                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00004-CR

ANTARIUS DEMON ASHLEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 14-00152-CRF-85


                          MEMORANDUM OPINION


      In two issues, appellant, Antarius Demon Ashley, challenges his conviction for

robbery. See TEX. PENAL CODE ANN. § 29.02 (West 2011). Specifically, appellant contends

that the evidence supporting his conviction is insufficient and that the State did not

proffer sufficient evidence to corroborate the testimony of an accomplice witness.

Because we find that the State proffered sufficient evidence to corroborate the testimony
of an accomplice witness, and because the evidence supporting appellant’s conviction is

sufficient, we affirm.1

            I.    SUFFICIENCY OF THE EVIDENCE SUPPORTING APPELLANT’S CONVICTION

        In his first issue, appellant argues that the evidence is insufficient to establish his

identity as the perpetrator of the robbery because the victim, Amanda Kraft, was unable

to identify him in a photo lineup shortly after the incident. Besides the identity element,

appellant does not challenge any of the other elements of the charged offense.

A.      Standard of Review

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.




        1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Ashley v. State                                                                                     Page 2
        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:     “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        As noted earlier, appellant contends that the evidence is insufficient to establish

his identity as the perpetrator of the robbery. “A conviction may be based on the



Ashley v. State                                                                          Page 3
testimony of a single eyewitness.” Santiago v. State, 425 S.W.3d 437, 443 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d); see Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.

1971). However, to provide sufficient evidence of guilt, the eyewitness must give “clear,

direct, positive testimony” that the defendant committed the crime alleged. Gilbert v.

State, 429 S.W.3d 19, 28 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

        Here, Kraft provided the following testimony about the incident, which transpired

as she walked to her truck with money from Denny’s that was supposed to be deposited

at the bank:

        He had a gray baseball cap on his head. The gray sweater had writing on
        it—like a team of some sort—and gray sweatpants. I don’t remember what
        his shoes looked like.

               I got—my uncomfortable feeling got stronger so I tried to get in my
        truck. I got the door open, and he [appellant] was on me. I don’t know if I
        turned from the feeling of somebody being behind me or of him turning me
        around; but from here up was in my truck, the rest of it was laying out on
        the ground, and he was literally laying on me and my purse was on my arm
        and behind me and he was trying to pull on it, but he was slamming me
        around. He kept repeating, “Shut up, bitch,” because I was screaming like
        blood curdling, “Help me. Help me.” And I was kicking and I was hitting
        and I was trying to push him off. And this went on for several seconds.
        And he pulled hard enough and my purse broke and he fell backwards.
        And I sat there for a second, and then my brain said scramble. So I
        scrambled back as fast as I could. And I was this close to having my door
        shut, and he ripped it open and was on me again. And I tried to fight back
        again and still screaming and seconds later he had freed my purse from
        behind me and took off.2




        It is also worth noting that the purported accomplice witness, Camille Ashley, admitted that she
        2

saw appellant with a purse when she picked him up near the Denny’s.

Ashley v. State                                                                                  Page 4
Thereafter, Kraft identified appellant in open court as the perpetrator of the robbery and

noted that she was face to face with appellant during the robbery. However, Kraft

admitted that she was unable to identify appellant in a photo lineup that was conducted

shortly after the incident, though she explained that: “They showed me several photos;

but I do apologize, it is very hard to depict a black male in black and white photos.”

        On appeal, appellant’s identity argument hinges on Kraft’s inability to identify

him shortly after the incident as the perpetrator of the robbery. However, one eyewitness

is sufficient to sustain a conviction, and Kraft identified appellant in open court as the

perpetrator. See Aguilar, 468 S.W.2d at 77; see also Santiago, 425 S.W.3d at 443. Ultimately,

whether appellant’s argument casts doubt on Kraft’s testimony is a credibility

determination for the jury. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d) (“The alibi testimony, the lack of physical or forensic evidence,

and the differences between the testimony of the witnesses are all factors for the jury to

consider in weighing the evidence.”). Following Jackson, we presume that the jury found

Kraft’s identification credible and defer to that finding. See 443 U.S. at 326, 99 S. Ct. at

2793; see also Clayton v. State, 235 S.W.3d 772, 778-79 (Tex. Crim. App. 2007); Mosley v.

State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Johnson, 176 S.W.3d at 78. Therefore,

we conclude that the evidence is sufficient to support appellant’s conviction for robbery.

See TEX. PENAL CODE ANN. § 29.02; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio,

351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. We overrule his first issue.


Ashley v. State                                                                          Page 5
                          II.    ACCOMPLICE-WITNESS TESTIMONY

        In his second issue, appellant asserts that his conviction should be reversed

because the State did not proffer sufficient evidence to corroborate the “inculpatory

testimony of Camille Ashley, an accomplice witness.”

A.      Applicable Law

        The Texas Court of Criminal Appeals has stated the standard of review for

sufficiency of non-accomplice evidence as follows:

        [U]nder Texas Code of Criminal Procedure Article 38.14, a conviction
        cannot stand on an accomplice witness’s testimony unless the testimony is
        corroborated by other, non-accomplice evidence that tends to connect the
        accused to the offense. Evidence that the offense was committed is
        insufficient to corroborate an accomplice witness’s testimony. And an
        accomplice’s testimony cannot be corroborated by prior statements made
        by the accomplice witness to a third person.

                  ....

        When reviewing the sufficiency of non-accomplice evidence under Article
        38.14, we decide whether the inculpatory evidence tends to connect the
        accused to the commission of the offense. The sufficiency of non-
        accomplice evidence is judged according to the particular facts and
        circumstances of each case. The direct or circumstantial non-accomplice
        evidence is sufficient corroboration if it shows that rational jurors could
        have found that it sufficiently tended to connect the accused to the offense.
        So when 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. Therefore, it is not appropriate
        for appellate courts to independently construe the non-accomplice
        evidence.

Smith v. State, 332 S.W.3d 425, 439, 442 (Tex. Crim. App. 2011) (internal citations omitted);

see Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994) (noting that appellate courts




Ashley v. State                                                                         Page 6
review non-accomplice evidence in the light most favorable to the verdict); see also TEX.

CODE CRIM. PROC. ANN. art. 38.14 (West 2005).

        The Texas Court of Criminal Appeals has also noted that: “There need only be

some non-accomplice evidence tending to connect the defendant to the crime, not to

every element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007);

see Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996) (“No precise rule can be

formulated as to the amount of evidence required to corroborate. The non-accomplice

evidence does not need to be in itself sufficient to establish guilt beyond a reasonable

doubt.”). Furthermore, when reviewing the sufficiency of the non-accomplice evidence,

“all of the non-accomplice testimony is viewed together, rather than as isolated, unrelated

incidents . . . .” Simmons v. State, 282 S.W.3d 504, 511 (Tex. Crim. App. 2009). And

“circumstances that are apparently insignificant may constitute sufficient evidence of

corroboration.” Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (citing Trevino

v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)).

B.      Discussion

        Though Camille denied being involved in the planning or execution of the

robbery, assuming that she was an accomplice witness, her testimony was corroborated

by ample evidence, which independently supports the jury’s determination that

appellant committed the charged offense. First, Delicia Ashley testified that, on the day

of the offense, appellant left with Camille in a white vehicle that belonged to Latavia

Whatley, Camille’s cousin. Second, Kraft identified appellant in open court as the


Ashley v. State                                                                      Page 7
perpetrator of the robbery. She also described him as wearing a gray sweatshirt, gray

sweatpants, and a gray baseball cap—all items found by police in a trash can near where

appellant had been located. Kraft also noted that Latavia worked at Denny’s, drove a

white car, and did not show up to work on the day of the incident. Additionally, Ryan

Thomas testified that he saw a heavyset, African-American man wearing a gray

sweatshirt, gray pants, and a black and white hat beating up a woman in the Denny’s

parking lot. Thomas also saw the man take a purse from the women and then get into a

white, four-door Kia with a license plate number of BYL7670.

        Furthermore, Officer Damien Anderson of the College Station Police Department

stated that when he located the white Kia with the matching license plate number,

Camille was driving the vehicle alone. Though she initially lied, Camille eventually

admitted that appellant had been in the car and directed Officer Anderson to look in the

glove box, which contained appellant’s wallet with his driver’s license, among other

things. Shortly after picking up appellant, Camille kicked appellant out of the car near

808 and 810 Nimitz Street—near the location where Officer James Ingram of the College

Station Police Department found a pink and black purse that contained gray, vinyl bags

that were labeled as belonging to Denny’s, as well as Kraft’s wallet and driver’s license. 3



        3   Officer Ingram noted that:

        It’s been my experience as a police officer and through my training that sometimes people
        will attempt to change their appearance by shedding items of clothing or get rid of
        weapons, anything like that when—when they’re being pursued by the police. So it’s

Ashley v. State                                                                                     Page 8
Officer Ingram also found the clothes that appellant allegedly wore during the robbery

“sitting on top of bagged garbage” inside a trash can near where appellant had been

located.

        When viewing the non-accomplice evidence in the light most favorable to the

verdict, we conclude that there is sufficient evidence that “tends to connect the defendant

to the offense.” See TEX. CODE CRIM. PROC. ANN. art. 38.14; see also Smith, 332 S.W.3d at

439; Joubert, 235 S.W.3d at 731; Gill, 873 S.W.2d at 48; Killough v. State, 718 S.W.2d 708, 711-

712 (Tex. Crim. App. 1986) (holding that the testimony of an accomplice in the

prosecution for aggravated robbery was sufficiently corroborated by evidence showing,

among other things, that the defendant was linked to the truck used in the commission

of the robbery).      As such, we hold that the record contains sufficient evidence to

corroborate the accomplice-witness evidence contained in the record and, therefore,

satisfies article 38.14 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.

art. 38.14; see also Joubert, 235 S.W.3d at 731; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim.

App. 1999) (noting that if the combined weight of the non-accomplice evidence tends to

connect the defendant to the offense, then the requirement of article 38.14 has been

fulfilled); Gill, 873 S.W.2d at 48. We therefore overrule appellant’s second issue.




        become a pretty standard practice for us to check trash cans in the area to see if there’s
        anything that looks out of the ordinary.

Ashley v. State                                                                                      Page 9
                                     III.   CONCLUSION

         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.




                                                 AL SCOGGINS
                                                 Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 24, 2015
Do not publish
[CRPM]




Ashley v. State                                                                   Page 10
