Oliver DeMario Runnels v. State

NO. 12-06-00057-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS OLIVER DEMARIO RUNNELS, § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION Appellant Oliver Runnels pleaded not guilty to aggravated robbery, and the case was tried to a jury. The evidence showed that Appellant had been a passenger in a car and that another passenger had committed a robbery armed with a pellet gun. The jury convicted Appellant and assessed punishment at twenty–five years of imprisonment. Appellant raises five issues on appeal. The State did not file a brief. We affirm. Jury Argument In his first issue, Appellant argues that we must remand this case for an acquittal because of argument made by the assistant district attorney. The assistant district attorney said to the jury, “You either find him guilty of what he’s guilty of, or he walks out that door. He’s not charged with robbery. He won’t be charged with robbery. He can’t be charged with robbery. That’s not what he’s guilty of.” Appellant contends that the State is bound by these statements and therefore his conviction cannot stand. However, even if we accepted Appellant’s argument that the State is bound by a statement made in summation, that principle does not provide relief in this instance. Appellant correctly points out that to be guilty of aggravated robbery, one must first be guilty of robbery. Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2006). The element distinguishing aggravated robbery, as charged here, from robbery is the use or exhibition of a deadly weapon. Id. The State’s second sentence, “He’s not charged with robbery,” is accurate. Appellant was not charged with robbery, and neither party asked for the jury to be instructed that they could find him guilty of robbery as a lesser included offense. The third and fourth sentences—“He won’t be charged with robbery. He can’t be charged with robbery.”—are not concessions that Appellant is not guilty of robbery. Appellant will not and could not be charged with and convicted of robbery after this trial because robbery is a lesser included offense, and this trial acted as a jeopardy bar. See Brown v. Ohio, 432 U.S. 161, 168–69, 97 S. Ct. 2221, 2226-27, 53 L. Ed. 2d 187 (1977) (double jeopardy bar violated if there is conviction and punishment for both greater and lesser included offenses); see also Missouri v. Hunter, 459 U.S. 359, 367–68, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535 (1983) (cumulative punishment permissible only if legislature specifically authorizes it); Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App. 2004) (Double Jeopardy Clause prohibits state from prosecuting defendant for lesser offense included within the offense alleged in first indictment, since, for purposes of Clause, greater offense and lesser included offense are same offense). To the extent that the State was suggesting that some other principle prevented Appellant from being charged with robbery, the argument is disingenuous, but not a concession that he is not guilty of robbery. Finally, the assistant district attorney said, “That’s not what he’s guilty of,” meaning robbery. This is different from saying that Appellant was not guilty of robbery. If a person commits aggravated robbery, it is true that he also commits robbery. But the State was arguing that, as between the two, Appellant was not guilty of robbery but of aggravated robbery. We see nothing in the assistant district attorney’s comments that amounts to a concession that Appellant was not guilty of robbery and therefore not guilty of aggravated robbery. Consequently, we need not decide whether a party can be bound by something its attorney says in summation. Cf. Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996) (Arguments by lawyers are not evidence.); Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App.–Tyler 2005, no pet.); and Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005) (A stipulation is a judicial admission establishing a fact.). We overrule Appellant’s first issue. Pointing a Gun In his second, third, and fourth issues, Appellant argues that the assistant district attorney pointed a gun at him during closing argument and that this requires a new trial. A prosecutor should not point a gun at a defendant. See Joyner v. State, 436 S.W.2d 141, 142, 144 (Tex. Crim. App. 1968) (op. on reh’g). Nevertheless, as in Joyner,1 a contemporaneous objection is required as a prerequisite to raising a complaint on appeal. See id.; Tex. R. App. P. 33.1; see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). Counsel did not object to the purported pointing of a firearm, and therefore this complaint is waived. We overrule Appellant’s second, third, and fourth issues. Sufficiency of the Evidence In his fifth and sixth issues, Appellant argues that the evidence was insufficient to support his conviction. Standards of Review The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether, considering all the evidence in a neutral light, the great weight and preponderance of the evidence contradicts the jury’s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis, 922 S.W.2d at 134. We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Under either standard, our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). With respect to our factual sufficiency review, we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, but our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id. As alleged in the indictment, the State was required to prove that Appellant, in the course of committing a theft, and with intent to obtain property, intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death and in doing so used or exhibited a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(3) (Vernon 2006). Under our law, Appellant is criminally responsible for the offense of aggravated robbery if he committed the robbery himself or, if acting with the intent to promote or assist the commission of the offense, he solicited, encouraged, or directed another person to commit the offense, or aided or attempted to aid another person in the commission of the offense. See Tex. Penal Code Ann. § 7.02 (Vernon 2006). Analysis Henry Maddox was the armed robber. He went into a Food Fast gas station with a gun–a pellet gun–and demanded money. The clerk gave him money and cigarettes. Maddox left and got into a white Lincoln automobile. Appellant was also a passenger in the white Lincoln, and a City of Tyler police officer pulled them over about two minutes after the robbery. The officer saw money under one of the seats and a pack of cigarettes in the passenger seat. Another officer recovered a pellet gun from the immediate vicinity of the car. There were four young men in the car, and they were taken back to the gas station. The gas station employee was able to identify Henry Maddox as the robber. Henry Maddox testified at Appellant’s trial. He testified that he committed the robbery and that he was in the car with three other men, including Appellant. He testified that Appellant and another individual encouraged him to rob stores. He testified that Appellant told him four times to go in and rob a gas station. Just before the instant robbery, Maddox went into a different Food Fast gas station to rob it. Before he went in, Appellant wrote out a note for him to hand to the employee. Maddox testified that Appellant explained that if he used the note, it would not cause a scene. While ambiguously worded,2 the note is plainly notice of a robbery, and Maddox later testified that it was intended for that purpose. Maddox entered the store to rob the clerk, but the clerk ran to the back of the store, and Maddox ran out the front. Maddox testified that Appellant and the other individual were upset with him because he did not complete the robbery. Maddox testified that he had not wanted to commit a robbery, but that Appellant had encouraged him, telling him, “You can do it. We’ve done it before. Just go do it.” Maddox did it. After the robbery, he gave Appellant a pack of cigarettes, and Maddox testified that he tossed the gun he used in the robbery out of the window just as they were being pulled over. Appellant argues, based on Wooden v. State, 101 S.W.3d 542 (Tex. App. 2003, pet. ref’d), that he is entitled to an acquittal because there is no evidence that he acted to promote or assist the robbery by Maddox. Wooden is distinguishable. In Wooden, the defendant was acquitted on appeal because the court found that there was no evidence that he promoted or assisted in a coactor’s threats to another person while armed with a gun. Id. at 547–48. At most, Wooden was responsible for an attempted theft and not aggravated robbery. Id. at 549. In this case, Appellant knew Maddox had a gun. Appellant concedes as much.3 It is clear from the evidence, and from the note Appellant wrote, complete with a drawing of a firing pistol, that it was an aggravated robbery that he was encouraging Maddox to commit. After Maddox went into the first Food Fast with a disguise, a gun, and the note, and then ran out without committing a robbery, Appellant was upset with him. Maddox was then driven to another Food Fast where he committed this robbery. A rational juror could conclude that Appellant encouraged, aided, or attempted to aid Henry Maddox in the commission of the aggravated robbery. Therefore, the evidence is legally sufficient to sustain the verdict. Even without the light most favorable to the verdict, the evidence supporting the verdict is not so obviously weak as to undermine our confidence in the jury’s determination, nor is the proof of guilt greatly outweighed by contrary proof. Maddox committed an aggravated robbery. According to the evidence, Appellant encouraged him to commit the robbery, gave him a note to use in another robbery, and shared the proceeds of the robbery. A person is responsible for the actions of the other as a party in a broad range of situations. Specifically, a person is responsible if he aids, attempts to aid, or encourages the other with the intent to assist that person or to promote the offense. Tex. Penal Code Ann. § 7.02. Appellant’s persistent encouragement of Maddox to commit the robbery combined with traveling with him to robbery sites, giving him a written note to assist in another robbery, pushing him to commit a robbery when he backed out, and sharing of the proceeds of the robbery are sufficient, when taken together, for the jury to conclude that he should be held responsible for the robbery. We overrule Appellant’s fifth and sixth issues. Disposition We affirm the judgment of the trial court. SAM GRIFFITH Justice Opinion delivered June 29, 2007. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 1 On rehearing the Court held that a new trial was necessary on the grounds that the prosecutor had appealed to racial prejudice in his closing argument and also because when the prosecutor pointed the gun at the defendant, he implied, without basis, that the defendant had four prior convictions. Joyner, 436 S.W.2d at 144. 2 The note read: “Same thang Bitch toss the bread Don’t Panic get got.” The note also contains a drawing of a gun with something coming out of the barrel and seven dollar signs. 3 Appellant states in his brief that “[a]t most, the evidence shows Mr. Runnels knew Mr. Maddox had a gun.”