Ray Davon Woodard v. State

Affirmed and Memorandum Opinion filed April 28, 2009 Affirmed and Memorandum Opinion filed April 28, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00605-CR _______________ RAY DAVON WOODARD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 241st District Court Smith County, Texas Trial Court Cause No. 241-0143-08 M E M O R A N D U M   O P I N I O N A jury convicted appellant Ray Davon Woodard of aggravated robbery, sentenced him to twenty-seven years and six months= confinement, and assessed a fine of $5,000.00. Appellant challenges his conviction on the grounds that the evidence is legally and factually insufficient to support the jury=s verdict and that the trial court erred in excluding certain evidence. We affirm. I. Factual and Procedural Background In December 2007, Tyler police department officer Chris Sharp responded to a call reporting an aggravated robbery. He was notified that the victim of the robbery was following the suspects, who were driving a blue Lincoln. Sharp located the Lincoln and stopped it at a gas station. Sharp and several back-up officers arrested the four individuals who were inside the car: (1) driver Korwin Jones, (2) front-seat passenger Dewaylon Kennedy, (3) back-seat passenger Brian Mayfield, and (4) appellant, who was also a back-seat passenger. Officers recovered several items from the car, including an unloaded handgun found under the front seat; from the back floorboard of the vehicle, they recovered a bag of marijuana and a wallet containing items belonging to Dominick Wright, the complainant. Wright testified that he and his friend, Casey Parker, received a phone call earlier that day from an individual who wanted to buy marijuana. According to Wright, he and Parker arranged to meet the caller at a local restaurant. Wright testified that shortly after he and Parker arrived at the restaurant, a blue Lincoln pulled into the restaurant parking lot and two individuals exited the car and approached Wright=s vehicle. Wright identified one of these individuals as appellant and the other as Kennedy.[1] Wright stated that he showed appellant and Kennedy a bag of marijuana and, after they agreed on a price of $180.00, one of the men asked Wright for change for a hundred-dollar bill. Wright explained that when he produced his wallet to make change, one of the men tried to take it. According to Wright, when he resisted, the other man produced a gun. Wright testified that he then handed the men his wallet and the marijuana, and appellant and Kennedy walked back to the Lincoln. When the assailants drove from the parking lot, Wright and Parker followed in their vehicle. Parker testified that he was seated in the passenger seat of Wright=s vehicle when the robbery occurred. According to Parker, most of the transaction was conducted between Wright and Kennedy, and they were the two who negotiated the price of the marijuana. Parker stated that Kennedy took Wright=s wallet and the marijuana, and he thought appellant was the person carrying the gun. Parker testified that he recognized Kennedy because he knew him through some relatives. Jones and Mayfield, the two individuals who remained in the Lincoln while appellant and Kennedy robbed Wright, both testified. Jones explained that he drove Kennedy, Mayfield and appellant to buy the marijuana. Jones testified that appellant set up the drug purchase using Jones=s telephone. He stated that Kennedy and appellant got out of the car to buy the marijuana, but he did not see what happened after that. According to Jones, he did not see the gun or the marijuana before or after the robbery, and he denied that Wright chased them after the robbery. Finally, Jones admitted that he had been charged with possession of marijuana for his participation in the events of that night. Mayfield testified that appellant, not Kennedy, was carrying the wallet and marijuana when the two returned to the Lincoln after the robbery, and he agreed that Wright and Parker followed their vehicle out of the parking lot after the robbery. Mayfield further testified that, when Wright and Parker followed their vehicle, ARay [appellant] told Dewaylon [Kennedy] to get out and show him [Wright] what=s up. Dewaylon got out waving the gun. And then Ray told him to hurry up and get back in the car.@ Mayfield stated that he saw no one but Kennedy with the gun that night. Like Jones, Mayfield was also charged with possession of marijuana. Kennedy, who is appellant=s cousin, also testified.[2] He admitted that he had pleaded guilty to aggravated robbery for his role in the offense and had been sentenced to thirty years= incarceration. Kennedy testified that, before the robbery, Mayfield, who occupied the front passenger-seat of the Lincoln, quickly turned around and silently passed the gun to him when Kennedy was sitting in the back seat; he stated that appellant was looking out of the window when the exchange of the gun occurred. Kennedy testified that he immediately placed the gun in his jacket pocket. He also stated that he carried the gun in his pocket during the robbery and showed it to Wright, but did not take it out of his pocket. During an offer of proof conducted outside the presence of the jury, appellant=s trial counsel elicited testimony from Wright and Parker that they both had consumed alcohol earlier on the day of the offense. Parker also testified that he had smoked a marijuana cigarette earlier that day. Both Wright and Parker stated that they had not been drunk, nor had their observations of events been impacted by their drug or alcohol use. Appellant=s trial counsel also questioned Kennedy about appellant=s reaction when Kennedy displayed the gun during the robbery. Kennedy indicated that appellant appeared surprised when Kennedy showed the gun to Wright. After hearing the evidence and argument of counsel, the jury found appellant guilty of aggravated robbery and sentenced him to twenty-seven years and six months= confinement in the Texas Department of Criminal Justice, Institutional Division, and assessed a $5,000 fine. The trial court rendered judgment in accordance with the jury=s verdict, and this appeal timely ensued. II. Issues Presented In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In issue three, appellant contends the trial court erred in excluding evidence that would have impeached the testimony of two of the eyewitnesses. In his fourth issue, appellant argues that the trial court erred in excluding testimony concerning his reaction to Kennedy=s exhibition of a firearm in the commission of the offense. III. Analysis A. Sufficiency of the Evidence 1. Standard of Review When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we examine all 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. Id. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc). Our review of the evidence includes both properly and improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Id. When reviewing the factual sufficiency of the evidence, on the other hand, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradict the jury=s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re‑evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). 2. Charged Offense The jury charge, in accordance with the indictment, authorized the jury to convict appellant of aggravated robbery, either as a principal or as a party. As is applicable here, a person commits aggravated robbery, if in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death by using or exhibiting a deadly weapon. Tex. Penal Code Ann. '' 29.02(a)(2) (robbery); 29.03(a)(2) (Vernon 2003) (aggravated robbery). AA person is criminally responsible as a party to an offense if the offense is committed by his conduct, by the conduct of another for which he is criminally responsible, or by both.@ Id. ' 7.01(a). In turn, a person is criminally responsible for an offense committed by another if, Aacting 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[.]@ Id. ' 7.02(a)(2). In determining whether the accused acted as a party, we may consider events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and a common design to commit the prohibited act. Payne v. State, 194 S.W.3d 689, 694 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d); see also Coleman v. State, 956 S.W.2d 98, 99B100, 103 (Tex. App.CTyler 1997, pet. ref=d). Circumstantial evidence may be sufficient to establish a defendant=s guilt as a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). 3. Application Appellant asserts that the evidence is legally and factually insufficient because [t]he record is devoid of any evidence that [a]ppellant knew that Kennedy was going to use the gun as a deadly weapon during the offense. It might have been legitimate for the jury to infer that [a]ppellant became aware of Kennedy=s intent to use the weapon when he actually produced the weapon at the window [of the complainant=s vehicle]; however, the inference would not have extended to proof that [a]ppellant actually knew in advance that Kennedy planned to rob Wright and use a deadly weapon in the commission of the offense. There is no dispute that appellant and Kennedy were the individuals who approached Wright in his vehicle, or that a deadly weapon was used in the commission of the offense. Both Wright and Parker testified that Kennedy grabbed Wright=s wallet and the marijuana as appellant held the gun. Only Kennedy, appellant=s cousin, tesitified that it was he and not appellant who produced the gun during the robbery. Although Mayfield testified that he saw Kennedy with the gun that night, Mayfield did not see the actual robbery, and Jones denied seeing a gun at all that evening. The jury was free to believe or disbelieve any portion of the witnesses= testimony. See Jones, 984 S.W.2d at 257. Thus, the jury could have found Wright and Parker more credible and reasonably concluded that appellant was the individual who displayed the gun during the robbery.[3] The record also contains sufficient evidence to support appellant=s conviction for aggravated robbery under the law of parties. First, Kennedy explained that appellant was seated next to him when Mayfield passed Kennedy the gun. Although Kennedy stated later that appellant was looking out the window at the moment Mayfield handed him the weapon, the jury was free to disbelieve this portion of his testimony. Thus, the jury reasonably could have inferred that appellant was aware Kennedy had the gun before the offense was committed. Kennedy also indicated that he at least partially pulled the gun out of his left jacket pocket when appellant was standing on his left-hand side. Finally, Mayfield stated that, after the offense had been committed, appellant directed Kennedy to get out of the vehicle and show Wright and Parker the gun. Appellant=s actions before, during, and after the commission of the offense show an understanding and common design to commit aggravated robbery, i.e., that appellant was a party to the offense of aggravated robbery.[4] Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found appellant guilty as a principal or a party to aggravated robbery. Further, viewing all the evidence in a neutral light, we cannot say that the jury=s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, nor is the verdict against the great weight and preponderance of the evidence. We therefore overrule appellant=s first and second issues challenging the legal and factual sufficiency of the evidence. B. Evidentiary Rulings 1. Standard of Review We review the trial court=s evidentiary rulings for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en banc). We will not disturb the trial court=s ruling if it is Awithin the zone of reasonable disagreement.@ Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). 2. Exclusion of Impeachment Evidence In issue three, appellant asserts that the trial court improperly denied him the opportunity to question Wright and Parker about whether they were under the influence of marijuana or alcohol at the time of the offense. Although Texas Rule of Evidence 608(b) expressly prohibits the use of Aspecific instances of conduct of a witness, for the purpose of attacking or supporting the witness=[s] credibility, other than conviction of crime as provided in Rule 609,@[5] an exception to the rule permits such impeachment if there is a showing that intoxication from alcohol or drug use impaired the witness=s ability to perceive the events in question at the time they occurred. See Lagrone v. State, 942 S.W.2d 602, 612B13 (Tex. Crim. App. 1997) (en banc). When questioned by the State during appellant=s offer of proof, Wright affirmed that he was not drunk and that nothing he observed was affected by the fact that, earlier in the day, he had consumed Aa couple beers.@ Similarly, Parker testified that smoking a marijuana cigarette and drinking an alcoholic beverage earlier in the day did not Ain any way affect@ what he saw that night. Thus, the State produced uncontradicted evidence that neither witness=s ability to perceive the offense was impaired by drug or alcohol intoxication at the time of the offense. Appellant made no showing that these witnesses= Aperceptual capacity [was] physically impaired by the intoxicating effects of alcohol or drugs during their observation of pertinent events.@ Id. We therefore conclude that the trial court did not abuse its discretion by refusing to permit appellant to question Wright and Parker about these specific instances of conduct. See id. We overrule appellant=s third issue. 3. Hearsay Objection In his fourth issue, appellant argues that the trial court erred by excluding Kennedy=s testimony that appellant appeared surprised when Kennedy exhibited the gun during the robbery. The trial court sustained the State=s hearsay objection to this line of questioning.[6] Later, appellant made an offer of proof, in which Kennedy stated that appellant looked surprised, Alike he didn=t know [Kennedy] had the gun in [his] pocket.@ Hearsay is Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). In turn, a Astatement@ includes Anonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.@ Tex. R. Evid. 801(a). Thus, conduct not intended as a substitute for verbal expression is not hearsay. Id.; see also Johnson v. State, 987 S.W.2d 79, 90 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d) (op. on reh=g). Here, nothing in the record indicates that appellant=s Asurprised@ reaction was intended as a substitute for any verbal communication to Kennedy. Cf. Graham v. State, 643 S.W.2d 920, 927 (Tex. Crim. App. 1981) (en banc) (stating that victim=s conduct in making a shooting motion made when shown defendant=s photograph was intended to indicate her belief that defendant was individual who had shot her and, thus, testimony concerning this conduct was hearsay). Thus, we conclude that appellant=s reaction to Kennedy=s use of the gun during the robbery does not constitute a Astatement,@ and Kennedy=s testimony regarding appellant=s reaction was erroneously excluded under the hearsay rule. But we must disregard any error, other than constitutional error, unless it affects the defendant=s Asubstantial rights.@[7] Tex. R. App. P. 44.2(b). When evaluating harm from non-constitutional error, we must examine the record as a whole. See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). A[I]f we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless.@ Id. Here, as discussed more fully above, two eyewitnesses to the robbery stated that appellant was the gunman. But even if appellant was not the gunman and was surprised when Kennedy exhibited a gun, our review of the entire record indicates there is ample evidence that appellant participated in the robbery as a party: the witnesses agreed that appellant and Kennedy were the two who approached Wright=s vehicle; Wright and Parker testified that one of the two individuals displayed a gun during the robbery and the unarmed individual not only struggled with Wright for Wright=s wallet but also grabbed the bag of marijuana; and two witnesses testified that appellant encouraged Kennedy to Awave@ the gun at Wright after the robbery in an attempt to dissuade Wright from chasing after appellant and his cohorts. Under these circumstances, we are fairly assured that the trial court=s error in excluding Kennedy=s testimony regarding appellant=s alleged Asurprise@ about the presence of the gun did not influence the jury or had but a slight effect. See id.; Tex. R. App. P. 44.2(b). We therefore overrule appellant=s fourth and final issue. IV. Conclusion Having overruled appellant=s four issues, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Panel consists of Justices Yates, Guzman, and Sullivan. Do Not Publish C Tex. R. App. P. 47.2(b). [1] When questioned after the suspects had been apprehended on the day of the offense, Wright made several conflicting statements to police. He first indicated that he had been robbed when two individuals approached him and asked for change. Next, he told them he was at the restaurant to buy marijuana rather than sell it. Then, he admitted he was the one selling the drugs, but stated that Kennedy was the individual with the gun. Finally, at trial, Wright insisted that appellant was the gunman during the robbery, stating that he had remembered this fact by Areviewing stuff in [his] head@ and talking to Parker about a week after the offense. Wright acknowledged at trial that he had previously made the contradictory statements. [2] During a bench conference at the outset of Kennedy=s testimony, Kennedy attempted to refrain from testifying by invoking his Fifth Amendment right. The trial judge explained to Kennedy that he did not have a Fifth Amendment privilege regarding the facts surrounding this offense because Kennedy had pleaded guilty to aggravated robbery for his participation in the offense, been sentenced, and waived his right to appeal. The trial judge informed Kennedy that he had to answer questions regarding the offense or he could be held in contempt, which would result in a six-month sentence and a $500 fine for each refusal to answer. When Kennedy later refused to answer questions, the trial court excused the jury and reiterated these instructions. The trial court also had to instruct Kennedy to answer several times. Outside the presence of the jury, the State asked for permission to treat Kennedy as a hostile witness, and the trial court acquiesced to this request. [3] Although the prosecutor speculated during closing argument that Kennedy used the gun during the robbery, argument of attorneys is not evidence. See Motilla v. State, 38 S.W.3d 821, 824 (Tex. App.CHouston [14th Dist.] 2001) (stating that arguments by counsel are not evidence), rev=d on other grounds, 78 S.W.3d 352 (Tex. Crim. App. 2002); Mata v. State, 1 S.W.3d 226, 228 (Tex. App.CCorpus Christi 1999, no pet.) (A[I]t is axiomatic that argument of counsel is not evidence.@). [4] See Johnson v. State, 6 S.W.3d 709, 711 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (concluding that sufficient evidence supported aggravated robbery conviction under law of parties because defendant, who was was not present when robbery occurred, was seen in the store immediately prior to the robbery, rented and drove get-a-way vehicle, and was apprehended driving vehicle with two identified assailants); Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.CCorpus Christi 2000, pet. ref=d) (holding that evidence was sufficient to support aggravated robbery conviction under law of parties because defendant got into get-a-way vehicle with stolen items while other party pointed a firearm at victim); McGee v. State, 909 S.W.2d 516, 518 (Tex. App.CTyler 1995, pet. ref=d) (stating that it is Apermissible to infer that a group of people have agreed to work on a common project when the action of each is consistent with the realization of the common goal@); see also Anderson v. State, No. 14-00-00810-CR, 2001 WL 1426676, at *2 (Tex. App.CHouston [14th Dist.] Nov. 15, 2001, pet. ref=d) (not designated for publication) (concluding evidence was legally and factually sufficient to support defendant=s conviction for aggravated robbery as a party, even though defendant told armed cohort to put weapon away, because defendant continued to participate in robbery after becoming aware that a gun was being used). [5] Tex. R. Evid. 608(b). [6] The State argued: Judge, the objection is going to be that he - - be a hearsay objection. What Mr. Davidson [defense attorney] is attempting to do is use nonverbal - - under [Texas Rule of Evidence] 801, a statement is either verbal, written, or nonverbal. And at this point in time, Mr. Davidson=s attempting to use a nonverbal reaction as a substitute for a statement. . . . He=s been attempting to do it for the last line of questioning where he=s attempting to say that [appellant] was surprised [when Kennedy took out the gun]. Well, Judge, what he=s attempting to do clearly, under Rule 801, is a statement, and it=s a nonverbal communication that is a substitute for him being able to say [appellant] was surprised by it, Judge. It is clearly hearsay, and we would object. Appellant replied to this argument by stating, AJudge, the question is, did you observe the reaction when you pulled out the gun to each of the other three people that were there? And the answer was yes. And then the question was, well, what did you observe about the reactions?@ The trial court then sustained the State=s objection and later permitted appellant to make an offer of proof regarding this issue. [7] We note that appellant has not briefed the appropriate harm analysis applicable to the trial court=s error. Here, however, we cannot say the trial court=s error rose to the level of a constitutional violation because (a) the exclusion of this evidence was not grounded on an evidentiary rule prohibiting admission of the testimony offered and (b) appellant was able to present his defense that he was unaware Kennedy was armed before the robbery occurred through other testimony and his attorney=s argument. See Ray v. State, 178 S.W.3d 833, 835B36 (Tex. Crim. App. 2005). Thus, we apply a non-constitutional harm analysis to the trial court=s error.