

Opinion filed January 26,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00022-CR
                                                    __________
 
                                   DONALD
SCHNIDT,  Appellant   
 
                                                             V.
 
                                     STATE
OF TEXAS,  Appellee

 
                                   On
Appeal from the 238th District Court
 
                                                          Midland
County, Texas
 
                                                   Trial
Court Cause No. CR34370
 

 
                                                                  O
P I N I O N
 
            The
jury convicted Donald Schnidt of aggravated robbery. 
The trial court assessed his punishment at confinement for a term of sixteen
years in the Institutional Division of the Texas Department of Criminal Justice
and assessed a fine of $5,000.  Appellant challenges his conviction in four
issues.  We affirm.
Background
Facts
Robert
Trabant testified that he, Brian Green, and appellant traveled together in
Trabant’s pickup to the home of Edwin Burger on the morning of November 19,
2007.  Trabant, Green, and appellant lived together at the time in a travel
trailer owned by Green’s father.  Trabant and Green knew Burger as a result of
doing yard work for him on previous occasions.  Trabant testified that the
three of them went to Burger’s home for the purpose of taking Burger’s cocaine.[1] 
Burger invited Trabant, Green, and appellant inside his home.   Trabant
testified that, after they entered the home, Green and appellant began
assaulting Burger.  He specifically testified that appellant kicked Burger in
the stomach.  Trabant went through Burger’s house looking for things to steal
while Green and appellant assaulted Burger.  Trabant testified that they stashed
items stolen from Burger’s home in a barn owned by Green’s father.
In
addition to calling Trabant as a witness, the State also offered the testimony
of Federico Chavez.  Chavez was incarcerated with appellant at various times
prior to trial.   Chavez testified that appellant told him an account of the
assault and robbery of Burger that was similar to Trabant’s version of the
events.
Green
offered a different version of the events in his testimony during appellant’s
case-in-chief.  He testified that he, Trabant, and appellant all went to
Burger’s house on November 19, 2007, but that he was the only person that
assaulted Burger.  Green stated that appellant did not “encourage,” “assist,”
or “command” him to assault Burger.  On cross-examination by the prosecutor,
Green acknowledged that he had already pleaded guilty to the offense of
aggravated robbery for his role in the incident.  Green also testified that he
did not like Trabant “anymore” because he considered Trabant a “snitch” because
Trabant talked to the authorities about what happened to Burger on the next day
when they were apprehended.
Burger
died prior to trial as a result of natural causes.  However, he was  never able
to provide police with details of the attack because of the severity of his
injuries as a result of the assault.  One of Burger’s friends found him in his
home on the night of the assault lying on the floor in a pool of blood.  Detective
Sheldon Johnson of the Midland Police Department testified that Burger’s house
had been ransacked.
Green,
Trabant, and appellant remained together for the remainder of the day after the
assault and that night.  The next morning, Green and appellant went to the Kent
Kwik convenience store in Gardendale.  A clerk working at the store testified
that appellant entered the store and purchased beer, deli items, grocery items,
and gasoline.  Appellant used a credit card that belonged to Burger to make the
purchase.  As set forth in greater detail below, Green, Trabant, and appellant
were apprehended as a result of suspicions on the part of the clerks at the
convenience store with regard to appellant’s use of the credit card.
Sufficiency
of the Evidence
Appellant challenges the legal and factual sufficiency of the
evidence in his first and second issues.  We note at the outset of our
analysis that the Texas Court of Criminal Appeals has now held in Brooks v.
State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is “no meaningful
distinction between the Jackson v. Virginia[2]
legal-sufficiency standard and the Clewis[3]
factual-sufficiency standard”; that the Jackson v. Virginia standard is the
“only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt”; and that “[a]ll other
cases to the contrary, including Clewis, are overruled.” Brooks, 323
S.W.3d at 895, 902, 912 (footnotes added).  Accordingly, a challenge to the
factual sufficiency of the evidence is no longer viable.  We also note that
appellant did not have the benefit of the opinion in Brooks when this
case was briefed.  We will review appellant’s factual sufficiency challenge
under the legal sufficiency standard set forth in Jackson v. Virginia.  Under
this standard, we must review all of the evidence in the light most favorable
to the verdict and determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
In conducting a legal sufficiency review, we are required to defer to the jury’s role
as the sole judge of the credibility of the witnesses and the weight their
testimony is to be afforded.  Brooks, 323 S.W.3d at 899.  This standard
accounts for the factfinder’s duty 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; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).  When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of
the prosecution and therefore defer to that determination.  Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.   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 v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).  
Appellant couches his first issue as a challenge to the legal
sufficiency of the evidence.  However, he directs the bulk of his argument in
support of this issue to the corroboration requirements for accomplice-witness
testimony and the testimony of a “jailhouse informant” under Tex. Code Crim. Proc. Ann. art. 38.075
(West Supp. 2011), art. 38.14 (West 2005).  The accomplice-witness rule has been in existence for a number of years.  It provides as follows:  
            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.  
 
Article 38.14.  The
corroboration requirement for the testimony of a jailhouse informant has only
existed since 2009 with the adoption of Article 38.075.  It provides as
follows:
            (a) A defendant may not be convicted of an offense on the testimony of a person to
whom the defendant made a statement against the defendant’s interest during a
time when the person was imprisoned or confined in the same correctional
facility as the defendant unless the testimony is corroborated by other
evidence tending to connect the defendant with the offense committed. In this
subsection, “correctional facility” has the meaning assigned by [Tex Penal Code Ann. § 1.07 (West Supp.
2011)].
 
            (b)
Corroboration is not sufficient for the purposes of this article if the
corroboration only shows that the offense was committed.
 
The standard for conducting a
sufficiency review under the accomplice-witness rule is well-known.  See
Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).  However, the standard for conducting a sufficiency review
under the jailhouse information statute has not been firmly established given
its recent enactment.  The Waco court of appeals held in Watkins v. State,
333 S.W.3d 771, 778 (Tex. App.—Waco 2010, pet. ref’d), that the standard
required for corroboration of jailhouse informant testimony under Article
38.075 is the same as that required for corroboration of accomplice-witness
testimony under Article 38.14.   We find the reasoning of the Waco court persuasive
and conclude that the standard for corroboration of jailhouse informant
testimony under Article 38.075 is the same as the standard for corroboration of
accomplice-witness testimony under Article 38.14.
In
conducting a sufficiency review under the accomplice-witness rule, a reviewing
court must 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. Cook v.
State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).  “Tendency to connect,”
rather than rational sufficiency, is the standard: the corroborating evidence
need not be sufficient by itself to establish guilt.  Cathey v. State,
992 S.W.2d 460, 462 (Tex. Crim. App. 1999).  The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there
simply needs to be “other” evidence tending to connect the defendant to the
offense. Cathey, 992 S.W.2d at 462–63.  Accordingly, a review under the
accomplice-witness standard differs from a review of the evidence for legal
sufficiency.  Id.
After
eliminating the testimony from Trabant and Chavez from our consideration, we
conclude that there is evidence connecting appellant with the commission of the
aggravated robbery of Burger.  The remaining direct and circumstantial evidence
is sufficient corroboration if it shows that rational jurors could have found
that it sufficiently tended to connect the accused to the offense.  Smith,
332 S.W.3d at 442.  As noted by the State, there is no dispute that appellant
used Burger’s credit card on the morning after the robbery.  This is ample
evidence connecting appellant to the crime of aggravated robbery.  “[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 to the crime so as to furnish sufficient corroboration to
support a conviction.”  Id. at 443 (quoting Richardson v. State,
879 S.W.2d 874, 880 (Tex. Crim. App. 1993)). Additionally, a defendant’s
behavior or actions prior to or following an offense may tend to connect the
defendant with the commission of the offense.  Id. at 445.  Moreover, it
is a well-settled rule that a defendant’s unexplained possession of property
recently stolen permits an inference that the defendant is the one who
committed the theft.  See Rollerson v. State, 227 S.W.3d 718, 725
(Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim.
App. 2006).   
Appellant
premises the remainder of his evidentiary contentions on the conflicting
accounts offered by Trabant, Chavez, and Green; the lack of physical evidence
to place appellant at the crime scene; and the lack of proof he assisted his
accomplices under the law of parties.  As the sole judge of the credibility of
the witnesses, it was the jury’s role to weigh the credibility of the
witnesses’ testimony and resolve the conflicts in the evidence.  In this
regard, Trabant testified that appellant physically assaulted Burger during the
robbery.  It was within the jury’s province to accept this evidence as the
credible account of what transpired at Burger’s house.  Furthermore, it was
well within the jury’s right to reject Green’s account.  Reviewing all of the
evidence in the light most favorable to the verdict, we conclude that any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.  There is sufficient evidence to support appellant’s
conviction as a principal actor.  Accordingly, we need not consider the
sufficiency of the evidence under the law of parties.  Kitchens
v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.
1991) (When multiple theories are submitted to the jury, the evidence is sufficient to support a
conviction so long as the evidence is sufficient
to support conviction for one of the theories submitted to the jury.).   Appellant’s
first and second issues are overruled.
Motion
to Suppress
            Appellant
asserts in his third issue that the trial court erred in overruling his motion
to suppress a recorded statement that he gave to the police soon after being
apprehended.  As noted previously, the convenience store clerks were concerned
that appellant was using someone else’s credit card.  They based this concern
on the fact that appellant did not resemble Burger’s photograph on the credit
card.  A clerk asked appellant for the card after he used it, but appellant
told the clerk he no longer possessed it.  The clerk wrote down the license
plate number of the vehicle and a physical description of appellant.  The clerk
then contacted the Midland County Sheriff’s Department to report the matter.  The
manager of the convenience store subsequently provided Deputy Gabriel Subia
with a receipt for appellant’s purchases, the written descriptions, and a
surveillance video of appellant.  After making an inquiry, Deputy Subia learned
that the Midland Police Department was investigating the aggravated robbery of
Burger.
            On
the same day that appellant used Burger’s credit card, one of the clerks at the
convenience store in Gardendale contacted law enforcement to report that she
was following the pickup that appellant used for traveling to the convenience
store.  State Trooper Travis McRee received a radio report from DPS communications
to the effect that the pickup had been spotted in the Gardendale area, that the
three occupants had used a stolen credit card at the convenience store, and
that they were suspects in an aggravated robbery occurring on the previous day. 
Trooper McRee observed the vehicle stopped at a stop sign.  He began following
the vehicle to allow other officers to arrive for assistance.  He testified
that he based his decision on the radio report that the occupants may have been
involved in an aggravated robbery and the fact that he did not want to attempt
to apprehend three suspects by himself.  However, the pickup pulled over to the
side of the road without being stopped by Trooper McRee.  He pulled in behind
the pickup, activated his red and blue flashing lights, and “conducted a felony
stop” by drawing his handgun and ordering each suspect out of the vehicle
individually.  He ordered each of them to lie down on the ground in a prone
position, after which he began handcuffing them.  Another officer soon arrived
and assisted him in handcuffing the suspects.
            Detective
Manny Beltran of the Midland Police Department spoke with appellant at the
scene of the arrest.  Detective Beltran stated that appellant informed him that
appellant would give him a statement because “he had nothing to hide.”  Detective
Beltran subsequently transported appellant to the Midland Police Department
where he conducted a recorded interview of appellant.  Detective Beltran gave
appellant Miranda[4]
warnings before conducting the interview because appellant was “under
detention.”  Appellant advised Detective Beltran that he understood his rights
and that he was willing to waive them in order to give a statement.   Detective
Beltran denied threatening or coercing appellant with regard to his statement. 
He also testified that he did not promise anything to appellant in exchange for
his statement and that he did not deny appellant any basic necessities prior to
taking the statement.  Detective Beltran testified that, while he detected the
smell of beer on appellant’s breath, appellant did not appear to be under the
influence of any narcotic drug or alcoholic beverage.
            Based
upon its previous ruling overruling appellant’s motion to suppress the recorded
statement, the trial court allowed its admission at trial.  In the statement, appellant
acknowledged using Burger’s credit card.  He told Detective Beltran that he obtained
the credit card from two women named Amanda and Samantha.  Green denied knowing
anything about Amanda or Samantha.
            We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Lujan v
State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011); Oles v. State,
993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  In reviewing a ruling on a motion
to suppress, we apply a bifurcated standard of review. Hubert v. State,
312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310
S.W.3d 442, 447 (Tex. Crim. App. 2010).  First, we afford almost total
deference to the trial court’s determination of historical facts.  Valtierra,
310 S.W.3d at 447.  The trial court is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony.  Id.;
Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007).  When, as
here, no findings of fact were requested or filed, we view the evidence in the
light most favorable to the trial court’s ruling and assume that the trial
court made implicit findings of fact supported by the record. Valtierra,
310 S.W.3d at 447; Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 
Second, we review de novo the trial court’s application of law to facts.  Hubert,
312 S.W.3d at 559; Valtierra, 310 S.W.3d at 447. We will sustain the
trial court’s ruling if it is reasonably supported by the record and is correct
on any theory of law applicable to the case.  Valtierra, 310 S.W.3d at
447–48; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
            Appellant
first contends that his statement was unlawfully obtained because the police
did not have probable cause to arrest him.  Assuming arguendo that appellant
was under arrest, we conclude that the police had probable cause to do so. 
Probable cause is a requirement for a warrantless arrest by police.  State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).  Probable cause to arrest exists where the police have reasonably trustworthy
information, considered as a whole, sufficient to warrant a reasonable person
to believe that a particular person has committed or is committing an offense.  McGee
v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003); Hughes v. State,
24 S.W.3d 833, 838 (Tex. Crim. App. 2000).  Probable cause requires more than
mere suspicion but far less evidence than that needed to support a conviction
or even that needed to support a finding by a preponderance of the evidence. Hughes,
24 S.W.3d at 838; Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
 When more than one officer is involved in investigating a crime, the sum of
information known to cooperating officers at the time of the arrest is to be
considered in determining whether probable cause to arrest existed. Garrison
v. State, 726 S.W.2d 134, 137 (Tex. Crim. App. 1987); Woodward v. State,
668 S.W.2d 337, 344 (Tex. Crim. App. 1984); Wilson v. State, 98 S.W.3d
265, 271 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
            Detective
Johnson testified at the suppression hearing that dispatch patched directly to
his cell phone the telephone call of the convenience store clerk who
subsequently observed the suspect vehicle.  She told him that she had observed
“the same person and vehicle” that had used Burger’s credit card at the
convenience store earlier that day.  The “same person” was a direct reference
to appellant and his use of the victim’s credit card.  The trial court had
sufficient evidence to conclude that the police had reasonably trustworthy
information to believe that appellant had at least committed credit card abuse
at the time Trooper McRee apprehended him.
            Appellant
additionally contends that his statement was not voluntary for two reasons: (1) it
was the product of coercion because Detective Beltran told him that he was not
free to leave and (2) he was not fully aware of the rights he waived because of
his intoxication.   A defendant’s statement may be used in evidence against him
if the defendant made it freely and voluntarily and without compulsion or
persuasion.  Tex. Code Crim. Proc. Ann.
art. 38.21 (West 2005).  “The determination of whether a confession is
voluntary is based on an examination of the totality of circumstances
surrounding its acquisition.”  Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim.
App. 2000) (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App.
1995)).  Intoxication is one of many factors considered in determining whether
a confession is voluntary, but intoxication does not render a confession
involuntary per se.  See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim.
App. 1996).  To render a confession involuntary, the intoxication must render
the defendant incapable of making an independent, informed decision to make a
statement.  Id.  A statement may also be involuntary “if there was
official, coercive conduct of such a nature that any statement obtained thereby
was unlikely to have been the product of an essentially free and unconstrained
choice by its maker.”  State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App.
1999) (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)).
            Under the applicable standard of review, we presume that
the trial court found that Detective Beltran did not coerce the statement from
appellant and that appellant was not intoxicated.  The record supports  these findings and conclusions based upon Detective Beltran’s testimony.  Coercion
and intoxication are matters that rely heavily on a determination of the
witnesses’ credibility.  Our standard of review requires nearly total deference
to factual determinations that depend on credibility.  See Valtierra,
310 S.W.3d at 447.  We conclude the evidence adduced at the suppression hearing
supports the trial court’s findings, and we hold that the trial court properly
applied the law to those facts in denying appellant’s motion to suppress.  Appellant’s
third issue is overruled.  
Charge
on the Law of Parties
            In
his fourth issue, appellant contends that the trial court erred by instructing
the jury on the law of parties for multiple reasons.  “A person is criminally
responsible as a party to an offense if the offense is committed by his own
conduct, by the conduct of another for which he is criminally responsible, or
by both.”  Tex. Penal Code Ann. §
7.01(a) (West 2011).  A person is criminally responsible for the conduct of
another if he acts with intent to promote or assist the commission of the
offense and he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.  Tex.
Penal Code Ann. § 7.02(a)(2) (West 2011).  When a party is not the
primary actor, the State must prove conduct constituting an offense plus an act
by the defendant done with the intent to promote or assist such conduct.  Beier
v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985).
            An
instruction on the law of parties may be given to the jury whenever there is
sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564
(Tex. Crim. App. 1999).  However, when the evidence clearly supports a
defendant’s guilt as a principal actor, any error of the trial court in
charging on the law of parties is harmless.  Id. at 564–65.  In the
present case, even if the trial court erred in instructing the jury on the law
of parties, the error was harmless because the evidence clearly supports
appellant’s guilt as a principal actor.   Accordingly, appellant’s fourth issue
is overruled.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
 
            
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
 
January 26, 2012
Publish.  See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[5]




                [1]Other than Trabant’s testimony, there is no evidence
that Burger possessed any cocaine.


                [2]Jackson
v. Virginia, 443 U.S. 307 (1979).
 


                [3]Clewis
v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
 


                [4]Miranda v. Arizona, 384 U.S. 436 (1966). 


                [5]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


