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Vickery v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-16-00702-CR (Tex. App. Jun. 21, 2017)

Opinion

No. 05-16-00702-CR

06-21-2017

AMBER NICOLE VICKERY, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1541607-U

MEMORANDUM OPINION

Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright

Amber Nicole Vickery appeals the trial court's judgment convicting her of aggravated robbery. The jury found Vickery guilty, and sentenced her to five years in prison. The trial court suspended Vickery's sentence and placed her on community supervision for five years. In her sole issue on appeal, Vickery argues the evidence is insufficient to support her conviction. We affirm the trial court's judgment.

Angel Navarrete, General Manager of a Pizza Hut pickup store in Mesquite, Texas, testified that Miles Dawson robbed his store. Dawson, armed with a lighter and blue propane tank with a napkin attached at the top, threatened to blow up the store if Navarrete did not give him all the money in the cash register. Navarrete gave Dawson approximately seventy-three dollars. Samuel Joo, a Pizza Hut delivery driver, was in the Pizza Hut during the robbery. Both Navarrete and Joo testified that they feared for their lives. The robbery was recorded on surveillance cameras, and the trial court admitted still photographs and video recordings from the cameras into evidence. Vickery did not enter the Pizza Hut store.

After Navarrete gave him the cash, Dawson left the store, got in the driver's seat of a white Ford Expedition, and drove away. Joo followed the Expedition in his Pizza Hut delivery car, taking a photo of the license plate and calling 911 to report the robbery. Balch Springs police officers located the Expedition several miles away and conducted a felony stop. By the time Mesquite Police Officer Matthew McCloud arrived at the scene, the Balch Springs police officers had Dawson in handcuffs on the ground and Vickery in the back of a police car. As officers transferred Vickery from the Balch Springs police car to a Mesquite police car, she yelled to Dawson, "Don't say anything; it is what it is."

McCloud testified that a blue propane tank was found in the front center console of the Expedition. The police also recovered a lighter, methamphetamine, and three pipes. The police did not find any money in the vehicle. However, when Mesquite Police Officer Angela Iglesias searched Vickery as part of the booking process at the Mesquite jail, she found seventy-three dollars in Vickery's bra. Detective Jerry Corder, the lead detective on this case, testified that when Dawson was arrested, he had one dollar in his possession.

The trial court instructed the jury on the law of parties, and the jury found Vickery guilty of aggravated robbery. In one issue, Vickery argues the evidence is insufficient to support her conviction for aggravated robbery because there was no direct evidence that with intent to promote or assist the commission of the offense, she solicited, encouraged, directed, aided, or attempted to aid Dawson in committing the offense. Her complaint focuses solely on the sufficiency of the evidence to support her conviction as a party to the offense and not on other elements of the offense.

We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We defer to the jury's credibility and weight determinations because the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The jury is allowed to draw any reasonable inference from the facts so long as each inference is supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). If the record supports conflicting, reasonable inferences, we presume the jury resolved such conflicts in favor of the verdict, and we defer to that determination. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016).

A person commits aggravated robbery if he uses or exhibits a deadly weapon during the commission of a robbery. TEX. PENAL CODE § 29.03(a)(2) (West 2011). A robbery is committed if a person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death while committing theft with intent to obtain or maintain control of property. Id. § 29.02(a)(2). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of it. Id. § 31.03(a) (West Supp. 2016). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B).

Parties to an offense may be charged with the commission of a crime as if they committed it themselves. Cary, 507 S.W.3d at 757. A person is criminally responsible as a party to an offense 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." TEX. PENAL CODE § 7.02(a)(2) (West 2011). When a party is not a "primary actor," the State must prove conduct constituting an offense plus an act committed by the defendant with intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). A jury may consider events occurring before, during, and after the commission of the offense in determining whether the defendant participated as a party. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). There must be sufficient evidence of an understanding and common design to commit the offense. Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015). However, circumstantial evidence may be used to prove a defendant is a party to an offense. Cary, 507 S.W.3d at 758; Gross, 380 S.W.3d at 186.

The mere presence of a person at the scene of a crime, or even flight from the scene, is not enough to support a conviction as a party to the offense. Gross, 380 S.W.3d at 186. However, a defendant's presence at the scene of the offense is a circumstance tending to prove he is a party to the offense and when combined with other facts, may be sufficient to show that the defendant was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). In this case, the events that occurred during and after the robbery show that Vickery was a party to the offense.

According to the evidence, Vickery waited in the Expedition while Dawson robbed the Pizza Hut. The Expedition was backed into a parking space in front of the Pizza Hut with the windshield facing the parking lot and street. The jury could have reasonably concluded that Vickery assisted Dawson by remaining with the vehicle to serve as a lookout.

Because the use of a deadly weapon is an element of the offense, the State had the burden to prove Vickery knew a weapon would be used or exhibited in the commission of the offense. See Young v. State, 428 S.W.3d 172, 178 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) ("[I]n order to find appellant guilty of aggravated robbery under the law of parties, it is necessary for the jury to find that appellant knew that one of his friends was going to use or exhibit a deadly weapon ... during the course of committing the robbery."). After the robbery, police officers pursued and stopped the Expedition. After removing Dawson and Vickery from the vehicle, officers found the propane tank in the center console between the driver and passenger seats. The jury could have reasonably concluded that Vickery knew that the propane tank would be used or exhibited during the robbery because she was sitting in the passenger seat as Dawson carried the tank in and out of the Pizza Hut and placed it in the console between them.

After being stopped by the police and separated, Vickery instructed Dawson not to say anything. Vickery suggests she was merely reminding Dawson to exercise his right to remain silent. However, the jury could have reasonably concluded that since Dawson and Vickery were fleeing the scene of a robbery at the time of their arrest, Vickery was instructing Dawson to remain silent about the robbery. Police discovered cash in Vickery's bra when she was searched at the Mesquite jail in an amount equal to the money reportedly stolen. Dawson had only one dollar in his possession, and police did not find any money in the vehicle. The jury could have reasonably concluded that Vickery assisted Dawson by concealing the stolen money while they were being pursued by the Pizza Hut driver and the police.

Considering all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Vickery, acting with intent to promote or assist the commission of aggravated robbery, solicited, encouraged, directed, aided, or attempted to aid Dawson to commit aggravated robbery. We resolve Vickery's sole issue against her.

The evidence is sufficient to support Vickery's conviction for aggravated robbery. The trial court's judgment is affirmed.

/Jason Boatright/

JASON BOATRIGHT

JUSTICE Do Not Publish
TEX. R. APP. P. 47 160702F.U05

JUDGMENT

On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1541607-U.
Opinion delivered by Justice Boatright. Justices Fillmore and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of June, 2017.


Summaries of

Vickery v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-16-00702-CR (Tex. App. Jun. 21, 2017)
Case details for

Vickery v. State

Case Details

Full title:AMBER NICOLE VICKERY, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 21, 2017

Citations

No. 05-16-00702-CR (Tex. App. Jun. 21, 2017)