Jordan Booker v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00008-CR
JORDAN BOOKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2015-408,013, Honorable John J. McClendon, III, Presiding
July 20, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Jordan Booker, appeals his conviction for aggravated robbery. Through
two issues, he questions the sufficiency of the evidence establishing that he 1) used or
exhibited a deadly weapon during the robbery and 2) committed the extraneous offenses
used to enhance punishment. We affirm.
Issue One – Deadly Weapon Finding
The pertinent standard of review is discussed in Fraser v. State, 523 S.W.3d 320
(Tex. App.—Amarillo 2017, pet. ref’d). We apply it here. Next, a deadly weapon is a
firearm or anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury or anything that in the manner of its use can cause death or
serious bodily injury. Phillips v. State, No. 07-17-00102-CR, 2018 Tex. App. LEXIS 5746,
at *9 (Tex. App.—Amarillo July 25, 2018, no pet.) (mem. op., not designated for
publication). As can be seen from that definition, a firearm is a deadly weapon, per se.
Id. Furthermore, it is unnecessary for the State to produce the firearm to prove that one
was used or exhibited. Id.
Here, appellant was charged with committing aggravated robbery. The only
element of that crime in play on appeal is that requiring the defendant’s use or exhibition
of a deadly weapon during the robbery. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West
2019) (stating that one commits aggravated robbery by committing robbery and, among
other things, using or exhibiting a deadly weapon). Appellant believes that the State failed
to prove he used or exhibited one during his robbery of a local Denny’s despite the
evidence from several eyewitnesses illustrating he pointed a handgun at various
restaurant employees. Though a handgun was later found in a vehicle purportedly
operated by him, nothing linked the gun to him, according to appellant. So, in his
estimation, there was a failure of proof regarding the element in question.
Even if we assumed arguendo that the handgun found in the vehicle he drove was
not the one he held while confronting the employees at Denny’s, appellant does not
dispute on appeal that he pointed a handgun at one or more restaurant employees during
the incident. Nor does he dispute that one or more employees of the establishment so
testified. As previously mentioned, the actual handgun need not be produced to secure
the finding at issue. See Phillips, 2018 Tex. App. LEXIS 5746, at *9. If the handgun need
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not be produced, it matters not that the one found in the vehicle was or was not the firearm
he brandished. It was enough that the restaurant employees testified he brandished one.
We overrule appellant’s first issue.
Issue Two – Extraneous Offenses
Next, the State proffered evidence of extraneous offenses during the punishment
phase of the trial. That evidence consisted of six aggravated robberies purportedly
committed by appellant. Two occurred the night of the Denny’s robbery. Their locations
were a local Valero station and a movie theater. The other four occurred at business
establishments, as well, but many months earlier. The establishments were Savers,
Kaleidoscoops, Taco Bell, and Long John Silver’s. Appellant contends that the State
failed to present legally sufficient evidence proving, beyond reasonable doubt, that he
committed the latter four crimes. He does not dispute on appeal that he committed the
Valero and theater aggravated robberies, however.
Statute provides that the State may offer during the punishment phase of the trial
“any other evidence of an extraneous crime or bad act that is shown beyond a reasonable
doubt by evidence to have been committed by the defendant or for which he could be
held criminally responsible, regardless of whether he has previously been charged with
or finally convicted of the crime or act.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)
(West Supp. 2018). Moreover, the trial court must instruct the jury that, before considering
such extraneous offense evidence in determining punishment, the jurors first must
determine whether the State proved, beyond reasonable doubt, that the accused
committed the crimes. Martinez v. State, No. 01-09-00724-CR, 2010 Tex. App. LEXIS
1544, at *8 (Tex. App.—Houston [1st Dist.] Mar. 4, 2010, pet. ref’d) (mem. op., not
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designated for publication). The problem we have here concerns the tenor of appellant’s
argument. We are left to wonder if he avers that 1) the trial court erred in admitting
evidence of the four earliest aggravated robberies because the decision failed to comport
with article 37.07, § 3(a)(1), or 2) irrespective of the legitimacy of the trial court’s decision,
the jury could not consider the four earliest extraneous offenses because the State failed
to present legally sufficient evidence establishing he committed them. If the latter, then
our response would be the following.
Unlike reviewing the legal sufficiency of evidence proving an actual conviction,
intermediate appellate courts do not undertake an independent legal sufficiency review
with regard to the quantum of evidence underlying proof of an extraneous offense
admitted under article 37.07, § 3(a)(1). Wilson v. State, No. 05-16-01066-CR, 2017 Tex.
App. LEXIS 12075, at *10–11 (Tex. App.—Dallas Dec. 28, 2017, pet. ref’d) (mem. op.,
not designated for publication); Hopes v. State, No. 14-14-00403-CR, 2015 Tex. App.
LEXIS 11468, at *14–15 (Tex. App.—Houston [14th Dist.] Nov. 5, 2015, pet. ref’d) (mem.
op., not designated for publication); Malpica v. State, 108 S.W.3d 374, 378–79 (Tex.
App.—Tyler 2003, pet. ref’d). Rather, “the only review possible of the sufficiency of the
proof of an extraneous offense introduced at the punishment stage is a review under an
abuse of discretion standard of the trial judge’s threshold ruling on admissibility.” Malpica,
108 S.W.3d at 379; accord Garcia v. State, No. 05-05-00926-CR, 2006 Tex. App. LEXIS
5463, at *7–9 (Tex. App.—Dallas June 27, 2006, no pet.) (mem. op., not designated for
publication) (quoting Malpica, 108 S.W.3d at 379, and stating the same). Appellant here
neither says anything specifically about that standard nor attempts to expressly apply it
in his briefing.
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On the other hand, if his generalized attack could be read as one intending to
complain of the trial court’s decision to admit evidence of the four earliest robberies, we
say as follows. With regard to each crime, one or more witnesses present at the
respective event identified appellant as the individual who pointed the gun while
committing the respective robbery. Generally, the testimony of only one witness
identifying the accused as the culprit is sufficient to support guilt. See Harmon v. State,
167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (rejecting the
argument that the evidence was insufficient because only one witness identified him and
stating that “Newby’s testimony standing alone is sufficient to support appellant’s
conviction”); see also Vernon v. State, 571 S.W.3d 814, 820 (Tex. App.—Houston [1st
Dist.] 2018, pet. ref’d) (stating that the testimony of a single eyewitness is sufficient to
support a conviction). If one witness identifying appellant as the assailant is enough
evidence to support an assailant’s conviction, beyond reasonable doubt, it also is enough
to satisfy the evidentiary burden imposed under article 37.07, § 3(a)(1). Consequently,
we cannot say that the trial court abused its discretion in admitting evidence of the four
earliest robberies in contravention of that statute.
Finally, we also note the presence of evidence that appellant committed two other
armed robberies immediately prior to arriving at Denny’s. He does not question, on
appeal, whether the evidence illustrated he was the assailant in those crimes. To that we
add the fact that aggravated robbery is a felony of the first degree. TEX. PENAL CODE ANN.
§ 29.03(b). Such a felony carries a potential sentence anywhere from no less than five
to no greater than ninety-nine years’ imprisonment. Id. § 12.32(a) (West 2019). Here,
appellant received a sentence of forty years’ imprisonment. It is rather difficult to
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conclude, under these circumstances, that admission of the extraneous offense evidence
encompassing the earliest four robberies somehow harmed appellant when he does not
contest the evidence illustrating he committed two equally heinous aggravated robberies
before arriving at Denny’s to commit a third. Though not exactly on point, application of
the rule about admitting without objection the same or similar evidence to that against
which an objection is lodged negating harm or curing error seems appropriate under the
circumstances at bar. See Castleman v. State, No. 07-18-00296-CR, 2019 Tex. App.
LEXIS 2124, at *2 (Tex. App.—Amarillo Mar. 18, 2019, no pet.) (per curiam) (mem. op.,
not designated for publication) (stating that the admission of the same or similar evidence
elsewhere in the trial without objection cures any purported error).
We overrule each of appellant’s issues and affirm his conviction.
Brian Quinn
Chief Justice
Do not publish.
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