Norris Wayne Smith v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00278-CR
NORRIS WAYNE SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-2407-C2
MEMORANDUM OPINION
In five issues, appellant, Norris Wayne Smith, challenges his conviction for
aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011). Because we
conclude that the evidence supporting appellant’s conviction is sufficient and that the
trial court did not abuse its discretion by admitting evidence of other extraneous acts,
we affirm.
I. BACKGROUND
This case involves a robbery that resulted in one person, Jerry Crowder Jr.,
getting shot. The facts surrounding the incident are hotly disputed. In any event, the
record reflects that appellant was charged by indictment with aggravated robbery. Also
included in the indictment was an enhancement allegation pertaining to appellant’s
prior felony conviction for unlawful possession of a firearm by a felon. Later, the State
filed a notice of intent to enhance the punishment range, referencing appellant’s prior
felony conviction for possession with intent to deliver a controlled substance, cocaine.
At the conclusion of the evidence, the jury found appellant guilty of the charged
offense. Appellant pleaded “true” to the enhancement allegations, and the jury
assessed punishment at sixty years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice. This appeal followed.
II. THE INDICTMENT
In his second issue, appellant argues that the evidence is insufficient to prove
that appellant committed an offense against Jerry Crowder. Specifically, appellant
complains that the indictment contains a material variance regarding a non-statutory
allegation describing an “allowable unit of prosecution” because the State failed to
include the suffix “Jr.” when referencing Crowder in the indictment.
Article 21.07 of the Texas Code of Criminal Procedure provides the following, in
pertinent part: “In alleging the name of the defendant, or of any other person necessary
to be stated in the indictment, it shall be sufficient to state one or more of the initials of
the given name and the surname.” TEX. CODE CRIM. PROC. ANN. art. 21.07 (West 2009).
Smith v. State Page 2
Moreover, it is well-established that the suffixes “Jr.” or “Sr.” do not form a part of a
legal name and may be rejected as surplusage. See Cherry v. State, 447 S.W.2d 154, 156-
57 (Tex. Crim. App. 1969); Hardin v. State, 88 Tex. Crim. 495, 497-98, 227 S.W. 676, 677-78
(1920); Peters v. State, 69 Tex. Crim. 403, 405, 154 S.W. 563, 564 (1913); Smith v. State, 734
S.W.2d 694, 699 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d)1; see also Polston v. State,
Nos. 03-10-00379-CR, 03-10-00421-CR, 2011 Tex. App. LEXIS 6126, at *21 (Tex. App.—
Austin, Aug. 5, 2011, pet. ref’d) (mem. op., not designated for publication).
Furthermore, the Court of Criminal Appeals has stated that: “The suffix ‘Jr.’ does not
form a part of a name. Its addition or omission is immaterial in criminal proceedings.” Smith
v. State, 435 S.W.2d 526, 527 (Tex. Crim. App. 1969) (emphasis added).
Based on the foregoing, we cannot conclude that the failure of the indictment to
include the suffix “Jr.” to Crowder’s name results in a fatal variance between the
1The facts in the Smith case are particularly noteworthy. See 734 S.W.2d 694, 698 (Tex. App—
Houston [1st Dist.] 1987, pet. ref’d). In its opinion, the Smith court characterized Smith’s fourth issue as
follows:
In his fourth point of error, appellant contends that the evidence was insufficient to
convict him of kidnapping. Specifically, he argues that the indictment alleged that he
kidnapped “Mack C. Sims” while at trial the State produced evidence that he kidnapped
“Mack Clifton Sims, Sr.” He asserts that this variance is significant, especially in light of
the fact that there were two persons named Mack C. Sims. He further argues that the
“failure of the indictment to include the senior appellation renders the variance between
the pleadings and proof fatal to the conviction.”
Id. The facts surrounding the indictment in the instant case are strikingly similar to those in the Smith
case. See id. Ultimately, the Smith court, like we have done here, concluded that there is no variance
between the indictment and the proof because the suffixes “Jr.” and “Sr.” are not part of a person’s legal
name and may be rejected as surplusage. See id. at 698-99.
Smith v. State Page 3
pleadings and the proof.2 See TEX. CODE CRIM. PROC. ANN. art. 21.07; Cherry, 447 S.W.2d
at 156-57; Hardin, 227 S.W. at 677-78; Peters, 154 S.W. at 564; see also Smith, 734 S.W.2d at
699. As such, we overrule appellant’s second issue.
III. EXTRANEOUS-OFFENSE EVIDENCE
In his third, fourth, and fifth issues, appellant contends that the trial court abused
its discretion by admitting extraneous-offense evidence regarding appellant’s alleged
conduct as a pimp, appellant’s alleged assault of Delores Brooks, and appellant’s
alleged intent to commit a different robbery.
A. Standard of Review
We review the trial court’s admission of extraneous-offense evidence for an
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If
the trial court’s ruling is within the zone of reasonable disagreement, there is no abuse
of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s
2 Additionally, because appellant did not dispute the identity of the victim in this case by means
of challenging the indictment in the trial court, we are not persuaded by appellant’s reliance on Byrd v.
State, wherein the Court of Criminal Appeals noted the following:
Although the name of the owner is not a substantive element of theft, the State is required
to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment
as the owner is the same person (or entity)—regardless of the name—as shown by the
evidence. For example, in the Fuller case, the indictment alleged injury to an elderly
person, namely “Olen B. Fuller.” The State proved that the defendant injured “Buddy
Fuller” or “Mr. Fuller.” But there was no dispute at trial that the person who was injured
was the very same person as was alleged in the indictment, despite whatever
discrepancies might exist in the “real” and “alleged” names. Suppose the elderly man in
that case had testified that his real name was Quincy Magoo, but everyone called him
Olen M. Fuller. That is a variance, but it may well be immaterial if the record shows that
the person—whether known as Mr. Magoo or Mr. Fuller—is the same person as alleged
in the indictment. However, if the evidence shows that the defendant actually injured
Mr. Magoo, who is not the same person as Mr. Fuller, the evidence is insufficient under
Malik, Gollihar, and Fuller. In sum, it’s the identity of the person, not his formal name,
that controls and guides the sufficiency of the evidence review.
336 S.W.3d 242, 252-53 (Tex. Crim. App. 2011) (emphasis in original).
Smith v. State Page 4
ruling on the admissibility of an extraneous offense is generally within this zone if the
evidence shows that: (1) an extraneous transaction is relevant to a material, non-
propensity issue; and (2) the probative value of that evidence is not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury. De La Paz, 279 S.W.3d at 344.
B. Appellant’s Alleged Conduct as a Pimp
During direct examination, the following exchange occurred:
[The State]: Delores, at some point in time did your relationship
with the Defendant change from a friendship into a
different type of relationship?
[Defense counsel]: Your Honor, I’m going to object to any further
testimony along these lines under relevance and Rule
403.
THE COURT: Overruled.
[The State]: Go ahead and answer. Did your relationship change?
[Delores]: Yes, ma’am.
Delores testified that, despite the fact that appellant is married, she initially had a
“girlfriend-boyfriend” relationship with appellant that she believed was a dating
relationship. Later, Delores testified without objection that her relationship with
appellant changed to “a business type relationship.” Specifically, Delores noted that
she prostituted for appellant and that appellant was her pimp.
“A timely and specific objection is required to preserve error for appeal.” Luna v.
State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). “An
objection is timely if it is made as soon as the ground for the objection becomes
Smith v. State Page 5
apparent, i.e., as soon as the defense knows or should know that an error has occurred.”
Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing Neal v.
State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). “If a party fails to object until after
an objectionable question has been asked and answered, and he can show no legitimate
reason to justify the delay, his objection is untimely and error is waived.” Id. (citing
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc)). There are,
however, the following two exceptions to the proposition of law that a party must
object each time he thinks inadmissible evidence is being offered: (1) when the party
has secured a running objection on the issue he deems objectionable; or (2) when the
defense counsel lodges a valid objection to all the testimony he deems objectionable on
a given subject outside of the presence of the jury. Ethington v. State, 819 S.W.2d 854,
858-59 (Tex. Crim. App. 1991).
Furthermore, “‘[a]n error [if any] in the admission of evidence is cured when the
same evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193
(Tex. Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998)); see Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition, a
party must object each time the inadmissible evidence is offered or obtain a running
objection.”). Finally, appellate arguments must correspond with the objection made at
trial. Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007).
A review of the record reveals that appellant did not object each time the State
elicited testimony about Delores prostituting for appellant or when Delores testified
that appellant was her pimp. See Lane, 151 S.W.3d at 193; see also Valle, 109 S.W.3d at
Smith v. State Page 6
509. Furthermore, appellant did not request a running objection when he made his
initial objection. In addition, when making his initial objection, appellant did not
specifically object to questions about appellant being Delores’s pimp. See Ethington, 819
S.W.2d at 858-59. In fact, it was not until several questions later did appellant request a
running objection, and this running objection pertained to questions about how
appellant advertised Delores’s prostitution services on the internet. Therefore, based on
the foregoing, we conclude that appellant did not properly preserve this issue for
appeal. We overrule appellant’s third issue. See TEX. R. APP. P. 33.1(a)(1)(A); see also
Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d at 512.
C. Appellant’s Alleged Assault of Delores
Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,
wrongs, or acts is not admissible to prove the character of the defendant in order to
show he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the
common-law principle that a defendant should be tried only for the offense for which
he is charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29,
32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim.
App. 2008) (explaining that a defendant is generally to be tried only for the offense
charged, not for any other crimes).
Extraneous-offense evidence, however, may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)
is not exhaustive. See Prible, 175 S.W.3d at 731. For example, extraneous-offense
Smith v. State Page 7
evidence may be admissible to demonstrate conduct by a defendant that indicates a
consciousness of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990,
no pet.); see also Urtado v. State, 605 S.W.2d 907 915 (Tex. Crim. App. 1980) (“Flight is
evidence of guilt.”). This consciousness-of-guilt evidence may include evidence of a
person’s conduct (such as “flight” or destruction of evidence) that occurs subsequent to
the commission of a crime. See Torres, 794 S.W.2d at 598-600. Such evidence is relevant
to prove that the person committed the act with which he is charged. Id. An extraneous
offense may also be admissible to show identity when identity is at issue in the case, or
when the defense cross examines witnesses or alleges that someone else committed the
crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933
S.W.2d 504, 519 (Tex. Crim. App. 1996). “Whether extraneous[-]offense evidence has
relevance apart from character conformity, as required by Rule 404(b), is a question for
the trial court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial
court’s Rule 404(b) ruling admitting evidence is generally within the zone of reasonable
disagreement “if there is evidence supporting that an extraneous transaction is relevant
to a material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.
App. 2011).
During direct examination, the prosecutor asked why Delores was afraid of
appellant. In particular, the prosecutor questioned Delores about when she ended up in
the hospital in Dallas. Prior to telling the jury about the incident, appellant objected
under Rule 403 and on relevance grounds. The trial court overruled appellant’s
objection, and Delores testified that appellant beat her up because she was tired of
Smith v. State Page 8
running and was ready to tell the police the truth about what had happened with
Crowder.3 As a result of the altercation with appellant, Delores stated that she was
admitted to a hospital in Dallas.
After reviewing the record, we agree with the State’s contention that this
evidence was admissible as consciousness-of-guilt evidence. Delores testified that
appellant beat her up because she wanted to tell the police what happened during the
incident with Crowder. Essentially, Delores suggested that, by beating her up,
appellant tried to silence her and prevent her from telling police about the incident
involving Crowder.
The Court of Criminal Appeals has held that an attempt to tamper with or bribe
a witness constitutes evidence of “consciousness of guilt” on the part of the defendant.
See Gonzalez v. State, 117 S.W.3d 831, 842 (Tex. Crim. App. 2003); Wilson v. State, 7
S.W.3d 136, 141 (Tex. Crim. App. 1999); Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim.
App. 1996) (op. on reh’g) (“We have held that criminal acts that are designed to reduce
the likelihood of prosecution, conviction, or incarceration for the offense on trial are
admissible under Rule 404(b) as showing ‘consciousness of guilt.’”). Based on the
foregoing case law, we conclude that the complained-of testimony in this issue was
relevant as consciousness-of-guilt evidence. See TEX. R. EVID. 404(b); Rodriguez v. State,
577 S.W.2d 491, 493 (Tex. Crim. App. 1979) (“In the instant case, appellant stood
accused of murder. He confronted one of the State’s key witnesses, who was also the
3 The record reflects that after the alleged robbery of Crowder, appellant, Bernard Mathis, and
Delores fled to Dallas.
Smith v. State Page 9
brother of the deceased, outside a bar at night. He told that witness to drop the charges
against him. These are hardly the actions of an innocent accused. This evidence is
every bit as probative of guilt, as would be flight by the accused. The evidence was
properly admitted.”); Maddox v. State, 163 Tex. Crim. 5, 7, 288 S.W.2d 780, 782 (1956)
(stating that, in a rape case, “[p]roof that appellant carried the child away from the
scene and choked her and threw her in the water was admissible as showing an effort
on his part to suppress and destroy evidence against him”); see also Gonzalez, 117 S.W.3d
at 842; Wilson, 7 S.W.3d at 141; Ransom, 920 S.W.2d at 299.
Appellant also argues that the evidence was unfairly prejudicial under Texas
Rule of Evidence 403. We disagree.
Evidence, though relevant, can nonetheless be excluded when its probative value
is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.
Once a trial court determines that extraneous-offense evidence is admissible under Rule
404(b), the trial court must, on proper objection by the opponent of the evidence, weigh
the probative value of the evidence against its potential for unfair prejudice.
Montgomery v. State, 810 S.W.2d 377, 389 (Tex. Crim. App. 1990); see TEX. R. EVID. 403.
Rule 403 favors admissibility of relevant evidence, and the presumption is that
generally, relevant evidence will be more probative than unfairly prejudicial.
Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the
opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d
263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest
Smith v. State Page 10
decision on an improper basis, commonly, though not necessarily, an emotional one.’”
Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
Although not limited to the following enumerated factors, courts should balance
the following factors under a Rule 403 analysis: (1) the probative value of the evidence;
(2) the potential of the evidence to impress the jury in some irrational, yet indelible,
way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted the
proper balancing test if it overrules a 403 objection, regardless of whether it conducted
the test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).
As we previously discussed, the evidence of appellant’s assault of Delores in
response to Delores telling appellant that she was tired of running and was going to tell
the police what had happened to Crowder was probative because it indicated
appellant’s consciousness of guilt. It is not likely that the complained-of evidence had
an irrational effect on the jury, especially considering appellant was charged with a
much more heinous crime of aggravated robbery, which resulted in Crowder being
shot. Appellant concedes that the complained-of evidence took very little time to
develop. And though appellant argues that the “State had no need for this evidence,”
we, once again, point out that this evidence indicates appellant’s consciousness of guilt.
A number of our sister courts have stated that consciousness-of-guilt evidence is one of
the strongest kinds of evidence of guilt. See Hyde v. State, 846 S.W.2d 503, 505 (Tex.
App.—Corpus Christi 1993, pet. ref’d) (“A ‘consciousness of guilt’ is perhaps one of the
strongest kinds of evidence of guilt. It is consequently a well[-]accepted principle that
Smith v. State Page 11
any conduct on the part of a person accused of a crime subsequent to its commission,
which indicates a ‘consciousness of guilt,’ may be received as a circumstance tending to
prove that he committed the act with which he is charged.” (internal citation omitted));
Torres, 794 S.W.2d at 598 (same); see also Shuff v. State, No. 01-12-00034-CR, 2013 Tex.
App. LEXIS 5469, at *8 (Tex. App.—Houston [1st Dist.] May 2, 2013, pet. ref’d) (mem.
op., not designated for publication) (same); Gutierrez v. State, No. 04-09-00674-CR, 2010
Tex. App. LEXIS 7203, at *9 (Tex. App.—San Antonio Sept. 1, 2010, pet. ref’d) (mem. op.,
not designated for publication) (same); Banuelos v. State, No. 11-08-00004-CR, 2009 Tex.
App. LEXIS 2288, at **9-10 (Tex. App.—Eastland Apr. 2, 2009, no pet.) (mem. op,. not
designated for publication) (same); Dennis v. State, No. 2-02-098-CR, 2003 Tex. App.
LEXIS 4413, at **7-8 (Tex. App.—Fort Worth May 22, 2003, pet. ref’d) (mem. op., not
designated for publication) (same).
After considering the Rule 403 factors, we conclude that the trial court did not
abuse its discretion in determining that the challenged evidence is relevant and that the
probative value of the challenged evidence was not substantially outweighed by the
danger of unfair prejudice. See TEX. R. EVID. 403, 404(b); see also De La Paz, 279 S.W.3d at
343-44; Prible, 175 S.W.3d at 731. We overrule appellant’s fourth issue.
D. Appellant’s Alleged Intent to Commit a Different Robbery
Appellant also complains about the trial court permitting Delores to testify that
appellant and his co-defendant, Bernard Mathis, planned to rob Delores’s uncle,
LaMont. Specifically, Delores stated that, prior to picking up Crowder, appellant had
expressed an intent to rob someone. Delores recalled that appellant and Mathis wanted
Smith v. State Page 12
to rob LaMont, Delores’s uncle who has money and whom Delores refers to as a “sugar
daddy.” Prior to this testimony, appellant objected under Rule 403 and on relevance
grounds.
As a general rule, specific acts of misconduct may not be introduced to impeach a
party or a witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988).
However, otherwise inadmissible extraneous-offense evidence may be admissible if a
party “opens the door.” See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).
When a party produces evidence tending to create a false impression of his law-abiding
behavior, he opens the door for the opposing party to introduce extraneous-offense
evidence to correct or rebut the false impression. See id. (citing Daggett v. State, 187
S.W.3d 444, 452 (Tex. Crim. App. 2005)); see also Hernandez v. State, 351 S.W.3d 156, 160
(Tex. App.—Texarkana 2011, pet. ref’d).
On cross-examination, defense counsel asked Delores whether appellant
attempted to rob a person Delores met in a motel room while Delores was working as a
prostitute for appellant. Delores responded in the negative. In any event, this question
supported appellant’s defensive theory. In other words, appellant suggested that he
could not have robbed Crowder or anyone else because he did not rob the person
Delores met in a motel room. Thus, defense counsel’s question gave the jury a false
impression that appellant had never considered robbing anyone; that the incident
involving Crowder was isolated and unrelated to appellant; and addressed appellant’s
law-abiding behavior with respect to robberies. We believe that this question opened
the door to questions about appellant’s prior planning and scheme to rob LaMont. See
Smith v. State Page 13
Hayden, 296 S.W.3d at 554; Daggett, 187 S.W.3d at 452; see also Hernandez, 351 S.W.3d at
160. And because appellant’s evidence presented a picture that he is not the type of
person to commit the charged offense, we conclude that the prosecution was allowed to
impeach Delores’s testimony by cross-examining her concerning similar extraneous
offenses involving appellant. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App.
2002) (“When a witness presents a picture that the defendant is not the type of person to
commit the charged offense, the prosecution may impeach that witness’ testimony by
cross-examining the witness concerning similar extraneous offenses.”). Accordingly,
we find no error in the admission of this testimony. See Hayden, 296 S.W.3d at 554;
Daggett, 187 S.W.3d at 452; Hernandez, 351 S.W.3d at 160; see also De La Paz, 279 S.W.3d at
343-44; Prible, 175 S.W.3d at 731. We overrule appellant’s fourth issue.
IV. THE STATE’S WITNESSES
In his first issue, appellant asserts that the evidence is insufficient to support his
conviction because the State’s witnesses are not worthy of belief, especially when
compared to the corroborated testimony of appellant’s alibi witness.
A. Standard of Review
“The standard for determining whether the evidence is sufficient to support a
conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979)) (emphasis in original); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim.
Smith v. State Page 14
Ohio App. 2010) (plurality op.). The factfinder is the exclusive judge of credibility of the
witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899;
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in
the evidence is within the factfinder’s exclusive province. Wyatt v. State, 23 S.W.3d 18,
30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of
the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). 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. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.
1993); see Harris v. State, 164 S.W.3d 775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d).
We measure the sufficiency of the evidence by the elements of the offense as
defined by the hypothetically-correct jury charge. Cada v. State, 334 S.W.3d 766, 773
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense
for which the defendant was tried. Id.
The elements of aggravated robbery are: (1) a person; (2) in the course of
committing theft; (3) with intent to obtain or maintain control of property; (4)
intentionally or knowingly; (5) threatens another with, or places another in fear or; (6)
imminent bodily injury or death; and (7) uses or exhibits; (8) a deadly weapon. See TEX.
PENAL CODE ANN. §§ 29.02-.03 (West 2011); see also Ramos v. State, No. 01-12-00957-CR,
Smith v. State Page 15
2014 Tex. App. LEXIS 113, at *36 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no pet.)
(mem. op., not designated for publication).
B. Discussion
At trial, both Crowder and Delores admitted that they had lied to police
numerous times about the events leading up to and including the incident. Crowder, in
particular, explained that he had lied to police because he was afraid he would get in
trouble for procuring the services of Delores, a prostitute. Delores, on the other hand,
admitted to initially lying to police because she “didn’t trust nobody [sic].” And though
they were together for several hours prior to the robbery, Crowder and Delores gave
differing accounts about the events leading up to the robbery. Nevertheless, both
Crowder and Delores identified appellant as a participant in the robbery that resulted in
Crowder’s money being taken and Crowder being shot.4
Later, appellant called Franshelle Childs to testify. In her testimony, Childs
noted that she and appellant spent the night together in a Motel 6 in the Waco area and
that she did not observe appellant leave the premises until the next morning. In
support of Childs’s testimony, appellant produced a motel receipt indicating that
Childs had rented a room at the Motel 6 on the night in question. Appellant asserts that
this testimony conclusively proves that he did not commit the charged offense.
4Specifically, Crowder and Delores testified that appellant and Mathis entered Delores’s
apartment just prior to Delores and Crowder having sex. When appellant and Mathis attempted to take
Crowder’s money and clothing, Crowder and appellant began fighting. Delores testified that Mathis shot
Crowder because Crowder was winning the fight with appellant.
Smith v. State Page 16
In fact, using the following hypothetical outlined in Brooks, appellant argues that
no rational juror could have disregarded the testimony provided by his alibi witness,
Childs, which conflicts with the testimony provided by Crowder and Delores:
The store clerk at trial identifies A as the robber. A properly authenticated
surveillance videotape of the event clearly shows that B committed the
robbery. But, the jury convicts A. It was within the jury’s prerogative to
believe the convenience store clerk and disregard the video. But based on
all the evidence the jury’s finding of guilt is not a rational finding.
323 S.W.3d at 907 (emphasis in original).
We disagree with appellant’s assertion that Childs’s testimony is akin to the
properly authenticated surveillance videotape referenced in Brooks. On cross-
examination, Childs, an individual with numerous criminal convictions, admitted that
she took several Tylenol PM pills “with some Crown Royal, of course” on the night she
allegedly stayed with appellant at the Motel 6. Childs also acknowledged that the
combination of the medicine and alcohol made her go to sleep, though she recounted
that she and appellant had sex at some point in time that evening. Thereafter, Childs
noted that appellant went outside the motel room to make a phone call; however, she
could not remember how long appellant stayed outside because she was drifting in and
out of sleep. Based on our review of the record, we cannot say that Childs’s testimony
is anywhere near as conclusive as a surveillance videotape may be. Accordingly, we are
not persuaded by appellant’s reliance on the Brooks hypothetical.
Ultimately, this case hinged upon a determination of the credibility and
demeanor of the testifying witnesses by the jury. With its verdict, the jury clearly
believed the accounts provided by Crowder and Delores and disbelieved Childs’s
Smith v. State Page 17
assertion that appellant was with her the entire night when the robbery transpired.
And despite numerous conflicts in the evidence, we emphasize that the reconciliation of
such conflicts is within the factfinder’s exclusive province. Wyatt, 23 S.W.3d at 30.
Moreover, we resolve any inconsistencies in the testimony in favor of the verdict.
Curry, 30 S.W.3d at 406. And despite appellant’s invitation, we will not second guess
the jury’s evaluation of the weight and credibility of the evidence. See Muniz, 851
S.W.2d at 246; see also Harris, 164 S.W.3d at 784.
Therefore, viewing the evidence in the light most favorable to the verdict, we
conclude that a rational factfinder could have determined that appellant was a
participant in the charged offense. See TEX. PENAL CODE ANN. §§ 29.02-.03; see also
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 364 S.W.3d at 293-94. Accordingly, we
hold that the record contains sufficient evidence to support appellant’s conviction for
aggravated robbery. See TEX. PENAL CODE ANN. §§ 29.02-.03; see also Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Johnson, 364 S.W.3d at 293-94. We overrule appellant’s first issue.
V. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS
Justice
Smith v. State Page 18
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
Do not publish
[CRPM]
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