



   MARY'S OPINION HEADING                                           



 NO. 12-00-00257-CR


IN THE COURT OF APPEALS


TWELFTH COURT OF APPEALS DISTRICT


TYLER, TEXAS

JACKIE DEWAYNE ANDREWS,§
		APPEAL FROM THE 241ST
APPELLANT

V.§
		JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE§
		SMITH COUNTY, TEXAS
 
	Jackie Dewayne Andrews ("Appellant") appeals his conviction for capital murder following
a jury trial.  He was assessed life imprisonment by the trial court.  Appellant now raises on appeal
three issues attacking the sufficiency of the non-accomplice evidence and alleging that evidence
showing Appellant had stolen the murder weapon in an earlier robbery was more prejudicial than
relevant.  We affirm.
Background
	Bo Hinton ("deceased") was murdered on the morning of August 18, 1999, during a robbery
at Loving's Food Store in Tyler.  Six shots from a Rohm .22 caliber six-shot revolver were found
in the deceased's body.  Further, abrasions and scrapes on the deceased's body indicated a violent
physical struggle had occurred during the robbery and murder.  Accomplice testimony by Appellant's
cousin Charles Miller ("Miller") showed Appellant, Thadeus Davis ("Davis"), and Cornelius Timbs
("Timbs") had stolen the murder weapon in a robbery twelve days earlier.  Miller further testified
that during three meetings following August 6, Appellant had led the planning of the robbery of the
deceased.
	Appellant testified that he, Davis and Edward Hill ("Hill") had entered the store prior to the
deceased's murder, but he did not know that Davis and Hill were planning to rob and kill Hinton. 
The deceased's blood was found on clothing of Appellant, Davis and Hill when they were arrested
less than an hour after the deceased's murder.  Further, money taken from the deceased during the
time of the robbery and murder was found on each of the three at the time of their arrest.  The jury
found Appellant guilty of capital murder and the court sentenced him to life imprisonment.

Sufficiency of the Evidence
	Appellant contends in his first two issues that non-accomplice evidence is legally and
factually insufficient to sustain his conviction for capital murder.  Appellant specifically argues that
without the accomplice testimony of Miller and Timbs, the State failed to show he intentionally
caused the death of the deceased during the robbery.  The State does not dispute that Miller and
Timbs are accomplice witnesses.

Applicable Law
	A person commits murder if he intentionally or knowingly causes the death of an individual. 
Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 1994).  A person commits the offense of capital murder
if he intentionally commits the murder in the course of committing or attempting to commit robbery. 
Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 1994).  The relevant portions of section 7.02 of the
Texas Penal Code state:

 	(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.


Tex. Pen. Code Ann. § 7.02(a)(2), (b) (Vernon 1994).

	 The Texas Code of Criminal Procedure states:

 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. Ann. art. 38.14 (Vernon 1979).
Although Appellant characterizes his issues as attacks on the legal and factual sufficiency of the
evidence, we do not review the legal and factual sufficiency of corroborative evidence.  Cathey v.
State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999); Sexton v. State, 51 S.W.3d 604, 611 (Tex.
App.-Tyler 2000, no pet.).  The test as to the sufficiency of the corroboration is to eliminate from
consideration the evidence of the accomplice witnesses and then to examine the evidence of other
witnesses to ascertain if there is evidence of incriminating character which tends to connect the
defendant with the commission of the offense.  Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App.
1988).  If there is such evidence the corroboration is sufficient; otherwise, it is not.  Id.  Each case
must be analyzed on its own facts and circumstances.  Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim.
App. 1994).  There must simply be some non-accomplice evidence which tends to connect Appellant
to the commission of the offense alleged in the indictment.  Id.  Evidence that the defendant was in
the company of the accomplice at or near the time or place of the offense is proper corroborating
evidence.  McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).  Further, accomplice
testimony need not be corroborated as to every element of the offense charged.  See id.

Accomplice Testimony

	Two accomplices, Miller and Timbs, testified for the State.  Miller was a cousin of both
Appellant and Davis.  He testified that he had known them both all of his life.  Miller testified that
he had been involved when Appellant and Davis robbed John Lee on August 6.  Miller testified that
one of the items taken in the robbery of Lee was the Rohm .22 caliber handgun which was later used
to murder the deceased.
	Miller testified that a couple of days after the murder weapon was stolen from Lee that he,
Appellant, Davis, and Timbs discussed a planned robbery of the deceased at Loving's Food Store. 
This meeting took place in the backyard of Betty Andrews' house at 1615 N. Spring.  Miller further
testified that Appellant had come up with the idea of robbing Loving's Food Store "because they
have a lot of money in the back."  Miller testified that each of the participants at this first strategy
session to rob Loving's Food Store agreed to be a part of the plan.
	Miller also testified to riding in a car with Appellant and Timbs around Loving's Food Store
where details of the planned robbery were discussed.  Miller further described another planning
session for the robbery at the home where Hill lived.  At this meeting, Appellant, Davis, Hill and
Miller were present.  Miller testified that he expressed concerns about robbing the deceased because
it was known that he had a gun.  Further, he testified that the deceased had been very helpful to his
mother and family and had even loaned them groceries in the past when they were in need.  Miller
testified that it was after this meeting on Sunday, August 15, that he walked over to his father's
house and asked him to take him to Frankston, a town about twenty-five miles south of Tyler.  Miller
said that he stayed at his girlfriend, Demetria Crear's, house in Frankston until after the robbery and
murder of the deceased which occurred on August 18.
	Timbs testified that he was at the first planning meeting to rob Loving's Food Store held in
the backyard of Betty Andrews' house at 1615 North Spring. (1)  Timbs testified that Appellant was
the leader of the discussion to rob Loving's Food Store.  He said that Appellant wanted to take this
action because it was known that the deceased kept a lot of money in the store.  Timbs further
testified that Appellant specifically asked him to drive Timbs' mother's car as the getaway car from
the scene of the planned robbery of Loving's Food Store.
	Timbs testified that Appellant brought up the robbery the second time when Appellant was
driving Betty Andrews' car in front of Loving's Food Store.  Timbs said that he and Miller were
passengers in the car when Appellant showed Timbs where he wanted him to park his mother's car
while the rest of them ran in and robbed the store.  Timbs testified that Appellant indicated that a gun
would be used in the robbery.  Timbs testified that he did not take part in the strategy session for the
robbery at Edward Hill's house nor did he take part in the August 18 robbery and murder.

Non-Accomplice Testimony

	Curtis Lowe testified that he had driven by Loving's Food Store about 8:00 a.m. on August
18 while he was on his way to the post office.  Lowe testified that as he passed by the house of
Gloria Wickware, less than a block away from Loving's Food Store on North Church Street, that he
honked his horn at Appellant who was sitting on a car with two other young men.  Lowe testified that
when he returned from the post office and entered Loving's Food Store about 8:20 a.m. that
Appellant and the other two men were still sitting on the same car on 1802 North Church Street. 
Lowe said that when he left Loving's Food Store around 8:30-8:35 a.m. he saw Appellant and the
two men with him approaching the store.  He testified that no one was in the store when he left it
other than the deceased.
	Detective Steven Risinger of the Tyler Police Department testified that he arrived at Loving's
Food Store between 8:30 and 9:00 a.m. after responding to a 911 call.  With three other Tyler police
officers, he entered the store to find the deceased lying on the floor.  Risinger testified that it was
apparent that a struggle had occurred in the living quarters and office of the store from the objects
knocked over, drawers opened and blood splattered about.  While he and the other officers were
investigating this crime scene, Sergeant Bill Goecking of the Tyler Police Department directed him
to follow a red car whose driver had said he knew where the suspects for this crime were hiding. 
Risinger then followed this red car to the home of Betty Andrews at 1615 North Spring Street.  Upon
approaching the residence, a young black male, later identified as Hill, ran off.  While other officers
gave chase to Hill, Risinger handcuffed Davis who was in front of the residence with Chilton Dews
("Dews").  Appellant and his mother, Betty Andrews, finally exited from her house at 1615 North
Spring after numerous verbal commands by Risinger.  Risinger personally recovered a large amount
of cash from Davis, and other officers recovered similar amounts of cash from Appellant and Hill.
	Three citizens who live near Loving's Food Store testified that during this mid-morning
period of time, they had seen three black males running from the direction of Loving's Food Store
and jumping fences in the process.  Dews, uncle of both Appellant and Davis, and brother of Betty
Andrews, testified that as he sat on his sister's car in her yard at 1615 North Spring, Appellant
approached him from the alleyway.  He said that shortly after Appellant arrived, Davis and Hill
followed Appellant to where he was sitting on the car.  Dews said that Appellant went into his
mother's house while Davis and Hill went around the side of the house.  Dews then testified that
when Davis and Hill returned from the side of the house, the police arrived on the scene.  Dews
testified it was at this time that Hill began running and that Davis was arrested on the spot.
	Hill was quickly apprehended by Tyler police officers after a foot chase through the nearby
neighborhood.  During this foot chase, these officers had observed Hill throw down a rubber glove.
Later, Sergeant David Long testified that the powder-free synthetic latex glove which Hill had
thrown down during the foot chase matched the box of gloves located at 1615 North Spring Street. 
The clothing of Hill, Davis and Appellant was found covered with blood.  It was later determined
after DNA testing that the blood belonged to the deceased.
	Officer James Cooper of the Tyler Police Department, who processed the crime scene,
testified that he found the Rohm .22 caliber six-shot revolver behind a house on North Church Street. 
Officer Cooper testified that when he found the revolver it contained six fired .22 caliber casings. 
Lee identified this .22 caliber gun as the weapon which had been stolen from him on August 6, 1999. 
David Dolinak, a forensic pathologist, testified that when performing the autopsy on the deceased,
he found what he believed to be six gunshot wounds. (2)  Dolinak further testified that he found
evidence of blunt-force trauma in addition to the six gunshot wounds.  He described these as scrapes,
abrasions, and lacerations in the deceased's head and upper body.  He concluded that the deceased
had died by violent means.  Travis Spinder of the Southwestern Institute of Forensic Science
("SWIFS") further identified bullets found in and around the deceased as being fired from a .22
caliber gun.  Tim Caliput, also with SWIFS, testified that the blood found on the clothing of
Appellant, Davis, and Hill at the time of their arrest matched that of the deceased.
	Appellant was the sole defense witness during trial.  He testified that he had spent the night
at the home of Davis.  He said that when they arose that morning they had gone down to Hill's
house.  There, Appellant testified that Hill brought out the .22 caliber revolver which had been stolen
from Lee on August 6.  He said that Hill and Davis had taken the gun to the side of the house and
shot it.  Appellant testified that he also purchased some marijuana from Hill while at the Hill house. 
He said that Hill smoked some marijuana while they were there but that he saved his until they
arrived next at his mother's house at 1615 North Spring Street.  Appellant testified that after
smoking marijuana with Hill and Davis at his mother's house, they decided to go to Loving's Food
Store.  Appellant testified that the plan was for him to buy some cigarettes for Hill who was only
sixteen years of age at the time.  Appellant testified that as the threesome headed toward Loving's
Food Store they stopped at the house of his aunt, Gloria Wickware.  After spending some time at his
aunt's home located less than a block from the store, Appellant testified that he told the other two,
"Come on, let's go to Loving's."
	Appellant testified that once inside the store, he headed to the back to purchase a soda.  He
said at this time he heard shots and saw Hill shooting the deceased.  Appellant testified that he tried
to exit the store at this point, but that Hill pointed the gun at him and told him to open up a drawer
containing money, which he did.  Appellant then testified that as he was trying to leave the store's
office, the deceased was trying to come into it.  He said the deceased grabbed him and that he tried
to get the deceased off of him.  He said that Davis and Hill also tried to get the deceased off of him
and that Hill was swinging his gun at the deceased while Davis was on the deceased's back.  He said
that Hill and Davis thought that they had freed him from the deceased only to have the deceased grab
him again.  Appellant said that it was at this time that Hill began shooting the deceased again and
that he finally let go of him.
	Appellant said that it was at this time that he ran out of the store, followed by Hill and Davis. 
He said that they were running and jumping over fences and eventually made it to his mother's house
at 1615 North Spring.  He said that after he went into the house, Davis and Hill went to the side of
the house and knocked on the side door.  Appellant testified that he did not let them in.  He testified
that soon the police arrived and Hill ran off.  Appellant testified that his mother had difficulty in
opening the latch leading outside but that he was able to unlatch the door so they could come outside
where he was arrested by the police.

Sufficiency of Corroboration Testimony

	The non-accomplice testimony of Curtis Lowe established that Appellant was casing
Loving's Food Store immediately prior to the commission of the robbery and murder there.  Three
neighborhood residents saw three young black men running from Loving's Food Store and jumping
fences shortly after the robbery and murder had been committed.  Chilton Dews, Appellant's uncle,
saw him in the company of Davis and Hill shortly after the crime occurred.
	Appellant himself testified that Hill and Davis had been shooting the murder weapon before
they went to the store that morning.  He further corroborated that the murder weapon had been stolen
from John Lee.  Most importantly, Appellant placed himself in the store with Davis and Hill while
the robbery and murder were occurring.  Appellant admitted running from the crime scene with
Davis and Hill.  Appellant admitted having $301.00 of the cash taken from the store at the time of
his arrest.  Further, the deceased's blood was on Appellant's clothing.
	We hold that the non-accomplice testimony along with that of Appellant sufficiently connects
Appellant to the capital murder in this case.  See Reed, 744 S.W.2d at 125. Appellant's issues one
and two are overruled.

Admission of Extraneous Offense Evidence

	In his third and final issue, Appellant contends the trial court erred in admitting evidence of
an extraneous offense.  He argues that the evidence that the .22 caliber gun used in the robbery and
murder of deceased was taken in the robbery of John Lee on August 6 constituted evidence of an
extraneous offense that was not relevant to the issue of whether Appellant was guilty of capital
murder.
	Admission of extraneous offense evidence is generally within the trial court's discretion. 
Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh'g).  The general rule
is that evidence of other crimes, wrongs or acts is inadmissible to prove a person's character, but
evidence of other crimes, wrongs or acts is admissible for other purposes, such as to prove motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.  Tex.
R. Evid. 404(b).  If a rule 404(b) objection is made to extraneous offense evidence, the proponent
of the evidence must persuade the trial court that the evidence has relevance apart from character,
conformity, e.g., that it tends to establish some elemental fact, such as identity or intent; that it tends
to establish some evidentiary fact, such as motive, opportunity or preparation leading inferentially
to an elemental fact; or that it rebuts a defensive theory by showing the absence of mistake or
accident.  Montgomery, 810 S.W.2d at 387-88; Powell v. State, 5 S.W.3d 369, 383 (Tex.
App.-Texarkana 1999, pet. ref'd).
	Texas Rule of Evidence 401 defines relevant evidence as that evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.  Tex. R. Evid. 401.  All relevant
evidence is generally admissible.  Tex. R. Evid. 402.  Here, the evidence concerning the murder
weapon was relevant to show preparation leading to the robbery of Loving's Food Store.  It further
showed the opportunity to commit the crime as planned by Appellant and the other perpetrators. 
Tracing how they obtained the murder weapon was a "fact of consequence" in this case.  See Rankin
v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996).  Additionally, this evidence tends to rebut
Appellant's testimony that he did not know Davis and Hill were planning to rob and kill the
deceased.  We hold that the trial court did not abuse its discretion in admitting the evidence of how
Appellant obtained the murder weapon.  Appellant's issue three is overruled.
	The judgment of the trial court is affirmed.


  JIM WORTHEN  
									   Justice


Opinion delivered February 6, 2002.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.













(PUBLISH)
1.  Timbs identified only Appellant, Miller, and himself being at this meeting.  He did not identify Davis as
being present.
2.  Dolinak testified that there was evidence of a shot each in the head, chest, upper back, and left thigh.  He
found evidence of two shots in the deceased's left forearm.

