Kirvin v. State

Full title: GEORGE KIRVIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 16, 2010

No. 05-09-00382-CR (Tex. App. Aug. 16, 2010)

Opinion

No. 05-09-00382-CR

Opinion filed August 16, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-24206-QS.

Before Justices MORRIS, MOSELEY, and LANG.

OPINION

Opinion By Justice MOSELEY.

A jury found appellant George Kirvin guilty of aggravated robbery with a deadly weapon, a firearm. The trial court sentenced him to eight years' imprisonment. Kirvin contends the evidence is legally and factually insufficient to support the deadly weapon finding. In an additional issue, he contends the trial court erred in overruling his objection to certain jury argument. For the reasons set forth below, we resolve Kirvin's issues against him and affirm the trial court's judgment.

I. BACKGROUND

This case arose from an armed robbery of a Tom Thumb grocery store in Garland, Texas, where Kirvin worked as the night manager. The store's cash was kept in a safe in the secured cash office. Each night, another employee counted the day's cash receipts in the cash office and then called Kirvin about 10:30 p.m. to verify the cash total before the cash was deposited into a second safe that could be accessed only by armored car personnel. Kirvin did not have a key to the cash office; the counting clerk would open the door to allow him to enter. Kirvin had worked at the store for about five years before the robbery. He had lived with his mother, but about one year before the robbery, he rented an apartment in Bradford Place, which was a short distance from the store, to be closer to work. However, he had decided that the apartment complex was not a safe environment for his young son. His lease was expiring in May 2007, and he was in the process of moving back to his mother's house at the time of the robbery. Some months before the robbery, he had taken in his nephew, Robert Kirvin, after Robert was released from prison. On May 22, 2007, Kirvin began his shift as usual about 10:00 p.m. At about 10:18 p.m., footage from security cameras shows two men, later identified as Antoine Littleton and David Logan, in the store. Security camera footage shows David Clary, the cash office clerk, in the cash office. Clary said he called Kirvin to verify the cash count. About 10:40 p.m., the footage shows Kirvin approaching the cash office. Littleton and Logan are seen rushing behind him. As Kirvin enters through the cash office door that Clary has opened, he looks down to see Littleton holding a handgun, and Littleton and Logan closely following him into the cash office. Littleton points the gun at Clary, at one point directly at Clary's eye. Kirvin crouches against a wall, occasionally looking over his shoulder and under his arm. After Clary puts the money in a bag, he opens the door as directed by Logan. Littleton and Logan left the store with about $25,000. There was no security camera footage of the getaway car. Kenneth Ravenell was later identified as the driver of the getaway car, and Deandre Davis was another occupant of the car. After the robbery, Kirvin called 911, and Clary explained what happened. Kirvin appeared to Clary to be "overcome with distress"; another store employee testified Kirvin was "shaking" and "scared." Later, Kirvin called his girlfriend, who followed Kirvin to his mother's house. An investigating officer knew that Bradford Place was close to the store and was a high-crime apartment complex. Approaching Bradford Place, he saw a Buick leaving the apartment complex; its occupants matched the description of the robbers. All three occupants (Ravenell, Davis, and Littleton) turned to look at the officer, which he thought was suspicious. A high-speed chase ensued, ending with the wreck of the Buick. Davis was apprehended at the scene, with "a huge wad" of cash in his pocket. Littleton and Ravenell were apprehended later. Ravenell testified for the State. He had been convicted of the Tom Thumb aggravated robbery and was awaiting sentencing. Ravenell testified that his cousin Littleton contacted him on May 22, 2007, and told him he needed him to "go hit a lick." Ravenell said that meant "to come up on something, like rob something." Ravenell picked up Littleton, Davis, and Logan and went to an apartment in Bradford Place. On the way, Littleton told Ravenell more specifically that they were "fix'n to rob a Tom Thumb." At the apartment they met Kirvin and his nephew, Robert; Robert and Littleton had grown up together. The group talked about a plan to rob the Tom Thumb. Kirvin was involved in the discussion and told the robbers to park in a certain place where there were no security cameras. Kirvin left for work, and the rest of the group waited in the apartment. Ravenell testified that, at 10:06 and 10:09 p.m., Kirvin called Littleton, and the group (except for Robert) left the apartment, drove the short distance to Tom Thumb, and parked where Kirvin had instructed. When Littleton and Logan left the store, Ravenell drove the group back to the same apartment where they, along with Robert, divided the money. Within minutes, Ravenell, Littleton, and Davis drove away. Ravenell described the subsequent police chase and wreck. On cross-examination, counsel established that Ravenell had been convicted of other crimes, including burglary, and that he had pleaded not guilty to this offense. Ravenell also admitted that in his initial statement to the police, he said the robbery had already been committed when he arrived at the apartment and that they had an "inside connection" but Ravenell never saw him. Kirvin denied involvement. He testified that he leased an apartment in Bradford Place. He testified that he was at home with his mother before he went to work the night of the robbery and left for work from his mother's house. His mother confirmed that testimony. Kirvin said he did not know Littleton or Ravenell and did not know where the parking lot's security cameras were located. A search of Kirvin's apartment did not reveal any evidence incriminating him. No gun was recovered. However, records from Ravenell's, Littleton's, and Kirvin's cell phones were admitted. Ravenell identified Littleton's cell phone number; the phone record for Littleton's number showed it was registered to "T." Ravenell testified Littleton was known as "T." Telephone records established that Ravenell and Littleton exchanged telephone calls between about 7:10 p.m. and 10:25 p.m. on May 22, 2007. Also on that day, Kirvin called Littleton at 10:06 p.m. and received calls from Littleton's phone at 7:35 p.m., 10:01 p.m., and 10:02 p.m.; an unanswered call was logged from Kirvin's phone to Littleton's phone at about 10:15 p.m. Kirvin's phone recorded calls from Littleton's phone number as coming from "T"; when asked about "T," Kirvin testified it referred to Teresa, a woman he had met four days before the incident and who was calling him to set up a date. Kirvin said he never called her again. The indictment alleged that Kirvin, while in the course of committing theft against Clary "intentionally and knowingly threaten[ed] and place[d] [Clary] in fear of imminent bodily injury and death" and "then and there use[d] and exhibit[ed] a deadly weapon," a firearm. The jury charge included the following instruction on party liability: "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." It also stated that "[m]ere presence alone will not constitute one a party to an offense."

II. SUFFICIENCY OF THE EVIDENCE

In his first and second issues, Kirvin challenges the legal and factual sufficiency of the evidence, respectively, to support the jury's affirmative finding on the use or exhibit of a deadly weapon, a firearm.

A. Standard of Review

Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when deciding whether evidence is legally sufficient to support a conviction, we assess all of the evidence in the light most favorable to the verdict to determine whether " any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt." The Jackson standard of review gives full play to the jury's responsibility to fairly resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence. Williams v. State, 301 S.W.3d 675, 684 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010); Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004). Evidence is factually insufficient when, although legally sufficient under a Jackson analysis, the evidence is "so weak" that the verdict "seems clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (quoting Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)).

B. Applicable Law

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits aggravated robbery if he commits robbery while using or exhibiting a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003). 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) (Vernon 2003). 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) (Vernon 2003). In determining whether a person acted as a party, the fact finder may consider events occurring before, during, and after the commission of the offense and may rely on the person's actions showing an understanding and a common design to commit the prohibited act. See Payne v. State, 194 S.W.3d 689, 694 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). The evidence must show that at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.-Corpus Christi 2000, pet. ref'd). Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom, 920 S.W.2d at 302. Participation as a party in a criminal offense may be inferred from circumstances and need not be shown by direct evidence. Scott v. State, 946 S.W.2d 166, 168 (Tex. App.-Austin 1997, pet. ref'd).

C. Discussion

Kirvin acknowledges that, because the evidence shows Littleton, not Kirvin, wielded the gun during the robbery, the jury necessarily concluded he acted with intent to promote or assist the commission of an aggravated robbery. See Tex. Penal Code Ann. § 7.02(a)(2). Kirvin argues the evidence is insufficient to show that he had prior knowledge or notice that Littleton was armed and would use the gun during the robbery. He argues his nephew grew up with Littleton and may have known about Littleton's criminal history, but such knowledge cannot be imputed to him, and there is no evidence that he knew the background or personality of any of the robbers. In Hooper v. State 214 S.W.3d 9 (Tex. Crim. App. 2007), the court of criminal appeals considered a sufficiency challenge in case involving assault of a public servant, aggravated by use or exhibit of a deadly weapon during the commission of the assault. The court rejected the reasoning that to reach a guilty verdict, the jury would have had to infer that the appellant knew or was on notice that a gun was involved, and thus should have anticipated that his co-conspirator would shoot at a public servant. "Knowledge of a co-conspirator's violent propensity or intent to commit aggravated assault is not an element of the offense under either theory of party liability, so the lack of evidence of such knowledge is not dispositive of sufficiency." Id. at 14. Likewise, here, a lack of proof of Kirvin's knowledge of Littleton's intent or background is not dispositive of his sufficiency challenge. Kirvin also argues the evidence is insufficient because Ravenell did not testify that any preparation for the robbery included a gun, and there was no evidence that he saw Littleton's gun in his apartment or before the entry into the cash office. However, Ravenell's testimony as to any individual's role in the commission of the offense was limited to Kirvin's role as the inside contact and his instruction as to where to park the getaway car; a lack of evidence concerning Littleton's role or intent or Kirvin's direct knowledge of the gun is not dispositive of sufficiency. See id. at 14; see Scott, 946 S.W.2d at 168 (participation as party in criminal offense may be inferred from circumstances and need not be shown by direct evidence). Kirvin relies on Tippitt v. State, 41 S.W.3d 316, 324 (Tex. App.-Fort Worth 2001, no pet.), disapproved of on other grounds by Hooper, 214 S.W.3d at 15, to support his argument that evidence of notice of a co-conspirator's violent propensities or knowledge that a co-conspirator was armed is required to support his conviction as a party to the aggravating element. In Tippitt, the evidence showed the appellant suggested to a friend (Whitaker) that they "hit a lick" against Heath, which meant to rob Heath, and was persuaded by another person present to postpone the robbery. Later, the appellant and Whitaker went to Heath's house where Whitaker shot Heath. Id. at 319-20. The appellant was convicted of capital murder as a party. The Fort Worth Court of Appeals relied on evidence that the appellant suggested the robbery and had to be persuaded to postpone committing it to conclude that the evidence was insufficient to support the appellant's conviction for capital murder pursuant to the intent-to-promote-or-assist theory of party liability (section 7.02(a)(2)). Id. at 324. The facts in Tippitt are distinguishable from the facts before us. Here, there was testimony that Kirvin's role was as the inside contact and he participated in planning and carrying out the offense. Therefore, the jury was entitled to infer that Kirvin knew each person's role in the offense and acted with the intent to promote or assist Littleton in committing aggravated robbery. Kirvin argues Escobar, 28 S.W.3d at 774, is distinguishable from this case. He says the evidence was sufficient in Escobar to prove party liability for aggravated robbery only because the defendant continued to participate in the offense after seeing a co-conspirator point a gun at the victim. In Escobar, the appellant was among a group of people who were related by blood and marriage, lived in the same house, and drove together to a store targeted for robbery. As the appellant entered the getaway car with stolen items, another robber pointed a gun at a store employee. The Corpus Christi Court of Appeals, relying on this evidence, concluded it showed the appellant knew of the gun and intended to promote or assist in the aggravated robbery, thereby encouraging or aiding in the commission of the offense. Thus, the evidence was legally sufficient to support the appellant's conviction. See id. at 774-75. However, Escobar and this case are similar in that there is evidence Kirvin continued to play his part in the plan after seeing Littleton point a gun at Clary. Thus, the facts and conclusion in Escobar actually support the jury's affirmative finding on party liability here because in both cases the evidence shows a plan with each robber carrying out his part in the plan. To find Kirvin guilty under the first theory of party liability, the jury must have found beyond a reasonable doubt that: (1) acting with intent to promote or assist the commission of the aggravated robbery, (2) Kirvin solicited, encouraged, directed, aided, or attempted to aid Littleton to commit the aggravated robbery. See Hooper, 214 S.W.3d at 14 n. 3. Ravenell testified that planning the robbery occurred in Kirvin's apartment; Kirvin was involved in the planning, specifically telling Ravenell, the driver, where to park to avoid the outside security cameras; the robbers left the apartment when Kirvin called them; and they left Kirvin's apartment and went directly to the grocery store. Phone records showed that phone calls were exchanged between Ravenell and Littleton and between Kirvin and Littleton until about fifteen minutes before the robbery. There was evidence that the robbers could not access the cash office without an inside contact and that Kirvin was that contact. There was evidence that Clary called Kirvin to the cash office as usual, and that Littleton and Logan did not approach the cash office until Kirvin responded to Clary's call. The jury also had before it the evidence of the telephone calls among Kirvin, Littleton, and Ravenell, despite Kirvin's denial that he knew Littleton or Ravenell or that he sent or received calls from Littleton. This evidence supports the inference that Kirvin, acting with the intent to promote or assist the commission of aggravated robber, aided or attempted to aid Littleton to commit aggravated robbery. See Tex. Penal Code Ann. § 7.02(a)(2); Ransom, 920 S.W.2d at 302; Payne, 194 S.W.3d at 694. We have considered all the record evidence, especially the above evidence concerning Kirvin's guilt as a party to the aggravating element of use or exhibit of a deadly weapon, in the light most favorable to the verdict, keeping in mind the jury's responsibility to fairly resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence. Williams, 301 S.W.3d at 683-84; Threadgill, 146 S.W.3d at 663. We conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Also, viewing the evidence without the prism of "in the light most favorable to the verdict," we conclude the evidence is not "so weak" that the verdict "seems clearly wrong or manifestly unjust," nor is it "against the great weight and preponderance of the evidence." See Rollerson, 227 S.W.3d at 724; Watson, 204 S.W.3d at 414-15, 417.¹ Accordingly, because the evidence is legally and factually sufficient to support the jury's verdict concerning the challenged element, we resolve Kirvin's first and second issues against him.

III. JURY ARGUMENT

In his third issue, Kirvin contends the trial court erred by overruling his objections to two statements by the State in closing argument. Kirvin argues the State injected unsworn testimony into his closing argument. Kirvin directs our attention to the following:

[State]: Ladies and gentlemen of the jury, I want to talk to you just a bit about what is evidence and what's not evidence in a trial. And evidence comes from the witness stand, and it's the question and the answer. And I want to give you a couple of examples when someone asks a question and says, well, isn't it true that there's a warrant out for your arrest? And the answer is, no. Okay. There's no evidence that a warrant's out for somebody's arrest. That's just a question. And I bring that up because sometimes you hear things so many times that it gets stuck in a juror's mind like oh, yeah, that's — that's the witness that — that the State has a secret deal with.

So when you hear a question to a patrol officer that says, isn't it true that the State had a deal with the defendant to testify, and the answer is, no, the evidence you have is there is no deal. And there was [sic] multiple questions from Defense counsel during the course of this trial about this secret deal between me, the district attorney's office, and Kenneth Ravenell.

Well, my co-counsel told you in the jury selection process, if there's a deal in place, the U.S. Constitution requires us to disclose it. If I fabricated testimony with Kenneth Ravenell, conspired with him to hide that deal, that would be perjury, okay? That would be —

[Defense]: Objection to counsel testifying.

THE COURT: Overruled.

Later in his argument, the State said:

That detective knew right away that George Kirvin was a prime suspect. This is not some recent fabrication of Kenneth Ravenell. This is not some recent story that he and I cooked up so I can get another conviction and add another person to this board (indicating) —

[Defense]: Again, I'm going to object. Counsel is testifying. It's personal stuff.

THE COURT: Overruled.

A. Applicable Law and Standard of Review

"It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper." Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973)), cert. denied, 129 S. Ct. 2075 (2009). There are four generally permissible areas of jury argument: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Id. "The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney." Id. (quoting Alejandro, 493 S.W.2d at 231). Consequently, error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Id. If the trial court should have sustained an objection, we determine whether the error warrants reversal. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Error is not reversible if it is harmless. Id. Nonconstitutional errors are governed by rule of appellate procedure 44.2(b), providing that "[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b); see Mosley, 983 S.W.2d at 259. In applying this rule to improper argument issues, we generally look to three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). See Mosley, 983 S.W.2d at 259.

B. Discussion

Kirvin argues that the State's denials that it conspired with Ravenell to fabricate evidence against Kirvin did not fall into any of the four permissible areas of jury argument. The State argues that the argument was not outside the record, which is "replete with examples where the defense brought up the possibility of a deal" between the State and Ravenell. For example, the State references defense counsel's questioning of Ravenell concerning whether he had made a deal with the State in exchange for his testimony. Ravenell stated he was expecting "help" with his sentencing. He said the State had not promised anything specific but had been told the State "would take it into consideration." We have carefully considered this and the State's other record references. Some of defense counsel's questions concern a possible undisclosed deal between the State and Ravenell. However, in none of the record references did defense counsel's questions mention or suggest a conspiracy between Ravenell and the State to fabricate testimony or, as the State argues, "imply possible improper dealings" between the State and witnesses. The State argues it was summarizing statements it made in voir dire about perjury and violating ethics rules. However, the State's record references are to statements concerning credibility of witnesses and disclosing deals between the State and a defendant, and the testimony of an accomplice to "fill in some holes in the story"-but not perjury or fabrication of testimony. Thus, we cannot conclude these statements summarize the evidence or are reasonable deductions from the evidence. The State also argues that it is common knowledge that "a person incurs risks by committing perjury." However, there is nothing in the record implying a connection between the State and any perjury in this case. Nor are these statements answers to argument of opposing counsel or pleas for law enforcement. See Brown, 270 S.W.3d at 571 ("[P]roper jury argument includes answering jury argument made by opposing counsel during the argument itself, and does not include responding to prior cross-examination tactics used by opposing counsel during trial; the proper time to challenge such tactics is not during jury argument, but when the objectionable tactics are used."). Accordingly, because the State's statements in closing argument interjected facts not supported by the record, see id., we conclude the trial court erred in overruling Kirvin's two objections. Considering the Mosley factors in determining whether the court's error was harmless, we conclude the first factor supports a lack of harm. The State's arguments sought to negate the possibility that it was suborning perjury by Ravenell, whose credibility was important to the State's case. However, the jury heard Ravenell's testimony concerning the status of his case arising from the robbery and made its own determination of his credibility. On the record before us, we fail to see how the State's argument could have materially affected the jury's determination of Ravenell's credibility; thus we cannot say the prosecutor's remarks resulted in severe prejudice to Kirvin. The second and third factors also favor a determination of "no harm." The trial court had already cautioned the jury that opening and closing statements were not evidence, a point related to the State's point that questions and answers were evidence. Finally, the evidence supporting Kirvin's conviction was strong considering Ravenell's testimony and the security camera and telephone record evidence. See Mosley, 983 S.W.2d at 259. In light of the application of the Mosley factors, we conclude the trial court's error was harmless. We resolve Kirvin's third issue against him.

IV. CONCLUSION

Having resolved Kirvin's three issues against him, we affirm the trial court's judgment.