Bob Harold Leach v. State ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00213-CR

______________________________

BOB HAROLD LEACH, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 17,103-2002

---

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Bob Harold Leach pled guilty to the offense of aggravated robbery and asked the trial court to assess punishment. Leach had no negotiated plea agreement with the State. The trial court assessed Leach's punishment at imprisonment for life. In a single issue on appeal, Leach contends the State failed to provide adequate notice of its intent to introduce evidence of an extraneous crime or bad act, and, accordingly, the trial court erred by admitting evidence of that extraneous offense in violation of Article 37.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2004).

            The issue presented in this case is the same as that presented in a companion appeal, Leach v. State, No. 06-03-00211-CR. For the reasons stated in our opinion issued today in that case, we likewise affirm the trial court's judgment in this case.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          July 15, 2004

Date Decided:             July 21, 2004

Do Not Publish

ly: 'Arial', sans-serif">Background

          The evidence showed the following sequence of events: two men entered a restaurant in Texarkana on December 15, 2002, at approximately 10:30 a.m. The men wore dark clothing and gloves and demanded money. One man wore a Halloween mask and the other wore a knit hat pulled over his face. According to the restaurant manger, LaToya Wyrick, one of the men pointed a handgun directly at her, and both men threatened her as they directed her to open the safe. An employee, Patricia McChester, testified she recognized Wills as one of the men, based on his voice and his leg monitor. McChester confirmed that, while the two men demanded money from Wyrick, one of the men pointed a gun at Wyrick. As the two men left the building, Wills directed McChester to "Stay down."

          When an emergency call came in from one of the restaurant customers, Texarkana, Arkansas police officer Wayne Easley was in the vicinity of the restaurant. As he approached, he saw the two men running in a northerly direction from the restaurant. When Easley crossed the median and turned around, the two men split up, one continued to run in a northerly direction and the other ran in a southwesterly direction. Easley got out of his car and began pursuing one of the suspects. Easley caught the man, later identified as Travoya French, and recovered a bag of money containing approximately $3,500.00 and a mask.

          Other officers from Texas and Arkansas arrived and began the search for the second suspect who had run toward the back of a nearby tractor supply store. Ten to fifteen minutes after officers were dispatched, Sergeant Billy Jones of the Texarkana, Arkansas Police Department, found the second suspect hiding in a closed dumpster behind the store. This second suspect, who was wearing a leg monitor when arrested, was identified as Wills. From the dumpster in which Wills was found, officers recovered a knit cap, dark-colored gloves, and a twenty dollar bill. All parties agree no gun was ever recovered in the investigation.

Aggravated Robbery and Law of Parties

          A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, such 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. Pen. Code Ann. § 29.02 (Vernon 2003). That person commits aggravated robbery if he or she "uses or exhibits a deadly weapon" during the robbery. Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 2003).

          "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, [such person] solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003); Crutcher v. State, 969 S.W.2d 543, 545 (Tex. App.—Texarkana 1998, pet. ref'd). To establish liability as a party, the State must prove conduct constituting an offense, plus an act by the defendant done with the intent to promote or assist such conduct. See Beier v. State, 687 S.W.2d 2, 3–4 (Tex. Crim. App. 1985). Evidence is sufficient to convict a person under the law of parties where the person is present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. See id. "Mere presence alone without evidence of intentional participation is insufficient." Id. at 4. The fact-finder may base its determination on the events occurring before, during, and after commission of the offense, and may rely on the actions of the accused which show an understanding and common design to commit the criminal act. Id.

          The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. See Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi 2000, pet. ref'd); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.—Corpus Christi 1997, pet. ref'd). More specifically, to be guilty as a party to aggravated robbery, a defendant must intend to promote or assist an aggravated robbery—not just a theft—and solicit, encourage, direct, aid, or attempt to aid another person in committing aggravated robbery. See Wooden v. State, 101 S.W.3d 542, 548 (Tex. App.—Fort Worth 2003, pet. ref'd); Woods v. State, 749 S.W.2d 246, 248 (Tex. App.—Fort Worth 1988, no pet.).

Factual Sufficiency Standard of Review

          When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484–85. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable doubt standard." Id. at 485. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

Factual Sufficiency of the Evidence Regarding a Deadly Weapon

          The State concedes that no gun was introduced into evidence at trial, but points to Chandler v. State, 855 S.W.2d 38, 42 (Tex. App.—Fort Worth 1993, no pet.), to support its position that the absence of a gun in evidence is not fatal to its case. We agree. The Chandler court reiterated that "the actual 'gun' need not be put in evidence for the jury to find a deadly weapon was used in the commission of the offense." Id.; see Rogers v. State, 795 S.W.2d 300, 303 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd).

          Acts Constituting an Offense

          Both Wyrick and McChester clearly testified that one of the men pointed a handgun at Wyrick during the robbery; neither witness ever deviated on that point. This testimony is sufficient to show that a gun was used during the commission of the robbery. Exactly which of the two men pointed the gun, however, is not as clear. Wyrick testified that she could not remember which man pointed the gun at her. Though not absolutely clear as to the roles of each man in the robbery, McChester, who recognized Wills during the robbery, indicated that it was "the bigger" man, not Wills, who pointed the gun at Wyrick. So, the record, at least, suggests that Wills was not the one who physically used or exhibited a deadly weapon.

          Nevertheless, according to two witnesses present during the event, one of the men pointed a gun at Wyrick. By pointing out that neither witness could positively identify Wills as the one who actually held the gun, Wills seems to contend that the evidence is factually insufficient to prove that he used or exhibited a deadly weapon. The State, however, does not need to prove specifically that Wills was the one who pointed the gun at Wyrick; Wills may be guilty of aggravated robbery no matter which of the two masked men wielded the gun. See Tex. Pen. Code Ann. §§ 7.01, 7.02 (Vernon 2003).

          Acts Constituting Party Liability

          The evidence shows that both men actively participated in the robbery. Having concluded that the evidence is factually sufficient that one of the men pointed a gun at Wyrick during the robbery, we further conclude that, because Wills participated in the robbery, he is guilty as a party of aggravated robbery, regardless of whether he or his partner actually pointed the gun at Wyrick.

          We see a somewhat similar fact situation in Miller v. State, 177 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2004, no pet.), in which two defendants were tried together on charges of aggravated robbery. Id. at 2. The evidence was legally and factually sufficient to support Leroy's conviction for aggravated robbery when the record showed that Miller restrained the victim at knife point while Leroy searched for items to steal. Id. at 5. The Miller court concluded that the evidence showed that Leroy intended to assist in commission of the robbery and lent aid to Miller. Id. Under the law of parties, Leroy was, therefore, criminally responsible for Miller's exhibition of the knife. Id.

          Here, we examine the aggravated robbery from beginning to end to assess the participation and contribution from Wills. First, we point out that Wills and French arrived at the restaurant together, both wearing gloves and both wearing dark clothes and articles to hide their faces. Wills' presence and participation thus far shows an understanding and common design to commit this aggravated robbery.

          Second, we note that, throughout her testimony, Wyrick repeatedly explained what "they" were doing, strongly suggesting that the two men acted in concert in carrying out the offense. In fact, she explained that both men came behind the counter and specifically points out that "Both were participating." While Wyrick did not always clearly distinguish which of the two men took a particular action, she did make clear that both men played active roles in the aggravated robbery.

          Further, McChester testified that Wills, whom she recognized by voice and by his leg monitor, ordered her to stay down after French ordered her to the ground. Her testimony lends support to the conviction in at least two ways. First, the fact that McChester was able to recognize and make note of Wills' voice indicates that Wills did, in fact, actively participate in the aggravated robbery through, at a minimum, verbal commands. Second, the substance of his direction to McChester goes directly to the aggravating element, in that his direction flowed from and demanded compliance with the orders from the gun-wielding French. By ordering McChester to stay down, he demonstrated an intent to promote or assist the commission of the aggravated robbery and to aid French in the commission of aggravated robbery.

          Finally, the record shows the two men fled the restaurant together, and initially did so in the same direction. The two split up and began running in different directions only when officers began to pursue them. Based on the evidence of events occurring before, during, and after the commission of the aggravated robbery, we conclude the record supports the jury's verdict by providing factually sufficient evidence that Wills, acting with the intent to promote or assist the commission of the offense, encouraged and aided French in the commission of aggravated robbery. See Tex. Pen. Code Ann. § 7.02(a)(2). The record demonstrates that Wills and French were acting in concert, "each contributing some part toward the execution of their common purpose." See Escobar, 28 S.W.3d at 774.

Conclusion

          Having reviewed the record, we conclude the evidence is factually sufficient to support the conviction. Sufficient evidence shows that a gun was used during the robbery at the restaurant, an aggravated robbery in which Wills actively participated and contributed. That being the case, the evidence was factually sufficient to prove that Wills is guilty of aggravated robbery. We overrule his contentions to the contrary and affirm the trial court's judgment.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      July 20, 2006

Date Decided:         July 21, 2006

Do Not Publish