Libra Lamarkus Reed v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00158-CR
LIBRA LAMARKUS REED,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 35177CR
MEMORANDUM OPINION
Appellant, Libra Lamarkus Reed, was charged by indictment with two counts of
aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.03(a)(2), (b)
(West 2011). A jury convicted Reed on both counts and assessed punishment at ten
years’ incarceration in the Institutional Division of the Texas Department of Criminal
Justice for each count. The trial court ordered the imposed sentences to run
concurrently. In three issues, Reed argues that: (1) the evidence supporting his
conviction is legally and factually insufficient; and (2) the trial court erred by allowing
the victims of the alleged crime to be excluded from Texas Rule of Evidence 614, the
“Rule,” during the punishment phase of the trial. See TEX. R. EVID. 614. We affirm.
I. BACKGROUND
On the morning of February 8, 2010, Robert and Bernice Jackson, both sixty-four
years old, were traveling in their silver Mitsubishi Raider pickup truck from
Midlothian, Texas to Dallas, Texas.1 The Jacksons were taking their son to a doctor’s
appointment in Dallas.2 Robert was driving, and he and Bernice were talking to each
other when they approached a stop sign at the intersection of Midlothian Parkway and
State Highway 287. Once they were stopped at the stop sign, they heard several loud
taps on the passenger’s-side window of the pickup truck. Robert told Bernice to lie
down in the seat because a man, later identified as Reed, had a gun to her head. Robert
testified that he could see that the item Reed used to tap on the window was a silver
handgun that resembled a nine-millimeter. According to Bernice, Robert sounded very
scared, and he told her to immediately call 911. Bernice put her head down in the seat
and called 911 while Robert “floored” the truck. Bernice testified that she did not look
at the man, nor did she ever hear the man say anything.
Robert began driving erratically at a high rate of speed down Midlothian
Parkway because Reed was hanging on to the tailgate of the pickup truck. While Reed
clung to the tailgate of the pickup truck, Robert could see from the rear-view mirror that
1 The license plate on the pickup truck included a handicapped designation; however, it is not
clear from the testimony whether Robert or Bernice are indeed handicapped.
2 Bernice testified that the couple’s son is a child with special needs; in particular, the couple’s son
is mute, blind, and very autistic.
Reed v. State Page 2
Reed continued to hold the silver handgun in his hand. Robert ran two red lights in an
attempt to throw Reed off of the tailgate. Robert did, however, slow down while
crossing a railroad track. When the pickup truck slowed, Reed got into the bed of the
truck. Robert continued to drive erratically in hopes of throwing Reed off the pickup
truck, but Robert eventually lost control and the pickup truck ended up in a ditch. At
this point, Robert and Bernice kept telling each other that they were going to die.
However, Reed jumped out of the bed of the truck and ran away.
After Reed had run away, Robert was able to get the pickup truck out of the
ditch and drove towards a local gas station to wait for the police to arrive. When the
police arrived, they asked Robert and Bernice questions about the incident and
inspected the pickup truck. Police found a cell phone, a cell phone case, a lighter, and
several pools of blood in the bed of the pickup truck. Because it was raining on the day
of the incident, police quickly took the found items into custody and used gauze to soak
up the blood from the bed of the pickup truck so that the blood could be tested later.
Tony Bovinich, then an investigator with the Midlothian Police Department,
used the phone numbers contained in the cell phone to locate its owner—Reed’s
girlfriend, Amy Reed. Bovinich also found that the “mama” contact in the cell phone
related to Reed’s mother, Della Reed Harris. Bovinich also determined that Reed fit the
description of the suspect provided by Robert. A photographic lineup was then created
with Reed being one of the suspects in the lineup. Robert positively identified Reed as
the assailant from the photographic lineup.
Reed v. State Page 3
Reed was arrested in Waxahachie, Texas, on March 11, 2010. After securing a
search warrant, police collected buccal swabs from the inside of Reed’s cheeks. The
DNA from the blood obtained from the bed of the pickup truck was compared to the
buccal swabs taken from Reed’s cheeks. DNA analysts concluded that “[t]he DNA
profile from the stain from the gauze is consistent with the DNA profile of the suspect
[Reed]. . . . To a reasonable degree of scientific certainty, the suspect is the source of this
profile (excluding identical twins).”
At the conclusion of the trial, Reed was convicted on both counts of aggravated
robbery, and a deadly weapon finding was made. See TEX. PENAL CODE ANN. §
29.03(a)(2). During the punishment hearing, several witnesses testified. Robert and
Bernice provided testimony regarding victim impacts, though Reed objected to their
presence during the punishment hearing. After hearing all of the punishment evidence,
the jury sentenced Reed to ten years’ imprisonment with no fine on each count. The
trial court ordered that the imposed sentences run concurrently and certified Reed’s
right to appeal. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Reed contends that the evidence supporting his
conviction is legally and factually insufficient.3 We disagree.
3 We note that Reed’s appellate brief lacks several elements required by Texas Rule of Appellate
Procedure 38.1, including a complete listing of the identity of parties and counsel, an issues-presented
section, and a summary of the argument. See TEX. R. APP. P. 38.1(a), (f), (h). However, because of our
disposition and to expedite this matter, we will implement Texas Rule of Appellate Procedure 2 to
suspend these rules. See id. at R. 2.
Reed v. State Page 4
A. Standard of Review
The Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010), abandoned the factual-sufficiency standard in criminal cases; we need only
consider the sufficiency of the evidence under the legal-sufficiency standard articulated
in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). As
such, we will analyze Reed’s sufficiency claims under the Jackson legal-sufficiency
standard of review. See Brooks, 323 S.W.3d at 902 (concluding that there is “no
meaningful distinction between the Jackson v. Virginia legal sufficiency standard and
the . . . factual-sufficiency standard, and these two standards have become
indistinguishable.”); see also Harrison v. State, No. 14-10-00254-CR, 2011 Tex. App. LEXIS
9133, at *16 (Tex. App.—Houston [14th Dist.] Nov. 17, 2011, no pet. h.) (mem. op., not
designated for publication) (construing a factual-sufficiency challenge as a legal-
sufficiency challenge).
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Reed v. State Page 5
Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, at
**43-44 (Tex. Crim. App. Sept. 14, 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2792-93. Further, direct and circumstantial evidence are treated equally:
"Circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the
factfinder is entitled to judge the credibility of witnesses and can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d
459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically-correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “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
Reed v. State Page 6
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997).
B. Discussion
On appeal, Reed argues that: (1) there was no imminent threat because there
was no physical contact or communication between Robert, Bernice, and him; (2) there
is no evidence of a theft, especially considering no demand for property was made; and
(3) the State did not establish a nexus between the alleged assaultive conduct and the
theft.
As indicted in this case, a person is guilty of aggravated robbery if he “commits
robbery” and “uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. § 29.03(a)(2).
A person commits robbery “if, in the course of committing theft . . . and with intent to
obtain or maintain control of the property, he intentionally, knowingly, or recklessly
causes bodily injury to another or intentionally threatens or places another in fear of
imminent bodily injury or death.” Id. § 29.02 (West 2011). A person commits theft if he
“unlawfully appropriates property with intent to deprive the owner of the property.”
Id. § 31.03(a) (West Supp. 2011).
1. The Use-of-a-Deadly-Weapon and Threat-of-Imminent-Bodily-Injury or
Death Elements of Aggravated Robbery
The Texas Court of Criminal Appeals has recently interpreted section 29.02 of the
penal code—the robbery statute—noting that:
The plain language of the statute encompasses not just explicit threats, but
whatever implicit threats may lead to the victim being placed in fear. So
long as the defendant’s actions are of such nature as in reason and
common experience is likely to induce a person to part with his property
Reed v. State Page 7
against his will, any actual or perceived threat of imminent bodily injury
will satisfy this element of the offense.
Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2010) (internal quotations
omitted) (citing Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006)
(interpreting, without deciding, the definition of “threaten” for purposes of the Texas
assault statute, and stating the following from the robbery statute: “By defining
robbery to be theft plus either threatening or placing another in fear, this statute
demonstrates that the term ‘threaten’ means something other than placing a person ‘in
fear of imminent bodily injury or death” (emphasis in original)); Cranford v. State, 377
S.W.2d 957, 958 (Tex. Crim. App. 1964)); see Pitte v. State, 102 S.W.3d 786, 793 (Tex.
App.—Texarkana 2003, no pet.) (“It is sufficient to constitute robbery if the accused
places the complainant in fear of bodily injury or death to the degree that reason and
common experience will likely induce the complainant to part with his property against
his will.” (internal quotations omitted)). In other words, is it not a specific element of
the offense of aggravated robbery that the actor has a confrontation or physical
altercation with another person. Howard v. State, 306 S.W.3d 407, 410 (Tex. App.—
Texarkana 2010), aff’d, 333 S.W.3d 137. “Under the ‘placed in fear’ language of section
29.02, the fact-finder may conclude that an individual was ‘placed in fear’ in
circumstances where no actual threats are conveyed.” Howard, 306 S.W.3d at 410 (citing
Burton v. State, 230 S.W.3d 846, 852 (Tex. App.—Houston [14th Dist.] 2007, no pet.);
Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)).
Reed v. State Page 8
Here, Robert testified that he saw Reed approach the pickup truck while he was
at the intersection of Midlothian Parkway and State Highway 287. According to Robert,
Reed tapped on the window with a handgun and subsequently aimed the handgun at
Bernice’s head. Robert immediately told Bernice what was happening and instructed
her to lie down in the seat and call 911. Though Bernice acknowledged that she did not
see Reed and both Robert and Bernice noted that they did not hear Reed say anything,
both Robert and Bernice were aware of the situation and were in fear for their lives.
Robert stated that he tried to evade Reed, but Reed grabbed on to the tailgate and
eventually pulled himself into the bed of the pickup truck. When he lost control of the
pickup truck and it careened into the ditch, Robert told Bernice that “we’re going to die,
we’re going to die.” Alan Patterson, then an officer with the Midlothian Police
Department, testified that he spoke with Robert and Bernice at the gas station after the
incident transpired. Patterson recalled that: “Mr. Jackson was—you could tell he was a
little upset, but not quite near as much as Bernice Jackson was. She was almost
hysterical, very excited, very worked up. As in something—you know, something
traumatic just happened.”
Based on the testimony adduced at trial, we find that a rational factfinder could
conclude that both Robert and Bernice were placed in fear of bodily injury or death
even though Reed did not verbalize a threat. See TEX. PENAL CODE ANN. §§ 29.02, 29.03;
see also Howard, 333 S.W.3d at 138; Howard, 306 S.W.3d at 410; Pitte, 102 S.W.3d at 793.
Reed’s tapping on the window of the Jackson’s pickup truck with a handgun, his
aiming the handgun at Bernice’s head, and the fact that he clung to the tailgate of the
Reed v. State Page 9
couple’s truck for a substantial distance and eventually climbed into the bed of the
truck constitutes sufficient evidence for a rational factfinder to conclude that Reed
impliedly threatened the Jacksons with imminent bodily injury or death. See Howard,
333 S.W.3d at 138; Howard, 306 S.W.3d at 410; Pitte, 102 S.W.3d at 793; see also DeLeon v.
State, 865 S.W.2d 139, 142 (Tex. App.—Corpus Christi 1993, no pet.) (concluding that the
mere presence of a deadly weapon, under proper circumstances, can be enough to
instill fear and threaten a person with bodily injury) (citing Gaston v. State, 672 S.W.2d
819, 822 (Tex. App.—Dallas 1983, no pet.) (affirming a conviction for aggravated assault
even though the defendant made no physical motion to employ the gun, nor did he
verbally threaten the victim). Further, the testimony clearly indicates that both Robert
and Bernice were in fear for their lives because of Reed’s actions. In addition, we hold
that the record contains sufficient evidence demonstrating that Reed exhibited a deadly
weapon during the commission of this offense. See TEX. PENAL CODE ANN. § 29.03; see
also Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (stating that
“‘exhibited a deadly weapon’ means that the weapon was consciously shown or
displayed during the commission of the offense”).
2. The Theft Element of Aggravated Robbery
Next, we address Reed’s contention that his conviction is not supported by
sufficient evidence demonstrating that either an actual theft occurred or an intent to
steal on his part. Texas courts have held that the phrase “in the course of committing
theft,” which is included in the robbery statute, “means conduct which occurs in an
attempt to commit, during commission, or in immediate flight after the attempt or
Reed v. State Page 10
commission of theft.” Autry v. State, 626 S.W.2d 758, 762 (Tex. Crim. App. 1982); see
TEX. PENAL CODE ANN. § 29.01(1) (West 2011); Green v. State, 840 S.W.2d 394, 401 (Tex.
Crim. App. 1992) (“‘The actual commission of theft is a not a prerequisite to the
commission of robbery; the gravamen of robbery is the assaultive conduct and not the
theft.’” (quoting Crank v. State, 761 S.W.2d 328, 350 (Tex. Crim. App. 1988))); Sendejo v.
State, 953 S.W.2d 443, 452 (Tex. App.—Waco 1997, pet. ref’d). In other words, to show a
robbery, the evidence must show that the accused assaulted the victim in an attempt to
commit theft. See Green, 840 S.W.2d at 401.
We have already concluded that Reed engaged in assaultive conduct as to Robert
and Bernice—namely, using a deadly weapon to place them in imminent fear of bodily
injury or death. Thus, the focus of our inquiry as to this contention is whether the
record contains sufficient evidence to demonstrate that Reed attempted to commit theft.
In the present case, Robert testified that:
When I saw the gun, I know he [Reed] didn’t—he wasn’t asking for a ride.
I knew that when he came up to my door with a gun in his hand . . . I
think he was—I thought he was going to take my vehicle and harm one of us or
both of us.
(Emphasis added). Robert also testified that Reed clung to the tailgate of the truck and
eventually climbed into the bed of the pickup truck after Robert had driven a
substantial distance, which could arguably indicate an intent to appropriate the pickup
truck. In convicting Reed, the jury clearly believed Robert’s statement that Reed
intended to steal the pickup truck when he approached the passenger-side window. See
Chambers, 805 S.W.2d at 461. Furthermore, a specific verbal demand is not the talisman
Reed v. State Page 11
of an intent to steal; instead, intent may be inferred from conduct. See Johnson v. State,
541 S.W.2d 185, 187 (Tex. Crim. App. 1976); see also Garcia v. State, Nos. 01-08-00247-CR,
01-08-00248-CR, 2010 Tex. App. LEXIS 2186, at *15 (Tex. App.—Houston [1st Dist.] Mar.
11, 2010, pet. ref’d) (mem. op., not designated for publication) (noting also that a
completed theft is not required to support a conviction for aggravated robbery).
Therefore, based on Robert’s belief that Reed wanted to steal the pickup truck and
Reed’s actions, we conclude that a rational factfinder could conclude that Reed intended
to commit theft. See TEX. PENAL CODE ANN. §§ 29.02, 31.03(a); see also Jackson, 443 U.S. at
318-19; Hooper, 214 S.W.3d at 13.
3. The Nexus Between the Assaultive Conduct and the Attempted Theft
Robbery requires a nexus between the assault and the theft. See Cooper v. State,
67 S.W.3d 221, 223 (Tex. Crim. App. 2002). The court of criminal appeals has held that
the evidence will be sufficient to show a nexus if it shows that the theft occurred
immediately after the assault. Sorrells v. State, 343 S.W.3d 152, 157 (Tex. Crim. App.
2011); McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). Here, the testimony
establishes that the assaultive conduct occurred at the same time as Reed was
attempting to steal the Jackson’s pickup truck. As such, we conclude that there is
sufficient evidence to show a nexus between the assaultive conduct and the attempted
theft. See Sorrells, 343 S.W.3d at 157; Cooper, 67 S.W.3d at 223; McGee, 774 S.W.2d at 234;
see also Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13.
Based on the foregoing, we conclude that, viewing the evidence in the light most
favorable to the verdict, a rational factfinder could conclude that Reed used a gun, a
Reed v. State Page 12
deadly weapon, to place Robert and Bernice in fear of imminent bodily injury or death
during an attempt to steal the couple’s pickup truck. See TEX. PENAL CODE ANN. § 29.03;
see also Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Accordingly, we hold that
the evidence is sufficient to support Reed’s conviction. See TEX. PENAL CODE ANN. §
29.03; see also Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. Reed’s first and
second issues are overruled.
III. THE RULE AND THE PUNISHMENT PHASE OF THE TRIAL
In his third issue, Reed complains that the trial court erred by allowing the
victims to remain in the courtroom during the punishment phase of the trial in
contravention of article 36.06 of the code of criminal procedure. See TEX. CODE CRIM.
PROC. ANN. art. 36.06 (West 2007).4 Specifically, Reed asserts that “allowing Mr. Jackson
to testify immediately after hearing Mrs. Jackson’s testimony as to the impact the crime
had on her materially affected his testimony because he then had an opportunity to
tailor his testimony to hers in an attempt to receive a favorable outcome.”
Here, Reed invoked the Rule at the beginning of the guilt-innocence phase.
Then, at the beginning of the punishment phase, the following exchange occurred:
4 Article 36.06 of the code of criminal procedure provides that:
Witnesses, when placed under rule, shall be instructed by the court that they are not to
converse with each other or with any other person about the case, except by permission
of the court, and that they are not to read any report of or comment upon the testimony
in the case while under rule. The officer who attends the witnesses shall report to the
court at once any violation of its instructions, and the party violating the same shall be
punished for contempt of court.
TEX. CODE CRIM. PROC. ANN. art. 36.06 (West 2007).
Reed v. State Page 13
THE STATE: There is one matter that we would ask.
The Jacksons, Mr. and Mrs. Jackson[,] are in the
courtroom at this time. It is possible that they
may testify as to victim impact. That’s the only
testimony that they would give at this stage of
the trial.
And, therefore, we would ask that they
be allowed to be excused from the witness rule
pursuant to that provision of the rule which
excludes the victims of the offense as long as
they’re not testifying to anything substantive
regarding the punishment itself.
THE COURT: It’s granted.
DEFENSE COUNSEL: Well, for the record, we object, Your
Honor. Their mere presence in the courtroom
during this phase of the trial is prejudicial and
it overcomes, in my opinion, any positive effect
their presence could have. I just strongly
object to their being here while the jury is
hearing evidence, for the record.
THE COURT: The objection is overruled. I want to be
clear, though. The Jacksons are released from
the Rule. To the extent they testify, it needs to
be victim impact only.
Subsequently, Bernice and Robert testified regarding the impact the incident had on
their lives.
Texas Rule of Appellate Procedure 33.1(a) states that, to preserve error for
appellate review, a party must make a timely, specific objection at the earliest possible
opportunity, obtain an adverse ruling from the trial court, and urge on appeal a
complaint corresponding to the objection made at trial. TEX. R. APP. P. 33.1(a); see Wilson
v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that a party’s “point of error
Reed v. State Page 14
on appeal must comport with the objection made at trial”). At the commencement of
the punishment phase, Reed objected to Bernice and Robert being present during the
hearing; however, Reed couched his objection as a Texas Rule of Evidence 403 objection
rather than the complaint he makes on appeal—that the trial court’s ruling violates
articles 36.03 and 36.06 of the code of criminal procedure. See TEX. CODE CRIM. PROC.
ANN. arts. 36.03 (West 2007), 36.06; see also TEX. R. EVID. 403. We therefore conclude that
Reed’s complaint on appeal does not comport with his objection in the trial court, and
as a result, we hold that this issue is waived. See TEX. R. APP. P. 33.1(a).
IV. CONCLUSION
Having overruled all of Reed’s issues on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
Do not publish
[CR25]
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