                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00172-CR


JOHN DEWAYNE FRANKLIN                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


                                      ----------

           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                           MEMORANDUM OPINION1
                                      ----------

      Appellant John Dewayne Franklin appeals his conviction for capital

murder. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2010). We will

affirm.

      On October 14, 2007, Franklin and Sammie Lee Hicks Jr. were driving in

Franklin’s blue Cadillac when they noticed a white Suburban that looked like it

was being driven by a drunk driver. Franklin and Hicks decided to follow the

      1
          See Tex. R. App. P. 47.4.
Suburban and rob the individuals who were inside—Pedro Mendoza and

Anastacio Zavala. Once the Suburban parked at the apartment complex where

Mendoza lived, Franklin and Hicks, who were carrying loaded guns, approached

the vehicle and robbed Mendoza and Zavala. During the course of the robbery,

Franklin shot Mendoza twice, killing him. A jury convicted Franklin of capital

murder, and the trial court sentenced him to life imprisonment without parole. 2

Hicks entered into a plea agreement with the State and testified against Franklin

at his trial.3

       In a single point, Franklin argues that the State did not present sufficient

evidence to corroborate Hicks’s accomplice-witness testimony.4 He contends

that the State’s case against Franklin ―indispensably rests on‖ Hicks’s testimony,

which ―establishes only that the offense occurred‖ and that Franklin ―might have

been present at the scene.‖

       Code of criminal procedure article 38.14 provides that a defendant cannot

be convicted of an offense upon the testimony of an accomplice without other

corroborating evidence ―tending to connect‖ the defendant to the offense. Tex.

       2
        The State did not seek the death penalty.
       3
       Under the plea agreement, the State agreed to recommend a term of
imprisonment for Hicks of thirty-five years.
       4
        There is no dispute that Hicks was an accomplice. See Medina v. State,
7 S.W.3d 633, 641 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000)
(defining accomplice as a person who participates before, during, or after the
commission of the crime and can be prosecuted for the same offense as the
defendant or for a lesser-included offense).


                                         2
Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); see Simmons v. State, 282

S.W.3d 504, 505 (Tex. Crim. App. 2009).       The accomplice-witness rule is a

statutorily imposed sufficiency review and is not derived from federal or state

constitutional principles that define the legal and factual sufficiency standards.

Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999), cert. denied,

528 U.S. 1082 (2000).       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.‖ Clark v. State, 324 S.W.3d 620, 629 (Tex. App.—Fort

Worth 2010, pet. ref’d) (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex.

Crim. App. 2001)). The corroborating evidence need not prove the defendant’s

guilt beyond a reasonable doubt by itself.     Id.   Nor is it necessary for the

corroborating evidence to directly link the accused to the commission of the

offense. Id. 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.

Simmons, 282 S.W.3d at 508; see Malone v. State, 253 S.W.3d 253, 257 (Tex.

Crim. App. 2008) (stating that while mere presence at the scene of a crime is

insufficient to corroborate accomplice testimony, ―[p]roof that the accused was at

or near the scene of the crime at or about the time of its commission, when

coupled with other suspicious circumstances, may tend to connect the accused


                                        3
to the crime so as to furnish sufficient corroboration to support a conviction‖). We

review the evidence in the light most favorable to the jury’s verdict. Brown v.

State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009).

      Hicks testified that on October 14, 2007, he and Franklin hung out at

Hicks’s apartment for a while before leaving in Franklin’s blue Cadillac. They

came across a white Suburban that looked like it was being driven by a drunk

driver and decided to follow it and rob its passengers.       According to Hicks,

Franklin told him, ―Those are the kind of people I rob.‖ Hicks testified that once

the Suburban parked at an apartment complex, he and Franklin ―[g]ot [their] guns

ready‖ before exiting the Cadillac; Franklin had a .357 revolver that he kept in a

white work glove in the pocket behind the passenger’s seat and Hicks had a two-

shot Derringer.   Hicks approached the passenger side of the Suburban and

Franklin approached the driver’s side, and Hicks noticed that both Mendoza and

Zavala were asleep.5      Hicks testified that he reached into Zavala’s pocket

through the open window and that he heard a gunshot after Franklin opened the

driver’s side door and struck Mendoza with the gun. Franklin then came around

to the passenger side of the vehicle, struck Zavala with the gun, and went


      5
        Mendoza and Zavala may have been passed out—Zavala told a police
officer that he and Mendoza had been at a bar earlier in the night. Officer Matt
Johnson testified that Zavala’s breath smelled of alcohol, and Dr. Marc Krouse
testified that Mendoza’s blood alcohol figure was .324, approximately four times
the legal limit for driving.


                                         4
through his pockets. As Hicks returned to the Cadillac, he saw Franklin move

back around to the other side of the Suburban, stand over Mendoza, and shoot

him in the head. Later that night, Hicks told Princess Harris, the mother of his

two children, some of the details about the incident.

      Eliminating Hicks’s accomplice testimony from consideration, the record

contains ample evidence to meet article 38.14’s corroboration requirement.

Specifically,   Officer   Matt   Johnson   testified   that   he   interviewed   Maria

Monegecarmona on October 14, 2007.             Monegecarmona, a resident of the

apartment complex where the murder occurred, told Johnson that she had

observed a disturbance involving two black males who were driving a black

Cadillac or Impala sedan.6 Authorities later located and seized a blue Cadillac

sedan that was parked in the parking lot of the business where Franklin worked.

Inside of the vehicle, investigators discovered a driver’s license and a Social

Security card belonging to Franklin, a .357 revolver inside of a white glove in the

pocket behind the passenger’s seat, and a partial cigar attached to a plastic tip in

the ashtray.

      Jamie Becker, a firearm and tool mark examiner for the Tarrant County

Medical Examiner’s office, testified that she examined the .357 found in

Franklin’s Cadillac and the bullets recovered during Mendoza’s autopsy. Based




      6
       Monegecarmona observed the vehicle at nighttime.


                                           5
on her test results, Becker opined that the .357 fired the bullets that were

retrieved from Mendoza’s body.

      Investigators discovered a white work or garden glove lying on the ground

near the Suburban. Carolyn Van Winkle, an employee of the DNA Section of the

crime laboratory of the Tarrant County Medical Examiner’s Office, testified that

she compared a DNA sample belonging to Franklin with a DNA sample that had

been collected from the white glove that was found on the ground near the crime

scene and that the probability that the DNA from the glove belonged to someone

other than Franklin was one in eleven quadrillion (11,000,000,000,000,000). 7

Moreover, the glove looked similar to the glove that concealed the .357 inside of

Franklin’s Cadillac.

      Investigators also discovered a small cigar attached to a plastic tip on the

ground near the crime scene. Visually, the cigar appears to be similar to the

partial cigar discovered in Franklin’s Cadillac.

      Harris testified that Franklin came over to the apartment that she shared

with Hicks on October 14, 2007; that Franklin and Hicks later left the apartment in

Franklin’s blue Cadillac; and that Hicks was crying, shaking, and nervous after he

returned a few hours later. She also testified that Franklin kept two guns in his

car (a revolver and an automatic) and that Hicks had told her that he and Franklin

had robbed two Hispanic men and that Franklin had shot one of them in the

      7
      Van Winkle testified that there are only between six and seven billion
people on earth, a significantly smaller figure than eleven quadrillion.


                                          6
head.    Marc Krouse, the chief deputy medical examiner for Tarrant County,

testified that the secondary cause of Mendoza’s death was a gunshot wound to

the face.

        Viewing the evidence in the light most favorable to the verdict, we hold that

a rational factfinder could have concluded that the evidence detailed above

sufficiently tended to connect Franklin to Mendoza’s murder. See Tex. Code

Crim. Proc. Ann. art. 38.14; Simmons, 282 S.W.3d at 508–09; Cathey, 992

S.W.2d at 462–63. Accordingly, Hicks’s accomplice testimony was sufficiently

corroborated under the requirement of article 38.14. We overrule Franklin’s only

point and affirm the trial court’s judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

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

DELIVERED: April 21, 2011




                                          7
