Nos. 14-08-00038-CR, 14-08-00039-CR.
Memorandum Opinion filed October 21, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause Nos. 1034656, 1034657.
Panel consists of Justices YATES, SEYMORE and BOYCE.
WILLIAM J. BOYCE, Justice.
Appellant, Charlie Louis Bradley, challenges his conviction for aggravated kidnapping and aggravated robbery. The trial court assessed punishment at confinement for 75 years. Appellant contends that (1) the evidence was legally insufficient to support the findings that (i) a deadly weapon was used in the kidnapping and robbery of complainant, and (ii) appellant was a party to those offenses; and (2) the trial court erred in overruling appellant's relevancy objections to certain evidence. We affirm.
Background
About 9:00 a.m. on July 9, 2005, complainant drove his truck and an attached trailer toward the rear delivery area of a Walgreen's pharmacy. Both the trailer and the truck bed were filled with prescription drugs to be delivered to multiple Walgreen's pharmacies. When complainant attempted to exit his vehicle, two African-American males wearing masks rushed up and pointed handguns at him. The assailants forced complainant back into the truck, blindfolded him, pushed him down onto the passenger-side floorboard, and covered him with his windshield sun-shade. The two assailants then got into complainant's truck; one drove while the other sat in the passenger seat and kept his feet on top of complainant. Over the next two hours, complainant was driven to multiple locations and heard multiple voices in and around the truck. Complainant testified at trial that he did not recognize any of the voices and did not know if the same men who approached him initially were with him in the truck at any given time after the first stop. Sergeant Robert Minchew of the Harris County Sheriff's Department testified at trial that complainant told him on the day of the robbery that the same voices that ordered him into the truck were audible to him throughout the entire ordeal. The assailants drove complainant to two locations for a total of approximately 20-40 minutes. At the second location, the assailants unhooked complainant's trailer and one man returned to the truck. Complainant thereafter was handcuffed and driven to a third location after about 30-45 minutes. The prescription drugs complainant intended to deliver were unloaded from the truck bed. One man then drove the truck, with complainant still blindfolded and handcuffed, for about 20-30 minutes before stopping at another location. Another man got in the passenger seat of the truck and the two drove around with complainant for another 20-30 minutes before reattaching the now-empty trailer to complainant's truck. One of the men then threatened to kill complainant if he moved during the following five minutes; he also threatened to kill complainant and his family if complainant identified his assailants to police. At that point, the men released complainant from his handcuffs. After waiting five minutes, complainant got up and looked at his watch; it was 11:15 a.m. Complainant found himself at a construction site; his cell phone and money had been taken, along with the prescription drugs from his trailer. Investigators found one complete fingerprint and two partial fingerprints belonging to appellant on complainant's trailer, along with two full fingerprints belonging to Devrick Hubbard. Appellant's fingerprints were found on the right inside door at the back of the trailer. Complainant testified at trial that he had washed his trailer about two weeks before the kidnapping and robbery in preparation to sell the trailer. Complainant did not know appellant or Hubbard, and testified at trial that neither of them would have had any reason for being around or inside his trailer. Sergeant Minchew obtained arrest warrants for Hubbard and appellant and set out to execute both warrants on July 19, 2005. During execution of the warrant on Hubbard, police found two guns, ammunition, more than 20 heavy-duty garbage bags filled with prescription medicine packages, and a framed 8" x 10" photo of Hubbard and appellant displayed in Hubbard's home. The drugs recovered from Hubbard's home were later identified as the same ones stolen from complainant's truck. Analysis
I. Legal Sufficiency of Evidence Supporting Findings That a Deadly Weapon Was Used During the Kidnapping and Robbery of Complainant, and That Appellant Was a Party to Those Offenses
Appellant challenges the legal sufficiency of the evidence supporting the trial court's finding that a deadly weapon was used during the kidnapping and robbery of complainant. Appellant argues that the evidence was legally insufficient to support a finding that appellant used or exhibited a deadly weapon during commission of the offense. This argument misconstrues the governing legal standard. The State pursued charges against appellant as a party to the offense. The trial court instructed the jury on the legal theory of parties and criminal responsibility. Under this theory, the State had to prove beyond a reasonable doubt that appellant was a party to an offense in which a deadly weapon was used; the State was not required to prove that appellant himself used a deadly weapon. See Sarmiento v. State, 93 S.W.3d 566, 569 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (en banc). The real issue here is whether legally sufficient evidence supports findings that (1) a deadly weapon was used in the commission of the offenses charged; and (2) appellant was a party to those offenses. In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). The appellate court's duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume — even if not obvious from the record — that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U.S. at 326. Under Texas law, a deadly weapon is defined as "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. _ 1.07(a)(17) (Vernon Supp. 2008). Testimony by a lay witness that a defendant used a firearm during the commission of an offense is sufficient to support a finding of use and exhibition of a deadly weapon. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985) (en banc); see also Porter v. State, 601 S.W.2d 721, 723 (Tex.Crim.App. 1980). Evidence that a defendant personally used or exhibited a deadly weapon is not required for conviction when the defendant is prosecuted as a party. Sarmiento, 93 S.W.3d at 569. A person is criminally responsible as a party to an offense if it is committed by his own conduct, that of another for which he is criminally responsible, or both. Tex. Penal Code Ann. _ 7.01(a) (Vernon 2003). "Each party to an offense may be charged with commission of the offense." Id. _ 7.01(b) (Vernon 2003). A person is criminally responsible for an 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." Id. _ 7.02(a)(2) (Vernon 2003). Complainant testified that two African-American males abducted him as he was working; that each had a gun; that the men pointed their guns at him and forced him into his truck; and that one of his assailants threatened to "blow [his] head off" and kill his family. Sergeant Minchew's testimony at trial corroborated that of complainant. Sergeant Minchew stated that complainant was "vague on any particulars [about the men's descriptions] other than their weapon[s]." A rational fact finder viewing this evidence in the light most favorable to the State could have found beyond a reasonable doubt that a deadly weapon was used in the kidnapping and robbery of complainant. The analysis next focuses on whether appellant was a party to the offenses at issue. Appellant's fingerprints were found on the inside rear door of complainant's trailer. Complainant did not know appellant and testified that appellant had no reason to be in the trailer. Appellant was pictured with Hubbard in a photo prominently displayed in Hubbard's home. Hubbard's wife and appellant's wife both testified at trial that Hubbard and appellant were friends. Two guns, ammunition, and more than 20 garbage bags full of prescription drugs stolen from complainant's intended delivery were found in Hubbard's home at the time of his arrest on July 19, 2005. The evidence was indicative of a large-scale, thoroughly planned operation requiring multiple participants to execute. A rational fact finder viewing this evidence in the light most favorable to the State could have found beyond a reasonable doubt that appellant was a criminally responsible party to the kidnapping and robbery of complainant. We overrule appellant's issue regarding legal sufficiency of the evidence to support the finding that a deadly weapon was used in the commission of the offenses charged, and the finding that appellant was a party to those offenses. II. Appellant's Objections to Relevancy of Evidence
Appellant challenges the trial court's decision to admit certain exhibits into evidence over appellant's relevance objections. See Tex. R. Evid. 401. The evidence appellant argues was erroneously admitted consists of (1) a search warrant for Devrick Hubbard's residence; (2) photographs of the exterior of Hubbard's residence, and of two cars found in the garage during the police search of the residence; (3) photographs of a gun and of more than 20 trash bags full of prescription drug containers found in Hubbard's residence; (4) handwritten pages from a day planner containing names of drugs, numbers of drug bottles, initials, and monetary amounts; (5) a pistol, a revolver, and ammunition found in Hubbard's home; and (6) a framed photograph of appellant and Hubbard found in Hubbard's living room. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). An error in admitting evidence is not reversible if the evidence was admitted elsewhere without objection. Mitchell v. State, 68 S.W.3d 640, 643 (Tex.Crim.App. 2002) (en banc). A complaining party must object each time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984) (en banc). Any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. Id. There is no error in admitting a photograph where testimony about the photo is admitted without objection. Brown v. State, 696 S.W.2d 913, 914 (Tex.Crim.App. 1985) (en banc). The record reflects that all of the relevance objections in question pertained to a search warrant for Hubbard's home; to photographs of Hubbard's home and of evidence from the home, including photographs of the more than 20 garbage bags of prescription drugs; and to guns, ammunition, writings, and a framed photograph of appellant and Hubbard taken from the home. Sergeant Minchew testified without objection about each of these exhibits before their offers for admission. Sergeant Minchew answered questions about the contents and authenticity of the search warrant; the contents of and accuracy of the photographs of evidence; the contents of the writings and the reasons for their collection as evidence; the identity, discovery, and chain of custody of the guns and ammunition; and the contents and location of the framed photograph of appellant and Hubbard. Appellant made no objection to Sergeant Minchew's testimony; his only objections were to the admission of the exhibits themselves. Under these circumstances, appellant waived any objection to these exhibits by allowing Sergeant Minchew to testify to their substance without objection. See Tex. R. App. P. 33.1; Mitchell, 68 S.W.3d at 643-44; Brown, 696 S.W.2d at 914. We overrule appellant's issue pertaining to relevancy objections. The trial court's judgment is affirmed.