Opinion
No. 05-16-00289-CR
03-09-2017
RONNIECE LASHAE GRIFFIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1476823-I
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Francis
Ronniece Lashae Griffin appeals her conviction by a jury for aggravated robbery. In three issues she contends the evidence is insufficient to support the verdict, and the trial court erred in instructing the jury on the law of parties and excusing certain venire members. We affirm the trial court's judgment.
Mabeli Mendez was the assistant manager of Central City Apartments and lived onsite. She leased an apartment to appellant and, over the four or five months appellant lived at the complex, Mendez became familiar with appellant due to her continued difficulty paying the rent. By October 2014, appellant was two months behind in rent payments and was locked out of her apartment by the management.
On the evening of October 12, 2014, Mendez left the leasing office between 5:30 and 6:00 p.m. and drove to another location to cash her paycheck. Mendez returned to the office a short time later. As Mendez approached the office, she saw appellant and a man she did not know walking quickly toward her. As they drew closer, Mendez saw appellant's eyes widen and her behavior seemed nervous. Appellant stepped behind the man and grabbed his shirt. At the time, Mendez thought appellant recognized her and was afraid Mendez would ask her for the rent money.
When they reached Mendez, the man pulled out a gun and demanded Mendez hand over her purse. Mendez replied "What?" Appellant then stepped forward, said "Give me your purse, bitch," and grabbed it from her. Appellant and the man then fled.
Mendez immediately called her manager who lived nearby, and together they contacted the police. Two officers arrived at the scene. Officer Guillermo Corona questioned Mendez and later typed up a report based on their conversation. The report specified Mendez was positive the woman involved in the robbery was appellant. The report also identified the unknown man as the one who demanded the purse from Mendez and then took it from her.
Several days later, appellant came back to the leasing office to pay her rent. After speaking with appellant, Mendez went to get her manager. The manager dealt with appellant while Mendez called the police. Officer Roberto Blanco responded to the call and spoke with Mendez. Mendez told Blanco she was certain appellant was one of the people involved in the robbery. She also told Blanco appellant was the one who pulled her purse away while the man pointed a gun at her. Blanco ultimately arrested appellant for outstanding warrants. Appellant denied committing the offense.
At trial, Mendez testified she had no doubt appellant was the woman involved in robbing her that night. She further stated she was sure appellant both demanded and grabbed her purse. After hearing the evidence, the jury convicted appellant of aggravated robbery and sentenced her to five years in prison.
In her first issue, appellant contends the evidence is legally insufficient to support her conviction because no rational jury could have found her guilty as a party to the offense. She contends Mendez's testimony that appellant "tried to stop [the man] and she stepped behind him," "grabbed his shirt" and "tried to hide" when she saw it was Mendez they were about to rob shows she did not have the requisite intent to rob Mendez.
Appellant was convicted of aggravated robbery which requires that, in addition to committing the offense of robbery, the defendant must have used or exhibited a deadly weapon. TEX. PENAL CODE ANN. § 29.03 (West 2011). Neither party disputes a deadly weapon was used or exhibited by the unidentified man who accompanied appellant. Under section 7.02 of the Texas Penal Code, a person may be convicted as a party to the offense 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).
When reviewing a challenge to the legal sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not resolve conflicts of fact, weigh evidence, or evaluate the credibility of the witnesses as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The factfinder may choose to disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Intent can be determined from the words, acts and conduct of the accused. See Banks v. State, 471 S.W.2d 811, 812 (Tex. Crim. App. 1971).
Appellant argues the evidence showed she tried to stop appellant from committing the robbery immediately before the offense occurred. Therefore, "whatever her intent had been earlier," she asserts the evidence proves her intent changed and she did not aid or attempt to aid in the robbery but, in fact, tried to prevent it from happening.
Although Mendez testified she observed appellant step behind the man and tug on his shirt, she also told the jury that after the man demanded the purse, appellant stepped forward, said, "Give me your purse, bitch," and grabbed the purse from her. Appellant argues Mendez is an unreliable witness because her testimony about appellant's actions conflicted with the police report made by officer Corona on the night of the offense. When questioned about the report, Mendez stated she told Corona appellant was the one who took her purse. Furthermore, Corona admitted at trial that it was possible his report contained some errors because he wrote after the interview and based on memory. When speaking with other officers several days after the offense, Mendez failed to mention appellant made a verbal demand for the purse, but she specified it was appellant who grabbed the purse from her. Ultimately, it was up to the fact finder to assess the credibility of the witnesses and resolve any conflicts in their testimony. See Clayton v. State, 235 S.W.3d 772, 779 (Tex. Crim. App. 2007). The jury was free to accept Mendez's version of the events and reject appellant's defensive theories. Id. We conclude the evidence is legally sufficient to show appellant acted with the intent to promote or assist in the commission of the offense by aiding the man with the gun in the robbery. We resolve appellant's first issue against her.
In her second issue, appellant contends the trial court erred in refusing to limit the instruction in the jury charge addressing party responsibility to only those modes of conduct raised by the evidence. The instruction presented to the jury stated:
All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or both.
A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one as a party to an offense.
During the charge conference, appellant's counsel requested that "the litany of the way [sic] someone can be a party be limited to the facts of the case as they've come out during the course of the trial." Counsel went on to say, "The evidence does not support a solicitation, there is no evidence that anybody solicited anybody to do anything prior to it or during it. Encourages is there. We believe that's correct. Directs, aids or attempts to aid, the evidence all shows that. So we just specifically request that solicits be removed from the definitional portion of the charge." The trial court denied appellant's request to limit the charge and appellant contends this was harmful error.
A defendant, upon request, is entitled to a narrowing in the jury charge of the specific statutory modes of conduct that constitute party liability. See Vasquez v. State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012). The refusal to narrow the specific modes of party-liability conduct when properly requested is reversible error if the defendant has suffered actual harm to her rights. Id. In this case, the State concedes there is no evidence to show appellant solicited the man with the gun to commit the offense. Accordingly it was error to include "solicits" in the charge.
Appellant contends she was harmed by the erroneous instruction because it expanded the scope of her potential liability and the only evidence she aided or attempted to aid the man with the gun was weak. We disagree with appellant's characterization of the evidence. Mendez was clear and consistent in her testimony at trial stating she recognized appellant on the evening of the offense and appellant aided in the robbery by demanding and grabbing Mendez's purse. Although Mendez testified appellant hesitated briefly after recognizing her, and appeared to try to stop the man, she also testified appellant quickly returned to the original objective and participated in the robbery. In its closing argument, the State discussed how appellant aided the man in committing the offense and reiterated Mendez's testimony about appellant's actions. Although the charge outlined several ways a defendant may act as a party to an offense, the State never raised the possibility of appellant being guilty though solicitation and focused solely on her conduct of aiding or attempting to aid the man with the gun. The jury charge instructed the jury that its decision must be based only on the evidence presented. After a careful review of the record, we conclude there was clear and direct evidence that appellant aided or attempted to aid in the robbery, the jury would not have been misled by the court's charge, and appellant suffered no actual harm as result of the trial court's failure to limit the modes of party responsibility. See Vasquez, 389 S.W.3d at 372.
We note that on appeal appellant does not limit her complaint to the trial court's refusal to remove "solicits" from the charge. She argues the trial court should have eliminated all modes of party responsibility other than "aid or attempts to aid." This complaint differs from the objection made at trial in which appellant's counsel only requested that "solicits" be removed from the instruction on party liability. Error in the jury charge to which the defendant does not object requires a showing of egregious harm for reversal. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Assuming without deciding it was error for the trial court not to exclude "encourages" and "directs" from the instruction on party liability, for the same reasons we have concluded the trial court's failure to remove "solicits" from the instruction on party liability was harmless, we further conclude its refusal to remove "encourages" and "directs" did not cause appellant egregious harm. We resolve appellant's second issue against her.
In her final issue, appellant contends the trial court erred in excusing sua sponte venire members who stated they could not convict based on the testimony of a single witness. Appellant contends this was an improper basis to excuse potential jurors and she was harmed because the State was effectively given a disproportionate number of peremptory challenges. The State contends appellant has waived any complaints about the conduct of the voir dire because, although she objected to the sua sponte dismissal of the venire members, she did not object to the panel that was ultimately sworn in. The failure to object to the panel at the conclusion of jury selection does not waive a previously preserved claim of error in the voir dire proceedings absent clear indication in the record that the attorney intended to abandon the complaint. See Stairhime v. State, 463 S.W.3d 902, 906-08 (Tex. Crim. App. 2015). No such indication appears in the record before us.
Even assuming the trial court erred in its sua sponte dismissal of certain jurors, however, this error is not constitutional in nature. See Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). Accordingly, we must disregard it unless it affected appellant's substantial rights. Id. at 391-92. The erroneous excusing of a venire member requires reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury. Id. at 394. Appellant has neither alleged nor pointed to any evidence in the record demonstrating the trial court's sua sponte dismissal of certain venire members deprived her of a fair and impartial jury comprised of qualified individuals. See Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999); Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007). She does not argue she had to accept a juror that was objectionable to her. See Ladd, 3 S.W.3d at 562. Reversal, therefore, is not required. We resolve appellant's third issue against her.
We affirm the trial court's judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.1 160289F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1476823-I.
Opinion delivered by Justice Francis. Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 9, 2017.