                                                                                        ACCEPTED
                                                                                   01-14-00337-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                             3/16/2015 11:41:17 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK

                           No. 01-14-00337-CR
                                   In the
                          COURT OF APPEALS                       FILED IN
                                                          1st COURT OF APPEALS
                                  For the                     HOUSTON, TEXAS
                           FIRST DISTRICT                 3/16/2015 11:41:17 AM
                                At Houston                CHRISTOPHER A. PRINE
                                                                   Clerk


FAROUK DAVID ODARIKO                 '                        APPELLANT

V.                                   '

THE STATE OF TEXAS                   '                        APPELLEE


     APPEAL FROM THE 400TH JUDICIAL DISTRICT COURT OF
                FORT BEND COUNTY, TEXAS
              TRIAL COURT NO. 11-DCR-058765A


                             STATE’S BRIEF

                   Counsel for Appellee, The State of Texas
                            JOHN F. HEALEY
                           DISTRICT ATTORNEY
                      FORT BEND COUNTY, TEXAS
                 301 Jackson Street, Richmond, Texas 77469
                  (Tel.) 281-341-4460/(Fax) 281-238-3340

                           JASON BENNYHOFF
                     ASSISTANT DISTRICT ATTORNEY
                       FORT BEND COUNTY, TEXAS
                  301 Jackson Street, Richmond, Texas 77469
(Tel.) 281-341-4460/(Fax) 281-238-3340/jason.bennyhoff@fortbendcountytx.gov

     ORAL ARGUMENT NOT REQUESTED UNLESS GRANTED TO
                      APPELLANT




                                     i
                       IDENTIFICATION OF PARTIES

      Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all

interested parties is provided below so the members of this Honorable Court may

at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case.

Appellant:
FAROUK DAVID ODARIKO

Appellee:
THE STATE OF TEXAS

Counsel for Appellant:
JAMES STEVENS
(AT TRIAL)

DAVID DISHER
(ON APPEAL)

Address(es):
Stevens
P.O. Box 414
Richmond, Texas 77406

Disher
1167 FM 2144
Schulenberg, Texas 78956

Counsel for Appellee/State:
JOHN F. HEALEY, JR.
District Attorney of Fort Bend County, Texas
Fort Bend County District Attorney’s Office

Address(es):
301 Jackson Street, Rm 101
Richmond, Texas 77469

                                          ii
IDENTIFICATION OF PARTIES (cont.)

MATTHEW BANISTER AND JASON BENNYHOFF
Assistant District Attorneys, Ft. Bend County, Tx.
(AT TRIAL)

JASON BENNYHOFF
Assistant District Attorney, Ft. Bend County, Tx.
(ON APPEAL)

JOHN J. HARRITY, III
Assistant District Attorney, Ft. Bend County, Tx.

Trial Judge:
The Hon. Clifford Vacek
400th Judicial District Court
Fort Bend County, Texas




                                      iii
                                           TABLE OF CONTENTS

SECTION                                                                                                                PAGE

IDENTIFICATION OF PARTIES ............................................................................ ii

TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES .....................................................................................vi

STATEMENT REGARDING ORAL ARGUMENT .............................................. vii

STATEMENT OF THE CASE................................................................................... 1

POINTS OF ERROR PRESENTED BY APPELLANT ........................................... 2

STATEMENT OF FACTS ......................................................................................... 2

SUMMARY OF THE ARGUMENT ....................................................................... 19

RESPONSE TO APPELLANT’S FIRST POINT OF ERROR

        THE JURY’S VERDICT THAT APPELLANT WAS GUILTY OF THE
        OFFENSE OF AGGRAVATED ROBBERY WAS SUPPORTED BY
        LEGALLY SUFFICIENT EVIDENCE

         ....................................................................................................................... 19

        Standard of Review........................................................................................ 19

        Argument and Authorities.............................................................................. 20

RESPONSE TO APPELLANT’S SECOND POINT OF ERROR

        THE JURY’S VERDICT THAT APPELLANT WAS GUILTY OF THE
        AGGRAVATED ROBBERY, AND IN PARTICULAR, THAT HE WAS
        AWARE THAT A DEADLY WEAPON WOULD BE USED OR
        EXHIBITED DURING THE ROBBERY, WAS SUPPORTED BY
        LEGALLY SUFFICIENT EVIDENCE


                                                               iv
    ....................................................................................................................... 24

    Standard of Review........................................................................................ 24

    Argument and Authorities.............................................................................. 25

PRAYER       ............................................................................................................. 27




                                                          v
                                        INDEX OF AUTHORITIES

Cases
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) ................... 20, 25
Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992) ....................................23
Holladay v. State, 709 S.W.2d 194 (Tex. Crim. App. 1986) ....................................26
Houston v. State, 663 S.W.2d 455 (Tex. Crim. App. 1984) .............................. 20, 25
Jackson v. Virginia, 443 U.S. 307, 319 (1979) ................................................. 20, 25
Lacaze v. State, 346 S.W.3d 113, 117-18 (Tex. App.—Houston [14th Dist.] 2011,
 pet. ref’d) ...............................................................................................................24
Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) ...............................26
McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997) ..............................23
Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988) ...................................22
Suniga v. State, No. 04-10-00776-CR, 2011 WL 4957955 at *2-3(Tex. App.—San
 Antonio Oct. 19, 2011, no pet.) .............................................................................24
Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001) ....................................26
Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990) ........................... 20, 25
Williams v. State, No. 01-99-00908-CR, 2000 WL 637034 (Tex. App.—Houston
 [1st Dist.] May 18, 2000 no pet.) ..........................................................................24
Statutes
Tex. Code Crim. Proc. art. 38.14 ...................................................................... 23, 27




                                                             vi
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. P. 39, the State does not request oral argument

unless granted to Appellant.




                                        vii
                               No. 01-14-00337
                                    In the
                             COURT OF APPEALS
                                    For the
                              FIRST DISTRICT
                                 At Houston


FAROUK DAVID ODARIKO                     '                      APPELLANT

V.                                       '

THE STATE OF TEXAS                      '                       APPELLEE


      APPEAL FROM THE 400TH JUDICIAL DISTRICT COURT OF
                 FORT BEND COUNTY, TEXAS
               TRIAL COURT NO. 11-DCR-058765A

                         STATEMENT OF THE CASE

      Appellant was charged in cause number 11-DCR-058765A with four counts

of Aggravated Robbery with a Deadly Weapon alleged to have occurred on or

about October 6, 2011.      (1CR7-8).    On Appellant pled “not guilty” to this

indictment and his case proceeded to a trial by jury. (3RR9-11). Following a

contested trial, Appellant was found “guilty” by the jury of all four counts of

Aggravated Robbery with a Deadly Weapon.            (1CR56-59).       The case then

proceeded to a contested punishment trial before the jury, and the jury assessed

Appellant’s punishment at 25 years’ confinement in the Texas Department of

Criminal Justice – Institutional Division, and no fine. (1CR64-67).



                                         8
              POINTS OF ERROR PRESENTED BY APPELLANT

      I.       “The evidence identifying Mr. Odariko was legally insufficient to
            convict Appellant of aggravated robbery.” App. Br. at p. 12.

      II.      “The evidence of the use or exhibition of a deadly weapon by
            Appellant was legally insufficient to convict Appellant of aggravated
            robbery.” App. Br. at p. 12.

                            STATEMENT OF FACTS

      Ernesto Batista, a security officer for IBC bank, testified that on October 6,

2011, he was notified that the IBC bank branch at Highway 6 and West Bellfort in

Fort Bend County, Texas had been robbed. (3RR27). Batista testified that he was

responsible for maintaining and turning over security camera videos from that IBC

bank location, and that he turned over the security camera footage to law

enforcement. (3RR29-30). The surveillance camera videos were admitted without

objection as State’s Exhibit 1. (3RR32-33; 9RR at Ex. 1).

      The security cameras showed an armed robbery taking place on October 6,

2011, carried out by multiple individuals carrying handguns. (3RR34-38; 9RR at

Ex. 1). The security cameras also showed a man whom the tellers stated came in

about ten minutes before the robbery, acting suspiciously. (3RR39).

      Several still photographs pulled from the security camera videos were also

introduced without objection. (3RR41-42; 9RR at Ex. 2-19). These photographs

show the robbery in progress, and also show the suspicious male who entered the

bank prior to the robbery. (3RR42-45; 9RR at Ex. 2-11).

                                         9
      On cross examination, Appellant’s counsel conceded that the video from the

bank’s security cameras showed Appellant in the bank approximately ten minutes

before the robbery. (3RR50-51; 9RR at Ex. 1, 9-11). On re-cross, Batista testified

that Appellant was in the bank, according to the time stamp on the video, for

approximately one minute. (3RR58-59).

      Imran Yousef then testified that on October 6, 2011, he went into the IBC

bank in question to withdraw some money. (3RR66-67). Yousef testified that

before he withdrew his money, the teller was having a conversation with a person

in front of him that struck him as suspicious. (3RR67). Yousef identified the

portion of the video containing the footage of the person behaving suspiciously as

being at 15:04:31.    Shortly after this person left the bank, the bank robbery

occurred. (3RR74).

      Yousef indicated to a person in the courtroom when asked to identify the

person in the video who was behaving suspiciously. (3RR83). Appellant’s counsel

pointed out that Yousef identified Appellant when he pointed to a person in the

courtroom. (3RR99).

      Detective McKinnon of the Fort Bend County Sheriff’s Office was the lead

investigator on the case. (4RR14-15). He testified that he began generating leads

following the release of several of the still photographs from the bank robbery,




                                        10
which identified several individuals by name, and also an individual known by the

nickname, “Spook.” (4RR45).

      After he learned the nickname Spook, McKinnon released still photographs

of the suspect known as Spook to the media, and received a call from a law

enforcement officer who identified the suspect known as Spook as Farouk Odariko

(Appellant).   (4RR47).    McKinnon also received several Crime Stoppers tips

identifying Spook as Farouk Odariko. (4RR47). The suspect known as Spook,

who McKinnon was able to identify as Appellant, was the person in the bank

approximately ten minutes before the robbery occurred. (4RR48). McKinnon was

also able to identify the vehicle Appellant drove on the day of the robbery as a

silver Buick Lucerne. (4RR50).

      McKinnon obtained arrest warrants for two of Appellant’s co-defendants,

Johnathan Simmons and Ashley Jackson, and took them into custody. (4RR64).

McKinnon interviewed Simmons and Jackson and learned that the co-conspirators

had met at a Holiday Inn hotel shortly before the robbery. (4RR70). McKinnon

later interviewed another suspect, Amyillia Bruno, who confessed to her role in the

robbery and confirmed her presence at the Holiday Inn prior to the robbery.

(4RR72). Bruno told McKinnon that Farouk Odariko, or Spook, was also present

at the meeting at the Holiday Inn.




                                        11
      McKinnon was ultimately able to identify all of the co-conspirators who met

at the Holiday Inn, those being: Appellant, Karrmyne Barros, Ashley Jackson,

Johnathan Simmons, Amyillia Bruno, and Dominique Blakely.                 (4RR76).

McKinnon recovered a surveillance video from the Holiday Inn which confirmed

what Jackson, Simmons and Bruno had told him about the meeting. (4RR76). The

surveillance video from the Holiday Inn also showed the vehicles the co-

conspirators left in, including a silver Buick Lucerne driven by Appellant.

(4RR148).

      Simmons also confessed to his role in the robbery and confirmed that

Appellant was a co-conspirator in the robbery. (4RR84).

      McKinnon was able to confirm that the co-conspirators had known one

another before the day of the robbery. (4RR88). McKinnon was also able to

confirm that several of the co-conspirators had a prior relationship with Appellant.

(4RR138).    In particular, McKinnon was able to confirm that Appellant and

Johnathan Simmons knew one another from having been members of the same

criminal street gang. (4RR138-39). McKinnon was also able to confirm that

Appellant and Karrmyne Barros had known each other through their association

with criminal street gangs. (4RR139-40).

      On cross examination, McKinnon testified that two people, a teller named

Merriyum Minhaj and a customer named Imran Yousef had noticed someone


                                         12
unusual in the bank shortly before the robbery. (4RR90). Appellant’s counsel

conceded this was Appellant. (4RR90).

      Several co-conspirators told McKinnon that Appellant had been waiting for

them in his vehicle in the neighborhood behind the IBC bank during the robbery.

(4RR123).   Several co-conspirators told McKinnon that Appellant acted as a

secondary getaway driver following the robbery. (4RR127).

      McKinnon was able to verify that “Spook” was a nickname for Appellant

(which his co-conspirators referred to him by). (4RR142). A photo of Appellant,

showing a tattoo of the word “spook” on his neck was admitted as an exhibit.

(4RR142; 9RR at Ex. 87).

      The co-conspirators left the meeting at the Holiday Inn approximately 35

minutes before the robbery took place. (4RR165).

      Dominique Blakley testified that he acted as a getaway driver in this

robbery. (4RR193). Blakely identified his co-conspirators as Johnathan Simmons,

Ashley Jackson, “Ace,” Broussard, Karrmyne and “Spook.”           (4RR196-97).

Blakley identified Appellant as being the co-conspirator he knew as “Spook.”

(4RR197). Blakely testified that Karrmyne and Appellant waited for the other co-

conspirators in a nearby neighborhood while the robbery took place. (4RR197).

      Blakely identified two of the armed robbers on the surveillance video as

Johnathan Simmons and Ashley Jackson. (4RR198). Blakely testified that he


                                        13
believed a third person in the bank was the co-conspirator he knew as “Ace.”

(4RR199).

      Blakely testified that he waited for several co-conspirators to rob the bank,

and then he took them to the nearby neighborhood where Karrmyne and Appellant

were waiting. (4RR199-200).

      Blakely testified that he met up with the other co-conspirators at a Holiday

Inn prior to the robbery. (4RR204). The State then admitted, without objection,

photographs from the Holiday Inn surveillance cameras as exhibits 51-84.

(4RR207; 9RR at Ex. 51-84). Blakely testified that these photographs showed he

and his fellow co-conspirators, including Appellant, leaving the Holiday Inn on the

way to commit this robbery. (4RR207-08).

      Blakely testified that they had originally planned to rob another location, but

that location did not work out, so Appellant suggested they rob the IBC bank.

(5RR30).

      Johnathan Simmons then testified that he had taken part in this bank robbery,

and was testifying against his co-conspirators in the hope of receiving more lenient

treatment. (5RR42-43). Simmons, while reviewing the surveillance video from

the bank, identified Amyillia Bruno or “Ace,” Ashley Jackson or “Scoobie,” and

Broussard as having robbed the bank with him. (5RR47-49).




                                         14
      Simmons, while reviewing the surveillance video from the bank, identified

the person who came in shortly before the robbery as “Spook” or Farouk.

(5RR52). Simmons testified that one of the vehicles used in the robbery was

Farouk’s gray Buick Lucerne. (5RR56).

      Simmons testified that the co-conspirators met up before the robbery at a

Holiday Inn. (5RR56). Simmons, while reviewing surveillance video from the

Holiday Inn, identified the co-conspirators at the Holiday Inn as Broussard, Ashley

Jackson, himself, Karrmyne, Dominique, Farouk, and Amyillia. (5RR57-61; 9RR

at Ex. 85).

      Simmons identified Farouk and Karrmyne as being the people who walked

out of the hotel and got into a gray car in the parking lot. (5RR62). Simmons,

while watching this video, testified that it reflected all of the co-conspirators

splitting up into three cars and all three cars driving out of the parking lot together.

(5RR63-64).

      Simmons testified that after a detour to Pearland, the group ended up outside

the IBC bank. (5RR65). While they sat in the neighborhood, Farouk drove off,

then came back a few minutes later and described what was inside the bank.

(5RR68). Farouk said, “It’s a go, it’s good.” (5RR68). Simmons took this to

mean that the bank looked like a good place to rob. (5RR68). Simmons testified




                                           15
that he and the other co-conspirators had discussed robbing a bank beforehand and

had agreed to do so. (5RR70).

      Simmons testified that after the robbery, several of the robbers got out of

Blakely’s car in the nearby neighborhood and got into Farouk’s car and then fled

the area. (5RR75). Simmons testified that all of the co-conspirators later met up at

Karrmyne’s house. (5RR76). Simmons testified that they split up the money at

Karrmyne’s house. (5RR76). Simmons testified that Farouk was present at this

meeting and received some of the money. (5RR76-77).

      Simmons met Farouk through Karrmyne. (5RR78). Simmons had known

Farouk for about two months before the robbery. (5RR78). Simmons testified that

the guns used in the robbery came from Karrmyne’s house. (5RR79). Simmons

testified they went through Farouk’s hands and then on to Ashley Jackson who

distributed them. (5RR79).

      Merriyum Minhaj was a teller at the bank on the day it was robbed.

(5RR152). Minhaj testified that the person who walked into the bank before the

robbery, visible on the surveillance video at 15:04:36 (and previously

acknowledged by Appellant’s counsel to have been Appellant), drove into the bank

parking lot from the direction of the nearby neighborhood. (5RR162-63, 166).

Minhaj testified that following her encounter with Appellant before the robbery, the

robbers seemed to make directly for her teller station when they entered the bank.


                                         16
(5RR163-64).    Appellant’s counsel, during cross examination, again conceded

Appellant was in the bank prior to the robbery. (5RR186).

      Amyillia Bruno then testified that she was involved in this robbery and had

entered into a plea agreement on her charges which included the requirement that

she testify at the trials of her co-conspirators. (5RR190-91). Bruno testified that

she was called to take part in the robbery by Johnathan Simmons, who told her that

Farouk was also involved. (5RR194). Bruno met with Simmons and Farouk prior

to the robbery, and the group got guns from Farouk. (5RR195-96). Farouk then

“cased” the bank prior to the robbery. (5RR198). Bruno identified the person in

State’s Exhibit 9 as being the person she knew as Farouk. (5RR199; 9RR at Ex. 5).

Bruno also identified the person she knew as Farouk as appearing in State’s Exhibit

51, a still photograph from the Holiday Inn surveillance video. (5RR201; 9RR at

Ex. 51).

      Bruno testified it was Farouk’s idea to rob the IBC bank. (5RR206). Bruno

testified that Farouk suggested robbing the IBC bank because he had an inside

source who indicated that the bank was a good place to rob. (5RR206). Bruno

testified that Farouk used his silver Buick in the robbery. (5RR208). Bruno also

testified that the group met up at Karrmyne’s house after the robbery to split the

money, and Farouk got a cut of that money. (5RR208-09).




                                        17
      Bruno then identified the person in state’s Exhibit 9 and State’s Exhibit 52

wearing the shirt that said “World” on it in both photos as being the person sitting

in court wearing a black jacket. (5RR22).

      Detective McKinnon was then recalled, and testified that the person on the

Holiday Inn surveillance video at the 6:08 mark wearing the shirt with the words

“World Class” on it was Appellant.         (5RR28).     McKinnon pointed out that

Appellant was wearing the same distinctive shirt in the bank surveillance video at

3:05 p.m. (5RR28-29). McKinnon testified that the other person with Appellant

on the Holiday Inn video at the 6:08 mark was Karrmyne Barros. (5RR29).

      McKinnon reviewed the Holiday Inn video and identified all of the co-

conspirators on the video at the Holiday Inn at the same time, including Appellant.

(5RR33). McKinnon reviewed another portion of the Holiday Inn surveillance

video then identified all of the co-conspirators leaving the Holiday Inn at the same

time, including Appellant. (5RR36). McKinnon then reviewed the surveillance

video of the Holiday Inn parking lot, State’s Exhibit 86, and identified all of the co-

conspirators and their vehicles leaving the parking lot at the same time, including

Appellant and his silver Buick Lucerne. (5RR38-41).

      McKinnon testified that although the co-conspirators who gave him

statements were inconsistent in some respects, they were largely consistent, in

particular in that they all mentioned the nickname “Spook.” (5RR30-31).


                                          18
                       SUMMARY OF THE ARGUMENT

      Appellant first argues that the State did not provide legally sufficient

evidence on which a rational jury could base a finding that Appellant was involved

in the robbery as a party. Appellant’s point of error is without merit as multiple co-

conspirators testified that Appellant was a willing participant in the robbery, and

their testimony was corroborated by videotapes of Appellant at the bank and at the

meeting place prior to the robbery.

      Appellant argues in his second point of error that there is no evidence in the

record that Appellant was aware that deadly weapons would be used in the

commission of the robbery.      This argument is without merit because two of

Appellant’s co-conspirators testified that Appellant provided (or at least saw and

handled) the guns prior to the robbery.

      Response to Appellant’s First Point of Error

       THE JURY’S VERDICT THAT APPELLANT WAS GUILTY OF THE
        OFFENSE OF AGGRAVATED ROBBERY WAS SUPPORTED BY
                   LEGALLY SUFFICIENT EVIDENCE

                                Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

the critical inquiry is whether, considering the evidence in the light most favorable

to the verdict, 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, 319


                                          19
(1979); Webb v. State, 801 S.W.2d 529, 530 (Tex. Crim. App. 1990). The appellate

court views the evidence in the light most favorable to the verdict, whether the case

was proven by direct or circumstantial evidence. Houston v. State, 663 S.W.2d 455

(Tex. Crim. App. 1984). Following the Court of Criminal Appeals’ decision in

Brooks v. State, legal sufficiency is the only standard for reviewing the sufficiency

of a trial court judgment, and factual sufficiency has been entirely subsumed within

it. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).

                               Argument and Authorities

          Appellant’s first point of error is that “The evidence identifying Mr. Odariko

was legally insufficient….” (App. Br. at p. 34). Appellant explains his point of

error thusly, “Only Dominique Blakely, an accomplice, was able to identify the

Appellant as reflected in the record. Since the identification element was never

legally proved, Appellant should receive a jury verdict of not guilty.” (App. Br. at

p. 40).

      Appellant’s point of error, on its face, seems to be premised on the notion

that a jury could not rationally have found Appellant guilty of the offense because

only one witness actually pointed to Appellant and identified him on the record as

the person he was referring to. This recitation of the facts, needless to say, leaves

out the great many items of evidence which were introduced that the jury could

have reasonably relied on to identify Appellant as being a party to the robbery.


                                            20
      Appellant’s point of error can also be read to include an argument that the

evidence corroborating his co-conspirators’ statements was legally insufficient.

This claim also ignores the significant items of evidence which corroborated

Appellant’s co-conspirators’ statements.      The State will address both of these

arguments out of an abundance of caution.

      Legal sufficiency of evidence of identity

      The items of evidence which the jury could have relied on finding that

Appellant was involved in the robbery several videotapes and photographs (on

which Appellant is clearly visible) (See, e.g., 9RR at Ex. 1, 9-11, 51-53, 56-61, 72-

74, 85-87) and that Appellant was identified by nickname and legal name by

multiple co-conspirators, and that he was identified by nickname and legal name in

several Crime Stoppers tips, and that the jury had a booking photo of Appellant,

which showed a tattoo on his neck of the word, “Spook,” which was established as

Appellant’s nickname, and that Appellant’s trial counsel conceded that it was

Appellant who was visible in the videotapes, and that two of the witnesses

identified a person in the courtroom as being the person they were referring to

(though the record does not reflect counsel for the State asking that the trial court

take notice of who they pointed to).

      Appellant, as he concedes in his brief, was identified in the conventional

courtroom fashion by Dominique Blakely, and the jury then had the videotapes of


                                         21
Appellant, and his photographs, and his name being mentioned in Crime Stoppers

tips, and his booking photograph on which to rely in making a determination that

Appellant was in fact the person involved in this robbery. Of course, the jury could

compare the face on the surveillance videos and in the photographs to the person

sitting in front of them in the courtroom in making their determination that

Appellant was in fact the same person visible in those videotapes and photographs.

      The jury therefore had sufficient evidence with which to identify Appellant

as the person involved in this robbery.

      Legal sufficiency of corroborative evidence

      Appellant’s brief is accurate in stating that the statements of the co-

conspirators needed to be corroborated. As Appellant also accurately points out,

the trial court gave an appropriate accomplice witness instruction. (1CR49-50;

Tex. Code Crim. Proc. art. 38.14). That instruction properly instructed the jury that

Appellant could not be convicted solely on accomplice witness testimony, but that

such testimony had to be corroborated by other evidence “tend[ing] to connect”

Appellant with the commission of the offense. (1CR49-50). As the Court of

Criminal Appeals held in Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App.

1988):

      In applying the test of the sufficiency of the corroboration, each case
      must be considered on its own facts and circumstances.
      All the facts and circumstances in evidence may be looked to as
      furnishing the corroboration necessary. The corroborative evidence

                                          22
      may be circumstantial or direct. The combined cumulative weight of
      the incriminating evidence furnished by the non-accomplice witnesses
      which tends to connect the accused with the commission of the
      offense supplies the test. It is not necessary that the corroboration
      directly link the accused to the crime or be sufficient in itself to
      establish guilt. Insignificant circumstances sometimes afford most
      satisfactory evidence of guilt and corroboration of accomplice witness
      testimony. (Internal citations omitted).

      The Court of Criminal Appeals has since further delineated the outlines of

what constitutes sufficient corroborative evidence in Cox v. State, 830 S.W.2d 609,

611 (Tex. Crim. App. 1992) (presence at a crime scene combined with other

suspicious circumstances constitutes sufficient corroboration) and McDuff v. State,

939 S.W.2d 607, 612 (Tex. Crim. App. 1997) (evidence that defendant was in

presence of accomplice at or near the time or near the place of the crime is proper

corroborating evidence).

      The videos from the Holiday Inn showed Appellant leaving the Holiday Inn

in the company of all of the other co-conspirators shortly before the robbery.

These videos also showed Appellant going to a vehicle with one of his co-

conspirators and driving out of the Holiday Inn parking lot in a caravan with the

other co-conspirators. Appellant then appears in the bank that his co-conspirators

robbed approximately ten minutes before the robbery, inquiring about opening an

account, but then leaving the bank when asked for identification. This evidence

provided sufficient corroboration on which the jury could rationally base a finding

that Appellant was guilty of this robbery as a party. See, e.g., Id., Suniga v. State,

                                          23
No. 04-10-00776-CR, 2011 WL 4957955 at *2-3(Tex. App.—San Antonio Oct. 19,

2011, no pet.) (not designated for publication); Williams v. State, No. 01-99-00908-

CR, 2000 WL 637034 (Tex. App.—Houston [1st Dist.] May 18, 2000 no pet.) (not

designated for publication); see also Lacaze v. State, 346 S.W.3d 113, 117-18 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d).

      The evidence was legally sufficient to establish that Appellant was a party to

this offense. Appellant’s first point of error should be overruled.

      Response to Appellant’s Second Point of Error

  THE JURY’S VERDICT THAT APPELLANT WAS GUILTY OF THE
  AGGRAVATED ROBBERY, AND IN PARTICULAR, THAT HE WAS
AWARE THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED
DURING THE ROBBERY, WAS SUPPORTED BY LEGALLY SUFFICIENT
                       EVIDENCE

                                Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

the critical inquiry is whether, considering the evidence in the light most favorable

to the verdict, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Webb, 801 S.W.2d

at 530. The appellate court views the evidence in the light most favorable to the

verdict, whether the case was proven by direct or circumstantial evidence.

Houston, 663 S.W.2d at 455. Following the Court of Criminal Appeals’ decision in

Brooks v. State, legal sufficiency is the only standard for reviewing the sufficiency


                                          24
of a trial court judgment, and factual sufficiency has been entirely subsumed within

it. Brooks, 323 S.W.3d at 894-95.

                           Argument and Authorities

      Appellant’s argument in this point of error is premised on the notion that

there was no evidence in the record establishing that Appellant was aware that a

deadly weapon would be used or exhibited in the commission of this aggravated

robbery. (App. Br. at p. 44). Appellant states “The State presented no evidence

that the accomplices exhibited any weapon to appellant or otherwise made

appellant aware of any firearm at any time before or after they brandished their

weapons … inside the bank.” (App. Br. at p. 44).

      Appellant’s point of error is meritless because it relies on simply ignoring

the trial testimony. There was testimony that Appellant provided the guns to his

co-conspirators, saw the guns, took custody of the guns, and was the owner of at

least one of the guns used in the robbery. (See, e.g., 5RR79, 98, 195-96, 205).

      Appellant, it could be argued, is inartfully arguing that the State did not

corroborate the accomplice witness testimony regarding the “aggravated” element

of the offense. However, even presuming that this is the argument Appellant is

attempting to make, it is without merit because the Texas Code of Criminal

Procedure does not require that every element of an offense which is proven up by

accomplice witness testimony be corroborated.


                                         25
      Texas Code of Criminal Procedure article 38.14 requires only that

accomplice witness testimony be “corroborated by other evidence tending to

connect the defendant with the offense committed….” Neither that article, nor the

case law interpreting it, have required that every element of an offense be

corroborated by non-accomplice evidence. See, e.g., Losada v. State, 721 S.W.2d

305, 309 (Tex. Crim. App. 1986); Holladay v. State, 709 S.W.2d 194 (Tex. Crim.

App. 1986). In particular, the Texas Court of Criminal Appeals has held that

accomplice witness testimony regarding a deadly weapon finding need not be

corroborated. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001).

      Even if such corroboration were required, there was certainly corroborative

evidence here in that Appellant was plainly visible in several videotapes and

photographs both at the Holiday Inn shortly before the robbery with all of his co-

conspirators and in the bank shortly before it was robbed. (See, e.g., 9RR at Ex. 1,

9-11, 51-53, 56-61, 72-74, 85-87). There was also corroborative evidence in that

the co-conspirators statements regarding the guns being used (and being real) were

corroborated by the testimony of the victims who had guns pointed at them and by

the videotapes and photographs showing those guns. (See, e.g., 4RR173; 5RR153;

9RR at Ex. 1, 2, 6, 8, 12, 15, 18).

      Appellant’s second point of error relies on ignoring the trial testimony, or

alternatively, on an implied suggestion that this Court revisit Vasquez and


                                         26
overruled the Court of Criminal Appeals’ holding that accomplice witness

testimony regarding deadly weapon finding need not be corroborated. In either

case, this point of error is without merit and should be overruled.

                                     PRAYER

      Wherefore, premises considered, Appellee prays that Appellant’s points of

error be overruled and his conviction and sentence be affirmed in all things.

                                           Respectfully submitted,


                                               John F. Healey, Jr.




                                               /s/ Jason Bennyhoff
                                                   Jason Bennyhoff
                                               Assistant District Attorney
                                               Fort Bend County, Texas
                                               S.B.O.T. No. 24050277
                                               301 Jackson Street Room 101
                                               Richmond, Texas 77469
                                               281-341-4460 (office)
                                               281-341-8638 (fax)




                                          27
                         CERTIFICATE OF SERVICE

      I, Jason Bennyhoff, do hereby certify that a true and correct copy of the
foregoing Brief was sent to counsel for the Appellant on March 16, 2015, via email
by way of electronic service through EFile Texas at the email address below.

David Disher
disherdave@aol.com
Counsel for Appellant


                                             /s/ Jason Bennyhoff
                                             Jason Bennyhoff


Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)(3)
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Jason
Bennyhoff, hereby certify that the foregoing electronically created document has
been reviewed by the word count function of the creating computer program, and
has been found to be in compliance with the requisite word count requirement in
that the entire document is 5,031words.


                                             /s/Jason Bennyhoff

                                             Jason Bennyhoff




                                        28
