Dominique Travun Thornton v. State ( 2014 )

AFFIRM as Modified;Opinion Filed May 6, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00610-CR
No. 05-13-00611-CR
No. 05-13-00612-CR
DOMINIQUE TRAVUN THORNTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-55959-U, F12-55960-U, and F12-55961-U
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Evans
Opinion by Justice Moseley
A jury found Dominique Travun Thornton guilty of three counts of aggravated robbery.
The jury assessed punishment at twenty years’ confinement in one case, and twenty-five years’
confinement in each of the other two cases. In two issues, Thornton argues the evidence is
legally insufficient to support the verdicts and that the trial court lacked jurisdiction because the
case was improperly transferred to the trial court’s docket. In a cross-point, the State argues the
judgment in one case should be modified to match the sentence orally pronounced at trial.
The background of the cases and the evidence adduced at trial are well known to the
parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in
law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We modify the trial
court’s judgment in cause number F12-55959-U to match the sentence orally pronounced at trial,
and affirm the judgment as modified. We affirm the trial court’s judgments in the other two
cases.
Allie Steele, Nathan Steele, and Kelly Steele were returning home on a dirt path that
connects to the Katy Trail around 1:00 a.m. Two men approached the group from behind. One
of the men pushed Allie to the ground and grabbed her purse while the other man held a gun.
Allie’s leg was scratched and bruised as a result. Kelly testified that one of the men stood in
front of her during the robbery, pointing a gun at her head, and she was afraid he would shoot her
or her family. Allie was afraid for herself and her family and afraid the men would use the gun.
Nathan testified he chased the men after they took Allie’s purse, but stopped when Allie and
Kelly shouted that the men had a gun. Nathan was afraid and did not want to be shot.
A witness at a nearby apartment testified that, shortly after the robbery occurred, he saw
two men scale a fence and run past the apartment. A gardener at the apartments found a wallet
near the fence of the property the morning after the incident and a housekeeper found a purse on
the patio of an apartment. Allie identified the wallet and purse as her belongings. Officer
Stephen Cleary obtained fingerprints from the wallet and purse. A fingerprint examiner with the
Dallas Police Department testified the fingerprints matched Thornton’s prints.
The morning after the robbery, a jogger on the Katy Trail was robbed at gunpoint by
Thornton and an accomplice. The jogger identified Thornton as the man holding the gun when
he was robbed.
Thornton first argues the evidence is insufficient to convict him for the aggravated
robberies of Allie, Kelly, and Nathan.
A person commits robbery if, in the course of committing theft and with intent to obtain
or maintain control of the property, he intentionally or knowingly or recklessly causes bodily
injury to another, or he intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02(a) (West 2011). A person
–2–
commits aggravated robbery if the he commits robbery and uses or exhibits a deadly weapon.
See id. § 29.03(a)(2). A firearm is a deadly weapon. Id. § 1.07(a)(17)(A) (West Supp. 2013).
“In the course of committing theft” means conduct that occurs in an attempt to commit, during
the commission, or in immediate flight after the attempt or commission of theft. Id. § 29.01(1).
“Use” includes utilizing a gun during flight from a felony. Coleman v. State, 145 S.W.3d 649,
652 (Tex. Crim. App. 2004) (“To ‘use’ a deadly weapon typically means to utilize, employ or
apply in order to achieve an intended result, the commission of a felony or during immediate
flight therefrom, ‘use’ could also mean ‘any employment of a deadly weapon, even simple
possession, if such possession facilitates the associated felony.’” (quoting Patterson v. State, 769
S.W.2d 938, 941 (Tex. Crim. App. 1989))). The word “exhibit” requires a weapon be
“consciously shown, displayed, or presented to be viewed.” Id.(quoting Patterson, 769 S.W.2d
at 941).
Under the law of the parties, a person is criminally responsible as a party to an offense if
the offense is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. See TEX. PENAL CODE ANN. § 7.01(a) (West 2011). A person
is criminally responsible for an offense committed by the conduct of another if, acting with intent
to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense. See id. § 7.02(a)(2).
We review the evidence under the legal sufficiency standard of review. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011), cert. denied, 132 S. Ct. 1763 (2012). In a legal sufficiency review, “we view all of 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.” Adames, 353
S.W.3d at 860. This standard “recognizes the trier of fact’s role as the sole judge of the weight
and credibility of the evidence after drawing reasonable inferences from the evidence.” Id. We
–3–
measure the sufficiency of the evidence by the elements of the offense as defined by a
hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997)).
Thornton argues there is no evidence Allie saw the gun when her purse was taken, the
men took the property of Nathan or Kelly, or that Nathan feared imminent bodily injury or death.
The record contains evidence that the men used or exhibited a gun in the course of taking
Allie’s purse. The definition of “in the course of committing theft” includes conduct that occurs
during immediate flight. TEX. PENAL CODE ANN. § 29.01(1). Allie testified she told Nathan, her
husband, not to chase the men because they carried a gun. Kelly testified she froze when one of
the men pointed the gun at her head. See Boston v. State, 373 S.W.3d 832, 838 (Tex. App.—
Austin 2012) (“It is the use or exhibition of a deadly weapon—not its perception by the victim—
that is the aggravating element of aggravated robbery with a deadly weapon.”), aff’d, 410
S.W.3d 321 (Tex. Crim. App. 2013). A rational jury could find the men used or exhibited the
gun to facilitate taking Allie’s purse by deterring her companions from intervening and allowing
the men to flee.
The record also supports a conviction for the aggravated robberies of Kelly and Nathan.
To prove aggravated robbery, the State is not required to show that Kelly or Nathan’s property
was taken. Proof of a completed theft is not required to establish robbery. See TEX. PENAL
CODE ANN. § 29.01(1) (conduct occurring during attempt to commit theft satisfies “in the course
of committing theft” element of robbery); Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App.
1996). Nor is it necessary that the victim of the theft or attempted theft be the same as the victim
of the robbery. White v. State, 671 S.W.2d 40, 41–42 (Tex. Crim. App. 1984); see Ex parte
Hawkins, 6 S.W.3d 554, 560–61 (Tex. Crim. App. 1999) (robbery is assaultive offense rather
than a form of theft and unit of prosecution is each victim where defendant assaulted two victims
in the course of committing a single theft).
–4–
Kelly testified one of the men held a gun to her head as the other took Allie’s purse, and
that she was afraid the men would hurt her, Allie, or Nathan. Nathan testified he stopped chasing
the men as they fled because Allie and Kelly alerted him of the gun. Nathan also testified he was
afraid and did not want to be shot. From this testimony, a rational jury could find that Thornton
in the course of committing a theft of Allie and with intent to maintain control of the property,
intentionally or knowingly threatened Kelly and Nathan or placed them in fear of imminent
bodily injury or death.
Considering all the evidence in the light most favorable to the verdict, we conclude a
rational trier of fact could have found Thornton guilty of the offenses beyond a reasonable
doubt. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. Thus, we overrule Thornton’s
first issue.
Thornton next argues the trial court lacked jurisdiction because the cases were not
properly transferred to its docket. The 204th Judicial District Court impaneled a grand jury,
which returned the indictments. The indictments were then filed in the 291st District Court and
the cases tried to a verdict. Thornton argues the judgments are void because the record does not
contain a transfer order transferring the cases from the 204th Judicial District Court to the 291st
Judicial District Court.
A court that impanels a grand jury is not necessarily assigned to hear all cases returned by
the grand jury. Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d).
One court may impanel a grand jury, and if an indictment is presented, the case may be filed in
another court of competent jurisdiction. Id. When two courts have concurrent jurisdiction,
article 4.16 of the code of criminal procedure states that jurisdiction is in the court where the
indictment was filed first. Mills v. State, 742 S.W.2d 831, 834–35 (Tex. App.—Dallas 1987, no
pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 4.16 (West 2005)). The record indicates the
indictments were originally filed in the 291st Judicial District Court and there is no indication the
–5–
cases were filed in the 204th Judicial District Court at any time. Therefore, the 291st Judicial
District Court had jurisdiction and a transfer order was not required. We overrule Thornton’s
second issue.
In a cross-point, the State argues the written judgment in one of the three cases differs
from what the trial court orally pronounced. The record shows the trial judge, based on the
jury’s verdict, announced a sentence of twenty years’ confinement in cause number F12-55959-
U; however, the written judgment shows a sentence of twenty-five years’ confinement. When
the oral pronouncement of a sentence and the written memorialization of the sentence differ, the
oral pronouncement controls. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.
2003). A court of appeals may modify a trial court’s judgment and affirm it as modified when
the written judgment differs from what was orally pronounced. See TEX. R. APP. P. 43.2(b);
Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d). We sustain the
State’s cross-point.
We modify the judgment in cause number F12-55959-U to reflect a sentence of twenty
years’ confinement. As modified, we affirm the trial court’s judgment in cause number F12-
55959-U. We affirm the trial court’s judgment in cause numbers F12-55960-U and F12-55961-
U.
/Jim Moseley/
JIM MOSELEY
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
130610F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DOMINIQUE TRAVUN THORNTON, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F12-55959-U.
No. 05-13-00610-CR V. Opinion delivered by Justice Moseley.
Justices Bridges and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The Punishment and Place of Confinement is modified to read: 20 YEARS
INSTITUTIONAL DIVISION, TDCJ
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 6th day of May, 2014.
/Jim Moseley/
JIM MOSELEY
JUSTICE
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DOMINIQUE TRAVUN THORNTON, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F12-55960-U.
No. 05-13-00611-CR V. Opinion delivered by Justice Moseley.
Justices Bridges and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of May, 2014.
/Jim Moseley/
JIM MOSELEY
JUSTICE
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DOMINIQUE TRAVUN THORNTON, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F12-55961-U.
No. 05-13-00612-CR V. Opinion delivered by Justice Moseley.
Justices Bridges and Evans participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of May, 2014.
/Jim Moseley/
JIM MOSELEY
JUSTICE
–9–