No. 05-05-00479-CR
Opinion Filed June 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-51306-HS. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Morris Elvins Kisero of robbery. The trial court assessed punishment at ten years in the penitentiary and a $100 fine. The court suspended the imposition of sentence and placed appellant on community supervision for ten years. In two issues, appellant argues (1) his conviction must be reversed because the jury's rejection of his affirmative defense of duress is so against the great weight and preponderance of the evidence as to be manifestly unjust, and (2) the evidence is factually insufficient to support the jury's verdict. We will address appellant's issues together. We affirm the trial court's judgment.
Standards of Review Affirmative Defense of Duress
A defendant must prove an affirmative defense that is submitted to the jury by a preponderance of the evidence. Tex. Pen. Code Ann. § 2.04(d) (Vernon 2003). In determining whether a defendant has proved his affirmative defense, we consider all of the evidence relevant to the issue and then determine if the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Crim.App. 1990); Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd). Our evaluation should not substantially intrude on the jury's role as the sole judge of the weight and credibility to be given to witness testimony. See Edwards, 106 S.W.3d at 843; Naasz v. State, 974 S.W.2d 418, 423 (Tex.App.-Dallas 1998, pet. ref'd). The weight to be given to contradictory testimonial evidence is within the sole province of the jury. Naasz, 974 S.W.2d at 423. Factual Sufficiency
In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Under this review, the jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 914 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). We defer to the jury's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Applicable Law Affirmative Defense of Duress
Duress is an affirmative defense to prosecution when the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. Tex. Pen. Code Ann. § 8.05(a) (Vernon 2003). The compulsion required to support the affirmative defense of duress exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. Id. § 8.05(c). Robbery
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. Pen. Code Ann. § 29.02 (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). A person is criminally responsible for an offense committed by another if the person, acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the commission of the offense. Id. § 7.02(a)(2). Discussion
The evidence at trial showed that on the evening of April 21, 2004, appellant was driving to work in his four-door pick-up truck when he saw Leonard Scott, Leonard's brother Nijm, and Torey Mallard standing outside Leonard's house. Appellant agreed to give them a ride to north Dallas, which was on his way to work. En route, appellant asked them for gas money, but nobody had any money. They passed a man and woman standing along the street talking. Appellant drove past the couple, made a u-turn, and came back and stopped by the couple. He pulled a BB pistol out from under his seat, handed it to Mallard, who was sitting in the front passenger seat, and told him to take the man's wallet. Mallard pointed the gun out the window and told the couple to give them their money. When the couple said they had no money, Mallard told them to turn around. Mallard saw the man had a wallet in his back pocket, demanded the wallet, and then appellant drove off. They stopped at a nearby gas station where appellant used the complainant's credit card to purchase gas. As they left the gas station, Nijm said he saw police cars, so appellant told Mallard to put the BB gun under his seat. The police stopped them and arrested all of the occupants of the truck. During a search of the vehicle, the police located a BB pistol between the front console and the front passenger seat and the credit card in the center console. Appellant testified to a different version of events. He testified he drove by Leonard's house on his way to work and saw Leonard, Nijm, and Mallard outside. Leonard flagged him down and asked for a ride to north Dallas to see some friends. Appellant agreed to give them a ride. Appellant said they had been driving a while when they saw a man and woman standing near the street talking. Mallard pulled a pistol out of his waistband, pointed it at appellant's head, and told appellant he was going to rob the couple. Mallard ordered appellant to turn around and drive back to the couple. Mallard then pointed the gun at the couple and demanded the man's wallet. Mallard was looking through the wallet when someone in the backseat yelled for appellant to "take off." Appellant sped off. Leonard asked appellant to take him home, but appellant's gas light came on about that time, and he told them he was going to drive the truck until it ran out of gas. Mallard pointed the gun at appellant and told him to drive to a gas station. Nijm, a back seat passenger, got out at the gas station and pumped the gas using complainant's credit card. Appellant did not get out of the truck. The police stopped and arrested them after they left the gas station. Appellant testified he feared for his safety and believed that by following Mallard's instructions, he would save himself. Appellant's version of the robbery conflicted with that of Mallard and Leonard regarding his participation in the robbery. Their testimony was that it was appellant's idea to rob the couple because he needed gas money, and that appellant pulled a BB gun from under his front seat, gave it to Mallard, and told Mallard to rob the couple. But appellant points out inconsistencies in the testimony of the witnesses that he says conflict with the reliable evidence. Appellant points out that (1) Mallard and Leonard testified appellant yelled instructions to Mallard during the robbery and screamed and cussed at the complainant, but the complainant testified he did not hear appellant say anything; (2) the complainant said Mallard used profanity in demanding his wallet, but Mallard denied using profanity; (3) Mallard and Leonard testified appellant was the only one to get out of the truck at the gas station, but one of the police officers testified he saw a person come out of the store at the gas station and get into the passenger seat; (4) appellant testified Mallard and Leonard had never been in his vehicle before, but they testified appellant had tricked them into paying for his gasoline in the past; and (5) Mallard and Leonard testified appellant started a fight with them in the holding tank at the jail, but another person who was in the same tank with them testified Mallard and Leonard started the fight. Appellant argues the credible trial testimony shows that appellant was simply the driver of the truck and did not act with the intent to promote or assist the commission of the robbery. The jury charge authorized the jury to convict appellant as a principal or as a party. Matters of credibility and conflicts in the evidence fall within the exclusive purview of the jury. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997); Edwards, 106 S.W.3d at 841; Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). We defer to the jury's resolution of those conflicts. See Cain, 958 S.W.2d at 409; Edwards, 106 S.W.3d at 841; Obigbo, 6 S.W.3d at 305. Appellant would have us weigh the witnesses' testimony, which we cannot do. The jury was in the best position to judge the credibility of the witnesses, and we must defer to their evaluation unless the record clearly reveals a different result is appropriate. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the jury's rejection of appellant's affirmative defense of duress was not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Edwards, 106 S.W.3d at 843. Additionally, we conclude the evidence is factually sufficient to support appellant's conviction as a principal or as a party. See Dudik v. State, 994 S.W.2d 267, 269-70 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We overrule appellant's first and second issues. Conclusion
Having overruled both of appellant's issues, we affirm the trial court's judgment.