Opinion
No. 07-15-00226-CR
07-12-2017
STEVON KENTRELL POLK, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court Potter County, Texas
Trial Court No. 67,973-A; Honorable Dan Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Justice Mackey K. Hancock, retired, not participating.
This appeal concerns the sufficiency of the evidence necessary to establish guilt in a murder prosecution where the defendant has been held criminally responsible for the conduct of another pursuant to the law of parties. Appellant, Stevon Kentrell Polk, was convicted by a jury of the offense of murder and sentenced to forty-five years confinement and assessed a $10,000 fine. By two issues, Appellant asserts (1) the evidence was legally insufficient to support his conviction and (2) the trial court erred in its charge to the jury concerning the law of parties. We affirm.
See TEX. PENAL CODE ANN. § 7.02(a)(2), (b) (West 2011).
See TEX. PENAL CODE ANN. §§ 19.02(b)(1) (West 2011). As indicted, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. An offense under this section is a first degree felony. Id. at § 19.02(c).
Although the original Judgment of Conviction entered on June 3, 2015, reflected: "Fine: N/A," the trial court entered a Nunc Pro Tunc Judgment of Conviction on June 11, 2015, stating: "Fine: $10,000." That fine was assessed by the jury and pronounced in open court at the time of sentencing.
BACKGROUND
Edward Pendleton, a person known in his community as a drug dealer, was shot and killed during a home invasion committed in the early morning hours of May 1, 2013. Testimony at trial established that around 6:00 a.m., two men forced their way into the residence Pendleton occupied with his wife, Danielle Luce. After Luce witnessed one of the intruders shoot Pendleton in the back, she retreated to her bedroom and closed the door. Two men then forced their way into the bedroom and demanded money. Luce pointed to her purse, which one of the men grabbed. After rifling through Pendleton's pants for any additional money, the two men left. Luce immediately went to Pendleton, who was still alive, and tried to help him. During that time, Pendleton repeated to her the name, "Morris, Morris." After being transported to the hospital by paramedics, Pendleton later died as a result of the wounds he received during the encounter.
The record is unclear whether the two men who originally forced their way into the Pendleton residence were the same two men who entered the bedroom.
An Amarillo police officer interviewed Luce at the scene of the shooting. Luce indicated that she did not get a good look at the faces of the intruders; however, she did describe the men as African-Americans who were taller than her 5'8" height. When showed a photo lineup, she was unable identify any of the intruders.
Later that same day, based upon the victim's statement regarding "Morris" and a citizen's call to the police, Damarrus "Morris" Ary became a person of interest in their investigation. Based on that information, Ary was picked up and brought to the police station to be interviewed. During the course of that interview, police identified the names of three additional suspects: Andrea Brown, Appellant, and an individual identified solely as "K." They also learned the location of an apartment where those individuals might be located. While a search warrant was being obtained, the police began surveillance of the apartment. Around 7:50 p.m., before a search warrant for the apartment had been obtained, three persons were observed leaving the apartment and entering a white Chrysler 300. The vehicle was later stopped while being driven by Brown. Also in the vehicle were the Appellant, in the front seat, and Kenya (aka "K") Martin, in the back seat.
The "citizen" who called the police with information about the homicide was Ary's brother.
The search warrant was subsequently obtained and the police began a search of the apartment. In the apartment, the police located Luce's purse, her driver's license, and the Social Security cards of Luce and her two sons. They also located a box of .45 caliber ammunition bearing a "GFL" head stamp, identical to some of the casings found at the Pendleton residence. Subsequent forensic analysis revealed Martin's left palm print and left index fingerprint on that ammunition box.
A search of the Chrysler 300 being driven by Brown revealed a USB key containing Luce's college papers and a .45 caliber gun. Although the gun's chamber was empty, its magazine contained eight GFL brand cartridges and one PNC brand cartridge. Cartridges found at the murder scene were both GFL and PNC brands. Forensic analysis identified Martin's fingerprints on the gun's barrel and magazine. It also established that two of the three bullets recovered at the murder scene were fired from that gun.
Analysis of the third bullet was inconclusive as to whether it was or was not fired from the gun recovered from Brown's vehicle because its condition did not allow for forensic comparison.
At trial, testimony established that in late April and early May 2013, Appellant was living in an apartment with Brown, Marquis Wilkins, and others. On April 30, Appellant brought Martin to the apartment. That night, Wilkins saw Martin with a gun in his waistband. Martin took the gun out and showed it to some of the apartment's occupants, during which time Appellant held the gun and looked at it. Brown testified that on April 30, she observed Martin in the restroom of the apartment, loading the weapon with bullets. She further testified that on the morning of May 1, 2013, she was awakened by Martin, Ary, and Appellant, and asked to drive the three of them to the residence of a drug dealer they called "ATX." According to what Appellant told her, the purpose of the trip was to "hit a lick," which Brown understood to mean a drug transaction. As Appellant directed her to the residence, they discussed how they were going to kick in the door and rob ATX; however, they never specifically mentioned the use of a weapon. When Brown reached the residence, the men directed her to park around the corner on a side street and wait. Appellant asked who was going to kick the door open. Ary declined and Martin said he would. All three men then exited the vehicle and walked towards the Pendleton residence. Less than five minutes later, Brown witnessed the three men running back to her vehicle. Ary was carrying a purse and Martin had a gun in his hand. When they re-entered the vehicle, a heated discussion broke out concerning the use of the gun. Martin declared, "I clapped that nigger." Appellant was upset, and according to Brown's testimony, he said, "that wasn't supposed to happen" and "that's not how we planned it." Martin justified his actions by explaining that he thought Pendleton had a gun. The four individuals then returned to the apartment.
Back at the apartment, Appellant, Martin, and Ary went into Wilkins's bedroom and Appellant reported what had happened to them. Later that evening, Appellant asked Brown to take him and Martin to "pick up some weed." During that trip, Brown was stopped by the police with Appellant and Martin in the vehicle. The vehicle was impounded and the three occupants were taken to the police station for questioning. Initially, Brown gave an untruthful account of the events of that morning. A few days later, at her mother's persuasion, Brown returned to the police station and gave a statement to the police implicating Appellant, Martin, and Ary in the Pendleton robbery and shooting.
For her part in the episode, as part of a plea bargain, Brown was eventually convicted of aggravated robbery and sentenced to five years confinement. Part of the plea bargain was an agreement that she testify truthfully during any trial concerning the event.
During the initial investigation of the crime scene, officers observed the faint impression of a shoe on the front door of the Pendleton residence. The police had the door removed and taken to the police laboratory. Later examination of the door revealed Appellant's left and right palm prints and the print of his left middle finger. The fingerprints of Martin and Ary were not located on the door or anywhere else in the residence. A forensic scientist also testified that the shoe impression on the door was "similar" to the right shoe worn by Appellant at the time of his arrest.
In May 2015, a five-day jury trial was held. One of the State's theories of prosecution was that Martin was the shooter, and therefore, either Appellant or Ary was the other man in the Pendleton residence that fateful morning. The State ascribed criminal responsibility to all four participants based upon the law of parties. During the charge conference at the guilt/innocence phase of the trial, Appellant's attorney generally objected to the court's charge on the basis that the "Court fails to inform the jury of which specific modes of conduct under 7.02(a)(2) form the basis for a conviction." Thereafter, the jury found Appellant guilty and sentenced him to forty-five years confinement and assessed a $10,000 fine. This appeal followed.
By two issues, Appellant asserts (1) the evidence was legally insufficient to support his conviction and (2) the trial court erred in its charge to the jury concerning the law of parties. Specifically, he contends the evidence is legally insufficient to establish that, under the law of parties, he intended or reasonably anticipated Pendleton's murder during the robbery. He points to evidence showing he was surprised and upset after Pendleton was killed and to the lack of any evidence showing he was aware Martin had a gun with him the morning of the robbery. He further contends the charge pertaining to the law of parties is too broad because it failed to limit the instruction given to those modes of conduct supported by the evidence.
ISSUE ONE—LEGAL SUFFICIENCY
By his first issue, Appellant contends the evidence is legally insufficient to prove he was a party to Pendleton's murder. The applicable standard of review for determining legal sufficiency of the evidence is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When reviewing the sufficiency of the evidence, we view the evidence "in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 318-19). In our review, we must evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000).
In applying this standard, we must keep in mind that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury. TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all the incriminating evidence. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The duty of the reviewing court is simply to ensure that the evidence presented supports the jury's verdict and that the State has presented a legally sufficient case to support a conviction of the offense charged. Montgomery, 369 S.W.3d at 192. When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record. Id.
When reviewing the sufficiency of the evidence, the essential elements of the offense are those of a hypothetically correct jury charge, i.e., "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 320).
Although mere presence at the scene of an offense alone is not sufficient under the law of parties to support a conviction, it may be sufficient when combined with other circumstances. Ahrens v. State, 43 S.W.3d 630, 634 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd). When evidence shows that the defendant was physically present during the commission of the offense and that the defendant encouraged or aided the crime's commission by either words, agreement, or other affirmative and supportive conduct, the evidence is sufficient to support a conviction under the law of parties. King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000).
When, as here, the charge of the court authorized the jury to convict the defendant on more than one theory, the verdict of guilt will be upheld if the evidence is sufficient on any theory authorized by the charge. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)). See also Hernandez v. State, 198 S.W.3d 257, 261 (Tex. App.—San Antonio 2006, pet. ref'd). Here, one of the State's theories was that Appellant, Martin, and Ary were engaged in a criminal conspiracy to commit the offense of aggravated robbery by robbing Pendleton while using or exhibiting a deadly weapon. The State additionally theorized that in the furtherance of that aggravated robbery, Martin committed the offense of murder and that offense was one Appellant reasonably anticipated or should have anticipated would result as a consequence of carrying out a conspiracy to commit a robbery while using or exhibiting a deadly weapon. Where, as here, the State seeks to establish Appellant's criminal responsibility for murder based on the conduct of another, in order to analyze the legal sufficiency of the evidence under a hypothetically correct charge, we must understand the interplay of the law of parties with the offense of murder, in the context of the State's theory of prosecution.
Under this theory of prosecution, the State is relying on two separate aspects of the law of parties: (1) pursuant to TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011), the State contends Appellant is criminally responsible for the conduct of Martin and Ary in the commission of the offense of aggravated robbery and (2) pursuant to TEX. PENAL CODE ANN. § 7.02(b) (West 2011), the State contends Appellant is criminally responsible for the conduct of Martin in the commission of the offense of murder.
MURDER
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Murder is a result-oriented offense, meaning the accused must have intentionally or knowingly caused the death of the victim, as opposed to having merely intentionally or knowingly engaged in conduct that results in the death of the victim. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003); Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994) (stating that "what matters is that the conduct (whatever it may be) is done with the required culpability to effect the result the Legislature has specified"). (Emphasis in original). See also Anaya v. State, 381 S.W.3d 660, 664 (Tex. App.—Amarillo 2012, pet. ref'd); Chaney v. State, 314 S.W.3d 561, 563 (Tex. App.—Amarillo 2010, pet. ref'd). This is an often overlooked subtle, but critical distinction.
Mental culpability is a question of fact to be determined by the jury from all the facts and circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). Intent is of such a nature that it is most often proven through circumstantial evidence surrounding the crime. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). A specific intent to cause death may be inferred from the use of a deadly weapon unless, under the circumstances of its use, it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Indeed, the Court of Criminal Appeals has said "if a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill." Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (quoting Hatton v. State, 31 Tex. Cr. R. 586, 21 S.W. 679 (1893)). "When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill." Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
THE LAW OF PARTIES
Under the 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." TEX. PENAL CODE ANN. § 7.01(a) (West 2011); Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011). 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, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011); Adames, 353 S.W.3d at 862.
CRIMINAL CONSPIRACY AND SECONDARY OFFENSES
Furthermore, "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the offense actually committed, though having no intent to commit [the other felony], if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." TEX. PENAL CODE ANN. § 7.02(b) (West 2011). For a defendant to be found guilty as a party to the secondary offense (here, murder), the jury must determine that the secondary offense was committed in furtherance of the unlawful purpose of the conspiracy (here, aggravated robbery) and was one that the co-conspirators should have anticipated as a potential result of carrying out that conspiracy. Anderson v. State, 416 S.W.3d 884, 888-89 (Tex. Crim. App. 2013) (finding the question before an appellate court to be whether it was rational for the jury to infer that the accused should have anticipated that the secondary offense would occur as a result of the primary offense). The State is not required to prove that the defendant actually anticipated the commission of the secondary offense, "only that the crime is one that should have been anticipated." Id. (Emphasis in original).
AGGRAVATED ROBBERY
A person commits the offense of robbery if, in the course of committing theft, and with intent to obtain and maintain control the property of another, he either (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. Id. at § 29.02(a)(1), (a)(2) (West 2011). A person commits the offense of aggravated robbery if he commits the offense of robbery and he uses or exhibits a deadly weapon in the course of committing that offense. TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). A deadly weapon is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Id. at § 1.07(a)(17)(A) (West Supp. 2016). Consequently, a firearm is a deadly weapon per se.
ANALYSIS
Here, Appellant does not assert the evidence was insufficient to establish that he participated in the aggravated robbery or that Martin murdered Pendleton during the course of that offense. Instead, he asserts he neither intended nor anticipated that Martin would murder Pendleton during the course of the originally planned robbery. In support, he points to (1) evidence showing he was surprised and upset after Pendleton was killed and (2) the lack of evidence showing he was aware Martin brought a gun to the robbery or that anyone saw Martin with a gun on the morning of the robbery.
Pursuant to the State's theory of prosecution discussed above, applying the law of parties in the context of a murder committed in the course of a conspiracy to commit an aggravated robbery, a hypothetically correct jury charge would provide that when a person solicits, encourages, directs, aids, or attempts to aid another person to commit the offense of aggravated robbery, that person is also criminally responsible as a party to the offense of murder, though having no intent to commit that offense, if the other person intentionally or knowingly causes the death of an individual in furtherance of the aggravated robbery and that result was one that should have been anticipated as a consequence of carrying out the conspiracy to commit the offense of aggravated robbery. Because the charge of the court in this case authorized a finding of guilt based on this theory, the evidence would be legally sufficient to establish Appellant's guilt as to the offense of murder if the evidence is sufficient under that theory.
Here, there was sufficient evidence at trial to allow a reasonable trier of fact to find beyond a reasonable doubt that (1) Appellant conspired with Martin and Ary to commit the robbery of Pendleton, (2) Martin openly displayed a firearm (thus, a deadly weapon) the night before the robbery in the presence of Appellant and others, (3) Appellant handled the firearm shortly before the offense, in plain sight of others, (4) during the early morning hours of the day of the offense, Appellant solicited Brown and directed her to drive to Pendleton's house while discussions were had among Appellant, Martin, and Ary concerning who would kick in Pendleton's front door, (5) the front door was violently kicked open and Martin immediately shot Pendleton three times and then a fourth time while standing over him, (6) a purse was taken from the residence while Pendleton lay on the floor dying of multiple gunshot wounds, (7) Appellant later stated there was a "plan" and it had gone wrong, (8) Appellant directed Brown as to how to leave the crime scene, and (9) Appellant had Pendleton's blood on the shoes he was wearing during the robbery. Afterwards, (10) Appellant made the statement to others, "[w]e had to down that nigger," (11) he admitted to asking Pendleton's wife where the money was and to taking her purse, (12) he was concerned Martin might still be carrying the murder weapon when the police pulled them over in Brown's vehicle, (12) he attempted to cover up his role in the crime by telling three different stories when questioned by police, and (13) he threatened to do to a fellow inmate what they had done to Pendleton if the inmate snitched to the police.
In determining whether Appellant participated as a party, the jury was free to consider the events occurring before, during, and after the commission of the offense, and they were entitled to rely on actions of Appellant which showed an understanding and common design to commit the crime. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994); Jackson v. State, 487 S.W.3d 648, 655 (Tex. App.—Texarkana 2016, no pet.); Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Additionally, the State need not plead the law of parties in the indictment. Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2982, 165 L. Ed. 2d 989 (2006); Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002).
Based on the totality of the record, the evidence showed Appellant, acting with intent to promote or assist the commission of the offense of aggravated robbery, willingly participated in and thereby aided or attempted to aid Martin and Ary in the commission of that offense. Specifically, knowing that Martin had a gun, the three co- conspirators planned and executed the home invasion of a known drug dealer, with the intent to commit the offense of theft, in the pre-dawn hours of the morning, by kicking in the door of his residence and demanding money. Under those circumstances, it does not take an extraordinary amount of intuition to conclude that there could be a violent and deadly outcome. "Evidence that a defendant knew his co-conspirators might use guns in the course of a robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the course of the robbery." Love, 199 S.W.3d at 453 (holding evidence was sufficient to support the defendant's conviction under section 7.02(b) of the Texas Penal Code because the evidence supported a finding that he should have anticipated the possibility of a murder resulting from the course of committing a robbery where he helped plan the robbery and knew that firearms would be used). Therefore, viewing this evidence in the light most favorable to the verdict, the cumulative effect of the incriminating evidence would permit a rational trier of fact to find beyond a reasonable doubt that, in an attempt to carry out a conspiracy to commit aggravated robbery, one of Appellant's fellow conspirators committed murder in furtherance of that unlawful purpose and that Appellant should have anticipated a murder might occur as the result of carrying out that conspiracy—even if Appellant did not intend to cause the victim's death and even if he did not actually shoot the victim.
Furthermore, as to the offense of murder itself, the evidence was legally sufficient to support the conclusion that Martin intentionally or knowingly caused Pendleton's death. See Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (holding evidence permitted inference of intent to kill when defendant and other members of his gang planned to rob person walking alone at night, and, in the course of the theft or attempted theft, defendant retrieved loaded shotgun from car trunk and shot the complainant in abdomen resulting in complainant's death). Therefore, because Appellant aided or attempted to aid Martin in the commission of the offense of aggravated robbery, he is also criminally responsible as a party to the offense of murder because, though having no personal intent to commit that offense, his co-conspirator, Martin, intentionally or knowingly caused Pendleton's death in furtherance of the aggravated robbery and that death was a result that Appellant should have anticipated as a consequence of carrying out the conspiracy to commit the offense of aggravated robbery. Accordingly, because the evidence is legally sufficient to support a conviction based on this theory of prosecution, issue one is overruled.
ISSUE TWO—CHARGE ERROR
By his second issue, Appellant asserts (1) the trial court erred by including in the jury charge the "solicits, encourages, and directs" modes of conduct as applicable forms of party liability under Texas Penal Code section 7.02(a)(2) because there was no evidence he engaged in such conduct, and alternatively, he posits that (2) these modes of conduct were irrelevant to his liability as a party under a Texas Penal Code section 7.02(b) conspiracy theory because the State failed to offer any evidence that Appellant knew a gun would be present at the robbery—hence, the murder was not foreseeable. Having already determined that Appellant should have anticipated the murder as a result of carrying out the conspiracy—even if Appellant did not intend to kill Pendleton and even if he did not personally shoot him—we now turn our attention to his first contention.
A claim of jury charge error is reviewed using the procedure set out in Almanza v. State, 686 S.W.2d, 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Pursuant to that procedure, the first step is to determine whether there is error in the charge. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there is no error, no further inquiry need be made. If there was error and the appellant objected to that error, as Appellant did in this case, reversal is required if the error is calculated to injure the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d 350; Almanza, 686 S.W.2d at 171. In that analysis, the degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
Here, contrary to Appellant's assertions, there was evidence at trial as to all three of the contested modes of conduct—solicitation, encouragement, and direction. Specifically, there was evidence presented at trial from which it could be inferred that Appellant was the ringleader and mastermind of the robbery conspiracy. From circumstantial evidence, the jury could have reasonably inferred Appellant solicited the assistance of Martin in the robbery scheme because he brought him to Wilkins's apartment the day before the robbery. On the morning of the robbery, it was Appellant who awoke Brown and obtained her assistance as a driver. Furthermore, testimony indicated that while Martin sat in the back seat of Brown's car, Appellant sat in the front seat and directed her to Pendleton's residence. It could further be inferred that Appellant encouraged Martin to kick in Pendleton's front door and it is possible that it was he who assisted Martin by entering the premises and later opening a bedroom door and taking the purse of the victim's wife. Furthermore, it was Appellant who also directed Brown after the commission of the offense, by telling her where and how to drive as they left the scene of the crime. He also encouraged her by telling her, after the commission of the offense, that they "were okay," just to "drive back straight back to the apartment," and to take back streets. Appellant also directed Ary not to speak to anyone when he left Wilkins's apartment following the robbery. Because there was evidence raising a disputed issue of fact regarding whether Appellant solicited, encouraged, or directed his co-conspirators in committing the aggravated robbery, the State was entitled to have the jury instructed as to all three of the contested modes of conduct. See Holmes v. State, 248 S.W.3d 194, 201-02 (Tex. Crim. App. 2008) (raising a disputed fact issue entitles party to jury instruction). Accordingly, the trial court did not err in denying Appellant's objection to the jury charge and, resultantly, his second issue is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.