Opinion
NO. 02-15-00121-CR
05-26-2016
KENNETH DEWAYNE MAYES APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR14-0818 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Kenneth Dewayne Mayes appeals from his conviction for aggravated robbery. Because we conclude that the evidence was sufficient to support his conviction and because the trial court did not err by denying Appellant's requested jury-charge instructions, we affirm.
I. BACKGROUND
At approximately 1:00 a.m. on September 30, 2014, Sherry Trejo was driving to her home in Weatherford, Texas, on an interstate highway. Trejo noticed a white passenger car stopped on the service road, which was unusual. After Trejo passed by, she noticed that the car began moving to get on the interstate, pulled behind Trejo's car, and followed her off the interstate when Trejo exited. When Trejo parked her car at her apartment complex, the car she had seen on the service road "came behind" her car but drove by. As Trejo was getting some bags out of the front passenger seat, she saw a "clean-cut," black man standing at the front of her car, wearing jeans and a "maroon or burgundy" solid shirt. The man asked to use her phone, and Trejo handed her phone to him. The man then asked where Trejo's purse was. Trejo told the man she did not have a purse and then noticed that the man was holding a short, silver revolver with a black handle. The man grabbed Trejo and put the gun against her back. He took Trejo's credit cards and cash—approximately $37—from her pockets and made her kneel down. Trejo begged the man not to shoot her, to which he replied, "Why would I do that?" The man then ran away. Trejo's granddaughter, who lived with Trejo and whose bedroom faced the parking lot, heard a car door slam around this time. When she looked out the window, she saw a white car—"like a white [Dodge] Charger"—back out and drive off at a fast speed.
Trejo's phone was an iPhone 5 in a pink and white case.
Trejo, meanwhile, had fled to her apartment and called the police. Police officers on patrol in the area were alerted that a robbery at gunpoint had occurred and to be on the lookout for a black male driving a white Dodge Charger. Shortly after 1:00 a.m. on September 30, 2014, Officer Willie Johnson of the Hudson Oaks Police Department was on patrol about two miles from where the robbery occurred. He heard the notification about the robbery and saw a white Dodge Avenger leave the parking lot of a convenience store. Johnson followed the car and saw it fail to stop at a stop sign, put its right-turn signal on, stop in the middle of the intersection, and then drive straight through the intersection. Johnson radioed the car's license-plate information to the police department and turned on the roof lights of his marked patrol car to pull the Avenger over for a traffic stop. The car pulled into another convenience store parking lot, slowed down, but then sped off onto the service road to get back on the interstate. Johnson saw that the driver was a black man and that a woman was sitting in the passenger seat.
A Dodge Avenger is very similar in appearance to a Dodge Charger.
The Avenger led Johnson and other responding police officers on a high-speed chase on the interstate, reaching speeds of over 120 miles per hour. When the Avenger got off the interstate in Fort Worth and entered a residential area, still at a high speed, the pursuing officers ended the chase for safety reasons. Approximately fifteen minutes after the chase ended, Sergeant Steven Fineman with the Fort Worth Police Department saw a car with the license plate of the car that had evaded Johnson's traffic stop parked in a driveway in the neighborhood where the car was last seen. After determining that the car was not owned by anyone in the house, Fineman found a black man—Appellant—and a young woman—Jessica Toombs—hiding in the back yard of the house next door. Appellant was wearing a "multi-colored striped shirt" and jeans. Officers handcuffed both, and discovered a silver revolver, Trejo's credit cards, and Trejo's driver's license in Appellant's pockets. Trejo's iPhone was found in a sock in the back seat of the Dodge Avenger. Later, Trejo identified someone from a photographic line-up with 60% certainty as the man who robbed her, but it was not Appellant.
A grand jury indicted Appellant with aggravated robbery by intentionally or knowingly, while in the course of committing theft of property, threatening or placing Trejo in fear of imminent bodily injury or death and using or exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2)(West 2011). At trial, Toombs testified that on September 29, 2014, at around 10:30 p.m., Appellant drove to Dallas and picked her up in a white "Charger or Avenger" so they could "just driv[e] around and smok[e]" synthetic marijuana. Toombs remembered that Appellant was wearing a "dark red t-shirt, just a plain t-shirt" that night. Toombs could not remember what shirt she was wearing. Toombs feel asleep at some point and woke up when Appellant pulled into a convenience store and told her to put her seat belt on. Toombs then noticed "more than one cop car" behind Appellant's car. Appellant drove off quickly "trying to get away" from the police. Toombs testified that after Appellant got into a residential area and lost the police cars, Appellant pulled the car into a driveway and told Toombs to switch shirts with him, which she did. Before putting Toombs's shirt on, Appellant "started wiping stuff down in general" inside the car. Toombs stated that the pair then got out of the car, went a few houses down, jumped a fence, and sat on a back porch. When officers began shining flashlights into the back yard, searching for Appellant, Appellant told Toombs to "move [her] feet in." Toombs testified that although she knew Appellant was "running" from the police and did not tell him to stop, she denied encouraging him to evade the officers. She also denied seeing a gun, but remembered Appellant having an iPhone in a pink case that night.
After the State rested its case against Appellant, he orally moved for a directed verdict because "even the complaining party has not been able to identify [Appellant]." The trial court denied the motion. After Appellant rested and both sides closed, Appellant requested that the trial court include in the jury charge an instruction on the lesser-included offense of "theft as a result of receiving stolen property" and an instruction on "the accomplice witness rule" because Toombs was "as a matter of fact . . . an accomplice." The trial court denied both requests. The jury found Appellant guilty of aggravated robbery as charged in the indictment.
At the punishment phase of the trial, the State introduced evidence of its enhancement allegation regarding Appellant's 2005 conviction for aggravated assault, and Appellant pleaded true to the allegation. The owner of the Dodge Avenger that Appellant drove while evading the police testified that a black man stole her car at gunpoint on September 29, 2014. The jury assessed Appellant's punishment at sixty-five years' confinement and a $10,000 fine, and the trial court entered judgment on the jury's verdict. Appellant filed a motion for new trial, arguing that the evidence was insufficient to support his conviction and that the trial court erred by denying his requested jury instructions. The trial court denied the motions. On appeal, Appellant argues in three points that the evidence was insufficient to support the jury's finding that he robbed Trejo, that the trial court erred by failing to charge the jury on the lesser-included offense of theft, and that the trial court erred by denying his requested jury instruction regarding accomplice testimony.
II. SUFFICIENCY OF THE EVIDENCE
In his third point, Appellant argues that the evidence was insufficient to support his conviction of aggravated robbery. In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
The crux of Appellant's argument is that because Trejo was unable to identify him as the robber and because Toombs was an uncorroborated accomplice, there is no evidence that he robbed Trejo. A conviction may not rest upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). But this rule only applies if the witness actually was an accomplice. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.), cert. denied, 552 U.S. 1028 (2007). An accomplice is defined as more than a bystander or passive participant:
Appellant argues that Toombs was the only witness who placed him in Parker County at the time of the robbery. But Toombs testified that Appellant picked her up in Dallas, that she fell asleep, and that she did not know where she was the rest of the night except that she knew she had been in Weatherford in Parker County. Further, Johnson saw the car Appellant was driving two miles from the robbery a few minutes after the robbery occurred.
An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state. To be considered an accomplice witness, the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged. A witness is not an accomplice witness merely because . . . she knew of the offense and did not disclose it, or even if . . . she concealed it. In addition, the witness's mere presence at the scene of the crime does not render that witness an accomplice witness. And complicity with an accused in the commission of another offense apart from the charged offense does not make that witness's testimony that of an accomplice witness. In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of
that charge, the witness is not an accomplice witness as a matter of law.Id. (footnotes omitted); see also Smith v. State, 332 S.W.3d 425, 439-40 (Tex. Crim. App. 2011); McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997).
We conclude that Toombs was not an accomplice such that her uncorroborated testimony was incompetent to support Appellant's conviction. Toombs was asleep in the car during the time Trejo was robbed and did not wake up until Appellant's car chase with police began. There was no evidence that Toombs took any act that promoted the commission of the aggravated robbery. The only offenses Toombs arguably participated in or promoted were possession of a controlled substance and evading detention, neither of which was at issue during the trial. See Druery, 225 S.W.3d at 500; Hill v. State, 451 S.W.3d 392, 396 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Toombs was not an accomplice to the aggravated robbery; thus, her testimony was not required to be corroborated, and we may consider her testimony in our review of the sufficiency of the evidence.
Toombs testified that she knew nothing of the robbery itself because she was asleep at the time. She was able to confirm that Appellant was driving a car similar to the car Trejo and her granddaughter saw, was wearing a shirt similar to the shirt Trejo saw the robber wearing, and had an iPhone in a pink case that night. Shortly after the robbery and about two miles from Trejo's apartment, Johnson saw and attempted to stop a car similar to the car driven by Trejo's robber. Appellant refused to pull over and led police officers on a high-speed chase between two counties. When officers found Appellant and Toombs in a back yard approximately one hour after the robbery and fifteen minutes after the chase ended, Appellant had a gun, Trejo's credit cards, and Trejo's driver's license in his pockets. Trejo's iPhone was found in the car Appellant had been driving. The evidence was sufficient to support Appellant's aggravated-robbery conviction. See, e.g., Carroll v. State, No. 14-14-00178-CR, 2015 WL 4984961, at *3-5 (Tex. App.—Houston [14th Dist.] Aug. 20, 2015, no pet.) (mem. op., not designated for publication); Traylor v. State, No. 05-12-00087-CR, 2013 WL 3487399, at *3 (Tex. App.—Dallas July 10, 2013, no pet.) (mem. op., not designated for publication); Jones v. State, No. 04-05-00777-CR, 2007 WL 246876, at *2 (Tex. App.—San Antonio Jan. 31, 2007, pet. ref'd) (mem. op., not designated for publication); Bonner v. State, No. 14-04-00797-CR, 2005 WL 3435417, at *7 (Tex. App.—Houston [14th Dist.] Dec. 15, 2005, pet. ref'd) (mem. op., not designated for publication). We overrule Appellant's third point.
III. JURY CHARGE
In his first and second points, Appellant contends that the trial court erred by denying his requested charge instructions on the lesser-included offense of theft and on Toombs's accomplice testimony. In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
We have already concluded that Toombs was not an accomplice to the aggravated robbery as a matter of either fact or law; thus, the trial court was not obligated to instruct the jury on the accomplice-witness rule as Appellant requested. See Evens v. State, 476 S.W.3d 743, 746 (Tex. App.—Texarkana 2015, pet. ref'd). There was no error, and we overrule point two.
In his first point, Appellant argues that the trial court erred by failing to instruct the jury on the lesser-included offense of theft. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2015). He asserts that because he "raised evidence that negated the assaultive element of aggravated robbery" and because Trejo did not identify him as the robber, he was entitled to a lesser-included offense instruction. In determining if the failure to instruct the jury on theft was error, we first consider whether the lesser-included offense is included within the proof legally necessary to establish the charged offense and, if so, we next examine whether there is evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). In determining the second part of this test, we refer to the evidence in the context of the entire record, but we may not consider whether that evidence is credible, controverted, or in conflict with other evidence. See Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005); Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993). But there must be some affirmative evidence from which a rational jury could acquit the appellant of the greater offense while convicting him of the lesser-included offense. Wortham v. State, 412 S.W.3d 552, 557-58 (Tex. Crim. App. 2013); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
The State concedes that theft was a lesser-included offense of aggravated robbery with a deadly weapon as alleged in the indictment. See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Therefore, we now consider whether a rational jury, in the context of the entire record viewed in a light favorable to submission of the lesser offense, could have found Appellant guilty only of theft. Here, Appellant contends that he was entitled to the instruction because he raised evidence negating the "assaultive element" of aggravated robbery through cross-examination. He provides no citation to the record to support this conclusory statement or otherwise explain how he raised evidence affirmatively showing that although he intentionally or knowingly appropriated property from Trejo, he did not use a deadly weapon. Trejo testified that the man who robbed her was holding a gun and pressed it up against her back before forcing her to her knees. There was no evidence that Appellant robbed Trejo, but that he did not use or exhibit a deadly weapon. Indeed, Appellant's argument actually focuses on his contention that no evidence showed he was the man who robbed Trejo at gunpoint, which actually is an assertion that he was not guilty of anything. Such a contention does not establish his entitlement to a lesser-included instruction. See Ohlfs v. State, No. 02-11-00376-CV, 2013 WL 1457756, at *9-10 (Tex. App.—Fort Worth Apr. 11, 2013, no pet.) (mem. op., not designated for publication). See generally Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) ("[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted."), abrogated on other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009). Thus, a rational jury could not have found Appellant guilty only of theft, and the trial court did not err by refusing Appellant's requested instruction. We overrule Appellant's first point.
The State argues that because there was no evidence of the value of the property Appellant stole, he was not entitled to a theft instruction. For purposes of a defendant's entitlement to a lesser-included instruction for theft, this contention has been held to be incorrect. See, e.g., Moore v. State, No. 06-15-00082-CR, 2015 WL 6744725, at *6 n.14 (Tex. App.—Texarkana Nov. 5, 2015, no pet.) (mem. op., not designated for publication). But because we overrule Appellant's point on a different basis, we need not address this argument. --------
IV. CONCLUSION
Having overruled Appellant's points, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ. DAUPHINOT, J., concurs without opinion DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016