                                         NO. 12-10-00053-CR

                              IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

JOHNX RAY GREER,                                        §                 APPEAL FROM THE 217TH
APPELLANT

V.                                                      §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                                §                 ANGELINA COUNTY, TEXAS


                                MEMORANDUM OPINION
          Johnx Ray Greer appeals his conviction for aggravated robbery, for which he was
sentenced to imprisonment for thirty-five years. In two issues, Appellant contends that the
evidence is neither legally nor factually sufficient to support the trial court’s judgment. We
affirm.


                                                    BACKGROUND
          Michael Champion was working as a pizza delivery man for Papa John’s Pizza. On or
about the night of October 21, 2008, Champion was attempting to deliver pizzas that had been
ordered for a house on Booker Street in Lufkin, Texas. As he stood near the house, two men
approached him. One man, later identified by an accomplice as Appellant, was wearing a white
hooded sweatshirt or “hoodie.” The other man was wearing a black hoodie. According to
Champion, the man in the white hoodie brandished a small, chrome plated, semiautomatic pistol
and attempted to take the pizzas from him. Champion resisted. Champion, who was focused on
the pistol being pointed at him, heard it make a clicking sound. Believing that his life was in
danger, Champion retreated, removed a .22 caliber revolver from his pocket,1 and fired two shots

          1
              The record reflects that Champion possessed a license to carry a concealed handgun.

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at the man in the white hoodie. The second shot struck the man in his backside, and both
assailants fled the scene.
       Appellant was charged by indictment with aggravated robbery. Appellant pleaded “not
guilty,” and the matter proceeded to a bench trial. Ultimately, the trial court found Appellant
“guilty” as charged and sentenced him to imprisonment for thirty-five years.             This appeal
followed.


                                   EVIDENTIARY SUFFICIENCY
       In his first issue, Appellant argues that the evidence is not legally sufficient to support the
trial court’s judgment. In his second issue, Appellant argues that the evidence is not factually
sufficient to support the trial court’s judgment. In conjunction with these issues, Appellant
contends that Wesley Black’s accomplice testimony is not sufficiently corroborated.
Standard of Review and Governing Law
       Legal sufficiency is the constitutional minimum required by the Due Process Clause of
the Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315-16,
99 S. Ct. at 2786-87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999,
pet. ref=d). The standard for reviewing a legal sufficiency challenge is whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186
(Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict.
See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful
legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See
Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict
the State=s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
       To support Appellant’s conviction for aggravated robbery, the State was required to
prove that Appellant unlawfully appropriated property with intent to deprive the owner of the


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property, and in the course of so doing, while possessing the intent to maintain control over the
property, intentionally or knowingly threatened or placed another in fear of imminent bodily
injury or death and used or exhibited a deadly weapon.             See TEX. PENAL CODE ANN.
§§ 29.02(a)(2), 29.03(a)(2), 31.03(a) (Vernon 2003 & Supp. 2010). Appropriation of property is
unlawful if it is without the owner's effective consent. See TEX. PENAL CODE ANN. § 31.03(b)(1)
(Vernon Supp. 2010). “Appropriate” means to acquire or otherwise exercise control over
property other than real property. See TEX. PENAL CODE ANN. § 31.01(4)(B) (Vernon Supp.
2010).
Accomplice Testimony
         In the case at hand, the State offered the accomplice testimony of Wesley Black. Texas
Code of Criminal Procedure, article 38.14 states 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 (Vernon 2005). In
order to determine whether the accomplice witness testimony is corroborated, we must eliminate
all accomplice evidence and determine whether the other inculpatory facts and circumstances in
evidence tend to connect the appellant to the offense. See McDuff v. State, 939 S.W.2d 607, 612
(Tex. Crim. App. 1997).       The nonaccomplice evidence does not have to directly link the
appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but
rather, the nonaccomplice evidence merely has to tend to connect the appellant to the offense.
Id. at 613. The appellant’s presence in the company of the accomplice before, during, and after
the commission of the offense coupled with other suspicious circumstances may tend to connect
the appellant to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App.
1996). Moreover, evidence that the defendant was near or at the place of the offense around the
time of its occurrence is proper corroborating evidence. See Burks v. State, 876 S.W.2d 877,
888 (Tex. Crim. App. 1994).
Discussion of Evidence
         Black testified that he was with Appellant at Appellant’s house on the day in question.
While there, according to Black, Appellant asked him if he wanted to “hit a lick,” which he
explained meant to “go get some money.” Black later clarified that he knew they were going to
rob a pizza delivery man because Appellant told him so. Black stated that Appellant called for a


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pizza delivery on his telephone, that the two waited fifteen minutes, and that they went to the
house on Booker Street to wait for the delivery. Black testified that Appellant was wearing a
white hoodie and that he was wearing a black hoodie. Black further testified that Appellant
carried a gun regularly and that he knew Appellant had a gun that night. Black further stated that
when the pizza delivery man arrived, Appellant pulled out his gun, approached the delivery man
with the gun pointed at him, and began to “tussle” with him over the boxes of pizza. Next,
according to Black, the delivery man pulled out his own weapon. Black testified that he heard a
“pop,” and that he and Appellant ran back to Appellant’s house. Black further testified that he
was at Appellant’s house when Appellant’s father came home and that he told Appellant’s father
that Appellant had been shot.
       Champion testified that he was working as a pizza delivery man for Papa John’s.
Champion further testified that on October 21, 2008, he was attempting to deliver pizza that had
been ordered for a house located on Booker Street. Champion stated that as he stood near the
house, two men approached him, one wearing a white hoodie and the other wearing a black
hoodie. According to Champion, the man in the white hoodie brandished a small, chrome plated,
semiautomatic pistol and attempted to take the pizzas from him. Champion stated that he
resisted and was focused on the pistol being pointed at him when he heard it make a clicking
sound. Champion further stated that he believed his life was in danger, retreated a short distance,
pulled a .22 caliber revolver from his pocket, and fired two shots at the man in the white hoodie.
Champion stated that the second shot struck the man in the backside causing him to jump as both
assailants fled the scene.
       Lufkin Police Officers Chris Nash and Christy Pate both testified that a pistol and a white
hoodie were found at Appellant’s house in a chair on the front porch Officer David Campbell
stated that he performed a function test on the pistol found at Appellant’s house and determined
that the pistol would make a clicking sound, but would not discharge. Detective J.B. Smith
testified that a cellular telephone that was recovered from the car Black was driving had the same
San Marcos phone number that was given to the Papa John’s Pizza restaurant in conjunction with
the order Champion was delivering to Booker Street.2 Appellant’s father, Donald Greer, testified
that Appellant had recently returned from a stint at Job Corps in San Marcos, Texas. Greer
further testified that when he returned home from choir practice on October 21, 2008, a young

       2
           The record reflects that Appellant’s wallet and other personal effects were found in the same vehicle.

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man he did not recognize told him that Appellant had been shot. Greer stated that he took
Appellant to the hospital for treatment of his gunshot wound.
         Appellant testified on his own behalf. He denied planning or participating in the robbery
at issue. However, he stated that he was near the scene at the time in question, saw three
individuals arguing, heard gunfire, and was struck by one of the bullets. Appellant stated that he
ran home after the incident, and placed his white hoodie in the chair on the front porch of his
house. Appellant further testified about having been at Job Corps in San Marcos, Texas, before
coming home to Lufkin for a brief period. Appellant stated that he lent someone his phone to
make a phone call on the day in question. Finally, Appellant testified that he and a friend had
previously found a gun on the railroad tracks and that the friend must have left the gun at his
house.
         In sum, the nonaccomplice testimony indicates that Champion testified that he was
robbed by a man in a white hoodie, that the man brandished a pistol, that the man attempted to
fire that pistol at him, but that the pistol made a clicking sound, and that he fired two shots at the
man, striking the man in the backside with the second shot. Appellant’s phone’s San Marcos
number matched the number that was given to Papa John’s Pizza restaurant pertaining to the
order Champion was delivering. Police recovered at Appellant’s residence a white hoodie and a
pistol that would make a clicking sound, but not discharge. Appellant received a gunshot wound
that night and was, by his own testimony, near the scene at the time of the events in question.
After eliminating Black’s accomplice witness testimony from our consideration and conducting
an examination of the nonaccomplice evidence, we conclude that the nonaccomplice evidence
tends to connect Appellant to the offense sufficiently to corroborate Black’s testimony.
         Further, having examining all of the aforementioned evidence in the light most favorable
to the jury=s verdict, we conclude that the jury could have reasonably determined beyond a
reasonable doubt that Appellant committed aggravated robbery against Champion. Therefore,
we hold that the evidence was legally sufficient to support the trial court’s judgment.
Appellant=s first issue is overruled. We decline to reach Appellant’s second issue.3


         3
            We initially note that the court of criminal appeals has recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis factual sufficiency standard
and 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.” See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, 14 (Tex. Crim. App.

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                                                    DISPOSITION
         Having overruled Appellant’s first issue and having declined to consider Appellant’s
second issue, we affirm the trial court’s judgment.




                                                                SAM GRIFFITH
                                                                   Justice



Opinion delivered November 17, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




Oct. 6, 2010). Consequently, the court of criminal appeals overruled the factual sufficiency standard of review as
set forth in Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) and its progeny. See id.

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