Eddie Don Pinkston, Jr. v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-165-CR
EDDIE DON PINKSTON, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Eddie Don Pinkston, Jr. appeals his convictions and sentences
for aggravated assault with a deadly weapon and aggravated robbery with a
stick used as a deadly weapon. In two points, Appellant challenges the legal
and factual sufficiency of the aggravated robbery conviction and argues that his
1
… See Tex. R. App. P. 47.4.
convictions violate double jeopardy. We modify the judgment in part and affirm
it as modified.
II. Factual and procedural background
On May 19, 2007, Rene Rios went to the store to purchase a long-
distance phone card and took his neighbor, Appellant, with him. When Rios
purchased the card, he had approximately $400 in his wallet, in twenty dollar
increments. Rios testified that Appellant was present during the purchase and
in a position to see the money in Rios’s wallet.
Rios and Appellant returned to Rios’s house. Rios testified that he was
talking to Appellant outside when “somebody hit me from the back, I turned
and then I received the other hit in the face.” Rios stated that he did not see
the object used to hit him but knew it was not someone’s hand because the
object was very hard. Rios stated that Appellant and two other individuals tried
to obtain his billfold while he was running away from them toward the back of
his house. He testified that he could feel their hands trying to “pull at his
billfold” inside his back pocket.2 Rios testified that his major injury was near
his right eye.
2
… When asked about his previous statement before trial to his attorney
that Appellant said the word “wallet” during the attack, Rios stated that he was
not absolutely certain that he had heard Appellant say that word.
2
After the attack, Officer Mason Fincher arrived at the scene. Officer
Fincher stated that Rios had a large laceration on the back of his head and a
large swelling to the right side of his face. He testified that he was not sure if
Rios was “hit so hard that it [] had split the skin open” or if Rios had been “shot
near the eye.” Officer Fincher stated that he had asked Rios questions through
his sister, Theresa, because Rios did not speak English. Theresa told him that
the suspect’s name was “Eric” who lived in the Pinkston home next to Rios’s
house.
Officer Fincher testified that he had called for an ambulance because
Rios’s injuries were extensive, causing him to “slip[] in and out of
consciousness.” Officer Fincher stated that Rios’s injuries were severe enough
to put him in fear that Rios could “expire at that point.” Officer Fincher
assumed that the suspect, “Eric,” was actually Appellant and retrieved a
mugshot to show Theresa, who confirmed “Eric” was in fact “Eddie Pinkston.”
Officer Fincher then went to the hospital and took photographs of Rios’s
injuries, which included a laceration near Rios’s eye and the laceration on the
back of Rios’s head.
3
Rios testified that he stayed in the hospital for “two or three days” and
that doctors surgically attached metal plates to the bone near his eye.3 After
Rios’s surgery, Detective B.K. McHorse spoke with him through an interpreter,
Robert Vargas. Detective McHorse testified that he provided a photo spread,
and Rios identified Appellant out of six individuals with similar facial features.
Detective McHorse wrote the original warrant and presented it to the judge;
Detective Billy Randolph took over the rest of the investigation.
Police arrested Appellant on June 22, 2007. On June 26, 2007,
Detective Randolph interviewed Appellant. In the interview, Appellant waived
his Miranda rights and discussed the activities he had participated in on May
19, 2007. Appellant initially denied any knowledge of the attack on Rios.
Appellant then admitted that Rios spoke with him around 8 or 9 o’clock that
night and that Appellant “went and got [powder] cocaine for him.” Appellant
stated that he “called his partner,” who brought the cocaine. Appellant said
that Rios paid his friend, not him, for the cocaine and it was worth “twenty to
thirty dollars.” 4
3
… Rios testified that he works “very little” now because he suffers from
convulsions, which he did not experience prior to the attack. Rios stated that
he also suffers from memory loss.
4
… Detective Randolph testified about this interview and stated that
Appellant had also told him that he “fronted” Rios the cocaine, expecting to be
paid later.
4
Appellant eventually admitted in the interview that he saw the
confrontation with Rios around midnight and that “it was over drugs.”
Appellant did not initially identify the other two participants of the attack but
then stated one of the men was named “Wal-Mart” and the other individual was
the friend who brought the cocaine. Appellant then told Detective Randolph
that there was no robbery and that “if anything, [he] assaulted [Rios].”
Immediately after this statement, Appellant said that this “was a dope thing”
and “he didn’t want to give me my money.” Appellant told Detective Randolph
that he had hit Rios once or twice with a stick. When Detective Randolph
stated that Rios’s injuries were not consistent with the use of a stick, Appellant
stated that the weapon he had used was more akin to a “two-by-four” piece of
wood. Appellant said that he left after the attack ended.
A grand jury indicted Appellant for aggravated robbery and aggravated
assault. The indictment stated that Appellant
did then and there intentionally or knowingly, while in the course
of committing theft of property and with intent to obtain or
maintain control of said property, cause bodily injury to another,
Rene Rios, by hitting him with a stick, and the defendant used or
exhibited a deadly weapon, to-wit: a stick, that in the manner of its
use or intended use was capable of causing death or serious bodily
injury.
Count two: and it is further presented in and to said court that the
defendant in the county of Tarrant and state aforesaid on or about
the 19th day of May, 2007, did intentionally or knowingly cause
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bodily injury to Rene Rios by hitting him with a stick, and the
defendant did use or exhibit a deadly weapon during the
commission of the assault, to wit: a stick, that in the manner of its
use or intended use was capable of causing death or serious bodily
injury.
After a bench trial, the court found Appellant guilty of both aggravated
robbery and aggravated assault. The trial court sentenced Appellant to thirty
years’ imprisonment for both convictions, with the sentences running
concurrently.
III. Legal and factual sufficiency challenge
In his first point, Appellant argues that the evidence at trial was legally
and factually insufficient to prove that he was in the course of committing a
theft or had intent to obtain and maintain control of Rios’s property when he
assaulted Rios.
A. Legal sufficiency standard of review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
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The trial judge, when sitting as the sole trier of fact, is the exclusive judge
of the credibility of the witnesses and the weight to be given to their testimony.
Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
B. Factual sufficiency standard of review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
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clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the judgment. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently.
Id. We may not simply substitute our judgment for the factfinder’s. Johnson
v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a
different result is appropriate, we must defer to the trial court’s determination
of the weight to be given contradictory testimonial evidence because resolution
of the conflict “often turns on an evaluation of credibility and demeanor.
Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is necessary to
correct manifest injustice, we must give due deference to the factfinder’s
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determinations, “particularly those determinations concerning the weight and
credibility of the evidence.” Id. at 9.
C. Applicable law
The State is required to prove every element of an offense beyond a
reasonable doubt. See Tex. Penal Code Ann. § 2.01 (Vernon 2003). The penal
code describes robbery under section 29.02 as,
(a) A person commits an offense if, in the course of committing
theft as defined in Chapter 31 5 and with intent to obtain or
maintain control of the property, he:
(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.
Id. § 29.02(a) (Vernon 2003).
Penal code section 29.01 defines the phrase “in the course of committing
theft” as “conduct that occurs in an attempt to commit, during the commission,
or in immediate flight after the attempt or commission of theft.” See id. §
29.01 (Vernon 2003). Thus, proof of a completed theft is not required to
establish robbery. Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App.
5
… Under section 31.03, theft is defined as “unlawfully appropriat[ing]
property with intent to deprive the owner of property.” Tex. Penal Code Ann.
§ 31.03 (Vernon Supp. 2008).
9
1996), cert. denied, 544 U.S. 1037; see also Purser v. State, 902 S.W.2d 641,
647 (Tex. App.—El Paso 1995, pet. ref’d) (stating that the actual commission
of theft “is not a prerequisite” for robbery, as the “gravamen of robbery is the
assaultive conduct and not the theft”), cert. denied, 525 U.S. 838 (1998).
Under section 29.03, aggravated robbery occurs when a person commits
robbery as defined in section 29.02 and (1) causes serious bodily injury to
another or (2) uses or exhibits a deadly weapon. See id. § 29.03.
D. Legal sufficiency analysis
In this case, the State provided evidence of Appellant’s acts while in the
course of committing theft. The State offered Appellant’s recorded interview,
which revealed that Appellant had completed a drug transaction with Rios
earlier that day and that Rios may or may not have paid him for the cocaine.
Although Appellant denied robbing Rios, Appellant stated that the confrontation
was “over drugs,” that he assaulted Rios with a “two-by-four” sized stick, and
that Rios “didn’t want to give [him] [his] money.” 6
The State also offered testimony from the sole witness of the attack,
Rios, who confirmed that Appellant was speaking to him when he was hit from
6
… See Collins v. State, 800 S.W.2d 267, 269 (Tex. App.—Houston
[14th Dist.] 1990, no pet.) (holding that evidence of a creditor assaulting a
debtor for the purpose of collecting a debt was sufficient to support aggravated
robbery conviction).
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behind by two individuals. Rios stated that as he was running away, he could
feel Appellant and the two other men 7 “screaming one to another” and “pulling,
trying to get the billfold” located inside of Rios’s back pocket. Although Rios
stated that Appellant was unable to obtain the wallet, his alleged acts in
attempting to grab Rios’s wallet were sufficient to establish he was in the
course of committing theft and had intent to obtain and maintain control of the
property under the statute. See Tex. Penal Code Ann. §§ 29.01, 29.02; Wolfe,
917 S.W.2d at 275, Huerta v. State, No. 13-05-00272-CR, 2007 WL
2215952, at *2 (Tex. App.—Corpus Christi Dec. 12, 2007, pet. ref’d) (mem.
op., not designated for publication) (stating that “the jury could rationally infer
that appellant was attempting to steal [the victim’s] wallet, although he was
prevented from doing so by [the victim’s] flight”).
Viewing the evidence in a light most favorable to the prosecution, the trial
court could have found beyond a reasonable doubt that, “in the course of
committing [a] theft” and “with intent to obtain [and] maintain control” of
Rios’s property, Appellant intentionally or knowingly caused bodily injury to Rios
when he used a deadly weapon to hit Rios. See Tex. Penal Code Ann.
7
… Rios was not able to identify the other individuals who attacked him
from behind but confirmed that Appellant was present and did not warn or help
him when the attack happened.
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§§ 29.02(a)(1), 29.03(a)(2). We hold that the evidence is legally sufficient to
support the trial court’s judgment. See Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778.
E. Factual sufficiency analysis
Appellant contends that the evidence is factually insufficient to support
the conviction because the State only produced one witness who actually
witnessed the incident, Rene Rios, the victim. Appellant urges that Rios’s
testimony was “speculative at best” and his memory had “significant gaps” that
affected his credibility. Rios admitted that he had trouble remembering certain
events; however, he was able to describe details surrounding the attack,
including his trip to the store with Appellant, his brief conversation with
Appellant prior to the attack, the sensation of the object that hit his head, and
the “pulling” at his billfold pocket as he fled from the attack. See Aguilar v.
State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (stating that a conviction
may be supported by testimony of only one witness). It was the sole
responsibility of the trial judge as trier of fact to believe or not believe Rios.
Rios’s testimony and Appellant’s statement that were admitted into
evidence and played for the court, together with Detective Randolph’s and
Officer Fincher’s testimonies, allowed the trial court to determine that
Appellant’s conduct in participating in the attack and in his attempt to take
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Rios’s billfold fell within the statutory definitions of acting “in the course of
committing theft” and “with intent to obtain [and] maintain control of. . .
property.” See Tex. Penal Code Ann. §§ 29.01, 29.02(a).
Viewing the evidence in a neutral light, we cannot say that the evidence
is so weak that the trial court’s determination that Appellant committed
aggravated robbery through his actions in the course of committing a theft and
with intent to obtain and maintain control of property is clearly wrong or
manifestly unjust. We also cannot say that the conflicting evidence so greatly
outweighs the evidence supporting the conviction that the trial court’s
determination is unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d
at 414–15, 417. We therefore hold that the evidence is factually sufficient to
support the trial court’s judgment. Because the evidence is both legally and
factually sufficient, we must overrule Appellant’s first point.
IV. Double Jeopardy
In his second point, Appellant argues that the trial court erred by
convicting him for both aggravated robbery and aggravated assault. The State
concedes that the trial court violated double jeopardy prohibitions, and we
agree.
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A. Applicable law
The Double Jeopardy Clause of the United States Constitution provides
that no person shall be subjected to twice having life or limb in jeopardy for the
same offense. U.S. Const. amend. V. Generally, this clause protects against
(1) a second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple punishments
for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,
2225 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
2006). To determine whether both offenses are the same under (3), we must
examine the elements of the applicable statutes to determine whether each
statute “requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). Under
Blockburger, we are to focus on the statutory elements found in the charging
instruments. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008);
Parrish v. State, 869 S.W.2d 352, 353–55 (Tex. Crim. App. 1994).
A double jeopardy violation may be raised for the first time on appeal
when the undisputed facts show the double jeopardy violation is clearly
apparent on the face of the record and when enforcement of usual rules of
procedural default serves no legitimate state interests. Gonzalez v. State, 8
S.W.3d 640, 643 (Tex. Crim. App. 2000). For convictions involving multiple
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punishments for the same offense, the double jeopardy violation is clearly
apparent on the face of the record when the record affirmatively shows multiple
punishments resulting from the commission of a single act that violated two
separate penal statutes, one of which is subsumed in the other. See Cervantes
v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991), cert. denied, 502 U.S.
1110 (1992); Garfias v. State, No. 02-06-00398-CR, 2008 WL 2404268, at
*1 (Tex. App.—Fort Worth June 12, 2008, pet. granted) (mem. op., not
designated for publication); Perez v. State, No. 02-06-00225-CR, 2007 WL
2744914, at *6 (Tex. App.—Fort Worth Sept. 20, 2007, pet. ref’d) (mem. op.,
not designated for publication).
When a defendant has been prosecuted and convicted in a single criminal
action of two or more offenses that constitute the same offense, in violation of
double jeopardy, the remedy is to apply “the most serious offense test.” The
most serious offense is the one for which the greatest sentence was assessed;
in those cases, the most serious offense is retained and the less serious offense
is set aside. Ex parte Cavazos, 203 S.W.3d at 338.
B. Analysis
In this case, Appellant did not raise a double jeopardy objection during the
bench trial; however, a violation is clear on the face of the record. See
Gonzalez, 8 S.W.3d at 643. The State relied on Appellant’s act of hitting Rios
15
with a stick to prove the aggravated assault offense and part of the aggravated
robbery offense. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp.
2008), §§ 29.02(a)(1), 29.03(a)(2). According to the language in the
indictment, for the aggravated assault, the State had to prove Appellant caused
bodily injury and “used or exhibited a deadly weapon” (“to wit: a stick”) and for
the aggravated robbery charge, the State had to prove this same act occurred
in the commission of a theft. See id. § 22.01(a)(1) (defining assault as
intentionally, knowingly or recklessly cause[ing] bodily injury to another),
§§ 29.02(a)(2) (defining robbery), 29.03(a)(2) (defining aggravated robbery);
see also, Naji v. State, No. 02-06-00260-CR, 2007 WL 1266872, at *2 (Tex.
App—Fort Worth April 26, 2007, pet. ref’d) (mem. op., not designated for
publication) (stating that “there is no robbery without an assault”). Thus, the
two convictions violated double jeopardy prohibitions because the two offenses
constitute the same offense.
We must retain the conviction for the most serious offense and set the
other aside. Ex parte Cavazos, 203 S.W.3d at 337. The judgments contain
identical sentences, 8 so we retain the aggravated robbery conviction and
8
… Appellant did not raise this discrepancy in his argument; however, the
reporter’s record reveals that the trial court orally pronounced a sentence of
thirty years for the aggravated robbery and ten years for the aggravated
assault; however, the written judgments state that both sentences are for thirty
16
sentence and vacate the aggravated assault conviction and sentence. See
Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007) (holding that,
when both offenses carry the same punishment, the appellate court may strike
either conviction). We retain the aggravated robbery charge because it appears
first in the indictment. See Naji, 2007 WL 1266872, at *3 (citing Ex parte
Cravens, 805 S.W.2d 790, 791 (Tex. Crim. App. 1991)) (retaining the first
count in the indictment). We sustain Appellant’s second point and modify the
judgment to reflect only a conviction for aggravated robbery with a deadly
weapon and the sentence of thirty years’ confinement. See Naji, 2007 WL
1266872, at *3.
V. Conclusion
Having overruled Appellant’s first point and sustained his second point,
we modify the trial court’s judgment to vacate the conviction and sentence for
aggravated assault with a deadly weapon and reflect only the conviction for
aggravated robbery with a deadly weapon, with the sentence of thirty years’
years. The Court of Criminal Appeals has stated that when there is a conflict
between the oral pronouncement and the written judgment, the oral
pronouncement controls and the judgment must be reformed to conform to that
sentence. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.
2003). Because our disposition resolves this discrepancy, we will not reform
the judgments.
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confinement. We affirm the trial court’s judgment as modified. See Tex. R.
App. Proc. 43.2(b).
PER CURIAM
PANEL: GARDNER, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 6, 2009
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