Darian Blount v. State ( 2019 )

Affirmed and Memorandum Opinion filed April 23, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00988-CR
DARIAN BLOUNT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1517279
MEMORANDUM OPINION
Appellant Darian Blount appeals his conviction for aggravated robbery,
raising six issues. First, appellant argues the evidence is legally insufficient to
support his conviction. We overrule this issue because the record contains
sufficient evidence for a reasonable jury to have found beyond a reasonable doubt
that appellant was criminally responsible as a party to the charged offense.
Second, appellant contends that the trial court erred in failing to submit three lesser
included offenses in the jury charge. Because appellant failed to present any
affirmative evidence directly germane to any of the lesser included offenses
appellant contends were wrongly excluded, we hold that no charge error exists on
this record. Finally, appellant challenges two evidentiary rulings, but we
determine upon review of the record that appellant has not established an abuse of
discretion as to either ruling.
We affirm the trial court’s judgment.
Background
A Harris County grand jury indicted appellant for the felony offense of
aggravated robbery. The State alleged that appellant, while in the course of
committing theft of property owned by the complainant, Moses Malone, Jr., and
with the intent to obtain and maintain control of the property, intentionally and
knowingly threatened and placed Malone in fear of imminent bodily injury and
death. The State further alleged that appellant used and exhibited a deadly
weapon, specifically a firearm, in the commission of the offense. Appellant
pleaded not guilty, and the case proceeded to a jury trial.
The alleged offense occurred shortly after 2:00 a.m. in the parking lot of an
after-hours strip club known as V Live.1 The State’s version of events begins the
day before, so we start there. Malone posted on his Facebook account a picture of
NBA basketball player James Harden promoting Harden’s youth basketball camp.
The promotional picture indicated a cost of $249 per child for the two-day camp.
Malone’s caption stated: “Don’t he [Harden] make WAY more $ than Donald
Driver??? But he charging 249$ & The inner city kids have NO CHANCE to go to
his camp. Hollywood Harden [emoji emoji emoji emoji] #Fact”.
1
Witnesses explained that “after-hours” means that the club opens at 2 o’clock in the
morning and closes at 6 o’clock in the morning.
2
Shortly thereafter, Malone’s security guard, John Thomas, called Malone to
tell him that Harden was upset about the Facebook post. Malone deleted the post
that same morning. Later that day, according to Malone, he received a text
message allegedly from Harden, sent on a mutual friend’s phone. The text
message read, “Aye listen my [expletive]. If you got something to say. We not
doing no social media. I will pull up wherever you at and see what’s going on.
You a [expletive] [expletive] Fa real for even goin on Facebook talking shit.
[Expletive] boy.”
The next night, Malone and Thomas drove to V Live. Malone was a regular
patron at the club, and he was familiar with appellant, who worked as the club’s
head of security.
After leaving his car, Malone saw appellant walking toward him and leading
a group of ten to fifteen men. The group approached and circled Malone and
Thomas. Appellant “got in [Malone’s] face” and told Malone not to talk about
Harden on Facebook. Appellant warned Malone that Malone was “going to end up
dead out here.” Malone then saw three men pull out guns, and a fourth person had
a gun out as well.
Malone testified that he “smirk[ed]” or “smiled on them,” and “that’s when
[appellant] did it, he said get him.” One of the men—later identified as Oscar
Wattell—punched Malone, ripped his earrings out, went through his pockets, and
took a chain from around Malone’s neck. Another man—later identified as Kavon
Boutte—also punched Malone and took a chain. Malone fell to the ground, where
he was kicked. As he was being kicked in the face, Malone heard appellant say
“punch that [expletive], kick that [expletive]. He got to learn. He got to learn.
Punch that [expletive]. Kick that [expletive].” Malone also heard appellant tell
someone to get his phone.
3
According to Malone, both Wattell and Boutte exhibited guns during the
robbery, but appellant did not. Although appellant did not have a weapon, Malone
testified that appellant was in charge of the group that robbed Malone, saying “he
brought those guys to me.”
Afterward, the group dispersed and appellant entered the club. Thomas
followed a couple of the men to the back of the parking lot and was able to recover
Malone’s car keys, ID, and credit card, which he returned to Malone. Using
Thomas’s cell phone, Malone called 911. Houston Police Department Officer Eric
Bettinger was the first officer to arrive. Officer Bettinger testified that Malone had
redness and scratches on his jaw, and one of his earlobes was bleeding. Malone
told Officer Bettinger that the following property had been taken from him: a
David Yurman rope chain and diamond pendant, worth $20,000; a gold Versace
rope chain, worth $2,000; a David Yurman rope chain, green diamond pendant,
worth $20,000; David Yurman gold and diamond earrings, worth $4,000; an Apple
iPhone 6, worth $700; Louis Vuitton sunglasses, worth $1,000.
Given the reported value of the stolen items, Officer Bettinger contacted the
department’s Robbery Division and was told “to basically shut the club down.
Don’t let anybody in. Don’t let anybody out.” Officer Bettinger estimated that
there were approximately 200 to 400 people inside the club that night. Harden,
who was inside the club during the events, attempted to leave through the back
door, but Officer Bettinger told him to stay in the club.
Detective Sergeant Tony Mora was the robbery detective on call that night,
and he took command of the scene as the lead investigator. The police allowed
women to leave unimpeded, but required male patrons to leave one-by-one so
Malone could identify anyone as a possible suspect. Malone identified Wattell and
Boutte as two of the men involved in the robbery. In total, the police documented
4
227 men leaving the club, but appellant was not one of them. Malone also
identified someone he believed was appellant’s brother, who Malone said was not
involved in the robbery but might have information of appellant’s whereabouts.
Sergeant Mora decided to not search patrons as they exited the club,
preferring instead to clear the premises as quickly as possible. Sergeant Mora did
not believe he had grounds to search any vehicles in the parking lot, either. The
police officers searched the club for any weapons “in obvious plain view,” but
ultimately did not recover any guns. The police also were unable to obtain any
video surveillance recordings.
Although appellant was not at the scene when police arrived, Malone gave
Sergeant Mora appellant’s name; also, Malone and Thomas identified appellant
from a photo array administered by Sergeant Mora. A few weeks later, Sergeant
Mora called appellant to hear his side of the story. Sergeant Mora recorded the
phone call, which was introduced into evidence and played for the jury. Appellant
said that he encountered Malone in the parking lot, approached him “in a
professional manner” to tell appellant not to talk about Harden, and then appellant
went inside the club. Once inside, some members of the club’s security team
alerted appellant to a fight outside. According to appellant, he returned to the
parking lot to break up the fight. Sergeant Mora said that he did not believe
appellant’s version of events after speaking with him on the phone.
However, appellant said several things that to Sergeant Mora supported
Malone’s stated motive—i.e., that appellant participated in the robbery in
retaliation for Malone’s Facebook post about Harden. For instance, appellant said
that Harden spent more money than Malone at the club, which indicated to
Sergeant Mora that appellant considered Harden a more significant customer than
appellant. Further, appellant admitted that he confronted Malone about discussing
5
appellant’s customers on social media, which Sergeant Mora thought “lend[ed]
credibility to the motivation that was expressed by [Malone].”
Other witnesses testified about their knowledge of events. Thomas
corroborated Malone’s testimony regarding the armed robbery, including
appellant’s role. According to Thomas, appellant led toward Malone a group of
ten to twelve men, five of whom were armed with guns. Appellant told Malone
not to talk about Harden, and then appellant said “get ‘em.” The men punched and
kicked Malone. Thomas confirmed that Malone wore jewelry that night but, after
the incident, Malone was no longer wearing jewelry and his ears were bleeding.
Thomas also testified that he entered the club after the robbery and saw appellant
“and the same dudes that did the situation . . . went to a section that James Harden
was on . . . [a]nd they all over there high-fiving each other.”
Imaine Molo, the club’s floor manager, corroborated Malone’s testimony
that Harden used her phone to send Malone a text message about the Facebook
post. Molo, who was at the club the night of the robbery, said that she did not
witness the robbery, did not have any information about the robbery, and did not
see either appellant or Malone that night.
Eric Dillard, the club’s DJ, testified that when he arrived at the club, he saw
appellant, Malone, and Thomas “talking loud.” Dillard said he thought the men
were talking about money that Malone owed the club, but Dillard did not actually
hear the substance of the conversation before going inside.2 Dillard did not see
appellant or anyone else touch or punch Malone. Dillard denied that appellant had
2
Malone told Sergeant Mora that Dillard recorded the robbery on his phone. At Sergeant
Mora’s request, Dillard voluntarily relinquished his phone. Upon review of the phone’s
contents, Sergeant Mora did not find any pertinent recordings. Dillard made a phone call to
Molo around the time of the robbery, but both Molo and Dillard denied knowledge of any fight
or robbery.
6
anything to do with Malone being robbed outside the club. Both Molo and Dillard
testified that Malone never wore jewelry to the club.
Chris Chizer, the club manager, testified that he and Malone had a physical
alteration once regarding money Malone owed the club. Chizer did not see
Malone or appellant the night in question. Chizer did not know what occurred
outside, who was involved, how many people were involved, or if anyone had
weapons.
Marvin Ferguson, a club employee, testified that he saw Malone try to enter
the club, but appellant told Malone that he could not enter. At that point, Ferguson
went inside. Ferguson denied seeing appellant or anyone else confront or rob
Malone.
Finally, Gary Womack testified. He contradicted Malone’s prior testimony
that Malone had not been drinking the night of the robbery. According to
Womack, Malone had been drinking while attending Womack’s wife’s birthday
party earlier in the night. Womack went to V Live after his wife’s party, but he did
not see any altercation between Malone and appellant.
The trial court submitted the charge to the jury, asking whether appellant
was guilty of aggravated robbery or the lesser included offense of aggravated
assault. The charge allowed the jurors to find appellant guilty as a principal actor,
as a participant under the law of parties, or as a participant in a conspiracy. The
jury found appellant guilty of aggravated robbery. After a punishment hearing, the
trial court sentenced appellant to thirty-five years in prison.
Appellant timely appeals.
7
Analysis
Appellant presents six issues for our review. First, he challenges the
sufficiency of the evidence. In his second, third, and fourth issues, appellant
contends that the trial court reversibly erred in refusing to instruct the jury in the
charge on three lesser included offenses. And in his last two issues, appellant
argues that the trial court abused its discretion in two evidentiary rulings.
A. Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is legally insufficient to
sustain his conviction for aggravated robbery. We address this issue first because
success would afford him the greatest relief. See Finley v. State, 529 S.W.3d 198,
202 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
1. Standard of review and applicable law
Reviewing courts apply a legal-sufficiency standard in determining whether
the evidence is sufficient to support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt. Temple v. State, 390 S.W.3d
341, 360 (Tex. Crim. App. 2013); Pena v. State, 522 S.W.3d 617, 620 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d). Under this standard, 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). Direct evidence and circumstantial evidence are equally
probative, and circumstantial evidence alone may be sufficient to uphold a
conviction, so long as the cumulative force of all the incriminating circumstances
is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex.
Crim. App. 2015).
8
The jury is the sole judge of credibility and weight to be attached to the
testimony of witnesses. Temple, 390 S.W.3d at 360. 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. Kolb v. State,
523 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see also
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.
Kolb, 523 S.W.3d at 214. We will uphold the jury’s verdict unless a rational
factfinder must have had a reasonable doubt as to any essential element. Laster v.
State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
The jury found appellant guilty of aggravated robbery. A person commits
the offense of robbery if, in the course of committing theft3 and with intent to
obtain or maintain control of the property, the person: (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.
Tex. Penal Code § 29.02(a). A person commits the offense of aggravated robbery
if he commits robbery and, inter alia, uses or exhibits a deadly weapon. Id.
§ 29.03(a)(2).
Texas recognizes that any party to an offense may be charged with
commission of the offense. See id. § 7.01(a), (b); Cary v. State, 507 S.W.3d 750,
757 (Tex. Crim. App. 2016). A person is criminally responsible as a party to the
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 § 7.01(a). A
3
Theft is the unlawful appropriation of property with the intent to deprive the owner of
the property. Tex. Penal Code § 31.03(a).
9
person is criminally responsible for an offense committed by the conduct of
another person 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. Id. § 7.02(a)(2); Gross v. State, 380 S.W.3d 181, 186 (Tex.
Crim. App. 2012).
2. Application
The jury returned a general verdict, and we will uphold the jury’s verdict if
the evidence is sufficient to prove appellant committed the offense either as a
primary actor or as a party criminally responsible for the conduct of another person
who committed the offense. See Humaran v. State, 478 S.W.3d 887, 896 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d); Head v. State, 299 S.W.3d 414, 426
(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). There is no evidence that
appellant used or exhibited a firearm during the course of the robbery.
Accordingly, we agree with appellant that no evidence supports appellant’s
conviction for aggravated robbery as a principal actor.
However, the jury may have found appellant guilty because he was
criminally responsible for the offense of aggravated robbery committed by others,
so we examine the evidence to determine whether the verdict is sustainable under
party liability. To establish that appellant committed the offense of aggravated
robbery under the law of parties, the State had to prove that another person
committed the offense of aggravated robbery, and that appellant, with the intent to
promote or assist the commission of the offense, solicited, encouraged, directed,
aided, or attempted to aid others to commit the offense, including the aggravating
element of using or exhibiting a deadly weapon. See Stephens v. State, 717 S.W.2d
338, 340 (Tex. Crim. App. 1986); see also Sears v. State, No. PD-0264-17, 2018
WL 4347878, at *4 (Tex. Crim. App. Sept. 12, 2018) (not designated for
10
publication) (to secure conviction under law of parties, the State “must
demonstrate that the defendant intended to promote the full offense, including the
aggravating element, before or during the commission of the offense”)4; Sarmiento
v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(“[W]here the use of a deadly weapon is an element of the offense, [to convict a
defendant for aggravated robbery as a party,] the State automatically carries the
burden of proving the defendant knew a weapon would be used or exhibited in the
commission of the offense.”).
Appellant argues that the jury’s verdict cannot stand on a theory of party
liability because the State failed to prove that appellant was criminally responsible
for the aggravating element—i.e., that appellant knew that the other assailants
would use or exhibit firearms during the robbery. Contrary to appellant’s
contention, however, the jury reasonably could have concluded based on the
evidence presented that appellant intended to promote the full offense, including
the aggravating element, before or during the commission of the offense.
Malone testified that appellant led a group of males, several of whom had
firearms, toward Malone when Malone arrived at the club. Malone said that
appellant confronted Malone about Malone’s Facebook post. When Malone
smirked at appellant, appellant said, “get him.” Malone heard appellant tell the
other assailants to punch and kick Malone because Malone needed “to learn.” At
appellant’s direction, several of the men punched Malone, ripped his earrings out
and his chains off, and kicked Malone when Malone fell to the ground. Malone
also heard appellant instruct one of the men to take Malone’s phone. Malone said
that he was “scared[,] . . . upset[,] . . . really petrified” because he had never had a
weapon aimed at him before.
4
We do not cite Sears for precedential value. See Tex. R. App. P. 77.3.
11
Malone’s testimony established all the elements of the charged offense
under a theory of party liability, specifically that appellant encouraged or directed
Wattell, Boutte, or other unknown assailants to commit theft while intentionally or
knowingly placing Malone in fear of imminent bodily injury or death. See Tex.
Penal Code §§ 7.02, 29.02, 29.03. Further, as some men displayed guns, appellant
told Malone: “You’re going to end up dead out here.” Appellant’s threat to
Malone constitutes additional evidence of the aggravating element. A rational jury
could have found that appellant’s comment that Malone could “end up dead”
indicated knowledge of the presence of deadly weapons to back up the threat.
Viewed collectively, this evidence supports the jury’s finding that appellant
intended to promote or assist the commission of an aggravated robbery, and that
appellant solicited, encouraged, directed, aided, or attempted to aid others to
commit aggravated robbery. It is well-settled that the testimony of a sole witness
to an offense may constitute sufficient evidence to support a conviction. See
Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding conviction
for assault with intent to murder where only one witness saw defendant with gun);
see also Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d) (holding evidence legally sufficient to sustain aggravated robbery
conviction where complainant testified appellant robbed her at knife-point,
complainant identified appellant in photographic lineup, and complainant
identified appellant in court).
The jury heard more than just Malone’s testimony. Thomas corroborated
much of Malone’s account, including that appellant instructed the other assailants
to “get [Malone]” and that several men had guns visibly displayed. Thomas said
the guns were “apparent to everybody.” The jury could infer from this testimony
that the firearms were visible to the entire group, including appellant, and that
12
appellant knew the other assailants would display, or were displaying, the guns to
place Malone in fear of imminent injury or death. See, e.g., Sears, 2018 WL
4347878, at *6 (based on appellant’s “integral part of the scheme to commit the
robbery,” jury could infer that appellant would have been aware of the manner in
which the intruders planned to commit the offense, including the use of guns);
Kirvin v. State, No. 05-09-00382-CR, 2010 WL 3259798, at *5 (Tex. App.—
Dallas Aug. 16, 2010, pet. ref’d) (not designated for publication) (based on
testimony that appellant was “inside contact” and participated in planning and
carrying out the offense, jury could infer that appellant knew each person’s role in
the offense, including use of firearm).
One additional piece of circumstantial evidence supports a finding of guilt.
Although police responded to Malone’s 911 call within minutes, appellant was no
longer at the scene. Chizer, the club’s manager, attempted to explain that appellant
left the scene because he accompanied a high-profile customer who wanted to
leave the club, but Sergeant Mora disproved this defense witness’s explanation—
the high-profile customer was documented as one of the 227 men “that were stuck
inside once the officers locked down the location.” Flight is a circumstance
indicating guilt. See, e.g., Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex. Crim.
App. 1983).
Viewing the cumulative force of the evidence in the entire record in the light
most favorable to the verdict, we conclude that a jury rationally could have found
beyond a reasonable doubt that appellant was aware that guns would be used or
were being used in the commission of the robbery, and that appellant was guilty
under the law of parties of committing the offense of aggravated robbery.
13
Accordingly, we hold that the evidence is legally sufficient to support appellant’s
conviction, and we overrule his first issue.5
B. Lesser Included Offenses
In his next three issues, appellant argues that the trial court erred in denying
requests for inclusion in the jury charge of three lesser included offenses:
(1) robbery; (2) assault by threat; and (3) deadly conduct.
1. Standard of review and applicable law
In a prosecution for an offense with lesser included offenses, the jury may
find the defendant not guilty of the greater offense, but guilty of any lesser
included offense. Tex. Code Crim. Proc. art. 37.08. We analyze whether a
defendant is entitled to a lesser included offense instruction under a two-step
analysis. See Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). First, we
decide whether the purported lesser included offense falls within the proof
necessary to establish the offense charged. Id. at 68. To make this determination,
we compare the statutory elements and any descriptive averments in the indictment
for the greater offense with the statutory elements of the lesser offense. Id. This
first step involves a question of law and does not depend on any evidence produced
at trial. See Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011).
In the second step of the analysis, we evaluate whether some evidence exists
from which a rational jury could acquit the defendant of the greater offense while
convicting the defendant of the lesser included offense. Sweed, 351 S.W.3d at 68.
5
The charge also included an instruction that allowed the jury to find appellant guilty if,
in the attempt to carry out a conspiracy to commit one felony, another felony was committed by
one of the conspirators. See Tex. Penal Code § 7.02(b). Appellant argues that there was no
evidence of a prior or contemporaneous plan to commit aggravated robbery, such that the jury’s
verdict cannot stand on a theory of conspiracy liability. Due to our disposition, we need not
address appellant’s contention regarding conspiracy liability.
14
The evidence must establish the lesser included offense as a “valid rational
alternative to the charged offense.” Id. We review all of the evidence presented at
trial. Id. Anything more than a scintilla of evidence entitles a defendant to a lesser
included offense charge. Id. Although a scintilla of evidence is a low threshold,
“it 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.” Id. If some evidence refutes or negates
other evidence establishing the greater offense or if the evidence presented is
subject to different interpretations, then the standard is met and the instruction is
warranted. Id.
We review the trial court’s decision on the submission of a lesser included
offense for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 575
(Tex. Crim. App. 2005); Davison v. State, 495 S.W.3d 309, 311 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). We turn to each of the lesser included
offenses raised in appellant’s brief.
2. Application
The trial court instructed the jury on the lesser included offense of
aggravated assault. Appellant argues that he was also entitled to instructions on
the lesser included offenses of robbery, simple assault by threat, and deadly
conduct. For purposes of our analysis today, we assume that appellant properly
requested these additional instructions in the trial court, and that robbery, simple
assault, and deadly conduct are, as a matter of law, lesser included offenses of the
charged offense.
Therefore, the only question is whether any affirmative evidence exists from
which a rational jury could have found that, if guilty, appellant was only guilty of a
15
lesser included offense and not guilty of aggravated robbery. Before addressing
each of the lesser included offenses discussed in appellant’s brief, we summarize
the pertinent evidence.
The jury was presented with two competing theories. The State argued that
appellant participated in an aggravated robbery. The defense argued that appellant
confronted Malone only about his Harden Facebook post or about paying back a
debt, but that appellant was not involved in a robbery.
The State’s main witnesses, Malone and Thomas, testified that appellant led
a group of men, some armed, and instructed them to punch and kick Malone and
go through Malone’s pockets. Malone testified that the assailants stole thousands
of dollars’ worth of jewelry and personal belongings. Thus, these two witnesses
testified to the essential elements of the charged offense, aggravated robbery.
Molo and three of the four defense witnesses (Chizer, Ferguson, and Womack) all
testified that they did not see any fight or confrontation involving Malone. Dillard
testified that he saw a “commotion” between appellant and Malone, but he denied
that it was a fight and he did not hear any words exchanged.
a. Robbery
A person commits the offense of robbery if, in the course of committing
theft and with the intent to obtain or maintain control of the property, he causes
bodily injury to another or threatens or places another in fear of imminent bodily
injury or death. Tex. Penal Code § 29.02. Appellant argues that the jury
“rationally could have concluded that appellant confronted Malone about an
unpaid debt owed to the club and encouraged the other men to take Malone’s
property to recover the debt, but that he did not know that the men were armed.”
16
There is no evidence that a robbery occurred, but that guns were not
involved. Appellant’s argument, essentially, is that the jury could have believed
Malone’s and Thomas’s account of the events except for their assertion that guns
were involved. But “it is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense.” Sweed, 351 S.W.3d at 68. There must be
evidence directly germane to the lesser included offense. Because there is no
affirmative evidence directly germane to robbery, but not aggravated robbery, we
hold that appellant was not entitled to an instruction on robbery. See, e.g.,
Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (where defendant
was charged with aggravated sexual assault based on his use of a knife, the fact
that the knife was never found was not “affirmative evidence” that no knife was
used during the assault, and therefore the trial court erred in granting the State’s
request for instruction on the lesser included offense of sexual assault), abrogated
on other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2011).
We overrule appellant’s second issue.
b. Simple assault by threat
A person commits the offense of assault if he intentionally, knowingly, or
recklessly threatens another with imminent bodily injury. Tex. Penal Code
§ 22.01(a)(1), (a)(2). Appellant argues that the jury “rationally could have
concluded that appellant confronted Malone about the Harden Facebook post and
verbally threatened him with imminent bodily injury” but that Malone was not
robbed or was robbed by someone other than appellant. Appellant does not direct
us to any evidence that he verbally threatened Malone with imminent bodily injury
17
but that Malone was not robbed, nor does our review of the record reveal any such
evidence.6
Because there is no evidence that would permit the jury to find that appellant
was guilty only of assault, but not aggravated robbery, appellant has not
established that he was entitled to an instruction on simple assault by threat. See
Knott v. State, 513 S.W.3d 779, 794-95 (Tex. App.—El Paso 2017, pet. ref’d)
(witness’s testimony that he observed “altercation” was not affirmative evidence
that only an assault took place, not robbery).
We overrule appellant’s third issue.
c. Deadly conduct
A person commits the offense of deadly conduct if he recklessly engages in
conduct that places another in imminent danger of serious bodily injury. Tex.
Penal Code § 22.05(a). Appellant argues that the jury “rationally could have
concluded that appellant confronted Malone and verbally threatened him with
imminent bodily injury while the armed men threatened him with guns but that
Malone was not robbed.” We disagree.
To be entitled to the deadly conduct charge, there must be some evidence in
the record that would permit a jury to rationally find that if appellant is guilty, he is
guilty only of deadly conduct, not aggravated robbery. Appellant asserts, without
citation, that the record contains some evidence that appellant was a party to
Malone being threatened with imminent bodily injury with firearms. But the only
evidence that Malone was threatened by one or more armed assailants was
6
Appellant asserts, without citation, that evidence shows Malone did not wear jewelry,
that appellant denied he was present during the incident, that appellant left after confronting
Malone verbally, and that appellant returned to break up the fight. Even assuming that all of
those assertions are supported by the record, none constitutes evidence of assault by threat.
18
Malone’s and Thomas’s testimony that Malone was robbed at gunpoint. There is
no evidence that appellant placed Malone in imminent danger of serious bodily
injury but that Malone was not robbed at gunpoint. Appellant therefore was not
entitled to an instruction on deadly conduct, and we overrule his fourth issue. See,
e.g, Benefield v. State, 389 S.W.3d 564, 576-77 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d) (when defendant denies commission of any offense and there is no
evidence establishing commission of a lesser included offense, he is not entitled to
a charge on the lesser offense).
C. Evidentiary Rulings
1. Standard of review
We review a trial court’s evidentiary rulings for an abuse of discretion.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Neale v. State,
525 S.W.3d 800, 809 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial
court does not abuse its discretion when its ruling falls within the zone of
reasonable disagreement. Gonzalez, 544 S.W.3d at 370. Under the abuse-of-
discretion standard, we must uphold the trial court’s ruling if the record reasonably
supports it and it is correct under any legal theory applicable to the case. Neale,
525 S.W.3d at 809. We may not substitute our judgment for that of the trial court.
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Even if a trial court
errs, however, we will not reverse the judgment unless the appellant demonstrates
that the erroneous evidentiary ruling affected his substantial rights. See Tex. R.
App. P. 44.2(b); Rodriguez v. State, 546 S.W.3d 843, 861 (Tex. App.—Houston
[1st Dist.] 2018, pet. ref’d).
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2. Admission of evidence of Malone’s good character
In his fifth issue, appellant argues that the trial court reversibly erred by
admitting a portion of Malone’s testimony over appellant’s objection.
Appellant’s counsel asked Malone during cross-examination whether he had
a relationship with appellant. Malone answered:
No, I didn’t. That’s not a relationship. Being cordial is not a
relationship. That’s called being respectable. Like I told you
yesterday, my dad tells me to treat the CEO just like you treat the
janitor. If you know anything about Moses Malone or you know how
the Malone family is, we’re very giving people. My dad and I have
done everything in this world for people that are underprivileged. My
kids -- my family members grew up in the Fifth Ward. I used to give
them all my clothes. I used to give them all my shirts, everything that
they needed to make sure people had the same type of life that we
had.
Appellant’s counsel objected, “[N]onresponsive. That was a yes-or-no
question.” The trial court did not rule on appellant’s objection but instead
instructed counsel to “[a]sk your next question, please.” Appellant did not move to
strike the witness’s answer. Appellant now argues that Malone’s answer is
inadmissible character evidence, citing Texas Rule of Evidence 404. See Tex. R.
Evid. 404(a)(1) (generally, “[e]vidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person acted in accordance
with the character or trait”).
We hold that appellant failed to preserve his allegation of error. Appellant’s
objection at trial—that Malone’s answer was non-responsive—does not comport
with his complaint on appeal—that Malone’s answer was inadmissible character
evidence. See Smith v. State, 200 S.W.3d 644, 650 (Tex. App.—Houston [1st
Dist.] 2001, pet. ref’d) (appellant’s trial objection to non-responsiveness did not
comport with his complaint on appeal that testimony impermissibly impeached
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appellant’s credibility). For this reason, appellant has not preserved his complaint
for our review. See Vasquez v. State, 225 S.W.3d 541, 543 (Tex. Crim. App. 2007)
(noting that a court of appeals may not overturn a trial court’s decision on a legal
theory not presented to the trial court); McQueen v. State, No. 14-17-00366-CR,
2018 WL 3977943, at *1 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, pet.
ref’d) (mem. op., not designated for publication) (“A complaint is not preserved for
appellate review if the legal basis for the complaint on appeal varies from the
complaint made at trial.”).
Without reaching the merits, we overrule appellant’s fifth issue.
3. Exclusion of evidence of Malone’s reputation for dishonesty
In his sixth issue, appellant complains that the trial court reversibly erred by
excluding a portion of a defense witness’s testimony on the State’s objection.
During direct examination, appellant’s counsel asked Dillard, the club DJ,
whether Dillard was “familiar with [Malone’s] reputation in V Live.” The State
objected to relevance, the trial court sustained the objection, and appellant’s
counsel put on an offer of proof outside the presence of the jury.
As relevant here, Dillard testified during the offer of proof that Malone
would borrow money from the club and had a reputation with the staff at V Live of
not paying his debts.7 Appellant argues on appeal that the evidence that Malone
“had a bad reputation with management because he borrowed money and did not
pay his debts was admissible to show his reputation for untruthfulness.” Further,
according to appellant, the trial court’s erroneous exclusion of this evidence of
7
Dillard also testified that the staff at V Live “like[d] [Malone] till he get drunk” and that
Malone could be “[a]ggressive on the girls,” but appellant does not explain how the exclusion of
this evidence affected his substantial rights, and so we do not include it in our analysis.
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Malone’s dishonesty affected appellant’s substantial rights because it could have
convinced the jury that Malone’s version of events was not true.
Assuming for the sake of argument that the trial court abused its discretion
in excluding Dillard’s testimony, we conclude that appellant has not shown the
requisite harm that would entitle him to relief.
The erroneous admission or exclusion of evidence does not affect a
defendant’s substantial rights and is harmless if the evidence is cumulative of other
evidence admitted to prove the same fact. See Lindsay v. State, 102 S.W.3d 223,
230 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also Anderson v. State,
717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm excluded
evidence must be controlling on material issue and not cumulative of other
evidence); Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet.
ref’d) (holding no harm existed when complained-of excluded evidence was
admitted through other testimony).
Here, Dillard’s testimony was cumulative of other testimony regarding
Malone’s alleged nonpayment of debts owed to V Live. Chizer, the club manager,
testified that Malone “always borrowed money from [Chizer],” that “every time
[Malone] come to the club, like three or four times a week, he’d probably borrow
like three or $4,000 every time he come,” that Malone owed Chizer money, that
Malone had an outstanding debt with V Live the week of the incident at issue, and
that Chizer previously had at least one physical confrontation with Malone
regarding Malone’s unpaid debt. Dillard also testified without objection that
Malone “borrowed money all the time” and that Malone owed at least $1,000 to
the club the night of the alleged robbery. Therefore, even if the trial court erred in
excluding the portion of Dillard’s testimony included in the offer of proof, the
22
exclusion was harmless. See Anderson, 717 S.W.2d at 628; Lindsay, 102 S.W.3d
at 230; Rangel, 179 S.W.3d at 70.
We overrule appellant’s sixth and final issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell and Hassan and Retired Justice Marc W. Brown,
sitting by assignment.
Do Not Publish — Tex. R. App. P. 47.2(b).
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