No. 05-06-01237-CR
Opinion issued February 7, 2008.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F05-57889-QI.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
DAVID L. BRIDGES, Justice.
A jury convicted Eric Eugene Johnson of capital murder, and the trial court assessed a mandatory life sentence. In two issues, appellant contends the evidence is legally and factually insufficient to prove he intended to kill Feroz Lalani, the complainant, either acting alone or as a party to the killing. We affirm the trial court's judgment.
Background
On September 30, 2005, appellant and three accomplices robbed a Shell station store in Pleasant Grove, during which Feroz Lalani, the cashier, was shot and killed. Two of the accomplices, Christopher Durden and Gregory Lewis, testified at trial. The third accomplice, a boy known only as "D.D." was never apprehended. Both Durden and Lewis testified they were juveniles at the time of the offense, were certified to stand trial as adults, were also indicted for capital murder of Lalani, and were awaiting their trials. Durden, who was sixteen years old at trial, testified that on September 29, 2005, he rode around the town smoking marijuana and drinking codeine syrup with appellant, Lewis, and D.D. D.D. was the only person in the car who did not smoke marijuana or drink syrup that day. Durden testified that while they rode around, appellant had a gun. Durden had seen appellant with the gun a few days before. At about 3:00 a.m. on September 30, 2005, appellant saw someone come out of a Shell station store. Appellant said, "[T]he store's open. Do you want to go hit it?" Durden replied, "[I]t don't matter. We can do it." Durden testified everyone in the car knew appellant was asking if they wanted to rob the store. Appellant told Lewis to make a U-turn and go to the store. Durden testified he and appellant planned the robbery and what each participant was supposed to do. Lewis was to go inside the store, buy something, and look in the register when the cashier opened it to see if money was there. Appellant, Durden, and D.D. were to go in the store. Durden would take items to the counter. When the cashier opened the register, appellant would pull out the gun and Durden would go behind the counter and get the money. Lewis was to pull the car to an alley on the side of the store and keep the motor running. Durden testified Lewis went inside the store, purchased a drink, then returned to the car and said there was "a lot of money" inside. Durden testified he changed from his brown shirt to a white T-shirt before going inside the store so his shirt would not be on the store cameras. Appellant, Durden, and D.D. went inside the store and walked around, waiting for a lone customer to leave. Durden placed several items on the counter and gave the cashier money. When the cashier opened the register, appellant pulled out the gun and pointed it at the cashier. Durden went around the counter next to the register. Both appellant and Durden said, "[G]ive us the money." The cashier closed the register, put his hands in the air, then refused to open the register again. Appellant shot the cashier, then ran out of the store. D.D. followed behind appellant. Durden ran from behind the counter and out of the store. Durden testified appellant still had the gun as they ran to the car, which was parked in the alley. After they got in the car, Lewis asked what happened. Appellant said, "I shot him." When Lewis asked where, appellant said, "[I]n the chest." Durden testified Lewis sped from the scene, then drove D.D. home. While in the driveway at D.D.'s house, Durden took off the white shirt and put on the brown shirt, and appellant put the gun in the trunk of the car. D.D. went inside his house, then Lewis, appellant, and Durden got back in the car and drove around looking for a pay telephone to call their mothers. Lewis stopped at a pay telephone at a different gas station. Police officers arrived and arrested them. The officers found the gun, a nine-millimeter Stallard Arms semiautomatic pistol with a loaded magazine, in the trunk of the car. Officers transported Durden and Lewis to a juvenile facility. Appellant testified on his own behalf. Appellant admitted he intended to rob the store, but denied he shot Lalani during the robbery. Appellant testified D.D. had the gun when they went inside the store, and D.D. shot Lalani. Appellant admitted he, Durden, and Lewis were smoking marijuana and drinking codeine syrup before the offense, but not D.D. Appellant initially testified no one person brought up the idea of robbing the store. Everyone in the car "mentioned it and agreed to do it." However, appellant later testified D.D. was the person who asked everyone in the car if they wanted to rob the store. Appellant testified he, not Durden, (1) changed his clothing from a red T-shirt to a white T-shirt before going in the store, (2) was the person who went to the counter, and (3) was the person who gave Lalani money. When Lalani opened the register, Durden tried to put his hand in and take the money but Lalani closed it on Durden's hand. D.D. pulled out the gun and pointed it at Lalani. Appellant testified he, not Durden, ran behind the counter to the register. While appellant was moving towards the register, he heard the gun go off. Appellant immediately ran out the door, with Durden and D.D. close behind him. Appellant testified that when he got into the car, Lewis asked him what happened. Appellant told Lewis, "I knew we shouldn't have let him use the gun inside the store." Lewis drove behind a nearby school where appellant told D.D. to give him the gun. Appellant put the gun in the trunk of the car. Lewis drove D.D. home, then drove around looking for a pay telephone. When they stopped at a pay telephone, they were arrested by police officers. Appellant admitted he, Durden, and D.D. were going in the store to rob it, and admitted he knew D.D. was going to take the gun inside the store. Appellant also admitted he was wearing a red T-shirt when he was arrested. During cross-examination, appellant testified that what he told a police detective at the time he was arrested was different from what he told the jury. Appellant testified he lied to the detective, and the version of events he told the jury was what actually happened. In his written statement to police, appellant said Durden was going to "get" the cashier for not opening the register. Appellant had the gun in his pocket. Durden took the gun out of appellant's pocket and pointed it at the cashier. Appellant and Durden had a "light struggle" over the gun when appellant pulled Durden's hand down. The gun went off, hitting the cashier in the chest. After appellant's testimony, the prosecutor presented four rebuttal witnesses. Detective Eddie Lopez testified that when he interviewed appellant on the day of the offense, appellant gave three different versions of events. In the first version, appellant said that at the beginning of the robbery, he was holding the gun only because he grabbed it from Durden's pocket. Appellant pointed the gun at Lalani before Lalani closed the register. The gun "goes off" as appellant's wrist hit the counter. Lopez testified appellant did not mention that anyone else hit or held the gun or that there was a struggle over the gun. Lopez testified appellant gave a second version of events after he told appellant there was a videotape from inside the store that showed someone went behind the counter. Appellant said he got the gun from Durden's back pocket as Durden started going around the counter. Appellant pointed the gun at Lalani. Durden came back to the front of the counter, his and appellant's hands hit the counter, and the gun discharged. Appellant said he gave Durden the gun as they both ran to the car, and that Durden was the person who put the gun in the trunk of the car. Lopez testified appellant was not aware that the entire interview was being recorded by a hidden camera. After hearing the second version, Lopez asked appellant to give a written statement, which recounted a third version of events. Appellant's written statement, a video of appellant's interview with Lopez, and a videotape from surveillance cameras inside the store were published to the jury. Next, the prosecutor recalled Durden, who testified that while in the jail, appellant passed him a letter. In the letter, appellant said he told the police that both he and Durden "[h]ad the gun and it went off and shot the man. That way, it wasn't in yo hand or mines. It was a accident. Because I hit the counter. And, plus I told the laws we was on wet." Durden testified "wet" meant the drug known as "PCP." The letter also said that appellant told the police Lewis knew nothing about the robbery so Lewis could get out of jail and go home. Then Lewis needed to come to court and say the reason they took the gun with them is because a "[B]ig group of guys was looking in the car and they got nervous." The letter also said appellant would send Lewis a letter so they could all "[G]et our stories together." The letter was read to the jury. Durden testified he wrote appellant a reply letter stating he was not going along with appellant's story. Gregory Lewis testified he was sixteen years old at the time of the offense. He, appellant, Durden, and D.D. were "hanging out" all day before the offense. Lewis, appellant, and Durden smoked marijuana and drank codeine syrup the evening before the offense. As they rode around town, the gun was being passed around in the car, but Lewis had seen appellant with the gun the day before. Lewis testified appellant was the person who suggested they rob the store. Lewis, who was driving, parked in front of the store at appellant's direction. While sitting in the car, appellant and Durden planned the robbery. Everyone in the car agreed to their part before anyone went inside the store. Lewis testified the plan was for appellant to hold the gun while Durden went behind the counter to get the money. Appellant told Lewis to drive down the street away from the store and keep the car running. Durden had the gun when the others got out of the car. Lewis testified he did not know what happened inside the store because he waited in the car. About five minutes after they went in the store, appellant, Durden, and D.D. returned to the car. Appellant had the gun when they got in the car. Appellant said, "[D]ang, I shot him" and "[i]t was an accident." Lewis drove to D.D.'s house and dropped him off. While there, appellant put the gun in the trunk of the car. Then, Lewis drove to a pay telephone, where they were arrested by police officers. Lewis testified that while at the county jail, appellant gave him a letter. In the letter, appellant asked Lewis to "get together" with him and "pin everything" on Durden. Appellant asked Lewis to say Durden had the gun when they ran back to the car, appellant told Lewis to pull the car over, and appellant took the gun from Durden and put it in the trunk. Appellant asked Lewis to say Durden confessed to killing the man. Lewis testified he wrote appellant a reply letter refusing to go along with appellant's story because he was not in the store and did not know what happened. Roxana Williams testified she falsely told the police Durden was her boyfriend, even though she did not know Durden well. Williams testified she and appellant's family members talked about how they could help appellant, and she thought if she gave a false statement to the police appellant would be released from jail. In her October 5, 2005 statement, Williams said Durden came by her house after the murder and told her he accidently shot a man at the store. Williams testified she lied to the police because she wanted to help appellant, who was her friend. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (U.S. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (U.S. 2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To obtain a capital murder conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally caused the death of Feroz Lalani by shooting him with a firearm, a deadly weapon, during the course of committing or attempting to commit a robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(1) (Vernon 2003 Supp. 2007). The jury was instructed it could find appellant guilty as a party to the offense if it found he committed the offense by his own conduct, by the conduct of another for which he is criminally responsible, or both. The jury was instructed that 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. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003); Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). The jury was also instructed it could find appellant guilty if it found he conspired to commit the offense. "Conspiracy" was defined as an agreement between two or more persons, with the intent that a felony be committed, that they or one or more of them performs an overt act in pursuance of the agreement. See Tex. Pen. Code Ann. § 15.02(a) (Vernon 2003). The jury was further instructed that an agreement constituting a conspiracy may be inferred from the acts of the parties. See id. § 15.02(b). Discussion
Appellant argues the evidence is legally and factually insufficient to prove he intended to kill Lalani, either acting alone or as a party to the killing. Appellant asserts he did not know one of his friends had a gun or that anyone would be killed, and he did not have the gun or shoot Lalani. The State responds that the evidence is legally and factually sufficient to support appellant's conviction as a party or co-conspirator to the offense. The jury was charged it could find appellant guilty of capital murder as a (1) principal of the offense, (2) party to the offense, or (3) conspirator to the offense, guilty of the lesser-included offense of murder, guilty of the lesser-included offense of aggravated robbery, or not guilty. There was conflicting evidence presented to the jury. Both Durden and Lewis testified the robbery plan had been discussed and agreed to while they sat in the car outside the store. Durden testified the plan called for appellant to pull out the gun after the cashier opened the register. Appellant's own testimony showed he knew there was a gun because appellant testified D.D. had the gun and took it inside the store with him. Durden, who went inside the store with appellant, testified appellant was the person with the gun when they left the car to go in the store, and appellant was the person who pointed the gun at Lalani and shot him. Lewis, who stayed outside the store in the car, testified Durden was the person who had the gun when Durden, appellant, and D.D. left the car to go in the store. Lopez testified appellant told him several versions of events. In at least two versions given to Lopez, appellant stated he held the gun, pointed it at Lalani, and the gun fired because appellant "hit his wrist on the counter" or both his and Durden's hands caused the gun to fire. Appellant testified D.D. was the person who took the gun inside the store, pointed it at Lalani, and fired it. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury is in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Moreover, evidence is sufficient to convict under the law of parties where a defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. See Salinas v. State, 163 S.W.3d 734, 739 (Tex.Crim.App. 2005). We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant, at a minimum, acted as a party in the commission of the murder of Feroz Lalani, and is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Michel, 834 S.W.2d at 67. We resolve appellant's issues against him. We note the trial court's judgment recites the date the judgment was entered as "8/21/2008" and the degree of the offense as a state jail felony. Appellant was indicted for a capital felony, and the judgment of conviction was entered on August 21, 2006. Thus, the trial court's judgment is incorrect. On our own motion, we modify the trial court's judgment to show that August 21, 2006 is the date the judgment was entered and the degree of the offense is a capital felony. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.