Cleotis Xavier Wooten v. State ( 2005 )

                             NO. 12-04-00279-CR

                      IN THE COURT OF APPEALS      

           TWELFTH COURT OF APPEALS DISTRICT

                                 TYLER, TEXAS

CLEOTIS XAVIER WOOTEN,                        §                APPEAL FROM THE 349TH

APPELLANT

V.                                                                          §                JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §                HOUSTON COUNTY, TEXAS

                                                      MEMORANDUM OPINION

A jury convicted Appellant Cleotis Xavier Wooten of robbery and sentenced him to ten years of imprisonment and a $2,000 fine.  However, the jury recommended that the sentence and fine be suspended and that Appellant be placed on community supervision.  The trial court placed Appellant on community supervision for a period of ten years.  In two issues, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction.  We affirm.

                                                                Background

Appellant was indicted for aggravated robbery in a three-count indictment.  See Tex. Pen. Code Ann. § 29.03 (Vernon 2003).  The first two counts were abandoned by the State.  The third count identified the victim as Larry Welch, included an allegation of the use of a deadly weapon, and described Welch as a disabled person.  Appellant pleaded “not guilty,” and the case proceeded to trial.

The evidence at trial showed that on the evening of September 27, 2003, Appellant drove Taylor Watson to Byrd’s Country Store in Percilla, a remote area of Houston County. Appellant let Watson out of a white Ford Ranger pickup and drove from the scene.  Watson waited beside a dumpster until all customers left the store. He then entered the store wearing a mask over his face and carrying a gun.  Inside the store were the owner, Charlene Byrd, her brother, Larry Welch, and a twenty-year-old pregnant clerk, Kerri Marrs.  Welch worked as a clerk in his sister’s store.

Welch testified that around closing time, which was 7:00 p.m., he was about to walk outside the store to lock the ice machine.  Charlene advised him to stop because “we are fixing to get robbed.”  Charlene later testified that she looked through the glass window in the door and saw a masked man walking up to the door of the store. Welch stated that the masked man, dressed in black, came in with a camouflage bag and a gun, demanding money.  The masked man tried to disguise his voice by speaking with a Mexican accent. Welch stated that “[w]ell, he just kind of looked at me and the girl.  He had the gun pointed right at her belly, the pregnant woman.”  Welch gave Watson the money from the register, placing it into the camouflage bag.  Watson then left the store to wait for Appellant to pick him up.  However, Appellant did not return.  Welch further testified that as Watson left the store, “I watched him.  He walked to the door and stopped and looked, and I waited for him to shoot us, because that’s what they do when they rob you and they stop.  When they get out of there, they stop, they are going to shoot you.”

Deputy Ronnie Jordan, the chief deputy of the Houston County Sheriff’s Office, testified that he was dispatched to the scene of the robbery at Byrd’s store.  As he drove to the scene, he saw Captain Roger Dickey and DPS Trooper Michael Hutcherson at County Road 1710 and Farm-to-Market (FM) Road 2022.  This location was approximately a half mile from Byrd’s store.  The officers told Deputy Jordan what they knew about the robbery at Byrd’s store, who the suspects might be, and what vehicles may have been involved.  The officers described one of the vehicles as a white Ford Ranger extended cab pickup, which had been seen leaving Byrd’s store.  Soon thereafter, Deputy Jordan saw this vehicle on FM 228 and notified Officer Dickey and Trooper Hutcherson that the vehicle was headed toward them.  Officer Jordan then proceeded to the other officers’ location.  When he arrived, the officers had stopped the vehicle and were questioning a black male, Appellant, who was standing beside the white Ford Ranger.

Deputy Jordan gave Appellant his Miranda warnings, and a search was conducted of Appellant’s vehicle.  Inside the truck was a canvas camouflage bag and identification belonging to a white male, Taylor Watson.  Deputy Jordan testified that information received from the witnesses at the store indicated that a white male had committed the robbery.  Later that evening, Watson was taken into custody at FM 2022 and FM 228 in Houston County.  Soon after Watson was taken into custody, he gave information to law enforcement regarding the money taken and items used in the robbery.   Based upon that information, the officers recovered a backpack, which contained a black pellet pistol, a camouflage bag, a tactical holster, black gloves, a black head mask, and over $400 in cash.

After being instructed on the law of parties, the jury found Appellant guilty of the lesser included offense of robbery.  Punishment was assessed by the jury at ten years of imprisonment and a $2,000 fine. The jury recommended that the sentence and fine be suspended and Appellant placed on community supervision. The trial court followed the jury’s recommendation and placed Appellant on community supervision for a period of ten years.  This appeal followed.

                                               Sufficiency of the Evidence

In his first issue, Appellant contends that the evidence was legally insufficient to support his conviction.  In his second issue, Appellant contends the evidence was factually insufficient. Specifically, Appellant contends that there was no evidence that Welch felt threatened or was in fear of imminent bodily injury or death, which is required to prove robbery.

Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict 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, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). This standard gives “full play” to the responsibility of the trier of fact 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, 99 S. Ct. at 2789.  The standard for review is the same for direct and circumstantial evidence cases.  Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).  Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder.  King v. State, 29 S.W.3d, 556, 562 (Tex. Crim. App. 2000).

In assessing factual sufficiency, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)).  Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim App. 1997). The weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented.  Id. at 407-08.  We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment.  Zuniga, 144 S.W.3d at 481-82.

Applicable Law

A person commits robbery when in the course of committing theft 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.  Tex. Pen. Code Ann. § 29.02 (Vernon 2003).  The robbery is aggravated if a deadly weapon is used or exhibited during the commission of the offense.  Id. § 29.03 (a)(2).  A firearm is a deadly weapon.  Id. § 1.07 (a)(17)(A) (Vernon Supp. 2004-05). 

A person is criminally responsible for the conduct of another if, “acting with intent to promote or assist the commission of the offense, he 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).  In determining whether an accused bears criminal responsibility for an offense, the court may look to events before, during, and after the commission of the offense.  Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).  A defendant can be found guilty of robbery under the law of parties.   See Jones v. State, 845 S.W.2d 419, 424 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d).  Even if there is insufficient evidence to convict the defendant as a principal, the defendant can still be found guilty of the offense if sufficient evidence is presented to convict him as a party.  Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d).

Analysis

In the case at hand, Welch stated that Watson walked into the store with a mask on and pointed a gun at the people in the store.  Specifically, he testified that Watson pointed the gun “right at” the stomach of the pregnant clerk, Kerri Marrs.  Trooper Hutcherson later testified that when he got to Byrd’s store, the workers there were “excited and frantic.”  Welch also stated that he was waiting for Watson to shoot him after the money was placed in the bag.  This is evidence from which the jury could have reasonably concluded that Welch was placed in fear of imminent bodily injury or death.  See Patterson v. State, 639 S.W.2d 695, 696 (Tex. Crim. App. 1982) (holding that complainant’s testimony that she (1) believed the appellant had a gun, (2) feared imminent bodily injury, and (3) felt threatened with physical harm was sufficient to show fear of imminent bodily injury).

Reviewing the evidence set forth above in the light most favorable to the verdict, we conclude that the above testimony was legally sufficient for a reasonable jury to find beyond a reasonable doubt that Welch feared imminent bodily injury or death, as required to prove robbery.  We conclude that Appellant’s first issue is without merit and overrule it.

Although Appellant does not point us to any evidence in the record that is contrary to the verdict, we have examined the record for any evidence indicating that Welch had no fear of imminent bodily injury or death.  The only evidence we noted that might be considered contrary to the verdict was Welch’s statement, when asked what he did as Watson left the store, that “my sister wouldn’t let me shoot him.  She told me leave it alone, there might be more.  So he got away.”  However, this evidence does not outweigh the other testimony that shows Welch feared imminent bodily injury or death.

After examining all the evidence in a neutral light, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination, nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met.  See Escamilla, 143 S.W.3d at 817.  We will not substitute our judgment for that of the fact finder.  Zuniga, 144 S.W.3d at 481-82.  Appellant’s second issue is overruled.

                                                                  Conclusion

Having overruled Appellant’s first and second issues, the judgment of the trial court is affirmed.

 DIANE DEVASTO   

Justice

Opinion delivered October 12, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                              (DO NOT PUBLISH)