Opinion
NO. 14-16-00452-CR NO. 14-16-00453-CR
01-23-2018
JAMES JOSEPH WASHINGTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause Nos. 15CR0900 & 15CR0902
MEMORANDUM OPINION
A jury convicted appellant James Joseph Washington of aggravated robbery in cause number 15CR0900 and assessed punishment at 25 years' confinement and a $5,000 fine. The jury also convicted appellant of aggravated robbery in cause number 15CR0902 and assessed punishment at 45 years' confinement and a $5,000 fine. Appellant challenges the legal sufficiency of the evidence to support his convictions. Because we conclude that the evidence is legally sufficient to support appellant's convictions for aggravated robbery, we affirm the trial court's judgments.
BACKGROUND
Appellant was indicted in cause number 15CR0900 for the offense of aggravated robbery of complainant Chance Maynard. He was indicted in cause number 15CR0902 for the offense of aggravated robbery of complainant Amie Maynard. A single jury trial was held for both cause numbers from April 25, 2016, to May 4, 2016.
At trial, Chance Maynard testified at length about how the aggravated robbery occurred in the early morning hours of February 17, 2015; the events that preceded the crime; and how he met appellant and two of the three co-defendants, Antonio Elizondo, Kaleb Thomas, and Clifton Dixon, who were involved in the crime.
Chance testified that he moved to Galveston to live with his mother, Amie Maynard, and her boyfriend, Lerry Hollis. Chance wanted to make a fresh start in Galveston after being released from prison in December 2014. He started working at Papa's Pizza in January 2015, where he met Antonio Elizondo. Antonio was fired shortly after Chance started working. Antonio and Chance continued seeing each other almost every day because Antonio would drive Chance to and from work in return for gas money or food. Antonio sometimes came over to Chance's house, and Amie and Lerry knew Antonio.
Antonio drove Chance to a place called Tax Queen in Houston to pick up his tax refund check on Friday, February 13, 2015. Chance had worked in Tennessee before going to prison and received a tax refund check in the amount of $5,600. Chance also had a paycheck from Papa's Pizza for approximately $500. Chance intended to purchase a car with this money.
Instead of driving immediately back to Galveston, Antonio wanted to pick up two friends so they drove further north into Houston on "59 North to Newcastle." Two young black males entered the car and introduced themselves as "J" from Arkansas and "KT" or "Port Arthur" because he was from Port Arthur. Chance testified that he had never met the two males before and talked to them for about an hour while they were riding back to Galveston. Chance identified appellant at trial as the person who introduced himself as "J." Chance testified that he only found out after the robbery that appellant's name was James Washington and that "KT" was Kaleb Thomas.
When they arrived in Galveston, Antonio stopped at the Roadway Inn hotel. Antonio went with appellant and Kaleb to rent a room for one night that Friday because it was Mardi Gras. In the meantime, Chance went to a convenience store nearby to attempt to cash his checks, but he could only cash his paycheck from Papa's Pizza. Chance then joined Antonio, appellant, and Kaleb in their hotel room. Chance asked if he could use someone's cellphone because he did not have a phone to access Craigslist to find a car to purchase. Kaleb let Chance use his phone. Chance found a car he liked and texted the seller's address from Kaleb's phone to Antonio so Antonio could drive him to buy the car he found on Craigslist.
The four men left the hotel, and Antonio dropped appellant and Kaleb off at the Strand for Mardi Gras. Antonio drove Chance to Walmart so he could cash his tax refund check. Chance was able to cash his check, receiving $4,000 in cash and the remaining $1,600 on a debit card. Antonio then drove Chance to Dickinson, Texas to buy the car he found on Craigslist. Chance bought a Chrysler 300 for $3,750 in cash. It was 8:30 p.m. when Chance departed in his new car to Galveston followed by Antonio.
While driving to Galveston, Chance's car overheated and stopped. He was in his car on the road for about two hours until a police officer pulled over. Chance was arrested for outstanding tickets and taken to Baytown jail; his car was impounded. He spent one night in jail. Antonio came to bond out Chance in the afternoon on Saturday, February 14, 2015. When Chance left jail, Antonio, appellant, and Kaleb were waiting for him in Antonio's car. Chance again identified appellant in the courtroom as the person "J" who was waiting at the jail with Antonio and Kaleb in the car.
Antonio drove appellant and Kaleb home to Houston and then drove Chance home to Galveston. Chance and Antonio did not see each other on Sunday. On Monday, Antonio drove Chance to Houston so Chance could have dinner with his four-year old son and his son's mother. After dinner around 10 p.m., Antonio drove Chance back to Galveston. At the house, Chance went to his room and Antonio remained in the living room to talk to Brandi Keiser, who was a guest Amie let stay at the house during Mardi Gras. After talking to Brandi, Antonio left. Chance went to sleep in his bedroom past midnight; Amie and Lerry went to bed in their room; Brandi slept on the living room floor.
Chance testified that the next time he saw Antonio was when appellant, Kaleb, and Antonio broke into his house around 5:00 a.m. on February 17, 2015. He testified that he woke up in his bedroom when he was hit in the face and head with a gun by a person whom he recognized to be Kaleb. Chance stated he tried to grab the gun, but Kaleb stepped back, cocked the gun, and threatened Chance, saying: "Back up or I'll hit you with this 40." Chance was frightened and understood Kaleb to mean that he would shoot Chance with the .40 caliber Glock — "all black, big gun" — he was holding.
Kaleb demanded all of Chance's money, and Chance handed Kaleb $200 in cash. Chance recognized Kaleb because "he was the same man we picked up from northbound 59 and Newcastle. The same man that came back to the Roadway Inn was the same man that came into the house. . . . Because he had red streaks in his hair. And we were talking, and I told him I don't call the police." Kaleb demanded that Chance go into the living room. Chance first attempted to run out the front door but abandoned the attempt and sat down in the living room close to where Brandi was sleeping because he got worried someone might get shot.
When Chance got to the living room, he saw Antonio and appellant forcing Amie and Lerry into the living room. Lerry was scared, laying on the floor, and obeying orders. Amie was placed on the living room floor and "was panicked. She was already like beat up a little bit" and Chance could hear Amie begging appellant, Kaleb, and Antonio to stop and leave. Chance saw Antonio had a roll of duct tape in his hands and appellant was holding a smaller silver gun. Antonio used the duct tape to tape Lerry's wrists. Appellant instructed Kaleb to duct tape everyone in the living room. At first, appellant taped only Chance's wrists; but when Chance managed to break free, Antonio kicked him with his steel toe boots and taped him around his wrists, arms, ankles, and knees. Chance testified that all three men threatened him, Amie, and Lerry with guns and pointed them at their heads. Appellant traded off his small silver gun with Antonio to help taping.
Chance again identified appellant in the courtroom as the person "J" who had forced Amie and Lerry into the living room together with Antonio. Chance testified that, when he saw appellant in the living room, appellant wore gloves and did not conceal his face. "He just had a black toboggan on. Like a beanie . . . one of those hats that sits kind of tight on the head." Chance testified that Kaleb covered his face with a red bandana and wore gloves. Chance also recognized Antonio "[b]y his appearance, his face, size, build, everything." Antonio was not "covering his face" but was wearing gloves.
Chance testified that he observed appellant taping Amie's mouth and nose and "begged him not to tape her mouth and nose so she could breath," but appellant responded by saying that "if [Chance] did not shut the fuck up he would make her suck his dick." Chance got scared and told the men "whatever they want y'all could have." Chance gave them the car keys to his Chrysler, and Kaleb took the keys. They also asked for the car title and Chance told them that the title was in his car.
Amie panicked and fought to not have her mouth and nose taped. Appellant then "struck her in the head with the gun, and then he proceeded to choke her out." They also put plastic bags over Chance's and Lerry's head, but Amie fought and would not let the defendants put a plastic bag over her head. The three defendants started panicking and tried to quiet down Amie. Chance saw a fourth man come into the house telling appellant and Kaleb "Y'all need to be quiet. There's a car at the end of the street. After that y'all can fuck them off." Chance later found out that the fourth man was co-defendant Clifton Dixon.
Chance heard the three defendants talking about gasoline. Amie asked the defendants: "What else do y'all want? Y'all have already took [sic] everything. There ain't nothing else to take." According to Chance, the defendants responded: "'We're going to take y'all's lives.' And that's whenever Antonio called out for Dez, 'Where's Dez with that gasoline?'" When no one came to bring gasoline, Antonio was instructed to get gasoline. Amie started screaming "y'all ain't going to light us on fire," and appellant choked her in order to quiet her.
Chance told the jury that he could hear the three defendants talking to each other and addressing each other by their nicknames while they were in the house. Appellant called Kaleb by his nickname "KT" and appellant "called out for someone named Dez." Chance did not know a person named Dez but he realized that Dez was the fourth man who only came into the house to tell the other defendants to be quiet. Chance testified that Kaleb and Antonio called appellant by his nickname "J" and appellant responded to being addressed as "J".
After Antonio left the house to get gasoline and Chance saw Amie being choked, Chance decided he needed to break free. He managed to break off the tape around his wrists, knee caps, and ankles and "went to grab James Washington around his arm." Amie told Chance to "Run for help." Chance then ran through the kitchen out the back porch, and dove from the second-floor porch over the fence into the neighbor's yard. When Chance landed in the neighbor's yard, he heard gunshots and saw flashes of light. Chance was worried Amie got shot and started running towards Avenue M to get help. He stopped running when he heard and saw three defendants running away from his house and looking for him. Chance testified that they were "running towards [him], looking for [him]. But when the sirens came they bolted back down 41st into that alleyway and jumped the fence."
When Chance heard the police sirens, he came out of hiding and ran to a neighbor's house for help. He could not get any help and ran back to his house. At that time, a police officer arrived and instructed Chance to not go back to his house and wait for backup but Chance ran upstairs to see Amie. Chance testified that he tried to help Amie but she was in very bad condition. More police officers and paramedics arrived to aid Amie and Lerry, who in the meantime had gone to a neighbor's house to ask for help and was laying at the neighbor's front door shot and bleeding. Brandi was asleep during the robbery and the police had a hard time waking her up because she seemed to be "high on some kind of narcotics."
Chance testified that he started cooperating with police officers. He gave the police his bond paperwork so they would have Antonio's name and could start looking for the defendants. Chance was also transported to the police station to be interviewed. He then went to the hospital to be treated for a foot, neck, and head injury he sustained. After he was released from the hospital, Chance was taken back to the police station. The police in-car video from the night of the aggravated robbery was played for the jury. The video showed Chance telling police at the scene that the robbers were Antonio and "three black guys" but that one "black guy" was outside and only came into the house to say that everyone needed to be quiet. The video also showed Chance telling the police that the robbers had a black .40 caliber gun and a small pistol.
During cross-examination, Chance acknowledged that he was shown a photo array at the police station and that he wrote on one photo that he is "100% sure" the person is "J", and he wrote on another photo that he is "1,000,000% sure" the person is "KT." Chance correctly identified Kaleb as "KT" but he incorrectly identified another person as appellant "J."
Chance rejected defense counsel's contention that Chance was "just naturally assuming that since [he] kn[e]w for a fact it was Antonio that came into [his] house and that there were two black males, [he's] just assuming it must have been those two black males from February 13th." Chance stated, "No, sir, because when they called out to each other they called out to J and KT and they acknowledged each other, same size, same height, same complexion, same everything, sir, same people I picked up from Newcastle, same people that came into that house that night." Chance also stated that he recognized Kaleb by the red in his hair "[a]nd then when I was talking to him, I was calling him by his name. He was referring to me. We were talking . . . ."
Defense counsel also questioned how Chance could have recognized the defendants in the dark but Chance stated that his small television was on and that there is a large window the size of a projector screen in the living room that lets a lot of light in from outside. Chance testified that, although the window was covered with a sheet, there is "a big lamp light, huge right on top of the house."
The jury also heard Amie's testimony. She testified that she had moved to her boyfriend Lerry's house in Galveston in December 2014 after serving a six-month jail sentence for theft. Amie testified that Chance moved in with her and Lerry in late December 2014 or early January 2015. Chance got a job at Papa's Pizza where he met Antonio. Amie testified that she is "very familiar" with Antonio and saw him "quite a bit . . . on a daily basis probably" during January and February 2015. Antonio drove Chance to work and would come to the house.
Antonio came to the house on February 16, 2015; he and Chance talked for a while and then left in Antonio's car. Antonio dropped Chance off at home later in the evening. Amie, Lerry, and Chance went to bed around 11 p.m. At the time, Amie let Brandi stay at the house with them for Mardi Gras, and she was in the living room. Amie testified that she was woken up when someone grabbed and pulled her out of bed; Amie did not know the person who grabbed her but saw him wearing a bandana and latex gloves. She also saw another person, whom she recognized to be Antonio, grabbing Lerry from bed. The two men told them to go to the living room and threatened to kill them if they did not comply with their orders. Amie recognized Antonio; she testified "[he] had the same clothes on that he had on earlier. I knew his voice, I knew his mannerisms, I knew his — I knew his work boots. I knew him."
Amie testified that she and Lerry were thrown into the living room; Chance was taken into the living room by a third male she did not know. She stated, "[t]hey sat us down and pointed guns at us." Amie stated that the man who grabbed her was black and was holding a silver gun and duct tape; and the man who was with Chance was black and was wearing a bandana and carrying a black gun.
In the living room, Antonio hit Lerry in the head and Lerry was just laying on the floor. Amie testified the three men duct taped her, Chance, and Lerry. The man holding a silver gun pointed the gun at her; the man holding a black gun pointed it at Chance. Amie could not remember if the men ever traded guns. The men made a lot of threats and told Amie, Chance, and Lerry they would kill them. Amie was taped by the man holding a silver gun. When she tried to remove the tape from her wrists, the man hit her "in the head with the gun several, several times." When she later tried to remove the tape he put on her mouth and nose, the man would hit her in the head with the gun and tape her again. Lerry was taped and his head was covered with a plastic bag, but he did not fight it. After Chance broke off the tape around his wrists, he was "really duct taped" around his neck, wrists, and ankles.
Amie testified that she tried to scream as loudly as she could to get the neighbors' attention. This made the defendants nervous and scared; they would run around and hit her. Amie tried to crawl away but her nightgown fell over her head and she exposed herself. She testified that "the guy took the gun and ran it down my vagina and said 'Oh, what do you have here?'" Amie fought and screamed because she did not want to be raped in front of Chance.
At some point, a fourth person came into the house and spoke to the three defendants but Amie could not hear what he said. Amie also testified that Antonio kept asking "Where's Dez?" and told one of the other defendants, "Go get the gasoline can. We're fixing to do this shit." Antonio then left the house. At that time, the man with the silver gun kept choking her and she was blacking out. Chance managed to break free and grabbed the man choking Amie. She told Chance to run away and "Chance ran and dove off the porch and made it to the neighbor's yard." The man with the silver gun "was trying to get a shot off at" Chance but Amie pushed him and "he turned the gun towards [Amie] and pulled the trigger." Amie believed she was shot with the silver gun because she saw "something silver fly out of the corner of [her] eye." After she was shot, Lerry was also shot.
Amie believed that the man who held the silver gun kept searching for something in the room and even tried to pick her up but he could not move her. Soon thereafter, she heard sirens and the defendants left. Police arrived and Chance came back to the house. Amie did not remember being transported to the hospital. She testified that she spent four months in the hospital and is paralyzed from the chest down.
On cross-examination, Amie testified that she recognized Antonio not only by his voice, mannerisms, and clothes but also because she saw his face. She testified that "his mask fell down" and he would have to pick it up. She stated that the other defendants also had a problem and their bandanas would slide down. When defense counsel asked Amie whether she remembered testifying at an earlier hearing that all defendants "had masks on and that they had their masks on the entire time," she responded: "Because the masks would — during commotions the mask would slide down but they would pick it back up or they would hold the masks up, you know. It was just a bandana, and, you know, in the chaos it would start to slide down and they would have to pick it back up."
Detective Michelle Sollenberger, who was the lead investigator in this case, also testified at trial. She testified that she interviewed Chance for several hours immediately after the robbery at the police station. When Chance positively identified Kaleb as KT on a photo array, she and other police officers continued their investigation of the robbery. Police located Kaleb at his apartment and arrested him. Kaleb gave police consent to search his apartment and police found a Chrysler car key, among other things, in Kaleb's apartment.
In the meantime, police arrested Antonio and Detective Sollenberger interviewed him. He at first denied his role in the robbery but provided Detective Sollenberger with information that led her to start looking for appellant and later for Clifton Dixon. After further investigation, police issued arrest warrants for appellant and Clifton but they had left Houston. The two were located in Kansas City, Missouri about a month later and brought back to Texas.
The jury also heard testimony from Detective Scott Pena of the Galveston Police Department crime scene unit, who stated that he was called to the crime scene in the early morning of February 17, 2015. There, he recovered numerous items that he sent off to the laboratory for special fingerprinting, DNA, and firearms analysis. Among the items recovered were latex gloves, duct tape, plastic bags, shell casings, and a Lorcin .25 caliber silver gun. Detective Pena examined the silver gun recovered at the scene and found no round in the chamber and no ammunition. Neither did he find any projectiles or shell casings for the particular silver gun at the crime scene; the only two shell casings found were those for a .40 caliber gun.
A forensic scientist with the Texas Department of Public Safety, Shane Windsor, also testified. He analyzed the Lorcin .25 caliber silver gun found at the scene and determined that it was not functional. He also examined one fired bullet and two fired casings which he eliminated as being fired from the Lorcin gun. The bullet he examined had been recovered from Amie's shirt by a paramedic at the scene while examining Amie's wounds; according to the paramedic, the bullet had gone through Amie's body so the paramedic gave it to the police as evidence.
Windsor determined that the two casings were fired from the same firearm, namely a .40 caliber Smith & Wesson or similar weapons. "The fired bullet was also eliminated as having been fired from the submitted Lorcin pistol." Instead, Windsor determined that the bullet came from a .40 caliber weapon.
Forensic scientist Jenna Dunton with the Texas Department of Public Safety Crime Laboratory testified that Antonio was the only person she was able to include as a major DNA contributor on some of the items, like latex gloves and duct tape, that were recovered from the crime scene and tested. Dunton was unable to include appellant as a DNA contributor on the tested items.
Galveston Police Department fingerprint examiner James Freed testified that he examined several fingerprints he received from Detective Pena. Freed did not have any matches for Kaleb's or Clifton's fingerprints. Freed had seven positive results for Antonio's fingerprints that were lifted off Antonio's car and one match for appellant's fingerprint lifted off Antonio's car.
The State also called Antonio to the stand. He testified that he had pleaded guilty to the aggravated robbery of Chance and Amie before trial and that the State had not offered him any leniency or deal in return for his testimony. He acknowledged being dishonest with police in interviews when he was arrested but he explained that he was "mad that [he] had gotten arrested and [he] was under the influence of drugs and at that time [he] didn't want to cooperate." He stated that he decided to testify at trial because he "felt like it was the least [he] could do to try to make things right."
Antonio testified that he moved to Galveston in 2013 to attend college but dropped out. He met Chance in late 2014 or early 2015 while working at Papa's Pizza. He testified that he drove Chance every day to work because Chance did not have a car and Chance would give him gas money. Antonio testified that he knew Amie and Lerry and saw them every time he went to Chance's house. Antonio stated that he drove Chance to Houston to a place called Tax Queens on February 13, 2017, so Chance could pick up his income tax return check. After picking up the check, Antonio and Chance drove further into Houston to pick up Kaleb and appellant at their apartment complex by New Castle Road.
Antonio first met appellant, Kaleb, and Clifton through a mutual friend from Galveston in January 2015. Antonio knew Kaleb as "KT" from Port Arthur and appellant as "J" from Arkansas. Antonio testified that Chance did not know the three men. Chance met appellant and Kaleb for the first time on February 13, 2015, when Antonio picked them up from their apartment complex; Chance never met Clifton. After picking up Kaleb and appellant, Antonio drove everyone to Galveston. In Galveston, Antonio rented a hotel room at the Roadway Inn for himself, appellant, and Kaleb. The jury saw a surveillance video showing appellant, Antonio, and Kaleb in the hotel lobby.
Antonio testified that he, appellant, Kaleb, and Chance stayed in the hotel room for a while, and Chance told Antonio that he wanted to buy a car with the money from his tax return check. Antonio then drove Chance to Walmart so he could cash his tax return check; appellant and Kaleb did not go with them. Afterwards, Antonio drove Chance to Dickinson so he could buy the car he found on Craigslist. Chance test drove the car and bought it. It was already 9 or 10 p.m. when Antonio and Chance left Dickinson. Chance was supposed to follow Antonio but there was a lot of traffic going to Galveston because of Mardi Gras and Antonio lost Chance. Antonio arrived at the Roadway Inn hotel around 11 p.m. but Chance was not there; Antonio went to Chance's house but he was not there either.
Antonio then went to the seawall to pick up Kaleb and appellant and drive them to the Strand. After dropping off the two men, Antonio went to spend some time with friends. He picked up Kaleb and appellant at the Strand around 2 a.m. on Saturday, February 14, 2015. They returned to the Roadway Inn hotel for the night. While they were in the hotel room, Kaleb showed Antonio a small silver gun he carried. Antonio, appellant, and Kaleb also discussed robbing Chance. They discussed taking the Chrysler car Chance had just purchased and selling it to Kaleb's uncle and also taking all of Chance's cash. At the time, robbing Chance was just an idea and they had made no plans yet.
They checked out of the hotel on Saturday at 11 a.m. and spent time visiting Galveston until Antonio received a phone call from Chance's grandmother telling him Chance was in jail. Antonio, Kaleb, and appellant drove to the Baytown jail, and Antonio bonded Chance out of jail. Antonio first drove appellant and Kaleb back to their apartment in Houston and then drove Chance home. According to Antonio, he and Chance got into an argument that evening because Chance accused Antonio of stealing money from Chance. After the argument, Antonio decided to go through with the idea of robbing Chance.
Chance and Antonio did not see each other until Monday, February 16, 2015, when Antonio drove Chance to Houston to have dinner with his son and his son's mother. After dinner, Antonio drove Chance back to his house in Galveston and then drove to Kaleb and appellant's apartment. There, the three men came up with a plan how to rob Chance. Antonio testified that Kaleb and appellant were in on the plan from the very beginning and discussed how they would commit the robbery for about 10 to 15 minutes; Clifton was a "last minute add on." As part of the plan, Antonio drove Kaleb to an apartment complex in the Third Ward so Kaleb could pick up a gun because they wanted to show more force and be more intimidating during the robbery. Kaleb got a .40 caliber black gun. The two returned to appellant's apartment to solidify their plans. They decided that Kaleb and appellant would hold the guns, and Antonio's and Clifton's role would be to restrain Chance, Amie, and Lerry.
The four men left the apartment in the early morning on Tuesday, February 17, 2015, to drive to Chance's home in Galveston. On their way, they stopped at a Walmart where appellant bought white latex gloves, duct tape, and bandanas. When they arrived at Chance's house, they put on the latex gloves. Appellant, Antonio, and Kaleb went upstairs and entered the house; Clifton did not want to go in and decided to stay downstairs by the gate. Kaleb carried the black .40 caliber gun and appellant carried the small silver gun. Kaleb went to Chance's bedroom; Antonio and appellant went to Amie's and Lerry's bedroom. After Chance, Amie, and Lerry were brought to the living room, Antonio taped Lerry and Chance. Kaleb pistol-whipped Chance in the face when he started moving around and threatened him with the gun. Appellant kept kicking Amie in the face and Amie kept fighting him.
Kaleb and Antonio demanded Chance's money and car keys, and Chance gave Kaleb $200 in cash and his car key. The men put plastic bags over Lerry's, Amie's, and Chance's head to keep them quiet. Amie would rip the bag off and scream and appellant would hit her. In an effort to quiet down Amie because she was screaming loudly, appellant hit her, put his gun in her vagina, and choked her.
Antonio testified that his bandana fell off during the robbery so he just pulled it off; and Chance recognized him. Antonio could not remember if Kaleb's and appellant's face also got exposed but Kaleb told Antonio that Chance, Amie, and Lerry had seen their faces and that they had to get rid of the witnesses and any DNA evidence. According to Antonio, things got out of control and Kaleb and Antonio wanted to kill Amie, Chance, and Lerry. Antonio and Kaleb therefore discussed getting gasoline, and Antonio left in his car to get gasoline at a corner store. On his way back to the house, Antonio received a phone call from Kaleb and did not return to the house but hid in his car because he knew police would be looking for him.
Kaleb, appellant, and Clifton called Antonio again to ask him for a ride but Antonio continued hiding in his car until 7 p.m. that evening. Antonio then drove to appellant's apartment to meet with appellant and Kaleb. Antonio asked the two what happened after he had left Chance's house. Appellant told Antonio that he tried to stop Chance when he fled the house but that Amie tripped appellant. This led Kaleb to shoot Amie. Kaleb admitted to Antonio that he "was the man that shot" Amie and Lerry.
The State rested its case, and the defense called appellant to the stand. Appellant testified that he moved from Arkansas to Houston in July 2014 to attend school at the Art Institute. His friends Clifton and Kaleb also attended the Art Institute with him. Appellant met Antonio in 2014 because he used to buy marijuana from him.
Appellant testified that he and Kaleb decided to go to Galveston with Antonio for Mardi Gras on February 13, 2015. Chance also rode in the car with them. The four men arrived in Galveston and went first to the Roadway Inn hotel. Antonio dropped off Kaleb and appellant at the seawall around 5:30 p.m.; "Antonio and Chance went somewhere" but appellant did not know where. Appellant testified that he and Kaleb walked from the seawall to the Strand and stayed at Mardi Gras until midnight. There, they met two females, Kiara and Jaquisha. Appellant and Kaleb went to Kiara's apartment and spent a couple of hours with Kiara and Jaquisha until Antonio picked them up. Antonio, Kaleb, and appellant went to the Roadway Inn hotel where they smoked marijuana and fell asleep.
The next day, the three men checked out of the hotel and rode around Galveston until Antonio received a phone call from Chance's grandmother that Chance was in jail. The men drove to Baytown jail to bond Chance out. After bonding out Chance, Antonio drove appellant and Kaleb to their apartment in Houston. The next time appellant saw Antonio was around midnight on Monday, February 16, 2015, when Antonio came to appellant's apartment. Appellant testified that he wanted to ride to Galveston with Antonio to see Kiara again. Appellant claimed he did not know what Kaleb, Antonio, and Clifton planned to do in Galveston. Appellant denied hearing anyone talk about robbing Chance at his apartment or during their drive to Galveston. Appellant testified that they stopped at a Walmart for about 20 minutes. Appellant claimed he bought cigarettes, candy, and a drink; the other men also bought items but appellant did not know what they bought.
Appellant testified that Antonio dropped him off in Galveston at Kiara's apartment around 2 a.m. on February 17, 2015. Antonio, Kaleb, and Clifton drove off, but appellant did not know where they went. Appellant testified that he was at Kiara's apartment all night. He received a phone call from Kaleb and Clifton at 6:30 a.m. on February 17, 2015, asking him to find them a ride home to Houston. Appellant testified that he intended to stay at Kiara's place until the evening but left her apartment at 7 a.m. to meet Kaleb and Clifton at the seawall to help them out. At some point, Kaleb's roommate picked up appellant, Kaleb, and Clifton and drove them all back to Houston. The next day, appellant attended his classes, returned to his apartment, and packed to leave for a long weekend trip to Arkansas.
Appellant testified that he ended up staying in Arkansas for a while because he found out that there were warrants out for his arrest in Texas in connection with the aggravated robbery of Chance and Amie. Three weeks later, appellant saw Clifton when he travelled to Kansas City, Missouri. According to appellant, Clifton asked him to come to his family's house in Kansas City to bring Clifton's laptops and recording devices. Appellant and Clifton were arrested in Kansas City and brought back to Texas.
On cross-examination, appellant admitted seeing Kaleb's silver gun in the hotel room during their Mardi Gras visit but denied ever talking about a robbery. Appellant denied knowing what Kaleb and Antonio discussed or what plans Kaleb, Antonio, and Clifton had when they drove to Galveston in the early morning of February 17, 2015. Appellant claimed that the men were only making small talk and listening to music on their drive to Galveston; he had no idea what they were planning to do. Appellant claimed that Chance and Antonio lied in court about his participation in the robbery because he did not participate in any way; instead, he spent the whole night at Kiara's apartment. Appellant claimed he tried to find Kiara but the police did not allow him to access his phone, and he did not know her phone number by heart.
After hearing the evidence presented, the jury found appellant guilty of aggravated robbery in cause numbers 15CR0900 and 15CR0902. The jury assessed appellant's punishment at 25 years' confinement and a $5,000 fine in cause number 15CR0900. The jury assessed appellant's punishment at 45 years' confinement and a $5,000 fine in cause number 15CR0902. Appellant filed a timely appeal in both cause numbers.
ANALYSIS
Appellant argues that the evidence is legally insufficient to support his convictions in either cause number because the "State failed to prove the Appellant committed aggravated robbery with a deadly weapon beyond a reasonable doubt."
I. Standard of Review and Applicable Law
When reviewing the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in its verdict. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017). The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We defer to the jury's responsibility to fairly resolve or reconcile conflicts in the evidence, and we draw all reasonable inferences from the evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
In conducting a sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). The jury may credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Id.
"A criminal conviction may be based upon circumstantial evidence." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence and may alone be sufficient to establish guilt. Id.; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). It is not necessary that every fact and circumstance point directly and independently to the defendant's guilt; it is enough that the combined and cumulative force of all the incriminating circumstances supports the jury's conclusion. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The jury may not draw conclusions based on speculation, but may draw multiple reasonable inferences from facts as long as each is supported by the evidence presented at trial. Id. at 15. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).
Appellant was charged with aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2011). A person commits aggravated robbery if he commits robbery as defined in Section 29.02, and he (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon. Id. § 29.03(a)(1), (2). A firearm is a deadly weapon. Id. § 1.07(a)(17) (Vernon Supp. 2017).
A person commits robbery if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he (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. § 29.02(a) (Vernon 2011). A person commits theft as defined in Chapter 31 when he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2017).
In addition to allowing appellant's conviction as a primary actor, the jury charge also included an instruction on the law of parties. Under the law of parties, 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, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2011). As applied in this case, the jury was charged that appellant could be found guilty if, with the intent to promote or assist the commission of the offense of aggravated robbery, appellant solicited, encouraged, directed, aided, or attempted to aid Kaleb, Antonio, or Clifton to commit the offense.
More specifically, the jury charge provided with regard to cause number 15CR0900 and complainant Chance as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of February, 2015, in Galveston County, Texas, . . . Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Chance Maynard in fear of imminent bodily injury or death, and Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there use or exhibit a deadly weapon, to wit: a handgun, or Firearm or gasoline, and the defendant James Joseph Washington, with the intent to promote or assist the commission of the offense of Aggravated Robbery by Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, James Joseph Washington solicited, encouraged, directed, aided or attempted to aid the said Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, then you will find the defendant James Joseph Washington guilty of Aggravated Robbery as alleged in the indictment.The jury was instructed in cause number 15CR0902 with regard to complainant Amie as follows:
OR if you find from the evidence beyond a reasonable doubt that on or about the 17th day of February, 2015, in Galveston County, Texas, Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to Chance Maynard by striking with Antonio Elizondo's hand, or Kaleb Thomas's hand, or Clifton Dixon's hand, and Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there use or exhibit a deadly weapon, to wit: handgun or firearm or gasoline, and the defendant James Joseph Washington, with the intent to promote or assist the commission of the offense of Aggravated Robbery by Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, James Joseph Washington solicited, encouraged, directed, aided or attempted to aid the said Antonio Elizondo or Kaleb Thomas, or Clifton Dixon, then you will find the defendant James Joseph Washington guilty of Aggravated Robbery as alleged in the indictment.
Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of February, 2015, in Galveston County, Texas, . . . Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did
then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly cause serious bodily injury to Amie Maynard by shooting Amie Maynard, and the defendant James Joseph Washington, with the intent to promote or assist the commission of the offense of Aggravated Robbery by Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, James Joseph Washington solicited, encouraged, directed, aided or attempted to aid the said Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, then you will find the defendant James Joseph Washington guilty of Aggravated Robbery as alleged in the indictment.
OR if you find from the evidence beyond a reasonable doubt that on or about the 17th day of February, 2015, in Galveston County, Texas, Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to Amie Maynard by shooting Amie Maynard and/or dragging Amie Maynard and/or striking Amie Maynard with the hand and/or feet of Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, and that the said Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there use or exhibit a deadly weapon, to wit: handgun and/or firearm and/or gasoline, and the defendant James Joseph Washington, with the intent to promote or assist the commission of the offense of Aggravated Robbery by Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, James Joseph Washington solicited, encouraged, directed, aided or attempted to aid the said Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, then you will find the defendant James Joseph Washington guilty of Aggravated Robbery as alleged in the indictment.
OR if you find from the evidence beyond a reasonable doubt that on or about the 17th day of February, 2015, in Galveston County, Texas, Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Amie Maynard in fear of imminent bodily injury or death, and Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon did then and there use or exhibit a deadly weapon, to wit: handgun and/or firearm and/or gasoline, and the defendant James Joseph Washington, with the intent to promote or assist the commission of the offense of Aggravated Robbery by Antonio Elizondo, or Kaleb
Thomas, or Clifton Dixon, James Joseph Washington solicited, encouraged, directed, aided or attempted to aid the said Antonio Elizondo, or Kaleb Thomas, or Clifton Dixon, then you will find the defendant James Joseph Washington guilty of Aggravated Robbery as alleged in the indictment.The jury found appellant guilty and was not required to specify whether it determined that appellant committed aggravated robbery of Chance and Amie as a primary actor or as a party.
II. Sufficiency of the Evidence
Appellant contends that the evidence is legally insufficient to support his convictions for aggravated robbery because (1) "Appellant did not know of the plan to commit the aggravated robbery and was not present when the crime was committed;" (2) "Complainant, Chance Maynard, picked someone other than the appellant from the photospread and admitted that his mother testified that everybody was wearing masks;" (3) "Amie Maynard recognized Antonio Elizondo, but testified that they all had masks on throughout the entire event;" (4) "Antonio Elizondo, who pled guilty to the charges, admitted that he lied about almost everything to the police;" (5) "[t]here was no DNA evidence connecting the appellant to the crime;" (6) "[t]here was no confession from the appellant;" (7) "[t]here was no testimony from the co-defendants Kaleb Thomas or Dixon that the appellant participated in the offense;" and (8) "[t]here was no credible corroboration by the complainant, Chance Maynard, of [Antonio]'s story that James Washington assisted in the aggravated robbery."
We construe appellant's argument to encompass a challenge to the sufficiency of the evidence that he committed the offense of aggravated robbery of Chance and Amie in any capacity — whether as a primary actor or as a party.
Considering all the evidence presented in this case in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support a finding that appellant committed the offense of aggravated robbery of Chance and Amie as a party to the offense. We thus need not address the sufficiency of the evidence to establish appellant's guilt as the primary actor. See Hurd v. State, 495 S.W.3d 592, 597 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see also Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) ("The principle is well-established that when the jury returns a general verdict and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld.").
"When a party is not the primary actor, the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct." Hurd, 495 S.W.3d at 597 (citing Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985)). "Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act." Salinas v. State, 163 S.W.3d 734, 739-40 (Tex. Crim. App. 2005). Circumstantial evidence may be used to prove one is a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
Here, the evidence is sufficient to show both the commission of aggravated robbery of Chance and Amie and that appellant, with the intent to promote or assist in the commission of the offense, encouraged, directed, aided, or attempted to aid the commission of the aggravated robbery of Chance and Amie.
First, we consider the evidence establishing the commission of aggravated robbery of Chance and Amie.
Chance testified that Kaleb woke him up around 5 a.m. on February 17, 2015, when he came into his bedroom and hit him in the face and head with a gun. Chance testified that Kaleb threatened to shoot him with a .40 caliber black gun Kaleb pointed at him; and Chance was scared of being shot. Chance testified that Kaleb demanded his money and he gave Kaleb $200 in cash and later the key to his Chrysler car. Chance testified that he recognized Kaleb because of the red streaks in Kaleb's hair and because "he was the same man we picked up from northbound 59 and Newcastle. The same man that came back to the Roadway Inn was the same man that came into the house." Chance also testified that he personally addressed Kaleb during the robbery and talked to him and that he could hear the defendants address each other by their nick names, calling Kaleb "KT" and appellant "J."
Amie confirmed that Kaleb — the man with the black gun — threatened Chance by pointing the gun at him when Chance was in the living room. Amie testified that all men threatened to kill her, Chance, and Lerry. Amie and Chance testified that Kaleb was holding a black gun during the robbery and that appellant was holding a small silver gun. Although Amie testified that she believed the man with the silver gun shot her because he turned to her and pulled the trigger when she pushed him in order to help Chance flee the house, evidence established that the silver gun appellant was holding during the robbery was not functional. Evidence also established that Amie was shot with a .40 caliber gun. And the only person holding a .40 caliber gun during the robbery was Kaleb, as testimony showed. Evidence also showed that Amie suffered serious bodily injury as a result of being shot and is paralyzed from the chest down.
This evidence supports a finding that Kaleb committed aggravated robbery by intentionally and knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of property (1) threatening or placing Chance in fear of imminent bodily injury or death with a deadly weapon, namely a .40 caliber gun; and (2) causing Amie serious bodily injury by shooting her. See Tex. Penal Code Ann. § 29.03 (a), (b).
Second, we consider the evidence establishing that appellant, with the intent to promote or assist in the commission of the aggravated robbery, solicited, encouraged, directed, aided, or attempted to aid Kaleb in his commission of the offense.
Chance testified that appellant, Kaleb, and Antonio broke into his house in the early morning of February 17, 2015. Chance testified that appellant and Antonio forced Amie and Lerry into the living room. There, appellant instructed Kaleb to tape everyone up in the living room but then taped up Chance himself. Appellant was holding a small silver gun during the robbery and only traded it off with Antonio to help with duct taping. Chance identified appellant numerous times during trial as the person "J" who forced Amie and Lerry into the living room, whom he had met earlier in the week, and with whom he rode in the car once to Galveston and another time after being bonded out of jail.
Chance testified that he observed appellant taping Amie's mouth and nose and "begged him not to tape her mouth and nose so she could breath," but appellant responded by saying that "if [Chance] did not shut the fuck up he would make her suck his dick." Amie panicked and fought to not have her mouth and nose taped. Appellant then "struck her in the head with the gun, and then he proceeded to choke her out." Chance testified that Amie started screaming after she heard the three defendants talking about gasoline, so appellant choked her in order to quiet her.
Amie testified that appellant — the man holding a silver gun during the robbery — grabbed her and pulled her out of bed. He and Antonio forced her and Lerry to go to the living room and threatened to kill them if they did not comply with orders. Amie testified that appellant taped her and pointed a silver gun at her. He also hit her several times in the head with the gun. She testified that every time she tried to remove tape from her wrists, mouth, and nose, appellant would hit her with the gun and tape her again. Amie stated that she fought and screamed so appellant choked her. Amie also stated that appellant tried to prevent Chance from fleeing the house by "trying to get a shot off" at Chance but she pushed him.
This evidence supports a finding that appellant directed, aided, or attempted to aid the commission of the aggravated robbery of Chance and Amie and did so with the intent to promote or assist the commission of the offense.
We reject appellant's contention that the evidence is legally insufficient to support his convictions for aggravated robbery because there was no DNA evidence connecting him to the offense. DNA evidence is not required to convict a defendant. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (rejecting contention that lack of DNA evidence connecting defendant to crime rendered evidence insufficient); see also Bryant v. State, No. 14-15-00819-CR, 2016 WL 4705157, at *4 (Tex. App.—Houston [14th Dist.] Nov. 9, 2016, pet. ref'd) (same). Nor is evidence rendered legally insufficient because there was "no confession from the appellant" and because there was "no testimony from the co-defendants Kaleb Thomas or Dixon that the appellant participated in the offense." A defendant's confession to a crime is not required for his conviction; nor is it necessary, reasonable, and practical to require the State to present the testimony of each co-defendant for evidence to be considered legally sufficient to support a conviction.
We also reject appellant's contention that the evidence is legally insufficient because "Appellant did not know of the plan to commit the aggravated robbery and was not present when the crime was committed." As outlined above, testimony from Chance and Amie established that appellant was not only present during the aggravated robbery but actively participated by, at the very least, directing, aiding, or attempting to aid the commission of the offense.
Appellant asserts that the evidence is legally insufficient because Antonio "admitted that he lied about almost everything to the police." Antonio acknowledged at trial that he was dishonest with the police during his interviews when he was arrested, but he explained that he was "mad that [he] had gotten arrested and [he] was under the influence of drugs and at that time [he] didn't want to cooperate." He also stated that he testified truthfully at trial and that he decided to testify because he "felt like it was the least [he] could do to try to make things right." The jury as the sole judge of witness credibility was free to believe Antonio's testimony and to determine if he was a credible witness. See Temple, 390 S.W.3d at 360; Young, 358 S.W.3d at 801. Additionally, Antonio's testimony is not necessary to support appellant's conviction. The testimony of even a single eyewitness can be enough to support a conviction; thus, testimony from Chance and Amie as eyewitnesses is sufficient to support appellant's conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Jackson v. State, 530 S.W.3d 738, 742 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Appellant further contends that the evidence is legally insufficient because "Amie Maynard recognized Antonio Elizondo, but testified that they all had masks on throughout the entire event." To the extent appellant claims that Amie's testimony contradicts Chance's testimony that Antonio and appellant did not cover their faces during the robbery, Amie clarified her testimony during cross-examination. Amie stated that she recognized Antonio not only by his voice, mannerisms, and clothes but also because she saw his face. She stated that "his mask fell down" and he would have to pick it up. She stated that the other defendants also had a problem and their bandanas would slide down. When defense counsel asked Amie whether she remembered testifying at an earlier hearing that all defendants "had masks on and that they had their masks on the entire time," she responded: "Because the masks would — during commotions the mask would slide down but they would pick it back up or they would hold the masks up, you know. It was just a bandana, and, you know, in the chaos it would start to slide down and they would have to pick it back up." It was within the jury's province to evaluate Amie's testimony and reconcile any conflicts in the evidence; we reject appellant's argument. See Temple, 390 S.W.3d at 360; Isassi, 330 S.W.3d at 638.
Lastly, appellant contends that the evidence is legally insufficient because Chance "picked someone other than the appellant from the photospread." Although Chance picked someone other than appellant in a photo array, Chance identified appellant numerous times in court as the person "J" (1) whom he first met together with Kaleb on February 13, 2015, and talked to for about an hour while riding to Galveston in Antonio's car; (2) with whom he was in the Roadway Inn hotel in Galveston together with Kaleb and Antonio; (3) with whom he drove from Baytown to Houston in Antonio's car after they picked him up from Baytown jail; and (4) who entered his house and participated in the aggravated robbery.
The jury heard Chance's testimony that appellant wore gloves but did not conceal his face during the robbery and "just had a black toboggan on. Like a beanie . . . one of those hats that sits kind of tight on the head." The jury also heard Chance rejecting defense counsel's suggestion that Chance assumed the two black males who broke into his house were Kaleb and appellant because he had seen them earlier with Antonio. Chance stated: "No, sir, because when they called out to each other they called out to J and KT and they acknowledged each other, same size, same height, same complexion, same everything, sir, same people I picked up from Newcastle, same people that came into that house that night."
Again, it is within the sole province of the jury to weigh the credibility of witnesses and to reconcile any conflicts or contradictions in evidence. See Temple, 390 S.W.3d at 360; Isassi, 330 S.W.3d at 638. Here, the jury heard and considered all the evidence and, based on the evidence before it, determined appellant was guilty of aggravated robbery.
Viewing all the evidence presented in this case in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support a finding that appellant committed the offense of aggravated robbery of Chance and Amie as a party to the offense. Accordingly, we overrule appellant's issue.
CONCLUSION
We affirm the trial court's judgment in cause number15CR0900 and in cause number 15CR0902.
/s/ William J. Boyce
Justice Panel consists of Justices Boyce, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).