Opinion
NO. 09-11-00637-CR
09-12-2012
KENNETH LENARD ADAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 10-07-07006 CR
MEMORANDUM OPINION
A jury convicted appellant Kenneth Lenard Adams of aggravated kidnapping and robbery, and the jury assessed punishment at thirty years of confinement for the aggravated kidnapping and twenty years of confinement for the robbery. In four appellate issues, Adams challenges the sufficiency of the evidence supporting his convictions. We affirm the trial court's judgments.
The victim, J.W., testified that he drives a truck for McLane Grocery ("McLane"), a company that distributes products to convenience stores, Wal-Mart stores, and Sam's Club stores. J.W. explained that on April 6, 2010, his route included deliveries to Sam's stores in Conroe and Houston during the night while the stores were closed. As J.W. pulled into the Sam's store in Conroe, he noticed a yellow moving truck nearby. J.W. pulled close to the truck and noticed that no one was in the driver's seat, so he proceeded to back up to make his delivery. J.W. climbed out of the truck, looked around, and began to open the back door of his delivery truck. Before J.W. opened the door halfway, someone tackled him "pretty hard" from behind, and J.W. fell to the ground. The person told J.W. to be still and duct taped J.W.'s hands behind his back.
A dark extended-cab pickup truck approached, and J.W. was shoved into the back seat of the truck. When being put into the truck, J.W. scratched his elbow and injured his head. J.W. felt the truck begin to move. J.W. testified that the other individuals in the truck were wearing dark bluish jumpsuits, ski masks, and gloves. J.W. could see that the individuals had black skin, he could feel two people behind him, and he knew a third person was driving. J.W. heard the driver speaking on a walkie-talkie, and when J.W. moved, the driver threatened to hurt him. Eventually, the individuals stopped the truck at another location, threw J.W. from the truck, patted him down, and took his wallet.
After J.W. heard the truck drive away, he tried to look around and ascertain his location. J.W. began walking toward a Wal-Mart store. When J.W. reached the security guard at Wal-Mart, the security guard summoned the authorities and helped J.W. remove the duct tape. The police arrived, and J.W. took them to the location of his delivery truck. Upon arriving at the scene, J.W. saw the truck open, the driver's door open, and his belongings lying on the ground. J.W. explained that he spoke to some of the police officers while the investigation was ongoing, and he provided a written statement that evening.
J.W. notified McLane that he had been robbed. J.W. explained that McLane had placed a GPS tracking device on some of the boxes of cigarettes that were in the truck and that some of the those boxes had been stolen. McLane's senior manager for risk and safety loss prevention, Larry Parks, testified that he was notified that a truck at the Sam's in Conroe had been robbed. Parks explained that upon receiving notice of the robbery, he went to McLane's Carrollton office and began to track the tracking device via computer. Parks successfully located the tracking device and informed the authorities of the address where the device was located. Officer Jason Roper of the Conroe Police Department was dispatched to the scene. Roper spoke with J.W., obtained a general description of what had transpired, including descriptions of the suspects and the vehicle, and relayed the information to other officers and dispatch.
Officer Todd Janke of the Houston Police Department testified that he was dispatched to a scene on Touchstone Street in Houston at approximately 4:15 a.m. When Janke arrived, two or three marked police cars were at the scene. Janke learned that a truckload of cigarettes from Conroe had been high-jacked and the driver had been kidnapped, and the tracking device led the authorities to the address on Touchstone. Janke learned that approximately four suspects were involved. Upon arriving at the address, Janke ensured that a perimeter had been established.
The officers present, including the Conroe police, decided to determine where the cigarettes were located at the address. The authorities surrounded the house, knocked on the door, and announced themselves, but they received no response. Janke observed that a stolen Penske truck was located on the property. According to Janke, Adams had been detained in a vehicle after an officer saw him coming from the Touchstone house approximately twenty minutes after the first officer had arrived on the scene. Janke testified that Adams was wearing dark blue coveralls. Janke testified that nothing belonging to Adams was found at the house or in the vehicles found outside the house.
Janke was approached by an individual who informed him that her son, who was currently out of town, was renting the subject residence on Touchstone. Janke decided to send one of his team to obtain a search warrant. After obtaining a warrant, officers searched the house and recovered twenty-seven cases of cigarettes, as well as the GPS tracking device, and duct tape. A search of the pickup truck on the property led to the recovery of two black ski masks from an overnight bag. No DNA from the masks could be matched to Adams.
J.W. testified that the police asked him to listen to a lineup to try to "recognize a guy's voice." Detective Darrell Smith of the Houston Police Department prepared the lineup, with assistance from two sergeants from the robbery division. Preparations included selecting participants from the jail population who were closest to Adams in age, height, weight, skin color, and hair color. Smith placed Adams in the lineup and asked each individual in the lineup to say the same phrase.
Detective James Waller of the Conroe Police Department showed the video lineup to J.W., and Waller testified that the voices on the videotape were audible. After J.W. listened to all the voices, he went back and listened again to the voice he identified. Waller explained that during both viewings, J.W. reacted to the second voice on the videotape and identified that voice as belonging to one of the perpetrators. J.W. testified that the officer who showed him the lineup did not tell him anything about the people who were in the lineup or who he should or should not identify. According to J.W., the individual whose voice he identified from the lineup was the driver of the pickup truck. J.W. described the individual's voice as "[k]ind of forceful," and he stated that during the offenses, the driver instructed him several times to be still.
The "Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury's responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. The jury is the ultimate authority on the credibility of witnesses and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
A person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to facilitate the commission of a felony or the flight after the commission of the felony. Tex. Penal Code Ann. § 20.04(a)(3) (West 2011). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. Id. § 29.02(a)(1). "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a) (West 2011). "Each party to an offense may be charged with commission of the offense." Id. § 7.01(b). "A person is criminally responsible for an offense committed by the conduct of 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). Evidence is sufficient to convict a defendant under the law of parties when he is physically present at the commission of the offense and encourages the commission of the offense either by words or by other agreement. Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim. App. 2005). Although the mere presence of the accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). "Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence." Id. at 684. In the jury charges for both the aggravated kidnapping and the robbery, the trial court instructed the jury concerning the law of parties.
Here, the jury heard evidence that when J.W. began to open the back door of his delivery truck, someone tackled him, duct taped his hands behind his back, shoved him into the back seat of a truck, and drove him away from the scene. J.W. testified that he could see that the perpetrators were wearing dark bluish jumpsuits, ski masks, and gloves. The jury also heard evidence that J.W. sustained injuries when the perpetrators forced him into the pickup truck. The jury further heard evidence that J.W. heard the driver speaking on a walkie-talkie, and that the driver threatened to hurt J.W. when J.W. moved. The jury heard evidence that McLane located the tracking device from the stolen cigarettes at a residence in Houston, and authorities recovered twenty-seven cases of cigarettes, duct tape, and the GPS tracking device from the residence. The authorities also found a stolen Penske truck at the residence and recovered black ski masks from a bag inside the pickup truck located at the residence. In addition, the jury heard evidence that Adams was detained after an officer saw him coming from the Touchstone house, and Adams was wearing dark blue coveralls when he was detained. Finally, the jury heard evidence that upon being asked to listen to a lineup, J.W. identified Adams's voice as that of the driver.
Viewing the evidence in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Adams was guilty of aggravated kidnapping and robbery. See Tex. Penal Code Ann. §§ 7.01(a), (b), 7.02(a)(2), 20.04(a)(3), 29.02(a)(1); Salinas, 163 S.W.3d at 739; Beardsley, 738 S.W.2d at 684-85. Accordingly, we overrule Adams's four issues and affirm the trial court's judgments.
AFFIRMED.
________
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.