                                   NO. 07-05-0187-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  MARCH 7, 2007
                          ______________________________

                                    AARON D. PUGH,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2005-408,028; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Aaron D. Pugh challenges his conviction for burglary of a habitation with intent to

commit robbery by contending 1) the trial court erred in denying his motion for mistrial due

to the State’s allegedly withholding exculpatory evidence, 2) the evidence is insufficient to

corroborate the testimony of the accomplice witness, 3) the trial court erred in failing to

charge the jury on the voluntariness of the statement given by the accomplice witness, and
4) the evidence is factually insufficient to support the conviction. We overrule each issue

and affirm the judgment of the trial court.

                                   Background

       On January 14, 2000, during the early morning hours, the home of Mike Hogan at

Buffalo Springs Lake near Lubbock was broken into and robbed of approximately

$100,000. Hogan, his live-in girlfriend Maria Guillot, and his five-year-old daughter were

in the home at the time. Two men dressed in black and wearing gloves and black ski

masks tied up Hogan and Guillot, and beat and abused Hogan in order to force him to

reveal where he kept cash that they believed was in the residence. After the men finally

found the money, they left the house.

       The two men involved in the crime were identified by Julie MacKenney, who had

formerly worked as a topless dancer with Guillot. She met Hogan through Guillot and had

driven from Amarillo to Lubbock on several occasions to engage in sexual relations with

Hogan and Guillot for money. During one of the times she had been at Hogan’s home, he

had shown her large amounts of cash that he kept there. MacKenney then told a number

of people, including appellant, about the money at Hogan’s house.

       According to MacKenney, appellant and his brother George Franklin wanted to rob

Hogan, and she went with them to help them do so. MacKenney drew a map of the house,

purchased duct tape for appellant at a Walmart store in Lubbock, drove appellant’s red

Suburban into the Buffalo Springs Lake area while appellant and Franklin hid in the

vehicle, and waited outside the house while appellant and Franklin broke into the home

and robbed and beat Hogan. She received $5000 out of the stolen money for her efforts.



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                                       Issue 1 - Motion for Mistrial

       Appellant claims in his first issue that the trial court erred in failing to grant his

motion for mistrial. The motion was based on alleged exculpatory evidence which the

State allegedly failed to reveal to appellant. That evidence concerned the fact that Hogan

originally gave a statement in which he positively identified the perpetrators as having worn

black leather ski masks.             However, prior to testifying at trial and after one of the

prosecutors informed Hogan that some of the evidence did not match his statement,

Hogan changed his testimony to indicate that the ski masks could have been of a material

other than leather. Appellant’s counsel was informed of this during trial and questioned

Hogan about it before the jury. The next day he moved for a mistrial due to a purported

Brady1 violation. The motion was denied.

       At no time did appellant seek a continuance to address the purported effect of

discovering the changed testimony. This was fatal because such was necessary to

preserve error. See Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.–Houston [1st Dist.]

2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005) (stating that the

defendant’s failure to request a continuance when Brady material is disclosed at trial

waives error or indicates that the delay in receiving the evidence was not truly prejudicial);

Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.–Austin 2002, pet. ref’d) (stating that

when previously withheld evidence is disclosed at trial, the defendant’s failure to request

a continuance waives any Brady violation).




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           Brady v . Maryland, 373 U.S . 83, 83 S.C t. 1194, 10 L.Ed .2d 215 (1 963 ).

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       Nor did appellant attempt to explain to the trial court how disclosing the changed

testimony would have affected the outcome. That was his burden. Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002) (holding that the defendant bears the burden of

showing that, in light of all the evidence, it is reasonably probable that the outcome of the

trial would have been different had the prosecutor made a timely disclosure). And, his

insinuation, via his appellate brief, that it “could have” is not enough to fill the void. Id.

(stating that the mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the trial, is not enough).

                                 Issue 2 - Corroboration

       Appellant claims in his second issue that the evidence is insufficient to corroborate

the testimony of MacKenney who was an accomplice as a matter of law. We disagree.

       A defendant cannot be convicted upon the testimony of an accomplice unless it is

corroborated by other evidence tending to connect the defendant with the offense

committed. TEX . CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005). In conducting a

sufficiency review under the accomplice witness rule, the court eliminates the accomplice

testimony from consideration and examines 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).        The evidence does not have to directly link the

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). In addition, the phrase “tending to connect”

has been interpreted as “‘to serve, contribute or conduce in some degree or way . . . to

have a more or less direct bearing or effect,’ and while not contemplating conjecture, ‘has



                                              4
a tendency to prove the averments in the indictment.’” Holladay v. State, 709 S.W.2d 194,

198 (Tex. Crim. App. 1986), quoting Boone v. State, 90 Tex. Crim. 374, 235 S.W. 580

(1921). This standard does not present a high threshold but simply reflects a legislative

determination that accomplice testimony should be viewed with some caution. In re

C.M.G., 905 S.W.2d 56, 58 (Tex. App.–Austin 1995, no writ). Moreover, each case must

be decided upon its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126

(Tex. Crim. App. 1988).

        The following evidence appears in the record which corroborates the testimony of

MacKenney.2 First, Hogan testified that the men who robbed him wore gloves, black

clothes, and black ski masks. Second, appellant’s red Suburban, along with the visage of

Franklin and another person, can be seen on a security camera of a Walmart store in

Amarillo before the assault on January 13.                Third, Franklin can be seen on video

purchasing a black mask and two pairs of cotton gloves at that store at 11:23 p.m. Next,

three hours later, on January 14 at 2:23 a.m., Franklin and appellant, who is dressed in

black, appear on a video camera at a Walmart store in Lubbock purchasing spark plugs

(which could purportedly be used to cut glass). Fifth, just prior to that, at 2:15 a.m.,

MacKenney is seen getting out of the Suburban at the same Walmart store and purchasing

duct tape and a black marker. Sixth, appellant’s red Suburban was seen entering the

Buffalo Springs Lake area by a front gate attendant at 3:06 a.m. on January 14 and exiting

about an hour later; the burglary and assault occurred around that time. Seventh, a black


        2
        MacKenney testified tha t sh e purchased duct ta pe and a black m arke r at the W alm art sto re in
Lubbock. She also sta ted that appellant and his brother went into the same store and bought spark plugs
which appellant or his brother said could be used to cut glass. MacKenney then drove the Suburban past the
guard gate entering the Buffalo Springs Lake area.

                                                    5
ski mask was found at the home of appellant. While these facts by themselves do not

prove that appellant committed the robbery, they tend to connect him to it.             Appellant

argues that this case is similar to Castenada v. State, 682 S.W.2d 535 (Tex. Crim. App.

1984) in which the only evidence linking the defendant to the pool hall where the victims

were murdered was that of an accomplice witness. We find the case at bar distinguishable

due to the fact that appellant, his brother, and MacKenney, all of whom resided in Amarillo,

were seen on videotape in Lubbock in the early morning hours in appellant’s vehicle a

short time before the robbery, and appellant’s vehicle was identified entering and leaving

Hogan’s residential area.

                                   Issue 3 - Jury Charge

       Next, appellant complains of the trial court’s failure to include an instruction to the

jury pursuant to article 38.23 of the Code of Criminal Procedure. We find no error.

       Article 38.23 provides that in any case where the evidence raises an issue as to

whether evidence was obtained by an officer in violation of the federal constitution or laws

or the state constitution or laws, the jury shall be instructed that if it believes that (or has

reasonable doubt whether) the evidence was obtained illegally, the jury should disregard

any such evidence. TEX . CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005). Appellant

sought the instruction with respect to a written statement given by MacKenney to police on

January 28, 2004, which he alleged was not voluntarily made. The court denied the

request finding that article 38.23 applies only to a statement sought to be used against the

person who made the statement.

       An accused does not have standing to complain about evidence that is illegally

obtained unless it was done so in violation of his own rights. Chavez v. State, 9 S.W.3d

                                               6
817, 819 (Tex. Crim. App. 2000). So, even if MacKenney’s statement was coerced as

appellant claims, the rights affected were those of MacKenney, not appellant. In other

words, he lacked standing to raise the issue.

       Nor does appellant’s reliance on Garza v. State, 771 S.W.2d 549 (Tex. Crim. App.

1989) cause us to hold otherwise. There, the statement was provided by a passenger in

Garza’s car.   Since the car was illegally stopped, the witness’ statement would be

considered fruit of the improper detention, and the defendant had standing to suppress that

fruit. In short, the evidence was obtained through an improper stop of Garza. The

appellant here has not shown how any coercion that may have been directed against

MacKenney transgressed any of his rights.

                         Issue 4 - Sufficiency of the Evidence

       Finally, appellant contends the evidence is factually insufficient to support his

conviction. We again disagree.

       The standard by which we review a factual sufficiency challenge is well established.

We refer the parties to Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for its

explanation.

       Appellant points out that without MacKenney’s testimony, the only evidence that

implicates him is the ski mask found at his home and the use of his vehicle in the offense.

Further, he argues that MacKenney and two other black men could have traveled to

Lubbock to rob Hogan. Nevertheless, MacKenney’s testimony was before the jury and

even though her credibility was subject to challenge, there also was videotape evidence

that not only connected her with appellant in Lubbock immediately before the crime



                                            7
occurred but also confirmed her version of events. The jury was free to accept some, all,

or none of her testimony. In sum, and when weighed against the entire record, the verdict

is not manifestly unjust; nor does the entirety of the record undermine our confidence in

the verdict.

       The judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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