Affirmed as Modified and Opinion Filed December 12, 2013 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-12-01374-CR 

No. 05-12-01375-CR 

JOHN BRANDON WHITNEY, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 380th Judicial District Court 

Collin County, Texas 

Trial Court Cause Nos. 380-82172-2011 and 380-82173-2011 

MEMORANDUM OPINION 

Before Justices Francis, Lang-Miers, and Fillmore 

Opinion by Justice Francis 

 A jury convicted John Brandon Whitney of two aggravated robberies and assessed 

punishment at concurrent prison terms of twenty-eight years. In two issues, appellant contends 

the evidence is insufficient to corroborate the testimony of the accomplice witnesses and the trial 

court improperly admitted hearsay testimony. We affirm. 

 On the night of June 29, 2011, Toshihisa Murata was helping his friend, Yen-Chen Lin, 

move into a house in Plano not far from U.S. 75. They finished moving at about 1:20 a.m. and 

were standing in the front yard when a gold Chevrolet SUV stopped in the middle of the street. 

Three people, two men and a pink-haired woman, got out of the car. The men ran at Murata and 

Lin, demanded their money, and attacked them with a hammer-type weapon and a metal rod. 

The female stood to the side, tapping a metal rod in her hand. Murata said he was hit in the back 
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of the head twice with the hammer and he could see that Lin was being attacked with a metal 

rod. Murata gave his assailant his wallet but refused to give him his cell phone. The group ran 

back to the vehicle and “took off.” Murata immediately called 911. At trial, he said he could not 

identify his assailants. 

 Plano police officer Christopher McEntire heard the robbery call and began to monitor 

southbound U.S. 75. He saw a gold-colored Chevrolet Blazer with multiple occupants pass by. 

McEntire turned on his emergency lights to initiate a stop and then trained a spotlight on the rear 

of the vehicle and could see that one of the occupants had “hot pink” hair. The Blazer sped up, 

and a high-speed chase ensued. During the chase, McEntire saw items being thrown from the 

window of the vehicle, and notified other officers so that they could recover them. The Blazer 

exited the highway, turned onto a divided street, and drove in the opposing lanes of traffic. At 

that point, McEntire discontinued the chase for safety reasons, but he obtained the license plate 

number of the vehicle. Police recovered the items thrown from the car; they were Murata’s 

wallet and its contents, including credit cards. 

 Plano police released a bulletin for the Chevrolet Blazer and, eight days after the 

robberies, were contacted by a York, Nebraska police officer, Sgt. Michael Hanke, who advised 

that he had located the vehicle. Hanke testified he was dispatched to a call that a “group of kids” 

in an SUV were harassing customers at Walmart for money and cigarettes. When Hanke arrived, 

appellant got out of the driver’s seat and identified himself as John Swanson. He told Hanke he 

did not have identification because he had been robbed. Hanke gave appellant permission to go 

into the store to use the restroom, and appellant did not return. Hanke, however, was able to 

detain two other occupants, Joshua Savage and Tiffany Lee, and appellant was eventually 

arrested and returned to Texas. Hanke recovered a mallet and metal rods from the vehicle, and 

Murata testified they were “most likely” the weapons used in the attack. 
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 At trial, Savage’s sister, Candice Sussan, testified that on the day of the robbery, she was 

hanging out at a motel in Plano with her brother and a group of friends that included appellant, 

Lee, Megan Kerkove, Preston Sheffield, and Jessica Rogers. At some point, everyone left but 

her and Rogers. Hours later, early in the morning, Sussan’s father brought Savage and Kerkove 

back to the motel. Her brother was “talking a lot” and told her “they had gone out and hit some 

licks,” meaning they “had robbed some people.” By “they,” Sussan said he meant him, 

Kerkove, appellant, and Lee. 

 Later that morning, the group met up at appellant’s apartment. Although appellant did 

not talk about the robberies, Sussan said he threatened anyone who said anything about what had 

happened the night before. Sussan said she took appellant seriously. The group decided to leave 

town and left in Sheffield’s SUV. They stayed in New Mexico for a few days. When the group 

got ready to move on, Sussan stayed behind. 

 Kerkove and Savage also testified. Savage had already been convicted in these cases and 

had been sentenced to ten years in prison; Kerkove was given deferred adjudication probation. 

Kerkove testified she was at a motel in Plano when a group of them, including appellant, left in 

Sheffield’s vehicle to get gas. Appellant was driving. On the way, appellant stopped the vehicle 

in front of a house, and he and Savage jumped out, attacked two people with a mallet and metal 

rod, and returned to the vehicle with a wallet. Savage handed the wallet to her and told her to go 

through it. Kerkove’s fingerprints were later found on the credit cards. During the police chase, 

she said Savage threw the wallet out of the window. Later, appellant told them not to tell 

anybody what had happened, warning that “[s]nitches end up in ditches.” She took the threat 

seriously. 

Savage testified he had taken “a lot of pills” on the night of the robberies and could not 

remember the details. He said he was with Sheffield, Lee, Kerkove, and appellant in Sheffield’s 
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SUV. Savage said he and Lee, who had pink hair at the time, got out of the vehicle. Savage said 

he was holding a rebar pipe when he demanded one of the men give him his wallet and phone. 

After the robbery, the group stopped at a gas station, and appellant told Savage to use one of the 

victims’ credit cards to pay. Savage denied any “recollection” of seeing appellant outside the 

SUV during the robbery, nor did he remember seeing appellant with a mallet or see him hit 

anyone with a mallet. He acknowledged that in previous statements to the police, he said 

appellant participated in the robbery and was the person who attacked one of the people with a 

mallet. 

 Finally, Sussan and Savage’s father, Harold Savage, testified that on the night of the 

robbery, he received a call from his son at about 2 or 2:30 in the morning. He could hear 

appellant’s voice in the background. His son told him that he and Kerkove needed a ride back to 

the motel so Harold Savage picked them up and took them to the motel. 

In his second issue, appellant contends the evidence is legally insufficient to support his 

conviction because the evidence failed to sufficiently corroborate the testimony of the State’s 

accomplice witnesses, Savage and Kerkove. 

To support a conviction based on the testimony of an accomplice, there must be 

corroborating evidence that tends to connect the defendant with the offense. See TEX. CODE 

CRIM. PROC. ANN. art. 38.14 (2005). Corroboration is not sufficient if it merely shows the 

offense was committed. Id. In making our review, we eliminate all of 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 offense. Castillo v. State, 

221 S.W.3d 689, 691 (Tex. Crim. App. 2007). 

 The corroborating evidence need not be sufficient by itself to establish guilt; there simply 

needs to be “other” evidence “tending to connect” the defendant to the offense alleged in the 
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indictment. Id. It may confirm a “mere detail” rather than the elements of the offense. Lee v. 

State, 29 S.W.3d 570, 577 (Tex. App.—Dallas 2000, no pet.). Even “apparently insignificant 

incriminating circumstances” may provide sufficient corroboration. Trevino v. State, 991 

S.W.2d 849, 852 (Tex. Crim. App. 1999). We look at the particular facts and circumstances of 

each case and consider the combined force of all of the non-accomplice evidence that tends to 

connect the accused to the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). 

No precise rule dictates the amount the evidence required to corroborate the testimony of an 

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

 Here, appellant argues the non-accomplice evidence does not tend to connect appellant to 

the offense. He argues that Murata could not identify the assailants and Lin did not testify; 

Sussan testified appellant never discussed what happened and she had no independent knowledge 

of the offense other than what she had been told by her brother, a co-conspirator; the police 

officers did not see or identify any of the individuals involved; the only “hard evidence” 

connected Kerkove to the offense; and Murata testified the driver never got out of the car. 

 Evidence tending to connect appellant to the offense included (1) Sussan’s testimony that 

appellant, her brother, and the others left the motel together on the night of the robbery and (2) 

Harold Savage’s testimony that Joshua called him at about 2 or 2:30 a.m. to pick him up and he 

could hear appellant’s voice in the background. This evidence establishes that appellant was 

present with Savage and Kerkove both shortly before and shortly after the offense. See McDuff 

v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (stating that evidence appellant was in 

company of accomplice “at or near the time or place” of offense is proper corroborating 

evidence). In addition, just before the group fled the state, Sussan testified appellant threatened 

to harm them if anyone said anything about what happened the night before. When they were 

detained in Nebraska, appellant gave a false name before fleeing again. See Hernandez v. State, 
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939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (stating evidence of flight and guilty demeanor, 

coupled with other corroborating circumstances, may tend to connect accused with crime). 

Finally, the evidence showed that when detained in Nebraska, appellant was in the car used in 

the robbery. We conclude this evidence was sufficient to tend to connect appellant to the 

offense. 

 Further, considering all of the evidence, we conclude it was sufficient to establish 

appellant’s participation in the robbery. Savage’s statements to the police and Kerkove’s 

testimony both established that appellant was one of the two people who got out of the car and 

attacked one of the people with a mallet. A mallet and metal rods were found in the SUV in 

Nebraska, and Murata testified he believed the weapons were likely those used in the attacks. 

 Even if appellant was merely the driver and did not get out of the car, he would still be 

liable as a party to the robbery. The evidence showed appellant was driving that night, and 

stopped the car in front of the house, drove away afterwards, went to a gas station, instructed 

Joshua to use the victim’s credit card, and then led the police on a high-speed chase. Given the 

evidence in this case, the jury could have believed beyond a reasonable doubt that appellant 

committed aggravated robbery either as a principal or as a party. We overrule the second issue. 

 In his first issue, appellant argues the trial court abused its discretion by allowing Sussan 

to testify to a statement made by her brother, a co-defendant, over his hearsay objection. 

Specifically, Sussan testified that when Savage returned to the motel on the night of the robbery, 

he told her “they had gone out and hit some licks,” which Sussan explained meant they had 

robbed some people and “they” referred to Savage, appellant, Kerkove, and Lee. 

 In response, the State makes two arguments: (1) appellant did not preserve his complaint 

because he later elicited the same testimony when cross-examining Sussan and (2) even if 

preserved, the statement was admissible as a statement against penal interest. 
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 As to the first argument, we agree with the general proposition that the erroneous 

admission of testimony does not require reversal if the same fact is proven by other unobjectedto testimony. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). An exception 

exists, however, to allow defendants to meet, destroy, or explain evidence by introducing 

rebutting evidence. Id. at 719. Appellant’s cross-examination of Sussan, and in particular 

questions regarding what her brother had told her once he returned to the motel, was an effort to 

meet or explain her testimony on direct. Consequently, we conclude appellant did not forfeit his 

complaint by questioning Sussan on these matters. 

 Turning to the second argument, an out-of-court statement offered for the truth of the 

matter asserted is hearsay and generally inadmissible. TEX. R. EVID. 801(d). The Texas Rules 

of Evidence recognize many exceptions to this general rule of inadmissibility, and one such 

exception is a statement against interest. TEX. R. EVID. 803(24). This exception “stems from the 

commonsense notion that people ordinarily do not say things that are damaging to themselves 

unless they believe they are true.” Walter v. State, 267 S.W.3d 883, 890 (Tex. Crim. App. 2008). 

Determining whether a statement is admissible as a statement against interest involves a two-step 

inquiry. Id. First, the trial court determines whether the statement, considering all the 

circumstances, subjects the declarant to criminal liability and whether the declarant realized this 

when he made the statement. Id. at 890–91. Savage’s statement that they had “gone out and hit 

some licks” clearly subjected him to criminal liability because he admitted that he had robbed 

some people, and Savage would have been aware of this. The statement equally inculpated 

himself and the other persons he left the motel room with that night; it did not shift blame or 

minimize Savage’s role. We therefore conclude it was sufficiently self-inculpatory to be 

reliable. 
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 Second, corroborating evidence must “clearly indicate the trustworthiness of the 

statement.” Id. A number of factors are relevant to this inquiry: (1) whether guilt of the 

declarant is inconsistent with guilt of the defendant, (2) whether the declarant was so situated 

that he might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of 

the declaration, (5) the relationship between the declarant and the party to whom the statement is 

made, and (6) the existence of independent corroborative facts. Dewberry v. State, 4 S.W.3d 

735, 751 (Tex. Crim. App. 1999). The first two factors logically apply only when the defendant 

is the proponent of the statement against interest that tends to exculpate the defendant. When the 

statement is offered by the State to inculpate the defendant, as in the case before us, the first two 

factors are not relevant. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004). 

 After returning to the motel room hours after leaving, Savage admitted he and the others 

committed the robberies. He made the spontaneous admission to his sister, not a police officer. 

See Walter, 267 S.W.3d at 898 (acknowledging that statements to friends, loved ones, or family 

members normally do not raise same trustworthiness concerns as those made to law enforcement 

because, in latter instance, declarant has obvious motive to minimize role and shift blame to 

others). The timing and spontaneity of the statement tend to establish its reliability. 

In addition, the State developed independent corroborative facts that verified the 

statement. Evidence showed appellant left the motel room on the night of the robbery with 

Savage, Kerkove, and Lee in Sheffield’s gold SUV. Murata testified he and his friend were 

attacked by two men, armed with a hammer-like weapon and a metal rod, who jumped out of a 

gold SUV, while a pink-haired woman stood by. A police officer spotted the vehicle shortly 

after the robberies and saw that one of the occupants had pink hair. During a high-speed chase, 

the occupants threw out Murata’s wallet and its contents. Appellant and the group fled Texas. 

Eight days later, they were detained by a police officer in Nebraska. They were riding in 
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Sheffield’s gold SUV. A search of the vehicle uncovered a mallet and metal rod, which Murata 

said were similar to the weapons used in the attack. We conclude these facts indicate Savage’s 

statement to his sister was trustworthy and therefore admissible under rule 803(2). Because the 

trial court did not abuse its discretion in admitting the testimony, we overrule the first issue.1

Finally, our review of the record shows the judgments identify the defendant as John 

Bradley Whitney. At trial, appellant identified himself as John Brandon Whitney. In addition, 

all of the papers in this cause, including the indictment and jury charge, identify him as John 

Brandon Whitney. This Court has the authority to correct a judgment of the court below to make 

the record “speak the truth” when we have the necessary data and information to do so. Asberry 

v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Because we have the 

necessary information before us, we modify the trial court’s judgments to identify the defendant 

as John Brandon Whitney. 

 We affirm the trial court’s judgments as modified. 

Do Not Publish 

TEX. R. APP. P. 47 

121374F.U05 

 

 1

 Appellant also suggests the trial court should have instructed the jury that Savage’s statement to Sussan had to be corroborated by other 

non-accomplice evidence before it could be considered. But Savage’s out-of-court statement was not accomplice “testimony” subject to the 

corroboration requirements of article 38.14 of the Texas Code of Criminal Procedure. See Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. 

App. 1995) (op. on reh’g). Therefore, the statement did not require independent corroboration before the jury could rely on it to convict 

appellant. 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JOHN BRANDON WHITNEY, Appellant 

No. 05-12-01374-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 380th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 380-82172-2011. 

Opinion delivered by Justice Francis; 

Justices Lang-Miers and Fillmore 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows: 

To reflect the defendant’s name as John Brandon Whitney. 

As MODIFIED, the judgment is AFFIRMED. 

Judgment entered December 12, 2013 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JOHN BRANDON WHITNEY, Appellant 

No. 05-12-01375-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 380th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 380-82173-2011. 

Opinion delivered by Justice Francis; 

Justices Lang-Miers and Fillmore 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows: 

To reflect the defendant’s name as John Brandon Whitney. 

As MODIFIED, the judgment is AFFIRMED. 

Judgment entered December 12, 2013 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE