### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 379 -CR

Jim m y Le e Sim m ons , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF MI LAM COUNTY , 20TH JUDICIAL DISTRICT

NO. CR2146 7 , HO NORAB LE ED MAGRE , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appellant Jim my L ee Simmons guilty

of ag g ravated robbe ry

and assessed punishment, e nhance d by a pre vious felony

conviction, at twenty y ear s’ i mprisonment. See Tex. P enal Code A nn. § 29.03 (West 2003). I n his single point of error, Si mmons contends that the testimony of an a ccomplice witness was not ade quately corr oborate d. We will rever s e th e convic tion
and re nd e r j ud g me nt o f a c qu itt a l.
BACK GR OUND

J ustin Mendoza testified that he was a t a frie nd’s hous e ar ound midnight, waiting for his girlf riend, Car men Alonso, to g et off work when L amar J ohnson, whom Mendoza rec og nized,
c a me to t he do or and a sk e d, “I s Mike the re ? ” Me nd oza sa id n o, and

John so n r od e awa

y on his bicy cle. A f

ew minutes later, Al o n s o drove up to the house and Johnson returned on his bicy cle. Mendoza testified that Johns on came up to the window of Alonso’s car a nd said, “Who’s that? Oh,2

Ithought it was somebody else,” and then r ode aw ay ag ain. Alons o an d M en d oza went into the house and te n to fifteen minutes late r, there was a k n o ck on the door. Mendoza ope ned the f ront door and w as conf

ronted by J ohnson, who was unmaske d, and a ma n wea ring a mask. The masked
man p oin te d a

g un a t Me nd oza ’s he a d a

nd de mand e d his mon e y . Me nd oza te sti fi e d tha t he c ou ld not see the ma

n’s fa ce, but that the ma

n was taller

than Mendo z a’ s o wn h eight of five f eet, se ven inches. The masked man continued to hold the g un on Mendoza while Johns on sear ched the house,
rumma g e d thro ug h th e kit c he n, a nd too k mo ne y

and a c e ll p hone fr om M e nd oza ’s po c ke ts. Acc ording to Mendoza, J ohnson went outside and broke the window out of Alonso’s ca r, taking her purse from inside. J ohnson then returne d to the house and spoke brief ly with the masked man, w ho h it M e n d o za

in th e fac e wi th

b r a s s kn u c k le s b e f

o r e f le e in g th e h o u s e w it

h Jo h n s o n . M e n d o za retrie ved a r ifle fr om his friend’s c loset, went outside, and shot the rifle into the a ir. After shooting the ri fl e , h e no tic e d th e tw o r ob be rs ru nn ingdo wn

the str e e t. The police arr ived on the scene shortly there afte r, and Me ndoza ga ve them Johnson’s name. No f

inge rprints wer e take n beca use Mendoza infor m ed the police that the men had be en
we ari ngg lov e s.

Mendoza testified t hat t he day afte r the robbe ry , he re alized that the masked robbe r’s voice “sounded very familiar to me.” Me ndoza expl ained that on the da y of the robbe ry , he and a friend w ere in his c ar w hen a ma n flag g ed them down a

nd asked f

or a r ide. Mendoza stopped, but his friend tol d the m an that they would not g ive hi m a ride. As Mendoza and his frie nd drove a way from this encounte r, Mendoza’s f riend, who did not t estify , stated t hat t he man who asked for a rideThere was no he arsa y objection to this portion of Mendoza’s testimony
. Simm ons 1 conce des that without a

n objection, this statement has probative va lue. See Te x. R. E vid . 8 02 ; see als o Tex. R. Evi d. 803(1) ( prese nt sense impression). 3 was “ J immy

L ee.” Mendoza furthe r testified that he was “ not sure” if t h e v o i ce he hear d at the

1 robber y belong ed to the man his f riend had identified as “Ji mmy L ee,” but “[i] t sounded like him.” J ohnson was ar

rested f or the robbe ry

and he inf

ormed the police that Simm ons, who
wa s d a tin g John so n’ s mo the r a nd liv ingwi th h e r at th e tim e , h a d b e e n th e ma sk e d ma n w ith him during the robber

y . J ohnson admitted at trial that he wa s not init ially honest with the police
a bo ut t he e xten t of

his inv olv e me nt i n th e ro bb e ry be c a us e he “th ou ght [ he] wa s g oin g to g e t in more trouble tha

n [he was] already

in.” He later a g ree d to testify ag ainst Sim mons in re turn for a five-y ear sentenc e. J ohnson’s testimony

reg arding the robber

y contra dicted ce rtain deta ils in Mendoz a’s te sti mony . Joh ns on tes ti fi ed tha t he he ard the so un d o f S imm on s h itt ingMe nd oza wi th b ra ss knuckles, but that he w as not standing next to Simm ons at t he ti me. M endoza, on the other hand, te sti fi e d th a t bo th r ob be rs we re sta nd ingne xt to h im w he n th e ma sk e d man hit him
. John so n a lso testi fi ed that S immons broke the window of A lonso’s car , althoug h Mendoza’s testimony was t h at J o h n s o n broke the car window. J ohnson further denied r iding up on his bicy cle pr ior to the robbery an d s ay i ng , “Who’s that? Oh, I thought it was somebody else,” when Alonso a

rrived at the ho us e . H e a lso de nie d s e arc hin g the kit c he n f or dr ugs. W hen defe ns e c ouns e l no te d th e se discrepa ncies betwee n J ohnson’s and Mendoza’s testimonies, J ohnson maintained that Mendoza’s statements wer e untrue
.4 During J ohnson’s testimony , he identified a letter from Simm ons that was de livered to him by another inmate while both men we re in jail aw aiting tr ial. The letter , admitted in evidence , rea ds (with spelling a

nd punctuation as in the orig inal): Mor, Id o n ’t kn o w w h at t h e f

u cc i s o ny o u r m i n d
. W h at t h e fu cc k i n d o f sh i to r y o ud o i n g. Yo u ta lki ngto t

ha laws . So now y ou wo rk fo r the m. Th a t’ s so ho a ss s hit my c a se is b e a t imno t do ing kn ow tr ipp in. I wa s trin g to ma ke a wa y so y ours wo uld

be be a t, but y ou g o in snitch on y our self and others. You claim to be a Ga ng sta but y ou don’t even r ealize what the “ G” stand f or. I ’m g oi n g t o h andle my leg al work so a fter i write up a alphada

vit im g oing to ne ed y ou to r ead and sig n it. W hy would y ou bring m e d o wn i f y o u had any

love for me . You put my name in this shit and only y ou. You only car e about y ou and that’s bullshit man—that ty pe of shit g ets people killed. You put my

life on the line c ause you trippin. Holla bacc at me. Randy Rodrigue z, a jail deputy , testified that soon afte r Simmons was arre sted, Simm ons gav e h i m what appear ed to be a handwr itten affidavit stating that Simmons was not inv olv e d in

the ro bb e ry . Si mmo ns a sk e d Ro dr ig ue z to d e liv e r t he a ffi davit

to Joh ns on

fo r h is signature. Rodrig uez did so, but J ohnson ref used to sign it. Rodrig uez re t u rned the unsigne d aff idavit to Si mmons. Two other jail employ ees, K elley Ander son and Dustin Pi erc e, testified that Simm on s a sk e d the m to wi tne ss an a ff ida vit that pu

rp or te d to be ar John so n’ s sig nature. Both An de rs on and Pie rc e re fu se d to wi tne ss t he do c ume nt b e c a

us e the y ha d n ot s e e n Joh ns on

sig n it
. The district cour

t instructed the jury that J ohnson was a n acc omplice witness and that they wer e not to consider his testimony unless they found i t to be properly corr oborate d. The jury found Simmons guilty

of ag g ravated robbe ry , and Simmons appealed on the g round t hat J ohnson’s testimony was not ade quately

corr oborate d.5 STA ND AR

D O F RE VI EW A conviction ca

nnot be had upon the te stimony of an acc o m plice unless that testimony is corrobor ated by

other e v idence tending to connec t the defe ndant with the offe nse. Te x. Cod e Cr im. Pr oc . Ann . ar t. 38. 14 (We st 2 00 5) . T he te sti mony of an a c c omp lic e wi tne ss “ sh ou ld be re ceive d and viewe d and acte d on with c aution” beca use it is “evide nce f

rom a c orrupt sourc e.” W alk e r v . S tat e , 615 S
. W
. 2 d 7 2 8 , 731 (Tex. Crim. App. 1981). To weig h the suffic iency of the
corr oborative ev i d en ce, we disreg ard the acc omplice’s testimony and examine the re maining evidenc e to asc erta in if there is e vidence tending to connec t t h e accused to the off ense. Ma y na rd

v . S tat e , 166 S.W .3d 403, 410 (Tex. App.—Austin 2005, pet. ref ’d). The rema ining e vidence need
no t be str on g e no ug h to e sta bli shthe de fe nd ant’ s g uil t be y on d a re a so na ble do ub t or

dir e c tly lin k h im t o the commission of the offe nse. Id
. H o w e v e r , e v i d e n c e t h a t m e r e l y p r o v e s t h a t t h e of fe ns e
was c ommitt ed does not suff ice. C a th e y v . Stat e , 992 S.W .2d 460, 462 (Tex. Crim. App. 1999). Exa mpl e s o f s uf

fi c ie nt c or

ro bo ratin g e vid e nc e inc lud e “ su bs e qu e nt fl ig ht, po sse ssi on of the fr uit s of the c rime, and pr esenc e at or near the sce ne o f t he cr ime at an unr easona ble hour.” W

inc ott
v . S tat e , 59 S.W .3d 691, 698 (Tex
. Ap p . — Au s t in 2001, pet. ref ’d). We re view a c laim that
a c c omp lic e wi tne ss t e sti mony is i ns uf fi c i e ntly c or ro bo ra te d in the lig ht m os t f

a vo ra ble to t he ve rd ic t. Se e He rn an de

z v . S tat e , 939 S.W .2d 173, 176 (Tex. Crim. App. 1997).

DI SCU SSIO N Three piece s of

e v id e n c e r e ma in

a f te r Jo hn s o n ’ s a ccomplice testimony is disreg arde d. First, ther e is Mendoza’s t estimony that the voi ce of the m asked man “sounded like” the voice of a man that one of

Mendoza’s fr iends had identified a s “Ji mmy L ee.” Mendoza testified that he wa s6

“not sure” if the voice belong ed to the same man that had robbed him a nd that he “w asn’t positive,” bu t “it mig ht be ” the same vo ic e . Me nd oza ’s un c e rt a in te sti mony do e s not co nc lus ive ly e sta bli sh that the voice of the masked man belong ed to the same man identified as “J i m m y L ee.” Fur thermore , there is no evidence sug g esting that Mendoza’s fr iend, who did not testify at trial, wa s
corr ect in identifying the man as “ J immy L ee,” or that eve n if Mendoza’s fr iend was c orre ct, the man he identified w as actua lly Simm ons, rathe r than another man named Jimm y

L ee. “ I n deter

mining the streng t h o f a pa

rticular item of

non-ac complice e vidence , we e x amine (1) its reliability or believability , and (2) the s t re n gt h o f i t s tendenc y to connec t the defe ndant to the cr ime.” Herron

v . S tat e , 86 S.W .3d 621, 632 (Tex. Crim. Ap p . 2 0 0 2 ). I n light of the uncer tainty of Mendoza’s t e s t i m o n y, t h i s e v i d e n c e a l o n e i s i n s u f f i c i e n tt o c o n n e c tS i m m o n s t o t h e r o b b e r y. The sec ond pi ece of cor

roborating e vidence is the note from Simmons to J ohnson, express in g an g e r a t Jo h n s o n f o r h a v in g g iv e n Si mm o n s ’ s n a me to th e p o li c e . Si mm o n s does not confe ss to a

ny involvement with the robber y in the letter to Johns on, but merely chastises Johnson for telling police that Simmons was involved and a s k s h i m t o sign a n aff idavit, presumably

an aff idavit exonerating Simm ons. The lang uag e of the letter itself, which ac cuses Johnson of “talking to the laws” a

nd putting Simmons’s li fe on the line, does not conne ct Simmons with commission of the of fe ns e , bu t me re ly a c kn ow le dg e s the fa c t that John so n g a ve Simm on s’ s n a me to t he po lic e in
connec tion with the robbery . Fur thermore , letters sent fr om one inmate to another that mere ly ref lect “re asonable conce rn about the outc ome” of the writer ’s trial, but that do not link him to commission of the off ense, ha ve been held to be insufficient to c orrobor ate acc omplice testimony
. Se e W inc ott , 59 S.W .3d at 702.7 The third piec e of r emaining evidenc e consists of Simm ons’s attempts to ge t J ohnson to sign the a ffidavit exonerating Simmons. S immo n s ’s re q u es t of Johns on to retra ct his previous statem ents reg ardingSimm ons’s involvement in the robber y does not nec essar ily

link Si mmons to the commi ssion of t he offense. I nstead, S immons’s act of cr eatingthe af fidavit could be c onstrued as th e e f f o rts o f an inn o c e n t ma

n , c u r r e n tl y f a c in g s e r io u s c r im in a l c h ar g e s , to c le ar his name
. Fur thermore , this Cou rt h as h el d that “prote stations of innocenc e, eve n in the form of a sking [a testify ing a ccomplice ] t o admit that h e li ed,” a re not suff

icient to corr oborate acc omplice testimony b e c a

u s e s u c h e v id e n c e o n ly in d ic a te s th a t th e d e f e n d an t “ s o u g h t to b r in g o u t w hat he perc eived to be the truth in the case .” Id. at 703.

I t is a lso wo rt

h noti ng that Men do za t e sti fi e d th a t th e ma sk e d r ob be r w a s “ de fi nit e ly taller” than Mendoza’s own he ight of 5' 7". The recor d includes docume ntation list ing Simmons’s hei ght as 5' 7". We hold that J ohnson’s acc omplice testimony was not prope rly

corr oborate d by (1 ) Mend oz a’s tes ti mony that th e vo ic e of

the man w ho ro bb e d h im “ mig ht” be lon g to a man h is friend ide ntified as “Jimm y L ee,” (2) a letter from Simmons t o J ohnson that does not admit guilt but
mere ly expresses ang er at be ing implicated in a crime, and (3) an attempt by Simm ons to g et J ohnson to sign a n aff idavit swear ing to Simmons’s innocence
. Considered c ollectively , these c ombined fa ct o rs d o not tend to connec t Sim mons with the commissi on of the off ense. Se e Ma

y na rd , 166 S.W .3d at 410. When the re is insuff icient evidenc e to cor

roborate ac complice testimony , the appropr iate re medy

is acquittal. See W

alker , 615 S.W .2d at 733.8 CO NC LU SION B e c a us e the a c c omp lic e test im on y a g a ins t Sim mon s w a s n ot s uf fi c ie ntl y
c or ro bo rate d, we re ve rs e the jud g me nt o f c on vic tio n a nd re nd e r j ud g me nt o f a c qu itt a l.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson; Dissenting O pinion by J ustice Waldrop Reverse d and Ac quittal Rendered Filed: Apr il 10, 2008 Do No t Pu

bli sh