Opinion
NO. 01-17-00589-CR
07-10-2018
JASON JERREL HEATH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1393039
MEMORANDUM OPINION
Jason Jerrel Heath was convicted of aggravated robbery under the law of parties. See TEX. PENAL CODE §§ 7.02(a)(2), 29.03(a). In two issues, Heath contends that the trial court abused its discretion in denying his motion for directed verdict and that there is insufficient evidence to support his conviction. After viewing the evidence in the light most favorable to the verdict, we hold that a rational factfinder could have found beyond a reasonable doubt that Heath, acting with intent to promote or assist the commission of the offense, aided or attempted to aid another person to commit the offense by acting as both a lookout and getaway driver. Therefore, we affirm.
Background
One summer afternoon, barber Gary Rusher was cutting a client's hair at Ultimate Barber, a barbershop located in a north Houston shopping center. The shopping center also included a convenience store and Mr. G's Pizza, a pizza parlor owned and operated by Assaf Ghanem.
As Rusher cut his client's hair, he saw Jason Heath and Jimmy Long, whom he knew as "Red," walk past the barbershop toward the convenience store. Shortly thereafter, he saw Long walk in the opposite direction toward Mr. G's.
After Rusher finished cutting his client's hair, the two stepped outside and saw Heath by himself in front of the convenience store. Rusher watched as Heath opened the door to the convenience store, peeked inside, closed the door, and began walking toward Ultimate Barber and Mr. G's. Heath walked by Rusher and his client and, without saying a word, opened the door to the barbershop, peeked inside, closed the door, and then walked into Mr. G's.
Rusher testified that Heath appeared to be "scoping the area." According to Rusher, it looked like Heath was "holding jiggers," which he explained is slang for "keeping watch" or "being on the lookout." Rusher could tell that Heath was "up to something" from the "way he was looking" and "the way he was walking." "His demeanor wasn't right." "You could tell that he wasn't there for business."
Meanwhile, Ghanem was working at Mr. G's when Long walked in and asked to buy a pizza. But before Ghanem could take his order, Long pulled out a gun, put it to Ghanem's head, and told him to open the cash register. Ghanem testified that, around five seconds later, Heath walked in and silently watched as Long robbed him at gunpoint. Long then told Ghanem to stay where he was, and he and Heath ran out of the restaurant.
Rusher, still outside with his client, saw Heath and Long run out of Mr. G's, get in a car, and drive off. Ten or fifteen seconds later, Ghanem ran outside and told Rusher that he had just been robbed.
Rusher called 911, and Houston Police Department officers arrived at the scene quickly. Rusher and his client gave statements to the officers and then drove to a nearby gas station, where Rusher saw Heath and a woman in the same car Heath and Long had used to flee Mr. G's.
Rusher called one of the officers with whom he had just spoken and informed him that Heath was at the gas station. HPD officers arrived and arrested Heath. Rusher identified Heath as one of the men involved in the robbery. The officers then drove Heath to the shopping center, where Ghanem identified him as one of the men who had robbed him.
The next day, Heath was interviewed by HPD Sergeant D. Harford. At first, Heath claimed that he had walked into Mr. G's to get something to eat, saw that Ghanem was being robbed, and walked back out. Sgt. Harford then suggested that Heath was lying, and Heath admitted that he knew the gunman. Heath explained that the gunman's name was "Johnny" (not Jimmy) but that he went by the nickname "Red."
Heath then admitted that he had been with Johnny before the robbery. According to Heath, Johnny had said that he wanted to get some pizza, so Heath drove Johnny to the shopping center and waited in the car while Johnny went inside Mr. G's. But after a few minutes had passed, and Johnny had not come back with a pizza, Heath got out of the car to see what was going on. Heath claimed he did not see anyone inside Mr. G's, so he walked to the convenience store and barbershop to look for Johnny. A man standing outside the barbershop told Heath that Johnny had in fact gone inside Mr. G's, so Heath walked back, entered the restaurant, and realized that Johnny had just robbed Ghanem. Heath explained that he and Johnny then left the restaurant, got into his car, and drove off. Heath then dropped Johnny off at his house, picked up his girlfriend, and drove to the gas station, where he was arrested.
Throughout the interview, Heath maintained that he did not know that Johnny was going to rob Ghanem. But he admitted that he realized Johnny had robbed Ghanem when he walked inside the restaurant and that he "drove the getaway car."
Heath was indicted and tried for aggravated robbery. The jury found Heath guilty as charged, and the trial court sentenced him to 25 years' confinement. Heath appeals.
Sufficiency of Evidence
In two issues, Heath contends that the trial court abused its discretion in denying his motion for directed verdict and that the evidence is legally insufficient to support his conviction. Because we review a denial of a motion for directed verdict as a legal sufficiency challenge, Lewis v. State, 193 S.W.3d 137, 139-40 (Tex. App.—Houston [1st Dist.] 2006, no pet.), we consider both issues together.
A. Standard of review and applicable law
We review legal sufficiency challenges under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). Under this standard, we review "the evidence in the light most favorable to the verdict and ask whether any rational fact-finder could have found the elements of the charged offense beyond a reasonable doubt." Id. at 837-38. "If a rational fact-finder could have so found, we will not disturb the verdict on appeal." Id. at 838.
Under the Penal Code, a person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PENAL CODE § 29.02(a). Among multiple ways of committing the offense, a person commits aggravated robbery if he commits robbery and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon. Id. § 29.03(a)(1)-(2).
Under the Penal Code's law of parties, 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). And 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).
"To establish guilt under the law of parties, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose." Barrientos v. State, 539 S.W.3d 482, 490 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd)). In determining whether the evidence is sufficient, we "may look to 'events before, during, and after the commission of the offense.'" Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 555 S.W.2d 465, 468-69 (Tex. Crim. App. 1977)). We "may also rely on circumstantial evidence to prove party status." Gross, 380 S.W.3d at 186. "Each fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the facts are sufficient to support the conviction under the law of parties." Id.
"While an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct or circumstantial evidence, an understanding and common design to do a certain act." Rodriguez v. State, 521 S.W.3d 822, 828 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.—Austin 2001, pet. ref'd)).
"Evidence is sufficient to convict under the law of parties 'when the defendant is physically present at the commission of the offense and encourages its commission by acts, words, or other agreement.'" Barrientos, 539 S.W.3d at 490 (quoting Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref'd)). "However, mere presence of a person at the scene of a crime, or even flight from the scene, without more, is insufficient to support a conviction as a party to the offense." Gross, 380 S.W.3d at 186. "Courts have repeatedly upheld convictions under the law of parties when the evidence establishes that the defendant participated in the commission of the offense by driving the getaway vehicle." Barrientos, 539 S.W.3d at 490.
B. Evidence sufficient to show Heath acted as lookout and getaway driver
To convict Heath of aggravated robbery, the State was required to present evidence proving beyond a reasonable doubt that Heath, acting with intent to promote or assist the commission of the offense, aided or attempted to aid Long to commit the aggravated robbery of Ghanem. See TEX. PENAL CODE § 7.02(a)(2).
At trial, the State presented several witnesses, including Rusher, Ghanem, and Harford. The State also presented Harford's interview of Heath, in which Heath confessed to driving Long to Mr. G's, observing the robbery, and driving the getaway car. Viewed in the light most favorable to the verdict, see Fernandez, 479 S.W.3d at 837-38, the evidence shows that Heath drove Long to the shopping center to rob Mr. G's; acted as a lookout by surveying the occupants of the convenience store and barbershop; entered the restaurant and watched Long rob Ghanem at gunpoint; ran out of the restaurant with Long; drove Long away in the getaway car; and, when he was interviewed by Harford, initially lied about his involvement, provided a false name for Long ("Johnny"), and then admitted to some (but not all) of what he had done.
Heath argues that the evidence is insufficient because (1) Rusher's and Ghanem's accounts of the event were conflicting and (2) the statements he made to Harford during his interview "provide a credible alternative explanation for his opening the doors of the other shops." We disagree.
It was in the province of the jury to reconcile any conflicts in the witnesses' testimony and to believe some, all, or none of the statements made by Heath during his interview. Moore v. State, 935 S.W.2d 124, 126 (Tex. Crim. App. 1996). The verdict is consistent with the jury accepting the State's theory that Heath knowingly acted as both the lookout and the getaway driver during the course of the robbery and rejecting Heath's statement that he did not know about the robbery until he entered the restaurant. See Barrientos, 539 S.W.3d at 491-92 (holding that it was within province of jury to consider appellant's "innocent explanation" for his presence at crime scene in light of other evidence and "to discard appellant's explanation as lacking in credibility").
We hold that there is legally and factually sufficient evidence—both direct and circumstantial—to support Heath's conviction under the law of parties. See Delacruz v. State, No. 02-13-00048-CR, 2014 WL 1389543, at *6 (Tex. App.—Fort Worth Apr. 10, 2014, pet. ref'd) (per curiam) (mem. op., not designated for publication) (holding that evidence, viewed in light most favorable to verdict, was sufficient to support conviction when it showed that defendant acted as party to theft, "first as a lookout and then as the getaway driver"). Therefore, we overrule Heath's first and second issues.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown. Do not publish. TEX. R. APP. P. 47.2(b).