its unique bulldog ornament

in the motel parking lot whereat Seuss was shot, 2) Seuss at the top of the stairwell facing

his assailant who was at the bottom of the stairwell facing Seuss when the shots were

fired, 3) the assailant enter appellant’s vehicle and drive away after the shooting, and 4)

appellant with a small .22 caliber handgun several weeks before the shooting. To this, we

add the evidence that Seuss was shot with a .22 caliber firearm. Combined, the sum tends

to connect appellant to the robbery and shooting, and because it does, the purported

accomplice testimony was indeed corroborated and susceptible to consideration by the

jury.

        Next, upon consideration of the accomplice testimony, we find evidence illustrating

that 1) appellant asked Kissy and Gilbreath if they knew anyone they could rob, 2)

appellant journeyed with Gilbreath and Kissy to Seuss’ motel room once a robbery plan

was concocted, 3) appellant had a small handgun that fit within his palm, 4) appellant

forcibly entered Seuss’ motel room and fought with Seuss while Kissy took Seuss’ wallet

and left, 5) appellant was the only member of the group present when the gun play

erupted, 6) Seuss was shot with a bullet of the caliber emitted from appellant’s handgun,

and appellant fled the scene. Collectively, the evidence is both legally and factually

sufficient to support appellant’s convictions for murder, aggravated robbery, and unlawfully

possessing a firearm under the standards pronounced in Jackson v. Virginia, 443 U.S. 307,

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99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App.

2006), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29

S.W.3d 556 (Tex. Crim. App. 2000).

                                    Double Jeopardy

       Next, appellant argues that his conviction for murder required proof of an

aggravated robbery, and, therefore, his conviction for aggravated robbery violated

principles of double jeopardy. He also contends that since possession of a firearm by a

felon is a lesser-included offense of aggravated robbery, his conviction for it similarly

violated concepts of double jeopardy. We overrule the issue.

       With regard to the greater/lesser-included offense issue, we note that the authority

cited by appellant, e.g., Ex parte Rodriguez, 600 S.W.2d 835 (Tex. Crim. App. 1980) and

Ex parte Harris, 583 S.W.2d 419 (Tex. Crim. App. 1979), dealt with convictions arising from

separate causes or proceedings. Since that time, the Court of Criminal Appeals has held

that the same double jeopardy concerns do not arise when the multiple offenses are tried

in one cause. Cervantes v. State, 815 S.W.2d 569, 573-74 (Tex. Crim. App. 1991). The

Cervantes court stated that double jeopardy was not necessarily implicated merely

because the State was required to prove aggravated robbery in order to prove attempted

capital murder. Id. at 574. All depends upon whether each offense has an element

different from the other. Id. at 573. And, that exists here.

       To prove aggravated robbery as alleged in the indictment, the State had to prove,

among other things, the commission of a theft coupled with aggravating circumstances;

such was not required to prove either murder or a felon in possession of a firearm. To



                                             5
prove murder, the State had to establish that an act of appellant caused Seuss’ death; that

element is missing in both the crimes of aggravated assault and a felon possessing a

firearm. Finally, in establishing the latter crime, the State had to prove appellant was a

felon, and that is not an element of either murder or aggravated robbery. So, the test

espoused in Cervantes was met and no problems with double jeopardy arose.

       Finally, the United States Supreme Court authorities cited by appellant are also

inapposite. They either dealt with succeeding prosecutions, Harris v. Oklahoma, 433 U.S.

682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct.

2260, 65 L.Ed.2d 228 (1980), or the levying of consecutive sentences. Whalen v. United

States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Neither circumstance was

involved here.

                                   Extraneous Offense

       Appellant next complains of the admission into evidence of the testimony of Billy

and Jessica Cain which showed that he had been in the possession of a small handgun

shortly before the murder of Seuss. He contends the evidence is not relevant to whether

he possessed a handgun on November 9 or 10. We overrule the issue.

       As previously discussed, the evidence of appellant’s prior sightings with a .22 caliber

handgun was used to corroborate the testimony of the accomplice witnesses. Evidence

of extraneous offenses is admissible for that purpose. Lawton v. State, 913 S.W.2d 542,

553 n.9 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983

S.W.2d 249 (Tex. Crim. App. 1998); Hernandez v. State, 52 S.W.3d 268, 282 (Tex. App.

– Corpus Christi 2001, no pet.). Moreover, because no eyewitnesses other than those who



                                              6
appellant deemed to be accomplices identified appellant as the assailant, circumstantial

evidence like that at issue here was necessary to tie him to the offense. Finally, a great

amount of time was not spent in developing the evidence in dispute. Thus, we conclude

that the trial court’s decision did not evince an instance of abused discretion when tested

against the indicia discussed in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App.

1991).

                                     Recusal of Judge

         Finally, appellant claims the trial judge should have recused himself because he

made statements that indicated he was prejudiced against appellant. Apparently those

statements consisted of its “failure to charge the jury concerning Gilbreath’s status as an

accomplice witness” and comment that the sentences “should run ‘stacked.’” Yet, how

those comments evinced any bias or prejudice or otherwise disqualified the trial judge went

undeveloped; thus we consider them insufficiently briefed. See Billy v. State, 77 S.W.3d

427, 429 (Tex. App.–Dallas 2002, pet. ref’d) (requiring the appellant to provide substantive

analysis).    We further note that at least with regard to the allusion to stacking the

sentences, appellant concedes that he was not harmed. Finally, we note that he did not

request any relief or argue that he was entitled to any. Given these circumstances, we

overrule the issue.

         Having overruled each issue, we affirm the judgment of the trial court.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.


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