Maxwell, Chippy v. State

Affirmed and Memorandum Opinion filed August 12, 2004 Affirmed and Memorandum Opinion filed August 12, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00481-CR ____________ CHIPPY MAXWELL, Appellant V. THE STATE OF TEXAS, Appellee _____________________________________________________ On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 01CR2382 _____________________________________________________ M E M O R A N D U M   O P I N I O N A jury convicted appellant of the offense of aggravated robbery. The trial court found the enhancement paragraph to be true and sentenced appellant to twenty-five years= confinement. In three issues, appellant challenges the legal and factual sufficiency of the evidence and the trial court=s entry of an affirmative finding of the use or exhibition of a deadly weapon without the submission of a special issue. We affirm. I. Factual Background On the morning of September 12, 2001, as Harold Wayne Ellison was preparing to leave his home, he placed two bags containing jewelry and watches in the trunk of his vehicle. A gray Buick, which displayed South Carolina license plates, approached Ellison=s home and a man exited the vehicle brandishing a gun. The man pointed the gun to Ellison=s head and instructed him to open the trunk. Ellison complied and a second man, also carrying a gun, grabbed the bags.[1] After the first man demanded money from Ellison to no avail, he pushed Ellison to the ground. Both men then entered the backseat of the Buick and sped away.[2] Ellison began to pursue the men in his vehicle, while his wife contacted the League City Police Department (ALCPD@). Officer Bryce Smith with the LCPD, joined the pursuit and followed the Buick, which was occupied by four African American males: appellant, Bennie Nolley, Terrell Parker, and an unidentified man. Officer Smith observed one of the passengers on the right side of the Buick toss a Colt 45 automatic weapon out of the vehicle=s window. The pursuit continued until the driver ultimately lost control of the Buick and struck a tree. After the collision, the four men exited the vehicle and ran in different directions.[3] LCPD Sergeant Kramm testified after he joined the pursuit, he heard over the dispatch that a gun had been thrown out a passenger window in the Buick. He then saw a gun on a road in the vicinity of the pursuit and picked it up. After Kramm heard the broadcast of the Buick=s collision with the tree, he saw a black male who fit the description of one of the suspects, running down the road. Kramm apprehended the suspect and later identified him as Nolley. Detectives Pena and Effington, also with the LCPD, became involved after receiving a call at police headquarters indicating the suspects were fleeing. Pena and Effington approached the area of the pursuit in an unmarked vehicle and observed a stocky, black maleClater identified as appellantCrunning. Pena and Effington momentarily lost sight of appellant, but then saw him driving a van. Nelson Flores, the van=s owner, was chasing the van and holding on to the door frame, but eventually fell. The detectives followed the van until appellant exited the van and started running into the backyard of a home. Effington and Pena tackled appellant and arrested him for unauthorized use of a motor vehicle.[4] After all of the arrests were completed, Ellison went to the LCPD to make identifications.[5] At that time, Ellison identified Nolley and Parker as the two males who had robbed him. At trial, however, Ellison identified appellant and Parker as his assailants.[6] Sergeant William MacDonald, with the Galveston County Sheriff=s Office Identification Division, testified that he took photographs and processed the vehicle driven by Ellison, as well as the Buick driven by the suspects. He stated that two bags containing jewelry and wristwatches were found in the Buick. Although thirty-four prints were obtained from the interior and exterior of the Buick, none of the prints matched those of appellant, Parker, or Nolley. The detectives also obtained a print from the clip of the Colt pistol that had been recovered, and Sergeant MacDonald testified that the print was too small to compare to others. Sergeant Burrows investigated the Buick=s ownership and discovered that the vehicle was owned by National Rental Car. The Buick had been rented to Nolley and was not registered under the South Carolina license plates. II. Discussion A. Issues One and Two: Legal and Factual Sufficiency 1. Standards of Review In appellant=s first and second issues, he challenges the legal and factual sufficiency of the evidence. In reviewing the legal sufficiency of the evidence, this court examines all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). In determining whether the evidence is sufficient to convict, we must examine the totality of the circumstances. Vodochodsky v. State, No. 74129, 2004 WL 840121, at *5 (Tex. Crim. App. Apr. 21, 2004); see Denton v. State, 911 S.W.2d 388, 389B90 (Tex. Crim. App. 1995). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury is also solely responsible for reconciling conflicts in the evidence. Id. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Herrero v. State, 124 S.W.3d 827, 832 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. Id. The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003); Santos v. State, 116 S.W.3d 447, 456 (Tex. App.CHouston [14th Dist.] 2003, no pet.). In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004); see Zuliani v. State, 97 S.W.3d 589, 593B94 (Tex. Crim. App. 2003). When reviewing the evidence, we must give appropriate deference to the jury=s findings in order to prevent intruding on the fact finder=s role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate, we Amust defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor.@ Id. at 8. 2. Nature of Offense and Law of Parties A person commits robbery if, in the course of committing a theft, he intentionally or knowingly places another in imminent fear of bodily injury or death. See Tex. Pen. Code Ann. ' 29.02(a)(2) (Vernon 2003). In order to prevail on the charge of aggravated robbery, the State had to prove appellant committed a robbery and used or exhibited a deadly weapon. See id. ' 29.03(a)(2). A deadly weapon is anything that, in the manner of its use or intended use, is capable of causing death or serious bodily injury. See id. ' 1.07(a)(17)(B) (Vernon Supp. 2004). Under the law of parties, a person is criminally responsible for the offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. ' 7.02(a)(2) (Vernon 2003). Although the mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, it is a circumstance that, when combined with other facts, may suffice to show that the accused was a participant. Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.CAustin 2001, pet ref=d). The law of parties can apply to the offense of aggravated robbery. See Johnson v. State, 32 S.W.3d 388, 393B94 (Tex. App.CHouston [14th Dist.] 2000, no pet.). 3. Appellant=s Challenges to Legal and Factual Sufficiency Appellant contends the evidence was both legally and factually insufficient because (1) no evidence was elicited from Ellison that he was placed Ain fear of imminent bodily injury and death@; (2) appellant did not rent the gray Buick, and his fingerprints were not recovered from the interior or exterior of the vehicle; (3) appellant=s fingerprints were not found on the firearm, or on the bags stolen from Ellison; (4) no stolen property or weapons were found on appellant; (5) testimony linking appellant to Parker or Nolley was not adduced; and (6) no evidence proved that appellant was criminally responsible for Nolley=s and Parker=s conduct. Only the first of these challenges relates to evidence of an element of the offense of aggravated robbery; the remaining challenges relate to evidence of appellant=s involvement as a principal or a party to the offense. We first set forth the evidence supporting the element, then turn to the evidence supporting appellant=s involvement. a. Challenge to Evidence Supporting Element of the Offense Viewed in the light most favorable to the prosecution, the following testimony establishes Ellison was placed Ain fear of imminent bodily injury or death@:[7] [Prosecutor]: Mr. Ellison, what was going through your mind when he had the gun to your head? [Ellison]: I thought he was going to pull the trigger. [Prosecutor]: Were you in fear for your life? [Ellison]: Yes, definitely. [Prosecutor]: Were you in fear he would do you harm? [Ellison]: Yes. [Prosecutor]: Were you in fear of dying? [Ellison]: Right. This evidence is legally sufficient to establish Ellison was in fear of imminent bodily injury or death. See Patterson v. State, 639 S.W.2d 695, 696 (Tex. Crim. App. 1982) (holding evidence legally sufficient when victim testified that she was in fear of imminent bodily injury from the time defendant approached her at cash register until he exited out the front door, victim thought defendant had a gun when he first approached her, and victim testified she was threatened with physical harm when defendant told her to quit stalling and that he did not want to have to hurt anybody). b. Challenge to Evidence Supporting Appellant=s Involvement as Principal or Party The State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref=d) (citing Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Rice v. State, 801 S.W.2d 16, 17 (Tex. App.CFort Worth 1990, pet. ref=d)). The State, however, may prove identity by direct or circumstantial evidence. Id. The court charged the jury that appellant could be found guilty if the jury determined beyond a reasonable doubt that appellant committed this crime, or was a party to the offense. See Tex. Pen. Code Ann. ' 7.01 (Vernon 2003) (regarding parties to offenses). The court also charged the jury, under the law of parties, that if they determined appellant knew of Nolley=s and Parker=s intent and acted with the intent to promote or assist them in the commission of the offense by encouraging, directing, aiding, or attempting to aid them to commit the robbery with a firearm, then appellant could be found guilty of aggravated robbery. See Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003). Thus, by its verdict, the jury either concluded that appellant was a principal actor in the crime or determined appellant knew of Nolley=s and Parker=s intent and acted with the intent to promote or assist them in the commission of the offense by encouraging, directing, aiding, or attempting to aid them to commit the robbery with a firearm. The following evidence, when viewed in the light most favorable to the prosecution, establishes appellant was the person who committed the aggravated robbery of Ellison: $ At trial, Ellison identified appellant as one of the men who robbed him at gunpoint; $ Ellison never equivocated at trial in his identification of appellant as the robber; $ Appellant was observed running, not in a manner consistent with jogging, near the vicinity where the Buick collided with the tree; $ Appellant fled from the detectives when they attempted to stop him and was tackled and arrested very shortly thereafter for unauthorized possession of a vehicle; $ Ellison testified that appellant and Parker robbed him and then drove away in the Buick, which according to Sergeant Burrows, was rented from National Car Rental by Nolley; and $ The stolen property was found in the Buick. We conclude a rational jury could have found appellant committed the aggravated robbery of Ellison. The evidence is legally sufficient to support the jury=s verdict. We overrule appellant=s first issue. Looking to the entire record, we consider the following weaknesses in the State=s proof and the contrary proof offered by appellant: $ During his original identification of the robbers at the LCPD, Ellison did not identify appellant as one of men who pointed the gun to his head and robbed him;[8] $ The police were unable to recover any fingerprints from the robbery scene that matched appellant=s fingerprints; $ No jewelry or guns were located on appellant; and $ Appellant stated to police he was in League City simply for the purposes of stealing a car. At most, the preceding evidence relates to the credibility of the State=s witnesses and the weight to be given the State=s evidence. See Johnson, 23 S.W.3d at 7. The jury is the sole fact finder and we give deference to their determination of weight and credibility of the evidence because their determination turns on an evaluation of credibility and demeanor. Id.; Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997). A decision is not manifestly unjust merely because the jury resolved the conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. Having reviewed all the evidence in a neutral light, we conclude the evidence supporting the verdict, considered by itself, is not too weak to support the finding of guilt beyond a reasonable doubt and any contrary evidence is not strong enough to defeat the beyond-a-reasonable-doubt standard. See Zuniga, 2004 WL 840786, at *7; Zuliani, 97 S.W.3d at 593B94. The evidence is factually sufficient to support the jury=s verdict. We overrule appellant=s second issue. B. Affirmative Finding of the Use of Exhibition of a Deadly Weapon In appellant=s third issue, he contends that the trial court erred in entering an affirmative finding on the use or exhibition of a deadly weapon. Appellant contends the trial court erred by including an instruction on the law of parties in the jury charge without adding a special issue regarding appellant=s knowledge of the use or exhibition of a deadly weapon during the commission of the offense. Appellant relies upon two cases in which this court held that a trial court could not enter an affirmative deadly weapon finding if the trial court charged the jury on the law of parties, but did not submit a question asking whether the defendant knew a deadly weapon would be used or exhibited. See Tate v. State, 939 S.W.2d 738, 753B54 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d) (holding that, in order for an affirmative finding to stand on the law of parties, there must be a specific finding that appellant knew a deadly weapon would be used or exhibited); Pritchett v. State, 874 S.W.2d 168, 172 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (same). However, we revisited this matter in an en banc opinion that effectively overruled the Tate and Pritchett decisions on this issue, holding that a trial court may enter a deadly weapon finding if the jury, by its verdict, made the factual conclusion to support the deadly weapon finding. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (en banc). As in Sarmiento, here the jury convicted appellant of aggravated robbery. Id. at 567. When an indictment specifically alleges, as it does here, that the defendant used or exhibited a deadly weapon in the commission of the offense, and the jury finds the defendant guilty as charged or alleged in the indictment, then the jury has necessarily made a de facto finding that the defendant used or exhibited a deadly weapon in the commission of an offense. See Polk v. State, 693 S.W.2d 391, 393, 396 (Tex. Crim. App. 1985); Sarmiento, 93 S.W.3d at 569. The jury through its verdict, found that appellant used or knew that a deadly weapon would be used, when committing the crime against Ellison. The trial court, therefore, did not err when it entered an affirmative deadly weapon finding in the judgment. Accordingly, we overrule appellant=s third issue. For the foregoing reasons, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed August 12, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Sergeant Randy Burrows with the Galveston County Sheriff=s Office testified that after the robbery, Ellison reported seeing one firearm only. [2] Ellison testified that two other people were in the vehicle with the men who robbed him. Ellison=s descriptions of the men were vague. He stated that one of the men was comparable to his height, maybe shorter, and one had long hair. One of them had a multi-colored shirt, which was open with a white t-shirt underneath it. In his statement to police, Ellison stated that he did not get a good look at the person pointing the gun at him. He described the other black male who took the bags as wearing a white t-shirt and a yellow and gold multi-colored Hawaiian type shirt, unbuttoned, and having dreadlocks in his hair. [3] Nolley, Parker, and appellant were arrested in three different locations and in opposite directions from the place where the Buick crashed. The record reflects that the fourth person in the Buick was not apprehended. Terrell Parker, upon his arrest, first identified himself to the officers as Terrell Livingston. For the purposes of this opinion, we will refer to him as Terrell Parker. [4] After appellant was arrested, Detective Pena asked him routine questions, such as where he was from and his reason for being in League City. Appellant responded that he had traveled to League City to steal a vehicle. Flores identified appellant as the man who had stolen his van. [5] Ellison identified the individuals that same day, September 12, 2001, at 2:51 p.m., in the afternoon. [6] The record reflects that appellant=s counsel filed a motion to suppress the identification and read it into the record outside the presence of the jury. The trial court denied the motion, stating Ait=s a question for the jury.@ Appellant does not complain about the court=s denial of the motion to suppress on appeal. [7] See Tex. Pen. Code Ann. ' 20.02(a)(2) (Vernon 2003). [8] The record reflects there was a change in appellant=s appearance from the time of the robbery and the time Ellison identified his assailants. Specifically, appellant changed shirts and his hairstyle.