Jeremy Deshon Hopkins v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00071-CR
JEREMY DESHON HOPKINS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1247597D
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MEMORANDUM OPINION1
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Appellant Jeremy Deshon Hopkins was charged with intentionally causing
the death of Azmi Elqutob by shooting him with a firearm during the commission
of a robbery. A jury acquitted Hopkins of capital murder but found him guilty of
aggravated robbery with a deadly weapon under the law of parties based on
evidence showing that Frederick Jones was the shooter, and it assessed
1
See Tex. R. App. P. 47.4.
Hopkins’s punishment at eighty-nine years’ confinement. In two issues, Hopkins
appeals his conviction for aggravated robbery with a deadly weapon.
In his first issue, Hopkins argues that the evidence is insufficient to sustain
his conviction as a party, complaining that no evidence showed that he solicited,
encouraged, or directed Jones to commit the robbery and that there is only scant
evidence, lacking in credibility, to show that he aided or attempted to aid Jones in
the commission of the robbery.
In our due-process review of the sufficiency of the evidence to support a
conviction, 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. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). 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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.
App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
2
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Temple, 390 S.W.3d at 360.
Here, the State had to prove beyond a reasonable doubt that Hopkins,
either personally or as a party, caused Elqutob’s death or bodily injury during the
course of a robbery in which a deadly weapon was used.2 See Tex. Penal Code
Ann. §§ 7.02(a)(2), 29.02(a)(1), (2) (West 2011). To establish Hopkins’s liability
as a party, the State had to prove that Hopkins had the specific intent to promote
or assist in the commission of the aggravated robbery. See id. § 7.02(a)(2) (“A
person is criminally responsible for the 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 also id. § 6.03(a) (West 2011) (“A person acts
intentionally, or with intent, with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the
2
Hopkins does not challenge the sufficiency of the evidence to prove that
Elqutob was shot and killed with a deadly weapon during the course of the
robbery.
3
conduct or cause the result.”); Wooden v. State, 101 S.W.3d 542, 547 n.1 (Tex.
App.—Fort Worth 2003, pet. ref’d) (noting that to be guilty as a party to
aggravated robbery, a defendant must intend to promote or assist an aggravated
robbery—not just a theft—and solicit, encourage, direct, aid, or attempt to aid
another person in committing aggravated robbery).
An individual’s mere presence at the crime scene is not sufficient to prove
party liability. Scott v. State, 946 S.W.2d 166, 168 (Tex. App.—Austin 1997, pet.
ref’d). However, if the accused is physically present at the time of the offense
and encourages the other party by acts, words, or other agreement, the evidence
is sufficient to support party liability. Barnes v. State, 56 S.W.3d 221, 238 (Tex.
App.—Fort Worth 2001, pet. ref’d), abrogated on other grounds by Hurd v. State,
322 S.W.3d 787, 793 n.5 (Tex. App.—Fort Worth 2010, no pet.); see also
Wooden, 101 S.W.3d at 547 n.1. Therefore, we review the evidence to
determine whether the State proved that Hopkins did more than stand outside of
Smokey’s Paradise, the convenience store where Jones shot Elqutob.
Fort Worth Police Detective Thomas Boetcher testified that on June 1,
2011, he began investigating the Smokey’s Paradise homicide. He was unable
to locate the gun or any of the shooter’s clothing, fingerprints, or DNA. A few
days later, Detective Boetcher discovered that Jones was the shooter and an
unidentified caller reported Hopkins’s involvement to the police. Following this
call, Devin Jennings contacted Detective Boetcher and implicated Hopkins in the
robbery.
4
In an effort to aid in the investigation, Elqutob’s family offered a $5,000
reward for any information related to the shooting. After the family posted the
reward, Lorenzo Kelly3 contacted Detective Boetcher with information regarding
the shooting and agreed to wear a recording device and meet Hopkins and
Jones.4
The State published Kelly’s recorded conversation with Hopkins and Jones
to the jury. In the conversation, Hopkins told Kelly that he (1) got the gun for
Jones, (2) wiped all of the fingerprints off the bullets before giving the gun to
Jones, and (3) disposed of the gun in the Trinity River after the shooting. He also
told Kelly that Jones was a fool for shooting Elqutob.5 Detective Boetcher
obtained an arrest warrant for Hopkins based on Kelly’s recorded conversation
with Hopkins.
3
Kelly had a Tarrant County theft conviction and a prior Louisiana
conviction for drug possession and distribution, for which he received probation.
While on probation, he was convicted of another possession offense and
sentenced to five years’ confinement. At the time of the trial, Kelly was in
custody, and officers had to drive to Louisiana to bring him to court.
4
Kelly, who was from the same Louisiana town as Hopkins and Jones,
testified that he knew Hopkins and Jones, that it had always been Jones and
Hopkins’s plan to rob the store clerk, and that Hopkins was involved in the
robbery’s planning from the beginning.
5
On cross-examination, Kelly testified that he alone had control of when
and how the recording was made and that he had a conversation with Jones
about the shooting but that the recorder came out of his pocket and therefore did
not record—leaving the State with only the Hopkins’s conversation.
5
Detective Boetcher interviewed Hopkins at the police station, and the State
published the recorded interview to the jury. During the interview, Hopkins
admitted that (1) he got the gun for Jones, (2) he knew the gun was going to be
used in a robbery, (3) he agreed to warn Jones if the police showed up, (4) he
earned his portion of the money because he got Jones the gun and was the
lookout, (5) he knew Jones was going to rob the store clerk and not Weedman6
before the robbery occurred, and (6) if he had not gotten the gun for Jones, the
robbery might not have occurred at all. Hopkins even corrected the detective
regarding the gun, telling him it was a nine-millimeter and not a .40 caliber.7
Detective Boetcher agreed during cross-examination that Hopkins said that
when he got the gun, he had no idea that Jones was going to rob the store clerk,
that at no point during the interview did Hopkins say that he knew Jones was
going to kill someone, and that Hopkins called Jones a “fool” for killing the store
clerk.
Fort Worth Police Detective Troy Lawrence testified that on June 1, 2011,
he went to Smokey’s Paradise to retrieve a video from the store’s surveillance
cameras. He pieced together the cameras’ footage so that it showed the
6
Hopkins claimed that when he obtained the gun, he thought Jones was
going to rob Weedman, a dope dealer who lived in the apartment complex next
to Smokey’s Paradise, but Weedman was not home so they decided to rob the
store instead.
7
Ballistics confirmed that the weapon was a nine-millimeter.
6
chronological order of the shooting. The State published the chronological video
and the breakdown of each camera view individually to the jury.
The video showed the shooter, identified as Jones, wearing gloves and a
bandanna over his face. He entered the store while firing a semi-automatic gun.
Bullets immediately hit Elqutob, who was working behind the counter. Jones
went behind the counter, removed the money from the register, and ran out of
the store. Detective Lawrence agreed on cross-examination that the only actor
on the video was Jones and that police only retrieved the store’s surveillance
video and did not attempt to collect any digital material from surrounding
locations.
Hopkins argues that “[t]here was no evidence presented at trial that
. . . [he] solicited, encouraged, or directed Frederick Jones to commit the
robbery” and that “there was little evidence presented that . . . [he] aided or
attempted to aid Jones in his commission of the robbery.” According to Hopkins,
“Detective Boetcher believed . . . [Hopkins] was part of the robbery and the
planning of the robbery based on the cryptic language [Hopkins] used . . . [during
the] interrogation.” Hopkins further argues that Kelly’s testimony lacked
credibility and that his testimony about the recorded conversation was only
Kelly’s interpretation of the discussion.
Although there is some disagreement between the parties as to when
Hopkins learned that Jones was going to rob the store, the record reflects that
Hopkins knew that Jones was going to use the gun in a robbery. Furthermore,
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there was evidence that Hopkins wiped all fingerprints off the gun and bullets
before giving it to Jones and disposed of the gun after the robbery. Hopkins
admitted in his interview with Detective Boetcher that he told Jones that while he
would not go into the store with him, he would warn him if the police arrived, i.e,
that he would be Jones’s lookout. Hopkins also admitted to Detective Boetcher
that he received money from the robbery because he got the gun and acted as
Jones’s lookout.
Additionally, the jury, as the trier of fact, was the sole judge of Kelly’s
credibility. Despite Kelly’s extensive criminal record and the fact he was in jail at
the time of his testimony, his credibility and the weight of his testimony were
within the jury’s province and it could believe all or none of his testimony. See
Tex. Code Crim. Proc. Ann. art. 38.04; Winfrey, 393 S.W.3d at 768.
Although both the interview and the recorded conversations contain
several slang terms, a jury could have understood the gist of the conversation.
As such, a rational trier of fact could have found from the evidence presented
that Hopkins acted with intent to promote or assist Jones in the aggravated
robbery by aiding or attempting to aid Jones in committing the offense.
Therefore, we hold that the evidence is sufficient to establish that Hopkins
intentionally or knowingly aided and assisted Jones in committing the aggravated
robbery of Elqutob. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey,
393 S.W.3d at 768. We overrule Hopkins’s first issue.
8
In his second issue, Hopkins complains that the trial court abused its
discretion by admitting hearsay regarding Kelly’s testimony about a conversation
he overheard.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).
Furthermore, to preserve error, a party must continue to object each time the
objectionable evidence is offered. Geuder v. State, 115 S.W.3d 11, 13 (Tex.
Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)
(citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Clay v.
State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.). A trial court’s
erroneous admission of evidence will not require reversal when other such
evidence was received without objection, either before or after the complained-of
ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing
Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)), cert. denied, 131
S. Ct. 905 (2011); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).
9
During the State’s direct examination of Kelly, the prosecutor asked if there
had been a plan to rob the store clerk prior to the actual robbery. Hopkins
objected to hearsay. The trial court asked the prosecutor to clarify the question
and said that it would overrule the objection if Kelly’s answer was based on what
he had heard from Hopkins. Hopkins made one further objection to hearsay,
which the trial court overruled. The prosecutor then asked Kelly if the plan had
been to rob the store all along, and Kelly answered yes without any objection
from Hopkins. Later, the State again asked Kelly if the plan between Jones and
Hopkins had always been to rob the store, and Kelly again answered yes without
any objection from Hopkins. Because Hopkins did not object each time the State
offered the objectionable evidence, he did not preserve this error for our review.
See Tex. R. App. P. 33.1(a)(1); Geuder, 115 S.W.3d at 13. We overrule
Hopkins’s second issue.
Having overruled both of Hopkins’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 25, 2014
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