unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial.

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U.S. 1st Circuit Court of Appeals
US v GONZALEZ-GONZALEZ

United States Court of Appeals

For the First Circuit

____________________

No. 96-2280

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL GONZALEZ-GONZALEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge ]

____________________

Before

Lynch, Circuit Judge ,

Coffin and Cyr, Senior Circuit Judges .

____________________

Laura H. Parsky , Trial Attorney, with whom John C. Keeney , Acting Assistant Attorney General, and Theresa M.B. Van Vliet , Chief of the Narcotics and Dangerous Drugs Section, Department of Justice, were on brief, for appellee.

Lawrence E. Besser for appellant.

Manuel Gonzalez-Gonzalez on brief pro se.

____________________

February 5, 1998
____________________

LYNCH, Circuit Judge . Manuel Gonzalez-Gonzalez was convicted of a major drug smuggling and money laundering conspiracy based in Puerto Rico. Gonzalez' defense at trial was that such a conspiracy did exist, but that he was not part of it. Gonzalez now argues through counsel that an admittedly improper definition of reasonable doubt argued by the prosecutor in closing requires a new trial, as does a jury instruction on the effect of a guilty plea by a co-defendant. Gonzalez also filed a brief pro se, arguing that the district court erred for other reasons in denying his motion for a new trial. We affirm.

I. Gonzalez was charged on November 2, 1994 with conspiracy to

possess with intent to distribute cocaine and marijuana, possession with

intent to distribute marijuana, possession with intent to distribute

cocaine, importation of marijuana and cocaine, and aiding and abetting in

the laundering of monetary instruments. After a nineteen-day trial, the

jury found Gonzalez guilty as charged. Gonzalez was sentenced on

September 20, 1996 to life imprisonment and was fined.


Because this appeal involves admittedly improper remarks by the prosecutor, and because the verdict could have been tainted by these remarks, we do not consider the facts in the light most favorable to the jury's verdict. Our description of the facts is "designed to provide a balanced picture of the evidence appropriate for determining whether the remarks were harmless or prejudicial." United States v. Hardy , 37 F.3d 753, 755 (1st Cir. 1994). See Arrieta-Agressot v. United States , 3 F.3d 525, 528 (1st Cir. 1993).

Several witnesses testified that they belonged to Gonzalez' drug smuggling and money laundering operation. This extensive testimonial evidence was corroborated by tape recorded conversations, surveillance photographs, passport entries, travel records, and telephone records. Ricardo Rivero ("Rivero") testified that Gonzalez recruited him to retrieve and repackage 900 pounds of marijuana imported from Colombia in 1991. Rivero testified that Gonzalez stored cocaine and marijuana at a house belonging to Manuel Garrido, which other witnesses, a co-defendant and an FBI agent, subsequently confirmed.

Gonzalez transported 125 kilograms of cocaine from Puerto Rico to New York for distribution with help from Rivero. Gonzalez also hired Roberto Garraton-Rivera and Alberto Maysonet to transport cocaine. Garraton testified that Gonzalez came to his house to deliver cocaine to Maysonet. Garraton and Maysonet traveled to New York in August of 1991 to deliver cocaine to Gonzalez. While in New York, Gonzalez instructed Ricardo on how to distribute the cocaine and resolved a dispute over payment for the drugs. After the success of this deal, Gonzalez purchased several cars before returning to Puerto Rico.

Witnesses described other drug transactions in 1992. Co-defendant Luz Marina-Giraldo testified that she helped Gonzalez import 6,500 pounds of marijuana into Puerto Rico. Gonzalez stored the marijuana at a stash house and sold it in Puerto Rico. Rivero also testified about that marijuana shipment. According to Rivero, Gonzalez supervised the unloading and transportation of the marijuana.

Both Rivero and Marina-Giraldo testified that Gonzalez was involved in transporting 300 kilograms of cocaine from St. Martin to Puerto Rico in 1992. These witnesses also testified about a major shipment of cocaine and marijuana Gonzalez had imported from Colombia to Puerto Rico in September of 1992. Part of this shipment was seized by the police.

Several witnesses testified that they helped Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625 kilograms of cocaine in November of 1992. Ricardo Rivero testified that Gonzalez supplied a motor for a boat to help bring in the shipment. Roberto Sierra-Rivera, a paid informant, testified that Gonzalez provided surveillance for this shipment, which was later sold in Puerto Rico and New York. Sierra-Rivera testified that Gonzalez and Augustin agreed that each time one of them brought in a load of cocaine, the other would be given 10 kilograms of cocaine or $100,000. There was also testimony about later cocaine smuggling operations conducted by Gonzalez' cousin Augustin.

Angel Santiago-Mora, a cooperating witness, and Martin Suarez, an FBI agent, testified that Gonzalez and his associates often delivered money to them to be laundered. On several separate occasions Gonzalez delivered hundreds of thousands of dollars to them. Other people closely connected to Gonzalez also delivered substantial sums of money to be laundered.

The government also presented tape recordings of conversations between Gonzalez and his associates in which Gonzalez admitted his involvement in drug smuggling and distribution. This evidence was supplemented by tapes of Gonzalez' associates referring to Gonzalez' involvement in drug trafficking.

Gonzalez testified and denied it all.

II. Gonzalez argues that he was deprived of his Sixth Amendment

right to a jury trial because in the prosecutor's closing argument the

prosecutor said:


[Y]ou heard [defense counsel] say at the end of his argument, that there was reasonable doubt as to whether he was or was not and I am going to tell you something, you will listen to the instructions from the judge as to what reasonable doubt is -- it is something very simple. If in your mind you think that he was a member of the organization, and in your heart, you feel that he was a member of the organization, then he was a member of the organization, and you say so with your verdict. Don't let yourselves be confused by the definition of reasonable doubt.

The government appropriately concedes that the prosecutor's remarks incorrectly defined reasonable doubt. Because there was no objection to these remarks (which the defendant concedes), we apply a plain error standard of review. See United States v. Crochiere , 129 F.3d 233, 237 (1st Cir. 1997); United States v. Taylor , 54 F.3d 967, 972-73 (1st Cir. 1995). The "decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'" United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young , 470 U.S. 1, 15 (1985)).

Gonzalez relies on a series of cases holding that jury instructions which misstate the reasonable doubt standard require a new trial. He argues that the prosecutor's comments on reasonable doubt are the "functional equivalent" of jury instructions, especially since the prosecutor followed his incorrect definition with a statement that the jury should not be confused by the definition of reasonable doubt. Gonzalez argues that the prosecutor essentially told the jury to ignore the judge's instructions on reasonable doubt and to follow his "mind and heart" test instead. We start with the latter contention.

The remark, "Don't let yourselves be confused by the definition of reasonable doubt" is ambiguous, and could have at least three meanings. It could mean "Don't be confused by the definition that I, the prosecutor, have just told you." It could mean, "Don't be confused by the definition you hear from either lawyer." And it could mean, "Don't be confused by the definition you hear from the judge," with the implication that the prosecutor's definition governs.

In context, the third meaning is by far the least likely of the three. 1 The prosecutor prefaced his remarks by telling the jury to listen to the judge's instructions, and his statement that the jury should not be confused by the definition of reasonable doubt is subject to benign interpretation. Furthermore, the prosecutor concluded his argument by stating, "You will listen to the instructions of the Honorable Judge, as he explains them to you, you will decide what the facts in this case were [and] you will apply the law . . . ." The prosecutor's own comments went a long way toward curing any understanding of the comment as an admonition to ignore the court's instruction.

The problem with the prosecutor's error was obviated by the court's instructions on reasonable doubt, which Gonzalez concedes were correct, as well as the court's admonition to the jurors that instructions on the law come only from the court, and not from counsel.

We flatly reject Gonzalez' argument that a misstatement of the law by a prosecutor should be treated the same way as a misstatement of law by the judge. No juror would mistake a prosecutor for a judge. Our law assumes that the jurors follow jury instructions and thus that they followed the judge's, not counsel's, definition of reasonable doubt. See United States v. Rivera-Gomez , 67 F.3d 993, 999 (1st Cir. 1995) ("[O]ur system of trial by jury is premised on the assumption that jurors will scrupulously follow the court's instructions."); Refuse & Envtl. Sys., Inc. v. Industrial Serv. of Am., Inc. , 932 F.2d 37, 40 (1st Cir. 1991) ("A basic premise of our jury system is that the jury follows the court's instructions."). That assumption is especially so here, since the prosecutor also told the jury to listen to the judge.

Whether the prosecutor's remarks amount to plain error warranting a new trial depends on analysis of several factors: "(1) the extent to which the conduct is recurrent and/or deliberate; (2) the extent to which the trial judge's instructions insulated the jury against, or palliated, the possibility of unfair prejudice; and (3) the overall strength of the prosecution's case, with particular regard to the likelihood that any prejudice might have affected the jury's judgment." Taylor , 54 F.3d at 977.

We make no determination on the first of the Taylor factors. We do note a long history of improper statements in closing argument from federal prosecutors in Puerto Rico. See, e.g. , United States v. Rodriguez- Carmona , 111 F.3d 122, 1997 WL 157738, at *4 (1st Cir. 1997); United States v. Fernandez , 94 F.3d 640, 1996 WL 469009, at *17 (1st Cir. 1996); United States v. Cartagena-Carrasquillo , 70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-Cordero , 67 F.3d 1002, 1009 (1st Cir. 1995); Arrieta-Agressot , 3 F.3d at 527 (citing cases); United States v. Ortiz- Arrigoita , 996 F.2d 436, 441 (1st Cir. 1993) ("We do not understand, however, why after numerous warnings from this court, the prosecuting attorneys in the District of Puerto Rico persist in spiking their arguments with comments that put their cases at risk.") (collecting cases). In light of this history, the government gains no advantage under the first factor.

As to the second factor, we are persuaded the jury was not led astray. That is because of the court's concededly correct jury instructions on reasonable doubt and the direction to disregard statements about the law from counsel. As to the third factor, the government had a very strong case against Gonzalez. Given these considerations, we do not think the jury's judgment was affected and a new trial is not warranted. Cf. Levy- Cordero , 67 F.3d at 1008 (holding that several "obviously improper" prosecutorial comments did not warrant a new trial).

III. In his counselled appeal, Gonzalez says the district court

committed error in its jury instructions regarding the guilty plea of co-

defendant Luz Marina-Giraldo.



2

Specifically, Gonzalez argues

that the court's statement that his co-defendant's guilty plea is not "in

and of itself" proof of Gonzalez' guilt implies that the plea could be

considered as evidence of guilt in conjunction with other evidence in the

case. There was no objection to these instructions, so we apply the

plain error standard of review (which Gonzalez concedes).
See

Taylor
, 54

F.3d at 976;
United States
v.
Colon-Pagan
, 1 F.3d 80, 81 (1st Cir. 1993).


The phrase "in and of itself," in isolation, could be understood to mean what Gonzalez posits: that standing alone, the guilty plea of a co- defendant could not be evidence of guilt of the defendant, but, in combination with such other evidence, the plea could be taken as evidence of the defendant's guilt. That is, of course, not the law, nor, we are sure, was that the trial judge's intended meaning when he gave the instructions.

The trial judge may have relied on dicta in United States v. Rivera- Santiago , 872 F.2d 1073, 1083 (1st Cir.), cert. denied , 492 U.S. 910 (1989), and cert. denied , 493 U.S. 832 (1989). In describing the events at the trial, this court's opinion referred to the following language given by the trial judge as a "standard accomplice" instruction: "the fact that an accomplice has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other person." The language of the instruction itself was not at issue in Rivera-Santiago 3 and this Court has not ruled on the propriety of such language in an accomplice instruction. We do so now and discourage the use of such "in and of itself" language. There is no need for such language, as the pattern jury instructions from other jurisdictions make evident. 4

Despite the potentially misleading nature of the "in and of itself" language, a new trial is not warranted here. The district court instructions, taken as a whole, repeatedly and unequivocally told the jury not to consider the co-defendant's guilty plea as evidence of the defendant's guilt. 5

We examine jury instructions in the context of the charge as a whole to determine whether the court's instructions require a new trial. See United States v. Rose , 104 F.3d 1408, 1416 (1st Cir. 1997). When we take this context into account, it is apparent that the court's instructions in this case do not warrant a new trial. We also reject Gonzalez' claim that the synergistic effect of two errors requires a new trial.

IV. In his pro se brief, Gonzalez argues that the district court

erred in denying his motion for a new trial.



6

The motion

based the request for a new trial on claimed newly discovered evidence

and claimed prosecutorial misconduct, including presentation of false

testimony.



7



We review a trial judge's ruling on a motion for a new trial for manifest abuse of discretion. See United States v. Brimage , 115 F.3d 73, 79 (1st Cir. 1997). "The remedy of a new trial is rarely used; it is warranted 'only where there would be a miscarriage of justice' or 'where the evidence preponderates heavily against the verdict.'" United States v. Andrade , 94 F.3d 9, 14 (1st Cir. 1996) (quoting United States v. Indelicato , 611 F.2d 376, 386 (1st Cir. 1979)). See United States v. Montilla-Rivera , 115 F.3d 1060 (1st Cir. 1997). In a motion for a new trial based upon newly discovered evidence, the defendant must establish that "the evidence was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial." United States v. Tibolt , 72 F.3d 965, 971 (1st Cir. 1995). But Gonzalez' complaints are largely about what happened at trial and were not newly discovered.

The district court gave a careful explanation of its denial of Gonzalez' motion, and we affirm for the reasons stated in the court's Memorandum and Order dated December 3, 1996. We add only that the "new evidence" Gonzalez presents does not come close to "so undermin[ing] the government's case as to give rise to a 'reasonable' probability of acquittal on retrial." Tibolt , 72 F.3d at 972 (quoting Sepulveda , 15 F.3d at 1220)).

The judgment is affirmed.

FOOTNOTES

--------------
[1]

We note but need not resort to the rule that when a prosecutor's comments are ambiguous, and there is no contemporaneous objection, the ambiguity is construed in favor of a proper meaning. See Taylor , 54 F.3d at 979 ("[W]hen the target of the comments does not interrupt and register a timely objection, it seems especially appropriate to 'give the arguer the benefit of every plausible interpretation of her words.' . . . Given the absence of a contemporaneous objection, we must cede to the government the benefit of a legitimate, plausible interpretation of the prosecutor's words.") (quoting United States v. Sepulveda , 15 F.3d 1161, 1187 (1st Cir. 1993)).

--------------
[2]

Before Marina-Giraldo testified as a witness, the court instructed the jury:

[T]he government must establish each case against each defendant separately. Now, the fact that this co-defendant is going to testify, you are going to hear from her that she did enter a plea of guilty and now she is testifying for the government. Now the fact that a co-defendant has entered a plea of guilty to the offense charged, that fact also, the entering of a plea of guilty in and of itself is not evidence of any guilt of any other of the co-defendants. I repeat that. The fact that a co-defendant has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other co-defendant and I cannot emphasize that enough.

The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the other defendant's guilt nor may you draw any inference of guilt as to the remaining co- defendants. The fact that she pled is what I am talking about, that cannot be used as evidence against the other defendants nor may you draw any inference from the fact that she pled guilty. . . .

[W]hat you cannot consider is the fact that she has entered a plea of guilty, that fact cannot be considered. It is not evidence against the other defendants and affords no inference or suggestion of guilt as to the other defendants.

--------------
[3]

The Fifth Circuit also described a similar "in and of itself" accomplice instruction in United States v. Abravaya , 616 F.2d 250 (5th Cir. 1980). The new District Court Criminal Law Pattern Jury Instructions for this circuit do not address guilty pleas by accomplices or co-defendants.

--------------
[4]

The pattern instructions of other circuits are more straightforward and do not contain "in and of itself" language. For example, Sixth Circuit pattern jury instruction 7.08 reads as follows:

(3) The fact that ________ has pleaded guilty to a crime is not evidence that the defendant is guilty, and you cannot consider this against the defendant in any way .

The Seventh Circuit's pattern jury instruction 3.23 reads:

The witness, ________, has pleaded guilty to a crime arising out of the same occurrence for which the defendant is now on trial. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, his guilty plea is not to be considered as evidence against the defendant .

Pattern jury instruction 2.19 from the Eighth Circuit states:

You have heard evidence that witness (name) has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt . You may consider that witness' guilty plea only for the purpose of determining how much, if at all, to rely upon that witness' testimony.

Finally, Ninth Circuit pattern instruction 4.12 reads:

The witness, _________, has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves .

--------------
[5]

The court also instructed the jury:

Now, the case against Luz Marina-Giraldo has been disposed of and will no longer be before you. It is very important that you realize that you cannot guess or concern yourselves or speculate as to the reason for the disposition of her case. The disposition cannot and should not influence your verdict with reference to the remaining defendants that are on trial here.

If you recall, I think I advised you on the first day that each defendant, although being tried together, has a right to have the jury consider his case separately of the other defendants and considering the evidence that applies or that is admitted as to that defendant specifically. . . . [A]lthough [the defendants] are being tried together, you must give separate consideration to each defendant. . . . I repeat that you cannot and you must not consider the fact that Luz Marina-Giraldo is not here again and it should not enter into your deliberations. . . . [The disposition of her case] should not enter whatsoever in your deliberations as to the other two defendants.

In its final instructions to the jury, the court said:

[D]uring the course of the trial, I instructed you that the case against Luz Marina-Giraldo . . . [had] been disposed of, and was no longer before you. And the disposition of the case[] . . . should not influence your verdict with reference to . . . Gonzalez and you must base your verdict solely on the evidence against Mr. Gonzalez-Gonzalez. In other words, the government must establish its case against Mr. Gonzalez separately of the disposition of the cases against the other two defendants.

And I also instructed you, the fact that co-defendant Luz Marina- Giraldo entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of the defendant here on trial and I cannot emphasize this enough. The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the guilt [of] Mr. Gonzalez-Gonzalez. Nonetheless, you may give her testimony such weight as you think it deserves, keeping in mind that it must be considered with caution and great care.

--------------
[6]

After oral argument in this case, Gonzalez filed a letter with this court, which we accepted as a supplemental brief, raising issues in addition to those raised by his able counsel. We requested the government to file a responsive brief, which it has done. We reach the merits of Gonzalez' pro se appeal.

--------------
[7]

Gonzalez also complains of a factual error concerning whether the name "Lin" appeared on any of the drug packages from Loiza beach, an error contained in the transcript. At oral argument before us, the government conceded this factual error, saying the name did not appear.

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Former Judge Charles F. Baird sitting by assignment.Judgment rendered and Opinion filed March 30, 2000.Justices Edelman, Wittig and Baird.

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Page 1
Affirmed and Opinion filed March 30, 2000.
In The
Fourteenth Court of Appeals
____________
NO. 14-98-00201-CR
____________
HENRY ANTONIO MORA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the 232
nd
District Court
Harris County, Texas
Trial Court Cause No.
757,522
O P I N I O N
Appellant was charged by indictment with the offense of aggravated robbery. The
indictment also alleged a prior felony conviction for the purpose of enhancing the range of
punishment. A jury convicted appellant of the charged offense. Appellant then pled true to
the enhancement allegation and the trial court assessed punishment at 75 years confinement
in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six
points of error. We affirm.
Page 2
2
I. Sufficiency Challenges
The first point of error contends the evidence is legally insufficient to sustain the
conviction. The third point of error contends the trial court erred in denying appellant’s
motion for instructed verdict. The fourth point of error contends the evidence is factually
insufficient because the evidence is insufficient to corroborate the accomplice witness
testimony. To address these points, a comprehensive review of the evidence is necessary.
A. Factual Summary
Ememeleina Arhaja, the wife of the complainant, testified that on the alleged date she
and the complainant had just cashed a check and were waiting at a bus stop. Arhaja noticed
two men who appeared suspicious, therefore, Arhaja and the complainant moved to a
different bus stop. The two men re-appeared at the second bus stop and robbed the
complainant, taking his wallet and a necklace. The robbers also took a chain from Arhaja.
To facilitate the robbery, appellant’s co-defendant displayed a firearm and used it to strike
the complainant. After the attack, the complainant ran to a store and Arhaja chased after the
robbers. Arhaja saw the robbers enter a car, which was occupied by two females, and flee.
Arhaja got a partial license plate number from the vehicle. Arhaja identified appellant’s co-
defendant from a photo spread, a video line-up and in court. Arhaja identified appellant from
a line-up, but was not able to identify appellant in court.
The complainant, Geronimo Perez, testified that he moved from the first to the second
bus stop because of two men who appeared suspicious. After arriving at the second bus stop,
the two men surprised the complainant when they used a firearm to strike the complainant
in the head, grabbed his wallet and took his chain necklace. The necklace bore the
complainant’s name.
The complainant identified appellant’s co-defendant as the individual
wielding the firearm. The complainant identified appellant in court.
Houston Police Department Officer Juan Huezoh was the first officer on the scene.
Page 3
3
He separated Arhaja and the complainant, took their descriptions of the robbers and got a
partial license plate number from Arhaja.
Houston Police Officer Cheryl Clement heard the broadcast regarding the description
of the vehicle and a partial license plate number. Shortly thereafter, Clement noticed a
vehicle fitting the description in a parking lot about three quarters of a mile from the site of
the robbery. Clement saw two black males and one black female standing near the car. The
vehicle was later moved and abandoned. Clement contacted the robbery division to get a
“hold” on the vehicle, meaning the car could be towed because there was reason to believe
it had been involved in the robbery.
The vehicle was towed to the Houston Police
Department storage lot for further investigation.
Subsequent to the impounding of the
vehicle, Arhaja went to the storage lot and identified the towed vehicle as the one she had
seen the two suspects enter when they fled the scene.
After running the license plate, the police went to an apartment complex and received
the names of Tazzie Gray, Daisy Gray, Nico Gray, and Alvaro Gomez. A photo spread was
prepared with the photo of Alvaro Gomez, also known as Orobio Gamboa Quintilliano,
appellant’s co-defendant. Both the complainant and Arhaja identified the co-defendant. An
arrest warrant was issued for the co-defendant and he was subsequently arrested along with
Tazzie Gray. The co-defendant subsequently gave a video taped statement concerning his
participation in the robbery.
The investigation then led Clement to Darlene Cheeks. After Cheeks was arrested,
and provided Clement with the name of appellant, Cheek’s boyfriend, Clement then arrested
appellant.
Clement later placed appellant and his co-defendant in separate line-ups and video-
taped them. Both line-ups were shown to the complainant and Arhaja. Both identified the
co-defendant.
Arhaja was able to identify appellant from a video line-up, but the
complainant was not.
Cheeks directed Clement to a firearm hidden in the impounded
Page 4
1
Two firearms were admitted into evidence. The firearm recovered from Gray was State’s exhibit
10 and the firearm recovered from the impounded vehicle was State’s exhibit 11. The admission of these
exhibits is the subject of part III of the opinion, infra.
4
vehicle. A firearm was also recovered from the apartment of Tazzie Gray when she was
arrested.
1
Jesus Chagoyenn, a goldsmith who owned a jewelry shop, identified appellant and his
co-defendant as the men from whom Chagoyenn purchased a chain and a ring, which he later
melted down. Chagoyenn testified he did not normally buy jewelry, but the two men stated
they needed money for gas.
Darlene Cheeks testified as an accomplice. In exchange for her testimony, she agreed
to plead guilty to several pending aggravated robberies and the State agreed the charges
would be reduced to robbery and she would be sentenced to eight years concurrent for all
cases.
Cheeks stated she had been romantically involved with appellant and she was
acquainted with the co-defendant who was the boyfriend of Tazzie Gray.
On May 4, 1997, the four went looking for someone to rob. They went to a
convenience store, which Gray entered, and saw the complainant and Arhaja cashing a check.
They followed the complainant and Arhaja to a bus stop. The two men got out of the car
while Cheeks and Gray remained in the car. After five or ten minutes, the men returned with
a wallet, a necklace and a ring. Cheeks testified the firearm used was State’s exhibit 11.
Cheeks also pointed out the jewelry store on Chimney Rock where the items had been sold.
Houston Police Officer A.A. Cavasos assisted with the investigation of the robbery.
He testified Chagoyenn told him that the chain he bought and subsequently melted down
bore the moniker of “Geronimo,” the first name of the complainant. Chagoyenn testified at
trial he did not remember that, nor did he remember telling the officer that.
Appellant’s co-defendant testified that he did not commit the robbery. Although the
co-defendant had earlier given a video-taped statement confessing to the robbery, he testified
Page 5
5
that he had smoked marijuana and crack cocaine the morning of the statement and that he
was forced to give the statement.
B. Standards of Review
We must next determine the appropriate standard of appellate review for resolving
these points of error. When we are asked to determine whether the evidence is legally
sufficient to sustain a conviction we employ the standard of Jackson v. Virginia and ask
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
In Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993), the Court of Criminal
Appeals stated: “A challenge to the trial court's ruling on a motion for an instructed verdict
is in actuality a challenge to the sufficiency of the evidence to support the conviction.”
Therefore, when considering a point of error contending the trial court erred in overruling
a motion for instructed verdict, the reviewing court “will consider the evidence presented at
trial by both the State and appellant in determining whether there was sufficient evidence.”
Id. In other words, the standard of appellate review of a ruling on a motion for instructed
verdict is the same standard in reviewing legal sufficiency of the evidence. See Margraves
v. State, 996 S.W.2d 290, 302 (Tex. App.—Houston [14
th
Dist.] 1999, pet. ref’d) (citing
Roper v. State, 917 S.W.2d 128, 130 (Tex. App.—Fort Worth 1996, pet. ref'd); Griffin v.
State, 936 S.W.2d 353, 356 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).
When we determine whether the evidence is factually sufficient, we employ the
standard announced in Clewis v. State and view all of the evidence without the prism of “in
the light most favorable to the prosecution” and reverse the conviction only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust. 922 S.W.2d
126, 129 (Tex. Crim. App. 1996). In Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997),
the court stressed the importance of the three principles that must guide a court of appeals
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6
when conducting a factual sufficiency review. The first principle is deference to the jury. A
court of appeals may not reverse a jury’s decision simply because it disagrees with the result.
Rather the court of appeals must defer to the jury and may find the evidence factually
insufficient only where necessary to prevent manifest injustice. See id. at 407. The second
principle requires the court of appeals to provide a detailed explanation supporting its finding
of factual insufficiency by clearly stating why the conviction is manifestly unjust, shocks the
conscience or clearly demonstrates bias, and the court should state in what regard the
contrary evidence greatly outweighs the evidence in support of the verdict. See id. at 407.
The third principle requires the court of appeals to review all of the evidence. The court must
consider the evidence as a whole, not viewing it in the light most favorable to either party.
See id. at 408.
C. Legal Sufficiency
As the standard of appellate review is the same, we will jointly consider the first and
third points of error.
A person commits aggravated robbery if he knowingly and
intentionally threatens or places another in fear of imminent bodily injury or death in the
course of committing theft, with the intent to obtain or maintain control of the property, and
uses or exhibits a deadly weapon. See T
EX
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§29.03.
From the facts presented, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Both the complainant and Arhaja identified appellant, and
Cheeks further testified appellant had been involved in the commission of the crime.
Although appellant contends the identification by the complainant and Arhaja is infirm, the
jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight
to be given to the testimony. See T
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C
RIM
. P
ROC
. art. 38.04. The jury may believe
or disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159
Page 7
7
(1988). The jury could rationally have believed the testimony of the complainant and Arhaja
in determining beyond a reasonable doubt that appellant was guilty of aggravated robbery.
The complainant was severely beaten and stated he feared for his life, recounting that when
the firearm was placed on his stomach, he “felt death.” The complainant’s money and
jewelry were taken without his consent. The evidence is legally sufficient to sustain the
conviction. The first and third points of error are overruled.
D. Factual Sufficiency
We now turn to the factual sufficiency challenge. Clewis directs us to set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Clewis, 922 S.W.2d at 129. When performing this review, the
appellate court must be "appropriately deferential" to avoid substituting its judgment for the
fact finder's. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis,
922 S.W.2d at 133. This requirement was reiterated in Cain’s instruction for us to defer to
the jury. 958 S.W.2d at 407.
Appellant was positively identified by both the complainant and Arhaja. He was
dating Cheeks, who admitted her involvement in the instant crime. The jeweler identified
appellant as one of two men selling him a chain and a ring, exactly the items Cheeks testified
were taken during the robbery. The test for factual sufficiency is whether the jury finding
of guilt was “so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust." Clewis, 922 S.W.2d at 129. Under this standard, we cannot conclude that in
light of the foregoing record evidence, the finding of guilt was clearly wrong or unjust.
Consequently, we hold the evidence is factually sufficient to support the jury’s verdict. The
fourth point of error is overruled.
II. Accomplice Witness Corroboration
The second point of error contends the “conviction for aggravated robbery is void
Page 8
8
because it was had upon accomplice witness testimony that was not corroborated at trial by
other evidence that tended to connect appellant to the crime[.]” The Texas Code of Criminal
procedure provides:
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 an offense.
T
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. art. 38.14. An accomplice witness is a discredited witness because
his or her testimony alone cannot furnish the basis for the conviction; no matter how
complete a case may be made out by an accomplice witness or witnesses, a conviction is not
permitted unless he or they are corroborated. See Walker v. State, 615 S.W.2d 728, 731
(Tex. Crim. App. 1981).
The test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony of
other witnesses to ascertain if there is evidence which tends to connect the accused with the
commission of the offense. See Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988).
If the testimony of Cheeks is eliminated, the identification of appellant as the robber
by both the complainant and Arhaja stands as the non-accomplice testimony against
appellant. The jury may believe or disbelieve all or any part of a witness's testimony. See
Sharp, 707 S.W.2d at 614. Arhaja’s eyewitness account and subsequent identification of
appellant as one of the robbers is sufficient evidence to connect appellant with the
commission of the instant offense. Point of error number two is overruled.
III. The Handguns
Points of error five and six contend the trial court erred in admitting into evidence
State’s exhibits 10 and 11, two different firearms, where the evidence showed that only one
firearm was used in the commission of the offense, because such evidence was not
Page 9
9
admissible under Texas Rules of Evidence 401, 402, or 403.
A. Preservation of Error
The State responds the error, if any, has been waived because appellant did not object,
thereby waiving any error, and further, the exhibits were never admitted into evidence. The
record belies these propositions. At trial, the following colloquy occurred:
The State: I would offer into evidence Judge State’s Exhibit Number
10 and State’s Exhibit Number 11. Let the record reflect that I’m tendering to
opposing counsel.
Mr. Alexander (counsel for co-defendant): That’s all right. Judge I
have the same objection as to 11 hadn’t been tied in, no predicate, no
relevance. At this point and time it’s prejudicial. It’s a gun waving at this
point. Judge I object to that.
The State: May I respond?
The Court: Mr. Gonzalez
Mr. Gonzalez (counsel for appellant): I’ll adopt his objection your
honor.
The Court: Let the record show. What says the State?
The State: Well the complainants have both stated that it was a black
gun with a longer barrel and it was a revolver. I’ve given the choice to the
complainants. They’ve looked at the gun and pointed it out. I believe I can
further in evidence –
The Court: That’s sufficient Counsel.
They’re both received and
admitted into evidence. State’s exhibit 10 and 11. (emphasis supplied)
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10
The record establishes the firearms were admitted into evidence and that appellant objected
to their admission. Therefore, the error, if any, has been preserved for appellate review.
B. Admissibility
Cheeks provided the police with State’s exhibit 11, which was hidden in the car
identified by Arhaja as the vehicle into which she saw the two suspects escape. Cheeks
stated State’s exhibit 11 was the firearm used in the commission of the offense.
Rule 401 defines relevancy for purposes of admission or exclusion under Rule 402.
“Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. Rule 402 provides that “all relevant evidence is
admissible, except as otherwise provided by Constitution, by statute, by these rules, or by
other rules prescribed pursuant to statutory authority.
Evidence which is not relevant is
inadmissible.”
Evidence tending to affect the probability of the truth or falsity of a fact in issue is
logically relevant. See Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App.
1991)(on rehearing). The court has broad discretion in determining the admissibility of
evidence, and its ruling will not be disturbed on appeal absent a clear abuse of discretion. See
Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
State’s exhibit 11 was identified as the firearm used in the robbery; therefore it is
directly relevant to the instant offense. Although appellant contends the State failed to show
this was the “robbery gun,” this does not affect the admissibility. Even if it was not the
robbery firearm, the introduction of a weapon submitted as being similar to the one used in
the commission of the crime is admissible as demonstrative evidence to aid the jury in
understanding oral testimony adduced at trial. See Simmons v. State, 622 S.W.2d 111,
113-14 (Tex. Crim. App. [Panel op.] 1981); Fletcher v. State, 902 S.W.2d 165, 167 (Tex.
Page 11
2
Texas Rule of Evidence 403 is essentially the same as its federal counterpart. Texas Rules of
Evidence Handbook 213 (3d ed. 1998).
11
App.—Houston [1st Dist.] 1995, pet. ref'd); Jackson v. State, 772 S.W.2d 459, 466 (Tex.
App.—Beaumont 1989, no pet.).
It is within the trial court's discretion to admit into
evidence a type of weapon or instrument similar to that used in the commission of an offense.
Simmons, 622 S.W.2d at 113. Therefore, State’s exhibit 11 was admissible under Rules 401
and 402.
C. Rule 403
The Court of Criminal Appeals favors “admission of relevant evidence and implies
a presumption that relevant evidence will be more probative than prejudicial.” See generally
T
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VID
. 403. In Brimage v. State, 918 S.W.2d 466, 505 (Tex. Crim. App. 1994), cert.
denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 66 (1996), the Court of Criminal Appeals
held relevant evidence, which is not inflammatory or prejudicial and assists the jury in
deciding a case is admissible. The court has also held that Rule 403 requires exclusion of
evidence only when there exists a clear disparity between the degree of prejudice of the
offered evidence and its probative value. See Joiner v. State, 825 S.W.2d 701, 708 (Tex.
Crim. App.1992) and Brimage, 918 S.W.2d at 506.
In Old Chief v. United States, 117 S.Ct. 644, 650 (1997), the Court considered the
admissibility of evidence under Rule 403:
2
The principal issue is the scope of a trial judge's discretion under Rule 403,
which authorizes exclusion of relevant evidence when its "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." F
ED
. R. E
VID
. 403. Old
Chief relies on the danger of unfair prejudice.
The term "unfair prejudice," as to a criminal defendant, speaks to
the capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on a ground different from proof specific to the
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12
offense charged. See generally 1 J. Weinstein, M. Berger, & J. McLaughlin,
Weinstein's Evidence, ¶ 403[03] (1996) (discussing the meaning of "unfair
prejudice" under Rule 403). So, the Committee Notes to Rule 403 explain,
“'Unfair prejudice' within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one.” Advisory Committee's Notes on Fed. Rule Evid. 403, 28
U.S.C.App., p. 860. (footnote omitted)(emphasis supplied)
The admission of State’s exhibit 11 was not the type of evidence to “lure the
factfinder into declaring guilt on a ground different from proof specific.” The weapon was
identified as the one used in the robbery, or at least similar to the one the complainant was
beat about the head with. The evidence was not more prejudicial than probative. Further,
the court's ruling on a rule 403 objection will only be reversed for a clear abuse of discretion.
See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Therefore, State’s
exhibit 11 was admissible under Rule 403.
D. Admissibility of State’s Exhibit 10
Because State’s exhibit 11 was identified as the firearm used in the robbery, State’s
exhibit 10 was not admissible as a similar weapon. See generally, Montgomery, 810 S.W.2d
at 386. Having found error in the admission of State’s exhibit 10, we must address whether
appellant was harmed by the trial court’s error.
In determining whether appellant was harmed, we apply the standard set out in Texas
Rule of Appellate Procedure 44.2(b) to non-constitutional errors. Under Rule 44.2(b),
appellant must show that a substantial right was affected. A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal
conviction should not be overturned for non-constitutional error if the appellate court, after
examining the record as a whole, has a fair assurance that the error did not influence the jury,
or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
Page 13
13
1998).
Appellant claims he was harmed not by the admission of either firearm individually,
but by the admission of two firearms. Appellant asserts that because two firearms were
admitted into evidence, the jury could have concluded that appellant also used a firearm
during the commission of the offense. The record does not support appellant’s assertion.
The State used both firearms twice during its case in chief. The first time, the State
showed both weapons to the complainant and asked if either weapon looked like the one used
in the offense. The complainant responded that State’s exhibit 10 looked like the firearm,
but the gun used in the offense had a shorter barrel than State’s exhibit 10. The complainant
was subsequently asked to identify “the man without the gun.”
The complainant then
identified appellant. The second time the State used both weapons was when the prosecutor
asked Officer Clement to testify as to how she recovered each weapon. Officer Clement did
not testify that both weapons had been used during the offense.
During Darlene Cheeks’ testimony, the State showed her State’s exhibit 11 and she
testified that the firearm belonged to appellant’s co-defendant. She further testified that
when appellant and the co-defendant left the car to commit the robbery, the co-defendant
carried the gun and when they returned to the car, the co-defendant was carrying the gun.
She never testified that appellant carried any weapon. During closing argument, the State
did not refer to either weapon. Further, the State did not lead the jury to believe that two
firearms had been used in the commission of the offense. Having examined the record as a
whole, we conclude the improper admission of State’s exhibit 10 did not influence the jury.
The fifth and sixth points of error are overruled.
The judgment of the trial court is affirmed.
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3
Former Judge Charles F. Baird sitting by assignment.
14
/s/
Charles F. Baird
Justice
Judgment rendered and Opinion filed March 30, 2000.
Panel consists of Justices Edelman, Wittig and Baird.
3
Do Not Publish — T
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.P. 47.3(b).