Opinion
No. 05-07-01516-CR
Opinion issued April 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-60566-HR.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Lafarris Dantrel Borens was convicted of aggravated robbery and sentenced to twenty-five years' imprisonment. In five points of error, he argues (1) that the evidence was legally and factually insufficient to support his conviction, and (2) that the jury charge was erroneous in three respects. We affirm.
I. Background
This case arises from a robbery at a liquor store in the Lakewood area of Dallas in December 2005. The evidence showed that three people entered the store, forced an employee to lie down at gunpoint, took some money, and fled. After the robbers left, the employee summoned the police. Borens was arrested shortly thereafter, some distance away from the scene of the crime. He was indicted for aggravated robbery, tried by a jury, convicted, and sentenced to twenty-five years in prison.II. Sufficiency of the Evidence
In his first two points of error, Borens contends that the evidence was legally and factually insufficient to support the verdict on the element of identity. He does not attack the sufficiency of the evidence that an aggravated robbery occurred; rather, he challenges only the sufficiency of the evidence that he was one of the participants.A.
Standard of review In evaluating the legal sufficiency of the evidence, we view 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. Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App. 2008). In evaluating the factual sufficiency of the evidence, by contrast, we view all the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007). The evidence is factually insufficient if (1) the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id.B.
Review of the evidence We review the evidence tying Borens to the robbery. On December 13, 2005, Alexander Kwiat was working at a Centennial Liquor store in the Lakewood area of Dallas. He testified that three people wearing masks entered the store and one of them pointed a gun at him. The robbers forced him to lie on the floor, and one of them stood over him and pointed a gun at his head. The robbers took some money and ran from the store. The whole episode took only a couple of minutes. Kwiat thought the robbers were young men, but he could not further identify them because of their masks. After the robbers left the store, Kwiat pulled the alarm, and the police arrived within a few minutes. The other employee present in the store, Jim Border, also testified. He was at the back of the store when the robbery took place, and he ducked and hid while it was going on. He testified that one of the robbers was wearing a mask like the one featured in the movie "Scream." The other two were wearing hoods, but he could not tell whether they were wearing masks. Michael Langley was driving his SUV in front of the liquor store when three people wearing dark clothes and long pants ran in front of his car and entered the store. He saw that one of them was wearing a "Scream" mask and another was wearing a ski mask. He described the person wearing the "Scream" mask as athletic and of regular height and build. The person wearing the ski mask was a little bigger and heavier. He did not pay much attention to the third person because he was calling 9-1-1 on his cell phone. He could see the first person brandish a gun and the person behind the counter get on the ground. Then the same three people exited the store and ran in front of his car again. He followed them through the parking lot and saw them get into a parked Oldsmobile. When they drove away, he continued to follow them while still talking to the 9-1-1 operator. He followed them for a couple of blocks on Abrams and followed them through a right turn onto Worth Street. There he found that the Oldsmobile was stopped and the driver had gotten out of the car. The driver started shooting at him. Langley saw a police cruiser go around him as he started to back up. He never saw anyone get into or out of the vehicle after he started following it. Police officer Kevin Keim testified that he was patrolling the area near the robbery scene when the report of the robbery went out. He reached the scene in roughly three minutes. There he talked to a witness and dispatched his description of the getaway car as a white four-door Oldsmobile. Almost immediately he heard another officer, Sergeant Spila, announce over the radio that he had just passed the vehicle. Keim himself went towards Spila's location and found the getaway vehicle stopped at Gaston and Haskell. The suspects had fled on foot. Two of the three were caught at that time. One was a taller person named Mitchell, who was found with money wadded up in his pants pocket. After Keim searched Mitchell, he went to the scene of the shooting on Worth Street, where other law enforcement personnel recovered the shell casings on the street. Sergeant Spila testified that he was at the station when the initial call on the robbery was made. He took his patrol car towards the crime location and saw a vehicle matching the description of the getaway car pass him going the other way. He made a U-turn and pursued. Spila did not lose sight of the vehicle during his pursuit. The car eventually stopped in a parking lot at Gaston and Haskell, and Spila saw three people get out of the car and flee on foot. The individuals who fled the car left the doors open, and no one else was inside. Spila pulled his car into the parking lot and parked behind the abandoned vehicle. He used his radio to report clothing descriptions of the suspects and to direct the other officers who were reporting to the scene. Spila testified that a thin, black male wearing dark clothing got out on the driver's side. He was later identified as Carlton Mitchell. Another thin, black male got out of the car through the front passenger-side door. He was also wearing dark clothes. Both of these two suspects ran north and climbed over a fence, breaking it as they went over. Spila identified Borens as the third individual that emerged from the car. He testified that Borens got out through the rear passenger-side door. He was larger than the other two men, and he was wearing a red t-shirt. Borens started to run south on Gaston. Spila acknowledged that he lost sight of Borens for several seconds before he again saw him running towards the 7-Eleven on the opposite corner of the intersection. He testified that he stayed inside his car until the arrests were made. Police officer Judith Skibinski testified that she was on patrol on the evening of the robbery and heard the dispatches about the robbery and the description of the getaway car. Sergeant Spila was in a different patrol car behind her when he saw a car of that description pass him. He made a U-turn and went into pursuit, as Skibinski did a few seconds later. Spila reported that the car "wrecked out between Gaston, off of Haskell and Peak behind a little hot dog stand," so Skibinski went towards that location. When Skibinski arrived at the scene, Spila had already started chasing one of the suspects, and she tried to use her squad car to help Spila contain one of the suspects in a "cat and mouse" fashion. Then Spila said that another suspect was running southbound on Haskell, and Skibinski herself saw Borens. According to Skibinski, she heard Spila say that Borens jumped over a fence to the north, then came back and ran south past Spila and the abandoned vehicle. When Skibinski arrived on Gaston, Borens ran right in front of her squad car. Skibinski then chased him on foot. Borens first tried to enter a church, then ran across the street into a 7-Eleven parking lot. Police officer Juan Aguinaga then arrived on the scene and helped Skibinski arrest Borens. Borens was wearing a short-sleeved red shirt and dark pants at the time. When Skibinski searched him, she found $151 wadded up in his pants pocket. Officer Aguinaga testified that he was the first officer on the scene at the robbery location. Then he went to the location on Gaston where the car had been abandoned and saw Skibinski chasing Borens on foot. He stopped his car, got out, and helped Skibinski arrest Borens. He testified that Borens was wearing a red shirt. He searched the abandoned car and found two ski masks inside. Officer S.C. Smythe testified that he responded to the dispatch by going to the location where the getaway car had been abandoned. He and his partner found Carl Mitchell hiding in an alley about half a block away. He was wearing dark clothing, and the officers found a pistol and a Halloween "Scream" mask in his possession. They arrested Mitchell. By the time they returned to the car, Borens was already in custody. A firearm and toolmark examiner testified that the cartridge cases recovered at the scene where one of the robbers shot at witness Langley were fired in the gun recovered from Mitchell at the time of his arrest.C.
Application of the law to the evidence Although the eyewitnesses to the robbery could not identify Borens as one of the three participants, circumstantial evidence can be as probative as direct evidence for the purpose of establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Here, the chain of circumstantial evidence establishing Borens's identity as one of the three robbers was both legally and factually sufficient. The evidence permitted the jury to find that Langley saw the three robbers emerge from the liquor store and followed them as they fled the scene in their getaway car. Then one of the three robbers fired several shots at Langley, forcing him to abandon his pursuit. But only a short time later and a short distance away, a police officer saw and followed a car matching Langley's description, and shortly thereafter the three occupants of the car abandoned it and fled on foot. One of the three, Mitchell, was captured in possession of the same gun that had fired the shots at Langley. Another of the three was Borens. Two ski masks were found in the car, and a "Scream" mask was found with Mitchell. Both Mitchell and Borens were found to have wadded-up bills in their pants pockets. Borens points out that Skibinski's testimony was not consistent with Spila's. Spila testified that he never left his squad car, but rather stayed inside to try to keep all of the suspects in view until back-up officers could arrive on the scene. Skibinski, by contrast, testified that Spila was actually chasing one of the suspects, the "unknown suspect" who eluded arrest. Also, Skibinski testified that Borens initially jumped over a fence to the north before doubling back and running south, while Spila testified only that Borens ran south after exiting the car. The State responds that these are understandable discrepancies given the confusion of events, with three suspects running in different directions after an armed robbery and a shooting attack on an eyewitness. "The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side." Rice v. State, 195 S.W.3d 876, 879 (Tex.App.-Dallas 2006, pet. ref'd). The jury in this case rationally could have resolved the discrepancy in the evidence by concluding that Skibinski, Spila, or both were mistaken in some of the details surrounding Borens's arrest, but that these discrepancies were minor, easily explainable, and did not significantly undermine the circumstantial evidence of Borens's guilt. Viewing the evidence in the light most favorable to the verdict, we conclude that the jury reasonably could have found beyond a reasonable doubt that Borens was one of the robbers. We further conclude that the evidence, viewed in a neutral light, was factually sufficient to justify the jury in finding Borens guilty beyond a reasonable doubt. The minor discrepancies in the evidence pointed out by Borens do not establish that the great weight and preponderance of the evidence contradicted the jury's verdict. Accordingly, we conclude that the evidence is both legally and factually sufficient to sustain the verdict. We overrule Borens's first and second points of error.III. Jury-Charge Error
In his third point of error, Borens argues that the jury charge erroneously defined the terms "intentionally" and "knowingly." The trial judge instructed the jury as follows:A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Borens argues that the instruction was erroneous because it was not tailored to the conduct elements of the particular offense of aggravated robbery. The State agrees that the charge was erroneous because the trial judge did not limit the definitions of the mental states to the particular conduct element or elements to which those definitions applied. See Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App. 1995) (when offense involves nature, result, and circumstances surrounding defendant's conduct, trial court should properly limit definitions of culpable mental states to the relevant conduct elements); see also Hughes v. State, 897 S.W.2d 285, 296 n. 16 (Tex.Crim.App. 1994) (providing example of correct charge). Borens did not object to this jury instruction, so we reverse only if the error was so harmful that it denied Borens a fair and impartial trial, i.e., caused "egregious" harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). In evaluating charge error, we examine the entire jury charge and consider (1) the charge itself; (2) the state of the evidence including contested issues; (3) argument of counsel; and (4) any other relevant information. Ash v. State, 930 S.W.2d 192, 195 (Tex.App.-Dallas 1996, no pet.). We conclude that the charge error did not cause egregious harm. The evidence and the arguments of counsel focused on a single contested issue-whether Borens was one of the three robbers. The issue of his mental state was not at all a focus of the trial or the closing arguments. This case is similar to the Ash case, in which the defendant complained of a similar jury-charge error. Id. at 194-95. We held that the error was not egregious, in part because the only two issues that were seriously contested at trial had nothing to do with the defendant's mental state. Id. at 195 (noting that the only two serious issues were identification testimony and the severity of complainant's injuries). As in Ash, nothing in this record suggests that the jury was so confused by the complained-of instruction that Borens was denied a fair and impartial trial. We overrule Borens's third point of error on appeal.