                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-430-CR


JAMES THOMAS KAVANAGH                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant James Thomas Kavanagh appeals his conviction for aggravated

assault. In his sole issue, Kavanagh argues that the evidence admitted at trial

was factually insufficient to sustain his conviction. Specifically, he argues that

the accomplice-witness testimony was insufficiently corroborated and that,




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           See Tex. R. App. P. 47.4.
excluding that testimony, the evidence was factually insufficient. We will affirm.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On March 27, 2007, Ramiro “Junior” Perez was robbed and seriously

beaten.   He remembered being at a house on South Adams Street, where

Annabelle Nieto and Elizabeth Dawn Howard lived, to help Jennifer Smith move.

He remembered getting hit in the head, awakening badly hurt in his van, and

walking to his son’s nearby house. His wallet, watch, and money had been

stolen.   The attack left Perez with substantial injuries, including permanent

blindness in his right eye, punctured lungs, and a lacerated liver. He required

a titanium plate in his head and eight screws in his jaw. Perez was hospitalized

for a month and, as of the time of Kavanagh’s trial, had not been able to work

since the attack.

      Police interviewed Smith in connection with the assault and learned of

Kavanagh’s involvement. Police then interviewed Kavanagh, who ultimately

admitted to hitting Perez “once or twice,” loading him in his van, and driving

him a few blocks away. Kavanagh was charged with two counts of aggravated

robbery with a deadly weapon and one count of aggravated assault.

      At Kavanagh’s trial, Howard testified about how she, Kavanagh, Nieto,

and Smith planned to rob Perez and about the details of the crime. Howard

received a reduced sentence in exchange for her testimony. The State also

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introduced testimony from two Fort Worth police officers who investigated the

case, from Perez, and from Nieto’s daughter Caress Lozano, and the State

introduced an audio-taped interview between Kavanagh and Detective Dana

Baggott.

      The jury convicted Kavanagh of aggravated assault and assessed his

punishment at six years’ confinement.          The trial court sentenced him

accordingly.

                 III. F ACTUAL S UFFICIENCY S TANDARD OF R EVIEW

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. To reverse under the second ground, we must determine, with

some objective basis in the record, that the great weight and preponderance of




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all the evidence, although legally sufficient, contradicts the verdict. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor

of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution

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of the conflict “often turns on an evaluation of credibility and demeanor, and

those jurors were in attendance when the testimony was delivered.” Johnson,

23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right

to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008). An opinion addressing factual sufficiency must include a discussion of

the most important and relevant evidence that supports the appellant’s

complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.

2003).

      The standards discussed above do not apply when conducting a review

of whether evidence sufficiently corroborates accomplice testimony. Malone

v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008); see Tex. Code Crim.

Proc. Ann. art. 38.14 (Vernon 2005).

                            IV. F ACTUAL S UFFICIENCY

      In his sole issue, Kavanagh argues that the evidence, when taken as a

whole, is factually insufficient to identify him as the perpetrator of the crime

because the testimony of the witnesses against him was contradictory,

inconsistent, and biased. Kavanagh then argues that the evidence consisted

primarily of Howard’s accomplice testimony, that her testimony was




                                       5
insufficiently corroborated, and that, consequently, the evidence is insufficient

to support his conviction. 2

                           A. Accomplice Testimony

      Howard, Smith, and Nieto lived together in a one-bedroom duplex, along

with Nieto’s teenage daughter Lozano and several other transients. Howard

testified that Kavanagh had begun staying at the duplex two days before they

robbed Perez and that Kavanagh had a sexual relationship with Smith.

      Howard testified that on March 25, 2007, she, Kavanagh, Nieto, and

Smith drew up a plan to rob Perez. They knew that Perez, who was sixty-nine

years old, was a drug dealer and, as such, regularly carried significant quantities

of drugs. Howard testified that Smith regularly exchanged sex for drugs from

Perez. Howard intended to use the cash they planned to steal from Perez to

pay the rent, and Kavanagh planned to sell whatever drugs they found on Perez

and in his van.

      Howard testified that on the morning after they had devised their plan to

rob Perez, she was awakened by Kavanagh shouting that “he was tired of this

sh*t going on with that n*gga.” She got up and saw Perez’s van parked in




      2
        The trial court found Howard to be an accomplice as a matter of law
and instructed the jury accordingly. See, e.g., Herron v. State, 86 S.W.3d 621,
631 (Tex. Crim. App. 2002).

                                        6
front of the duplex and saw Perez helping Smith load her belongings into the

van. Howard and Kavanagh walked outside and approached Perez. Kavanagh

punched Perez one time in the face, breaking his glasses and knocking him to

the ground.

      Howard testified that Kavanagh rolled Perez over, took his wallet, and

threw it at her. Howard then ran back inside because she saw the headlights

of an approaching car. She gave Nieto the wallet while Smith brought in other

things that she had removed from Perez’s van, including drugs, another wallet,

a watch, a pocket knife, and a chain. Howard testified that they had found

$450 in the two wallets.

      Howard explained that when she went outside to throw the unwanted

items they had stolen into the trash can, she had noticed that Kavanagh, Perez,

and Perez’s van were gone. Approximately fifteen minutes later, Kavanagh

walked back into the duplex alone, his hands sheathed in bloody socks.

Kavanagh said, “I just f*cked that n*gga up. I did that.” Kavanagh also told

Howard that he had wrecked Perez’s van.       Kavanagh bragged to a pair of

temporary “guests” named Pancho and Elizonda, who laughed and responded,

“[T]hat’s my boy.”

      Howard stated that a few hours after the assault and robbery of Perez,

she and Nieto had driven to the property management office and had paid both

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the arrearage on their rent and the amount due for the current and following

weeks. They then went to a park and got high on the methamphetamine stolen

from Perez’s van.

           B. The Law Governing Accomplice-Witness Testimony

      Article 38.14 of the code of criminal procedure provides that “[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.” Tex. Code Crim. Proc. Ann. art. 38.14.

      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.” Malone, 253 S.W.3d at 257 (quoting Solomon v. State, 49

S.W.3d 356, 361 (Tex. Crim. App. 2001)). To meet the requirements of the

rule, the corroborating evidence need not prove the defendant’s guilt beyond

a reasonable doubt by itself. Id.; Trevino v. State, 991 S.W.2d 849, 851 (Tex.

Crim. App. 1999); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

Nor is it necessary for the corroborating evidence to directly link the accused

to the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462

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(Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000).      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 v.

State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).

      There is no set amount of non-accomplice corroboration evidence that is

required for sufficiency purposes; “[e]ach case must be judged on its own

facts.”   Malone, 253 S.W.3d at 257 (quoting Gill, 873 S.W.2d at 48).

Circumstances that are apparently insignificant may constitute sufficient

evidence of corroboration. Trevino, 991 S.W.2d at 852.

      Additionally, “[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.”   Malone, 253

S.W.3d at 257 (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim.

App. 1984)). But “mere presence alone of a defendant at the scene of a crime

is insufficient to corroborate accomplice testimony.” Id. (quoting Golden v.

State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993)).




                                     9
      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, 992 S.W.2d at 462–63.

    C. Other Evidence Tends to Connect: The Non-Accomplice Testimony

      During Detective Baggott’s interview of Kavanagh after the assault,

Kavanagh initially denied his involvement entirely, but he later admitted that he

hit Perez. During the recorded interview, Kavanagh described hitting Perez once

or twice and knocking him down; Kavanagh said that Perez was “real bloody.”

Kavanagh explained in the interview that he had covered his hands with socks

to keep his knuckles from getting “bruised.” He told Detective Baggott that

Perez was a “manipulator” who deserved to be beaten and that he definitely

wanted to beat up Perez. Kavanagh said that he and Howard had loaded Perez

into the back of Perez’s van, which Kavanagh then drove a few blocks away.

He said that he left the van on the street and walked back to the duplex.

      Lozano testified that on the morning of the assault, she was asleep in the

living room in the front of the house, where Kavanagh and Smith were also

sleeping. She awoke to the sound of Smith crying and saw Kavanagh, Smith,

and Howard walking outside of the duplex. Lozano went back to sleep but

woke up again to see Smith bringing items into the house. She saw Kavanagh

return to the duplex later with “messed up,” “cut up and bloody” and heard

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Kavanagh say that he had “hit that guy” and had “f*cked that N*gga up.” She

said Kavanagh was carrying bloody socks that he was using to “clean[] his

knuckles or something.”

      Perez testified at trial that prior to the assault and in addition to his job

at a manufacturing plant, he had sold drugs to support his own drug habit. He

referred to Smith as his “girlfriend” and testified to giving her drugs in exchange

for sex. Perez testified that, although his memory of the assault was unclear

as to precisely when and where he was hit, he knew that when he awoke he

was in his van and was injured. He stated that he clearly remembered that he

was attacked at the duplex after Smith had called him to come help her move.

      We consider the above non-accomplice testimony discretely, having

eliminated   from   consideration   the    testimony   provided   by   Kavanagh’s

accomplice, Howard. See Malone, 253 S.W.3d at 257. What remains includes

Kavanagh’s own admission to police that he had hit Perez once or twice, had

participated in the robbery, and had driven Perez in his van to another location.

What also remains is testimony that Kavanagh was in the presence of his co-

conspirators in the moments before and after the commission of the crime, was

present at the scene of the crime, exhibited bloody socks on his hands

thereafter, and boasted about having assaulted Perez.




                                          11
      Kavanagh’s admission tends to connect him to the crime and, taken

alone, tends to connect him sufficiently to the offense and corroborates

Howard’s testimony. See Simmons, 282 S.W.3d at 508; Joubert v. State,

235 S.W.3d 729, 731 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1446

(2008); see also Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990)

(holding appellant’s statement to police that he shot the victims was sufficient

corroboration tending to connect him to the offense), cert. denied, 503 U.S.

911 (1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290,

296 (Tex. Crim. App. 1993); Jackson v. State, 516 S.W.2d 167, 171 (Tex.

Crim. App. 1974) (holding that a defendant’s confession or admission is

sufficient to corroborate accomplice testimony in most circumstances).

Kavanagh does not deny on appeal that he assaulted Perez, but he argues that

someone else inflicted the serious injuries Perez suffered. However, Kavanagh’s

recorded admission need not establish the exact nature of his participation in

the crime to “tend to connect” him to the offense. See Joubert, 235 S.W.3d

at 731 (“The appellant’s [videotaped] admission that he participated in the

crime, although he denied being a shooter, is enough to tend to connect him to

the offense.”).

      Moreover, Lozano’s testimony that Kavanagh was in and out of the

duplex with Howard and Smith at the time of the attack on Perez, and her

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statements regarding Kavanagh’s later return, when he was boasting and

wielding visibly bloody socks about his hands, also tends to connect Kavanagh

to the crime so as to furnish sufficient corroboration of Howard’s testimony.

See Malone, 253 S.W.3d at 257; Trevino, 991 S.W.2d at 852.

      In light of Kavanagh’s own recorded admission, as well as the deference

we give the jury in the weight it assigned to Lozano’s testimony and that of the

other witnesses, we hold that there is “some evidence tending to connect

[Kavanagh] to the offense.” Trevino, 991 S.W.2d at 852. Consequently, we

hold that Howard’s testimony was sufficiently corroborated and was properly

considered by the jury under the requirements of article 38.14. See Tex. Code

Crim. Proc. Ann. art. 38.14.

                       D. Factually Sufficient Evidence

      Kavanagh also argues that the evidence, taken as a whole and inclusive

of Howard’s accomplice testimony, is factually insufficient to identify him as

the perpetrator of the crime because the witnesses’ testimony was

contradictory, inconsistent, and biased.    Having determined that Howard’s

accomplice-witness testimony was properly corroborated, we now analyze all

the evidence—including Howard’s testimony—in a neutral light to determine if

factually sufficient evidence exists that Kavanagh was the perpetrator. See

Steadman, 280 S.W.3d at 246.

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       Kavanagh first asserts that Howard’s testimony was inconsistent with her

prior statements to the police, Perez’s testimony, and other evidence at trial.

But even assuming that such inconsistencies exist, the jury was free to believe

some or all of the testimony it heard. See Lancon, 253 S.W.3d at 706; see

also Fuentes v. State, 991 S.W.2d 267, 271–72 (Tex. Crim. App.), cert.

denied, 528 U.S. 1026 (1999) (noting that “to avoid intruding on the jury’s role

as arbiter of the weight and credibility of the evidence, a factual sufficiency

review remains deferential to the jury’s verdict”). It was within the purview of

the jury to determine the credibility of Howard’s testimony, and as the sole

judge of the witnesses’ credibility, the jury could choose to believe some

testimony and disbelieve any or all of the rest. See Lancon, 253 S.W.3d at

704.

       Kavanagh next argues that Howard was biased in favor of the State

because she testified in exchange for a plea bargain that resulted in a

substantially-reduced sentence for her part in the crime. However, Kavanagh

cross-examined Howard on her reduced sentence, and the jury charge

instructed the jury that Howard was an accomplice as a matter of law and that

it must believe Howard’s testimony to be true before using it as a basis to

convict. Howard’s credibility was an issue for the jury to decide. See id. The

jury evidently found her a credible witness, and we must defer to its judgment.

                                      14
See Johnson, 23 S.W.3d at 8 (stating that resolution of bias or conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered”).

      Kavanagh also argues that, while he did assault Perez, Perez could have

otherwise been more seriously injured by other people at the duplex who may

have had motive to do so, or by “intervening factors like driving off in a stupor

and wrecking the van.” But contrary to Kavanagh’s assertions, the evidence

demonstrates that the van was not wrecked, and there was only a small

amount of blood in the driver’s seat.       Moreover, no significant evidence

suggests another party assaulted Perez.      Kavanagh’s admissions related to

assaulting Perez, loading his unconscious body into the van, and driving it away

are extrajudicial confessions sufficient by themselves to establish his identity

as the perpetrator of the crime. See Emery v. State, 881 S.W.2d 702, 706

(Tex. Crim. App. 1994) (holding a defendant’s extrajudicial confession sufficient

to establish his identity where three such confessions in evidence gave certain

details of the offense), cert. denied, 513 U.S. 1192 (1995).        By his own

admissions, and through Howard’s corroborated testimony of her personal

observations, Kavanagh’s identity as the individual who assaulted Perez was

sufficiently proven.




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      We have reviewed the evidence in a neutral light, and we find no

objective basis in the record for holding that the jury’s verdict was clearly

wrong or manifestly unjust or that it was contradicted by the great weight and

preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the verdict, and no contrary evidence exists that would render the

evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.

Accordingly, we hold that the evidence is factually sufficient to support

Kavanagh’s conviction. We overrule Kavanagh’s sole issue.

                               V. C ONCLUSION

      Having overruled Kavanagh’s sole issue, we affirm the trial court’s

judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

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

DELIVERED: April 1, 2010




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