Andre Demar Gipson v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00808-CR

Andre Demar Gipson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. D-1-DC-07-302550, HONORABLE FRED A. MOORE, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Andre Gipson guilty of aggravated robbery, a first-degree

felony. See Tex. Penal Code § 29.03. After finding that Gipson had previously been convicted of

another felony, the jury assessed punishment at 28 years’ imprisonment, and the trial court rendered

judgment on the jury’s verdict. See id. § 12.42(c)(1). We will affirm the judgment of the trial court.

BACKGROUND

The jury heard evidence that Kishan Shastry, the complaining witness in this

case, was a clerk at the Rutland Food Store in Austin. On the evening of the alleged robbery, three

men were seen standing together near a payphone and newsstand outside the store. According to

witnesses, two or three of the men then entered the store, where Shastry and another clerk were

working. Shastry was standing near the cash register when one of the men, whom Shastry later

identified as Gipson, pointed a gun at him and demanded that Shastry give him the money.

Meanwhile, a second man held the other clerk on the ground at gunpoint. As Shastry was attempting

to open the cash register, Gipson struck Shastry on the head with his gun. Shastry gave Gipson the

money from the register, and the three men left the scene.

Following an investigation by the Austin Police Department, Gipson was indicted

for the offense of aggravated robbery with a deadly weapon, enhanced by a previous conviction for a

felony offense. During the guilt-innocence phase of the jury trial, the State called multiple witnesses,

including Leonard Griffin, who admitted that he had participated in the robbery by holding the

second clerk at gunpoint. Gipson called no witnesses and did not testify. The jury convicted Gipson

of aggravated robbery. During the punishment phase, Gipson pleaded true to an enhancement

allegation. The jury assessed Gipson’s punishment, and the trial court rendered judgment on the

jury’s verdict.

After he initially filed an untimely notice of appeal, the Court of Criminal Appeals

granted Gipson leave to file an out-of-time appeal. Ex parte Gipson, No. AP-76,918, 2012 WL

5509984, at *1 (Tex. Crim. App. Nov. 14, 2012) (per curiam). In this subsequent appeal, Gipson

contends that the trial court erred by: (1) rendering judgment on the jury’s verdict although there

is legally insufficient evidence to corroborate the testimony of his alleged accomplice Griffin;

(2) allowing a witness to testify after a violation of Texas Rule of Evidence 614, commonly known

as “the Rule”; and (3) overruling an objection to the State’s jury argument.

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DISCUSSION

The accomplice-witness rule

At trial, Griffin testified that he, Gipson, and a third man, Donald Hutchinson,

participated in the robbery.1 Griffin explained that he held a store clerk at gunpoint during the robbery

and identified State’s exhibit 21-B as the gun he used to commit the robbery. Griffin also stated that

Gipson held a clerk at gunpoint and struck him on the head with the gun. In his first point of error,

Gipson argues that there was insufficient evidence to corroborate Griffin’s accomplice testimony.

The State responds that the cumulative weight of evidence provided by non-accomplice witnesses

tended to connect Gipson with the robbery.

Under article 38.14 of the Texas Code of Criminal Procedure, “[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.” See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.

2007) (accomplice testimony “must be corroborated by independent evidence tending to connect

the accused with the crime”). The testimony of an accomplice witness is inherently suspect and

should be received and acted on with caution because it is “evidence from a corrupt source.”

Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981); Korell v. State, 253 S.W.3d 405, 409

(Tex. App.—Austin 2008, pet. ref’d).

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Griffin had previously pleaded guilty to aggravated robbery and had agreed to offer true

testimony against his codefendants.

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The accomplice-witness rule creates a statutorily imposed review and is not derived

from federal or state constitutional principles that define the usual factual and legal sufficiency

standards. Druery, 225 S.W.3d at 498. To weigh the sufficiency of the corroborative evidence, we

disregard the accomplice’s testimony and examine the remaining portions of the record to ascertain

whether there is evidence tending to connect the accused with the commission of the crime.

Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Maynard v. State, 166 S.W.3d 403,

410 (Tex. App.—Austin 2005, pet. ref’d). Because the standard is “tendency to connect,” rather than

a rational-sufficiency standard, the corroborating evidence need not be sufficient by itself to establish

guilt beyond a reasonable doubt. Id. Nor must the evidence link the defendant directly to the crime.

Matter of C.M.G., 905 S.W.2d 56, 58 (Tex. App.—Austin 1995, no writ). If the combined weight

of the non-accomplice evidence tends to connect the defendant to the offense, then the requirement

of article 38.14 has been fulfilled. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

However, evidence that merely proves that the offense was committed does not suffice. Id. We

review a claim that accomplice-witness testimony is insufficiently corroborated in the light most

favorable to the verdict. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Gill

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

Disregarding Griffin’s testimony, we conclude that the remaining evidence tends to

connect Gipson to the robbery. At trial, Shastry described the robbery to the jury and identified

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Gipson as an assailant.2 Detective Charles Kleinert later testified that he had presented a photo line-

up to Shastry and that Shastry had selected Gipson’s photograph out of that line-up.

In addition, Margarita Fernandez testified that she was walking to the Rutland Food

Store on the night of the robbery when she saw three men standing by the payphone and newsstand.

According to Fernandez, the men looked suspicious because “they had . . . bandannas around their

neck” and “they weren’t really on the pay phone,” they “were just . . . holding the phone.” Fernandez,

who was present in the store during the robbery, testified that one of the men held an employee on

the ground and pointed a silver gun at him. When the prosecutor asked Fernandez whether State’s

exhibit 21-B matched the gun that she saw the man use, Fernandez testified that it looked like the

same gun. Fernandez also told the jury she saw a second man hold the clerk behind the register at

gunpoint, demand money, and strike the clerk on the head with the gun. Although Fernandez could

not identify the assailants, print examiners testified that they had identified a palm print lifted from

the newsstand as Gipson’s and three other prints lifted from the scene as Griffin’s.

Finally, Brian Turner, a Travis County sheriff’s deputy, testified that about a month

after the robbery he had stopped a vehicle after observing a traffic violation. Hutchinson was the

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In response to the prosecutor’s questions, Shastry stated that the person who held the gun

to his head was in the courtroom and was wearing a blue shirt. When asked where the assailant was

sitting, Shastry replied, “Right by his attorney’s side. I’m not quite positive. It is about 50 percent.”

On appeal, Gipson argues that because Shastry equivocated, the jury could not have relied on this

testimony as connecting Gipson to the robbery. However, the jury is the sole judge of the credibility

and weight to be attached to a witness’s testimony. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.

2014). Moreover, we must view this evidence in the light most favorable to the verdict. Hernandez

v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997) We therefore consider Shastry’s in-court

identification as one piece of evidence among others that tend to connect Gipson to the robbery.

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driver, and Gipson was the passenger. The deputy stated that upon searching the vehicle he found

a gun underneath Gipson’s seat, and he identified State’s exhibit 21-B as the same weapon.

Viewing this evidence in the light most favorable to the verdict, we determine

that rational jurors could conclude that this evidence sufficiently tended to connect Gipson to the

offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). We overrule Gipson’s first

point of error.

Violation of “the Rule”

In his second point of error, Gipson contends that the trial court erred by allowing

Detective Kleinert to testify for the State even though Kleinert had violated Texas Rule of Evidence

614’s witness-sequestration requirement. At trial, Gipson’s attorney invoked “the Rule,” see

Tex. R. Evid. 614, before the State called any witnesses. Accordingly, the trial court instructed the

witnesses to remain outside the courtroom except while testifying. When the State later called

Detective Kleinert, Gipson’s attorney objected that Kleinert was already in the courtroom. The

court overruled the objection.

The State does not dispute the fact that Detective Kleinert was in the courtroom in

violation of the trial court’s witness-sequestration instructions. Instead, the State argues that the

trial court properly allowed Kleinert to testify because Kleinert’s testimony was independent of, and

did not corroborate, the testimony of the prior witnesses.

When invoked by either party or the trial court, the Rule mandates the exclusion

of witnesses from the courtroom during trial so they cannot hear the testimony of other witnesses.

Tex. R. Evid. 614. The Rule is designed “to prevent the testimony of one witness from influencing

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the testimony of another, consciously or not.” Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim.

App. 2005). When the Rule is invoked, “a witness should not listen to testimony in the case.”

Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort Worth 2003, pet. ref’d); see Tex. Code Crim.

Proc. art. 36.05 (witnesses under the Rule are not allowed to hear any testimony in case).3

Although a trial court must exclude witnesses covered by the Rule, “the court’s

decision to allow testimony from a witness who has violated the rule is a discretionary matter.”

Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (per curiam). We review such a decision

for abuse of discretion. Id. To determine whether the trial court abused its discretion, we perform

a two-step analysis. Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App. 1988); Minor v. State,

91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet. ref’d); see also Mescher v. State,

No. 03-10-00517-CR, 2012 WL 2981104, at *2 (Tex. App.—Austin July 12, 2012, pet. ref’d)

(mem. op., not designated for publication) (citing Minor). In the first step, we consider whether the

witness who violated the Rule (1) was sworn in or listed as a witness in the case, or (2) was a person

not intended to be a witness and was not connected with the State’s or defendant’s case-in-chief

but who, because of events during trial, became a necessary witness. Minor, 91 S.W.3d at 829. If

the witness lacked personal knowledge of the offense and was not likely to be called as a witness,

then the trial court did not abuse its discretion in allowing the witness to testify. Guerra, 771 S.W.2d

at 476; Minor, 91 S.W.3d at 829.

Under the first step of our analysis, we conclude that Detective Kleinert was

connected to the State’s case-in-chief and was likely to be called as a witness. Kleinert was the lead

3

While Rule 614 provides four exceptions to witness sequestration, the State has not argued

that any of these exceptions apply to Detective Kleinert. See Tex. R. Evid. 614(1)–(4).

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detective on the case and testified that Shastry identified Gipson in a photo line-up. Kleinert’s

testimony indicates that he had personal knowledge of the offense and was, from the beginning of

trial, connected to the case. He was not merely an incidental witness called to address an issue

raised unexpectedly at trial.

In the second step of the analysis, “we look at whether or not the defendant was

harmed or prejudiced by the witness’s violation.” Bell, 938 S.W.2d at 50; see also Minor, 91 S.W.3d

at 829. Two criteria guide our analysis of harm: “(a) whether the witness actually conferred with or

heard testimony of other witnesses, and (b) whether the witness’s testimony contradicted testimony

of a witness from the opposing side or corroborated testimony of a witness he had conferred with

or heard.” Bell, 938 S.W.2d at 50; see also Guerra, 771 S.W.2d at 476. If we determine that the

trial court abused its discretion by allowing the testimony, we may reverse the trial court’s judgment

only if the error affected Gipson’s substantial rights. Russell, 155 S.W.3d at 181 (“Because the

appellant complains about the violation of an evidentiary rule, the error is non-constitutional and will

be disregarded unless it affected the appellant’s substantial rights.”) (citing Tex. R. App. P. 44.2(b));

Mescher, 2012 WL 2981104, at *2. The error affects substantial rights when it “has a substantial

and injurious effect or influence in determining the jury’s verdict.” Rich v. State, 160 S.W.3d 575,

577 (Tex. Crim. App. 2005) (quoting Russell, 155 S.W.3d at 183).

To determine whether Kleinert’s presence in the courtroom harmed or prejudiced

Gipson, we consider whether Kleinert’s testimony corroborated the testimony of a witness he heard

testify. Although the record does not indicate precisely when Kleinert entered the courtroom, it is

undisputed that Kleinert heard the testimony of two other witnesses for the State, Brian Turner and

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Jason Flater.4 Turner was the sheriff’s deputy who testified concerning the traffic stop, and Flater

was a firearms examiner who testified concerning the operability of Griffin’s gun. Based on the

record before us, we cannot conclude that Kleinert’s testimony served to corroborate the testimony

of any other witness. The topic of Kleinert’s testimony—the photo line-up—was unrelated to the

testimony provided by Turner and Flater. Consequently, we conclude that Kleinert’s violation of

the Rule did not harm or prejudice Gipson, and the trial court did not abuse its discretion in allowing

Kleinert to testify.

Furthermore, even if the trial court did abuse its discretion, we must disregard the

error because it did not affect Gipson’s substantial rights. Russell, 155 S.W.3d at 181. Kleinert’s

testimony served chiefly to bolster Shastry’s in-court identification of Gipson, and the State presented

substantial evidence apart from Kleinert’s photo line-up. See Easley v. State, 424 S.W.3d 535, 542

(Tex. Crim. App. 2014) (concluding that under Rule 44.2(b) trial court’s error was not reversible in

part because “the evidence supporting the jury’s verdict was substantial”). Having considered the

record as a whole, we cannot conclude that the trial court’s alleged error had “a substantial and

injurious effect or influence in determining the jury’s verdict.” Rich, 160 S.W.3d at 577. We overrule

Gipson’s second point of error.

Improper jury argument

In his third point of error, Gipson contends that the trial court erred when it overruled

his objection to comments the prosecutor made during the State’s rebuttal argument at the guilt-

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The trial court indicated that it believed Kleinert had not been in the courtroom long and

had “at best” heard the testimony of Turner and Flater.

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innocence phase of the trial. Gipson maintains that the prosecutor’s statements improperly shifted

the burden of production from the prosecution to the defense and indirectly attacked his constitutionally

protected decision not to testify. The State counters that prosecutors may properly comment on a

defendant’s failure to produce evidence so long as the comment does not implicate the defendant’s

decision not to testify by referencing evidence that only the defendant could have produced.5

The parties’ dispute concerns the following portion of the prosecutor’s argument:

We talked about prints. And Ms. Needles [defense counsel] asked some questions

of the print experts. And she just implied to you that perhaps it’s possible that those

prints were left some other time, 12 to 14 hours before, some other day, she asked the

print people on the stand.

They have subpoena power. If the defendant was at that store 12 to 14 hours before,

wouldn’t there be a witness here telling you that? If the defendant was at that store

some other time during that week, day, month, year, don’t you think there would be

a witness here telling you that?

At this point, Gipson’s attorney interjected, “Objection, Your Honor; improper argument. The burden

is not on the Defense to produce any evidence; it’s on the State.” The court overruled the objection.

We review a trial court’s ruling on an objection to improper jury argument for an

abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012,

pet. ref’d) (citing Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010)). A trial court

abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules

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The State also contends that Gipson has not preserved his argument that the prosecutor’s

comments alluded to his failure to testify because at trial he objected only that the prosecutor’s

comments shifted the burden of production. We assume, without deciding, that Gipson properly

preserved both arguments.

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and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990). “[P]roper

jury argument generally falls within one of four general areas: (1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and

(4) plea for law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

“Consequently, error exists when facts not supported by the record are interjected in the argument,

but such error is not reversible unless, in light of the record, the argument is extreme or manifestly

improper.” Id. Improper jury argument is reversible error only when it (1) violates a statute, (2) injects

new and harmful facts into the case, or (3) is manifestly improper, harmful, and prejudicial to the

rights of the accused. Jimenez v. State, 240 S.W.3d 384, 410 (Tex. App.—Austin 2007, pet. ref’d).

A comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.

App. 2011); Brewer v. State, No. 03-10-00076-CR, 2014 WL 709549, at *4 (Tex. App.—Austin

Feb. 21, 2014, no pet.) (mem. op., not designated for publication); see U.S. Const. amend. V;

Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08. However, the implication that the State’s

comment referred to the defendant’s failure to testify must be a clear and necessary one. Randolph,

353 S.W.3d at 891. If the language might reasonably be construed as merely an implied or indirect

allusion, there is no violation. Id.; see also Patrick v. State, 906 S.W.2d 481, 490–91 (Tex. Crim.

App. 1995) (“A mere indirect or implied allusion to the accused’s failure to testify does not violate

appellant’s rights,” and “if the language can reasonably be construed to refer to appellant’s failure

to produce evidence other than his own testimony, the comment is not improper.”). The test is

whether the language used was manifestly intended or was of such a character that the jury would

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necessarily and naturally take it as a comment on the defendant’s failure to testify. Randolph,

353 S.W.3d at 891; Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting Bustamante

v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)). In applying this standard, the context in

which the comment was made must be analyzed to determine whether the language used was of

such character. Randolph, 353 S.W.3d at 891. Courts are not to find that the prosecutor manifestly

intended to comment on the defendant’s failure to testify if some other explanation for the remark is

equally plausible. Id. In assessing whether the defendant’s rights have been violated, courts must

view the State’s argument from the jury’s standpoint and resolve any ambiguities in the language in

favor of its being a permissible argument. Id.

Based on the record before us, we conclude that the jury could have reasonably

construed the prosecutor’s comments to refer to Gipson’s failure to produce testimony other than his

own and that the prosecutor’s comments did not improperly shift the burden of production to the

defendant. Gipson’s attorney attempted to explain the identification of Gipson’s print at the crime

scene by arguing to the jury that “prints are there forever, forever as long as they need to be until

there’s something cleaned or it’s rained on or something of that nature.” Moreover, when Gipson’s

attorney cross-examined the State’s witness who lifted the prints, she asked the witness whether the

prints could have been at the store for an indefinite amount of time, and the witness answered “Yes.”

The clear implication of this cross-examination and jury argument is that Gipson may not have

been present during the robbery because he could have left a latent print during an earlier visit to

the store. When the prosecutor mentioned the prints in her rebuttal argument, therefore, she was

responding to Gipson’s theory regarding the timing of the prints, not interjecting new facts. See

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Brown, 270 S.W.3d at 570. In addition, the prosecutor’s mention of the defense’s subpoena power

also highlights the fact that she was referring to witnesses other than Gipson himself. See Harris,

122 S.W.3d at 884 (“as evidenced by reference to the defense’s ‘subpoena power,’ the State’s comment

specifically pointed out the lack of testimony from other witnesses”). Because the prosecutor’s

comments could reasonably be construed as referring to Gipson’s failure to produce testimony other

than his own and did not shift the burden of production to Gipson, the comments were not improper.

See Patrick, 906 S.W.2d at 491. We overrule Gipson’s third point of error.

Reformation of the judgment

Finally, we note that the trial court’s judgment erroneously lists the statute for

the offense as “29.03 Health and Safety Code.” The correct citation is to Texas Penal Code

section 29.03. Thus, even though neither party raised the issue on appeal, we reform the judgment

by changing the phrase “29.03 Health and Safety Code” to “29.03 Penal Code.” See Asberry v. State,

813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (“The authority of an appellate court

to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on

the question of whether a party has or has not objected in the trial court. The appellate court may

act sua sponte and may have the duty to do so.”) (citations omitted); see also Morris v. Blangger,

423 S.W.2d 133, 134 (Tex. Civ. App.—Austin 1968, writ ref’d n.r.e.) (reforming summary judgment

from “without prejudice” to “with prejudice” because court has duty to terminate litigation where

nothing in record indicates that appellant could successfully plead cause of action). The judgment

also contains a second error: it fails to note that Gipson pleaded true to an enhancement allegation.

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We also reform the judgment to reflect that Gipson pleaded true to the enhancement paragraph

alleged in the indictment.

CONCLUSION

Having overruled each of Gipson’s points of error, we affirm the judgment of

conviction as modified.

__________________________________________

Scott K. Field, Justice

Before Justices Pemberton, Goodwin, and Field

Modified, and as Modified, Affirmed

Filed: February 12, 2015

Do Not Publish

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