Date: 05-18-2022

Case Style:

Marcellus D. Briggs v. The State of Texas

Case Number: 02-18-00470-CR

Judge:

Lee Gabriel

Before Gabriel, Womack, and Wallach

Court:

Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from The 396th District Court of Tarrant County

Plaintiff's Attorney: Joseph W. Spence
Jacob Mitchell

Defendant's Attorney:

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Description:

Fort Worth, Texas - Criminal Defense lawyer represented defendant with a aggravated robbery and burglary of a habitation with the intent to commit sexual assault charges.

Tamara Cooper1 was shopping online for collectible figurines in her Fort
Worth apartment on July 19, 2017, from approximately 11:00 p.m. until midnight.
She intended to get back online at 2:00 a.m. on July 20 to buy a newly released
figurine after she took a nap. Shortly after she lay down, she heard a knock on her
bedroom window followed by a knock at her front door. When Cooper looked
through the door’s peephole, she saw an African-American woman, later identified as

1This is an alias. See Tex. R. App. P. 9.8 cmt.; Tex. App. (Fort Worth) Loc. R.
7.
3
Frankie Rubell, who seemed distressed. Cooper opened the door, and Rubell stated
that she thought “Jerome” lived there. As Cooper began to explain that there was no
Jerome in her apartment, Cooper saw “somebody, an African-American male,” run
out from around a corner. The man grabbed Cooper and hit her on her face with
what felt like the handle of a gun, causing her glasses to fly off her face as she
slumped to the floor inside the front door of her apartment. Although Cooper did
not see a gun, she later heard “metal moving,” which she agreed sounded like the
“metal cocking of the gun or racking of the gun.” The man put a pillowcase over
Cooper’s head. Her hands were bound in front of her body and she was told that if
she did not “shut up,” “they [would] have to use the gun.” The man and Rubell asked
Cooper where her valuables were and searched the apartment. When Cooper asked
to be moved from the floor, the duo put her on the couch and covered her with a
blanket from the top of her head, over the pillowcase, to her knees. Cooper was told
that if she did not stop moving and making noise, she and her cats would be shot.
The man then asked Cooper about her debit card, which had been found in
Cooper’s purse. Cooper told them that she had $300 in her account and after being
threatened with the gun again, gave them her PIN. Cooper heard what sounded like
the couple texting on phones that had buttons instead of a touchscreen. Rubell left to
withdraw Cooper’s money with the PIN.
After Rubell left, the man told Cooper that he had seen a box of condoms
beside her bed, that he knew “what kind of girl” she was, and that he wanted to see
4
her female sexual organ. Cooper begged the man not to rape her, but the man
forcibly took her pants off and made her spread her legs on the couch. The man
penetrated Cooper’s female sexual organ with his fingers without her consent. After
he received a text that the PIN had worked, the man told Cooper to put her pants
back on.
When Rubell returned, she and the man took Cooper to her bedroom, Rubell
bound Cooper’s legs after she lay on the bed, and Rubell covered her with a blanket.
Rubell told Cooper she covered her because “you never know with guys what they’re
thinking, what they’re going to do to you.” Cooper was told that if she called the
police or cancelled her credit cards, they would come back and use the gun on her.
Rubell and the man left after telling Cooper to count backwards from 100 before
sitting up, again telling her that they would “use this gun” if she did not comply.
B. THE AFTERMATH
Cooper eventually freed herself and discovered that her televisions,
smartphone, DVD players, gaming devices, video games, computer, iPad, DVD
movies, boots, fan, and alcohol had been taken. At 3:00 a.m. on July 20, Cooper
walked to her mother’s house, who called the police. Cooper was able to identify
Rubell from a photo array but could not similarly identify the man. She described him
as an African-American male, approximately five feet and nine to ten inches tall, with
a medium build. Cooper was sent to a hospital for a sexual-assault exam. She had
bruising and scratches on her face and body but no pelvic injuries. Cooper recounted
5
what happened to the nurse examiner; her statement was consistent with her later trial
testimony.
Surveillance of the ATM where Cooper’s money had been withdrawn showed
Rubell drive up in Briggs’s Suburban and use Cooper’s ATM card. Rubell was also
recorded arriving at a pawn shop in the Suburban on July 20 and selling 101 DVD
movies and 8 video games. The police department released the surveillance footage
and information about the Suburban, asking for the public’s assistance in identifying
the offenders. The department received several tips that the woman shown on the
footage was Rubell; that her boyfriend, Briggs, was the owner of the Suburban; and
that Rubell and Briggs were staying in a motel room in Grand Prairie.
On July 21, the day after the robbery, Rubell was arrested in the Grand Prairie
motel room where she and Briggs had been staying; Briggs was arrested “a couple
blocks away.” Officers had seen Briggs coming and going from the motel room
shortly before Rubell was arrested. Briggs and Rubell had cell phones that did not
have touchscreens when they were arrested. Officers towed the Suburban seen on the
surveillance videos from the hotel and discovered that a VIN number noted on a
paper tag on the rear window “came back to a Cadillac and hadn’t been issued in over
a year.” The boxes for Rubell’s and Briggs’s phones were found in the Suburban. In
the motel room, officers found Cooper’s boots, televisions, DVD player, checkbook,
laptop, microwave, fan, gaming device, and smartphone. Two detectives found some
6
of Cooper’s stolen property, including 70 DVDs, at the pawn shop where Rubell had
been recorded the day before.
An analysis of Rubell’s and Briggs’s phones revealed that they knew officers
were watching their motel room shortly before they were arrested and knew they
needed to move the Suburban. In the text exchange, Rubell warned Briggs to not
“come to the room yet”; Briggs told Rubell that she was “looking at life” and that she
should delete his text messages. Rubell’s and Briggs’s cell-phone records showed that
they were near Cooper’s apartment during the time of the offenses. During this same
time, Rubell and Briggs were communicating only with each other on their phones by
text. Neither Briggs’s fingerprints nor DNA was found in Cooper’s apartment.
C. THE TRIAL
Briggs was indicted with aggravated robbery with a deadly weapon—a
firearm—and several counts of burglary of a habitation.
2
The indictment included a
deadly-weapon notification, alleging that Briggs had used or exhibited a firearm during
the charged burglaries of a habitation, and a habitual-offender notice.
3
Before trial,
the State notified the court that Rubell would be called as a witness at Briggs’s trial
and that it had agreed to give her use immunity in exchange for her testimony, which

2Rubell was also indicted for burglary and aggravated robbery.
3Briggs had been finally convicted of burglary of a habitation in 2008 and again
in 2014.
7
the trial court approved. See Tex. Code Crim. Proc. Ann. art. 32.02; Smith v. State,
70 S.W.3d 848, 850–51 (Tex. Crim. App. 2002).
Rubell testified that she and Briggs drove in Briggs’s Suburban to Cooper’s
apartment complex so Briggs could look for an apartment where Rubell could “knock
on the door.” Rubell confirmed the details of the ensuing robbery with the exception
of the use of a gun, which she denied. Rubell admitted that she and Briggs took “a
lot” from Cooper, including her money, televisions, movies, boots, microwave, and
fan. The State introduced two letters Briggs had sent to Rubell while he had been in
jail after his arrest. Briggs told Rubell that he had heard she would testify against him,
that “it’s all on [him] [he] did thi[s] [expletive] to [himself],” and that he had
previously asked her to take the blame for the offenses because “this is your first time
this is [his] fourth time.” He also asked Rubell to tell “them that it was not me.” In a
letter dated five days later, Briggs recognized that his “life [was] over” because he had
“been down three times already.” He also told Rubell that he was “[s]orry [he]
couldn’t be a better person.”
The jury found Briggs guilty of aggravated robbery with a deadly weapon and
of one count of burglary of a habitation with the intent to commit sexual assault.4
See
Tex. Penal Code Ann. § 29.03(a)(2), § 30.02(a), (d). The jury additionally found that
Briggs had used a deadly weapon during the commission of the burglary. See Tex.

4The jury found Briggs guilty of the other burglary counts, but the State
abandoned those counts before punishment.
8
Gov’t Code Ann. § 508.145(d); Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App.
2016). After a punishment hearing at which Briggs pleaded true to the habitualoffender paragraph in the indictment, the trial court assessed Briggs’s punishment at
concurrent, 65-year terms of confinement.5
Briggs appeals and argues that the
evidence is insufficient to support his convictions and that Rubell’s testimony was
insufficiently corroborated.
II. SUFFICIENT CORROBORATING EVIDENCE
Briggs contends that because Rubell’s accomplice testimony was not
corroborated by other evidence tending to connect Briggs to the charged offenses, the
evidence was insufficient to support the jury’s convictions. The State concedes that
Rubell was an accomplice as a matter of law.
The Code of Criminal Procedure prohibits a conviction based solely on an
accomplice witness’s testimony unless the testimony is “corroborated by other
evidence tending to connect the defendant with the offense committed.” Tex. Code
Crim. Proc. Ann. art. 38.14. Corroboration of accomplice testimony is not sufficient
if such corroborating evidence shows nothing more than the commission of the
offense. Id.
The determination of sufficient corroboration is distinct from a claim that the
evidence did not satisfy due process. Cathey v. State, 992 S.W.2d 460, 462–63 (Tex.

5Briggs had elected to have the trial court assess his punishment. See Tex. Code
Crim. Proc. Ann. art. 37.07, § 2(b).
9
Crim. App. 1999). When evaluating the sufficiency of non-accomplice, corroborating
evidence, we “eliminate 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 crime.” Soloman v. State, 49 S.W.3d
356, 361 (Tex. Crim. App. 2001). The corroborating evidence need not prove the
accused’s guilt beyond a reasonable doubt nor does it have to directly link the accused
to the commission of the offense. Casanova v. State, 383 S.W.3d 530, 538 (Tex. Crim.
App. 2012). Rather, the non-accomplice evidence need only link the accused in some
way to the crime, allowing a rational fact-finder to conclude that the non-accomplice
evidence sufficiently tended to connect the accused to the offense. Smith v. State,
332 S.W.3d 425, 442 (Tex. Crim. App. 2011).
There is no threshold amount of non-accomplice corroboration evidence
required; courts must judge each case on its own facts. Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008). Even apparently insignificant circumstances may
provide sufficient evidence of corroboration. Cathey, 992 S.W.2d at 462; Trevino v.
State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999). “Proof that the accused was at or
near the scene of the crime at or about the time of its commission, when coupled with
other suspicious circumstances, may tend to connect the accused to the crime so as to
furnish sufficient corroboration to support a conviction.” Brown v. State, 672 S.W.2d
487, 489 (Tex. Crim. App. 1984), quoted in Smith, 332 S.W.3d at 443.
10
Eliminating Rubell’s testimony, we conclude that the remaining evidence
tended to connect Briggs to the charged offenses such that Rubell’s testimony was
sufficiently corroborated. Briggs matched Cooper’s description of her assailant. See
Turner v. State, 571 S.W.3d 283, 288 (Tex. App.—Texarkana 2019, pet. ref’d). The
police received tips that Rubell and Briggs were responsible for the offenses. See
Odariko v. State, No. 01-14-00337-CR, 2015 WL 6081432, at *4 (Tex. App.—Houston
[1st Dist.] Oct. 13, 2015, no pet.) (mem. op., not designated for publication). Rubell
was seen driving a tan Suburban, which was known to be Briggs’s, withdrawing
money from Cooper’s bank account, and pawning items from Cooper’s home.
Briggs’s cellphone records showed that he was in the area of Cooper’s Fort Worth
apartment at the time of the offenses. See Ford v. State, No. 02-18-00071-CR, 2019
WL 1495186, at *4 (Tex. App.—Fort Worth Apr. 4, 2019, no pet.) (mem. op., not
designated for publication); De La Fuente v. State, 432 S.W.3d 415, 421–22 (Tex.
App.—San Antonio 2014, pet. ref’d). And during this time, Briggs and Rubell texted
only each other, which connected Briggs to the offenses based on Cooper’s testimony
that Rubell, whom she later positively identified, was texting with the man in her
apartment. See Smith, 332 S.W.3d at 442; Cerna v. State, 441 S.W.3d 860, 866 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d). Briggs’s phone had buttons, not a
touchscreen, which Cooper said she heard when Rubell and the man were texting.
Shortly before they were arrested, a text exchange between Rubell and Briggs
showed a consciousness of guilt. See Cueva v. State, 339 S.W.3d 839, 881–82 (Tex.
11
App.—Corpus Christi–Edinburg 2011, pet. ref’d). Much of Cooper’s stolen property
was found the next day in the motel room that Rubell and Briggs had been sharing
and that officers had seen Briggs coming in and out of that day. See Keith v. State,
384 S.W.3d 452, 458 (Tex. App.—Eastland 2012, pet. ref’d). Briggs’s letters to Rubell
also showed his consciousness of guilt and that he wanted Rubell to take the blame
for the offenses. See Simmons v. State, 282 S.W.3d 504, 506–07, 510–11 (Tex. Crim.
App. 2009); Cueva, 339 S.W.3d at 882.
The cumulative force of these suspicious circumstances tended to link Briggs in
some way to the offenses, allowing a rational jury to conclude that the evidence
sufficiently tended to connect Briggs to the offenses. See, e.g., Simmons, 282 S.W.3d at
508–11; Thomas v. State, No. 05-14-01589-CR, 2016 WL 259761, at *5 (Tex. App.—
Dallas Jan. 21, 2016, pet. ref’d) (mem. op., not designated for publication). We
overrule point one.
III. SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTIONS
Briggs argues that his convictions violated due process because there was no
evidence that he was with Rubell in Cooper’s apartment during the offenses. He
alternatively argues that if the evidence was sufficient to show he was present, the
evidence was insufficient to show that he committed the burglary with the intent to
commit sexual assault or that he used a deadly weapon during the robbery.
In our due-process review of the sufficiency of the evidence to support Briggs’s
convictions, we view all of the evidence, including accomplice-witness testimony, in
12
the light most favorable to the verdict to determine whether any rational trier of fact
could have found the elements of the offenses beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016); McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The trier of
fact—here, the jury—is the sole judge of the weight and credibility of the evidence.
See Tex. Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim.
App. 2016). Thus, we may not substitute our judgment for the jury’s by re-evaluating
those implicit findings. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012). Instead, we determine whether the necessary inferences are reasonable based
upon the cumulative force of the evidence when viewed in the light most favorable to
the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). We must
presume that the jury resolved any conflicting inferences in favor of the verdict and
defer to that resolution. Id. at 448–49; see Blea, 483 S.W.3d at 33.
A. IDENTITY
Briggs asserts that insufficient evidence identified him as the man in Cooper’s
apartment with Rubell during the offenses. He focuses on Cooper’s inability to
positively identify him from a photo array and the absence of his DNA or other
incriminating physical evidence at the crime scene. He also relies on Rubell’s
admission at trial that she had been untruthful during parts of her statements to the
police and that officers viewed her as evasive and uncooperative.
13
We must consider Rubell’s testimony in our review of the sufficiency of the
evidence, and it was the jury’s responsibility to assay her credibility and the weight to
be given her testimony, which we may not second-guess. See Queeman v. State,
520 S.W.3d 616, 622 (Tex. Crim. App. 2017); McDuff, 939 S.W.2d at 614. And we
may not focus on what evidence is missing but on what evidence was before the jury.
See Escamilla v. State, No. 02-13-00317-CR, 2014 WL 4463121, at *2 (Tex. App.—Fort
Worth Sept. 11, 2014, no pet.) (mem. op., not designated for publication); Marquez v.
State, No. 05-07-00635-CR, 2008 WL 2043044, at *4 (Tex. App.—Dallas May 14,
2008, no pet.) (mem. op., not designated for publication); Harmon v. State, 167 S.W.3d
610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
With these parameters in mind, it is clear that the evidence was sufficient to
support the jury’s finding that Briggs was the man with Rubell in Cooper’s apartment.
See Lancon v. State, 253 S.W.3d 699, 706–07 (Tex. Crim. App. 2008); Harmon,
167 S.W.3d at 614. Rubell testified that Briggs was the man in Cooper’s apartment
and that he actively participated in the offenses. And the non-accomplice evidence
we previously discussed further identified Briggs as the perpetrator. We overrule
points two and four.
B. INTENT TO COMMIT SEXUAL ASSAULT
Briggs next argues that there was no evidence that when he entered Cooper’s
apartment, he did so with the intent to commit sexual assault. Briggs concedes that
Cooper’s testimony regarding the sexual assault “appears credible,” but he contends
14
that there is no evidence he was the perpetrator. Again, Briggs points to the lack of
any physical evidence to connect him to a sexual assault. But Rubell testified that she
left Briggs alone in the apartment with Cooper while she tried to withdraw money
from Cooper’s bank account. Cooper’s admittedly credible testimony and Rubell’s
testimony that Briggs was alone in the apartment with Cooper were sufficient to
support the jury’s finding that Briggs entered Cooper’s apartment with the intent to
commit sexual assault. See generally Cary v. State, 507 S.W.3d 750, 758 (Tex. Crim. App.
2016) (“The necessary specific intent can be proven through circumstantial evidence,
and we may rely on events that took place before, during, or after the commission of
the offense.”). We overrule point three.
C. USE OF A DEADLY WEAPON
Briggs argues that the evidence was insufficient to show that he used a deadly
weapon during the robbery.
6
Rubell denied that a gun was used during the offenses
but allowed that if one were used, it would have been a BB gun.
7
Briggs relies on
Rubell’s denial and on the facts that Cooper never saw a gun and that a gun was not

6Briggs does not clearly challenge the jury’s separate finding that Briggs used a
deadly weapon during the burglary offense.
7We do not address Briggs’s argument that the evidence was insufficient to
show that a BB gun, if used, was capable of causing serious bodily injury or death.
The indictment alleged that Briggs used a firearm, and the State is bound by that
allegation. See Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998); Williams v.
State, 940 S.W.2d 802, 808 (Tex. App.—Fort Worth 1997, pet. ref’d).
15
recovered at the crime scene to support his argument that the deadly-weapon portion
of the robbery judgment must be deleted.
The use or exhibition of a deadly weapon may be proved through
circumstantial evidence; thus, a victim’s failure to see the weapon is not fatal to the
State’s case. See Hernandez v. State, 501 S.W.3d 264, 268–69 (Tex. App.—Fort Worth
2016, pet. ref’d). As the State points out, a firearm is a deadly weapon, but a gun is
not. See Tex. Penal Code Ann. § 1.07(a)(17); Lee v. State, No. 02-17-00379-CR, 2019
WL 3491648, at *2 (Tex. App.—Fort Worth Aug. 1, 2019, pet. ref’d) (mem. op., not
designated for publication). Even so, testimony that uses terms such as gun or
revolver—terms “in close proximity to a weapon”—will sufficiently authorize a jury’s
deadly-weapon finding. Leadon v. State, 332 S.W.3d 600, 610 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). Whether an object qualifies as a deadly weapon depends on
the evidence presented. Lane v. State, 151 S.W.3d 188, 191 n.5 (Tex. Crim. App.
2004); Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983).
Cooper testified that she did not see the gun but that it felt like she was hit with
the handle of a gun, knocking her glasses off, causing her to “slump to the ground,”
and giving her tunnel vision. By the time Cooper arrived at the hospital for a sexualassault exam, she had a bruised, swollen eye where she had been hit. Cooper testified
that Rubell and Briggs repeatedly threatened to use the gun on her and her cats if she
failed to comply with their orders. See Cruz v. State, 238 S.W.3d 381, 389 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (“Appellant’s threatening the victim with the gun
16
in itself suggests that it is a firearm rather than merely a gun of the non-lethal variety
. . . .”). Although Cooper was unfamiliar with guns, she stated that she heard a metal
sliding sound, similar to the sound she had heard guns make on television shows and
in movies. Rubell testified that a gun was not used during the offenses but she also
testified that she did not see what Briggs had in his hand when he hit Cooper in the
face. Again, the jury was entitled to disbelieve Rubell’s self-serving assertion that a
gun was not used. See Tex. Code Crim. Proc. Ann. art. 38.04; Montgomery, 369 S.W.3d
at 192. We conclude that the cumulative force of the evidence allowed the jury to
rationally and reasonably infer that Briggs used a deadly weapon during the robbery.
See, e.g., Gonzales v. State, No. 04-17-00263-CR, 2018 WL 5621879, at *5 (Tex. App.—
San Antonio Oct. 31, 2018, pet. ref’d) (mem. op., not designated for publication);
Schneider v. State, 440 S.W.3d 839, 843 (Tex. App.—Austin 2013, pet. ref’d). We
overrule point five.

Outcome: The evidence corroborating Rubell’s accomplice testimony did more than show
the commission of the offenses; it connected Briggs in some way to their commission.

Thus, the corroborating evidence sufficiently linked Briggs to the offenses. Similarly, the evidence was sufficient for due-process purposes to establish that Briggs was the man with Rubell in Cooper’s apartment, that Briggs entered Cooper’s apartment with the intent to commit sexual assault, and that he used a firearm during the robbery. Accordingly, we overrule Briggs’s points and affirm the trial court’s judgments.

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