Dinesha Renee Jackson v. the State of Texas ( 2023 )

Opinion issued August 1, 2023.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00267-CR
———————————
DINESHA RENEE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1650785
MEMORANDUM OPINION
Kaila Nelson (“Nelson”) robbed 20-year-old Dequan Anderson (“Anderson”)
as he left the Dollar General store where he worked. During the course of the
robbery, Nelson fatally shot Anderson. The State charged Appellant Dinesha Renee
Jackson with capital murder. During the trial, the State argued Appellant had
conspired with Nelson to commit robbery. The State explained to the jury that it
convict Appellant of capital murder as a principal or as party to the offense under
the law of parties.1 The jury found Appellant guilty of capital murder and the trial
court assessed her punishment at confinement for life with no possibility of parole.
This appeal followed.
In one issue, Appellant argues there is insufficient evidence to sustain her
conviction for capital murder because the evidence did not establish she conspired
to commit robbery or that she could have foreseen capital murder would result from
carrying out the conspiracy. We affirm the trial court’s judgment.
Background
On December 17, 2017, Anderson left the Dollar General store where he
worked to make a “money run” bank deposit of approximately $3,000. As Anderson
was getting into his car with the deposit bag, Nelson ran up and attempted to take
the bag from Anderson. Anderson resisted and managed to keep control of the bag.
As Anderson attempted to reverse out of his parking spot, Nelson fired several gun
shots in his direction hitting Anderson four times. Anderson’s car came to a stop.
1
Jackson was charged by indictment with capital murder. The jury charge authorized
the jury to convict Jackson of capital murder (1) as a principal or (2) as a party to
the offense under the law of the parties pursuant to Section 7.02(a)(2) or Section
7.02(b) of the Texas Penal Code. See TEX. PENAL CODE § 7.01, 7.02(a)(2), 7.02(b);
see also In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013)
(“Regardless of whether it is pled in the charging instrument, liability as a party is
an available legal theory if it is supported by the evidence.”).
2
Nelson smashed the driver’s window, took the money bag, and ran. Anderson was
taken by ambulance to the hospital where he later died from the gunshot wounds.
The State charged Appellant Dinesha Renee Jackson (“Jackson”), an Assistant
Manager at the Dollar General store where Anderson worked, with capital murder.
At trial, the State alleged Jackson conspired with Nelson to rob Anderson.2
Testimony at Trial
A. Deunita Meeks
Deunita Meeks (“Meeks”) testified that in December 2017, she worked as an
Assistant Manager at the Dollar General store, together with Jackson and Anderson.
According to Meeks, she, Jackson, and Anderson were all authorized to make bank
deposits for the store. Meeks explained that during the December holiday season,
the store makes a midday bank run to deposit money from the morning and the night
before. Meeks testified that the employee who makes the bank deposit generally
logs the money out of the safe, counts the money, signs and prepares the bank deposit
slip, and seals the money in a clear bag. If the night deposit is involved, the
employee puts the money back in the safe for deposit the next day. Otherwise, the
employee puts the money bag in another bag and takes it to the bank. Meeks testified
2
Nelson was convicted of capital murder and the trial court assessed her punishment
at confinement for life with no possibility of parole. See Nelson v. State, No. 14-
20-00258-CR, 2021 WL 4956990, at *1 (Tex. App.—Houston [14th Dist.] Oct. 26,
2021, no pet.). The Fourteenth Court of Appeals affirmed Nelson’s conviction. See
id. at *5.
3
that Dollar General trains its employees to not resist if someone attempts to rob the
store.
Apart from being coworkers, Meeks and Jackson were also friends and they
lived in the same apartment complex near the Dollar General store. According to
Meeks, two women had been staying with Jackson at her apartment for about a week
before the shooting. She identified the two women as Jamesha Robinson
(“Robinson”) and her girlfriend Nelson. Meeks testified that Robinson is Jackson’s
friend. Meeks associated with Robinson, but she only met Nelson once. During the
time Robinson and Nelson stayed at Jackson’s apartment, Jackson borrowed Meeks’
car to take Nelson to look for a job.
Meeks and Jackson were working the morning shift at the Dollar General the
day of the shooting. Meeks testified that she and Jackson were discussing who
would make the midday bank deposit. When Meeks offered to go, Jackson told her
Anderson would go instead because it was his responsibility. Anderson was
scheduled to arrive for his shift at 1 p.m. Although she knew Anderson would be
making the midday bank deposit, Jackson prepared the deposit at 12:30 p.m. and she
signed for it using her own name.
Jackson was “on her phone” standing near the store’s front window watching
the parking lot when Anderson arrived and parked his car in front of the store.
Anderson, who arrived at work at 1:00 p.m., had only been in the store a few minutes
4
when Jackson instructed him to make the money run to the bank. According to
Meeks, Anderson was upset because Jackson had already prepared the deposit and
put her name on it, and he had not had a chance to verify the deposit information.
Meeks, who was standing next to Jackson, testified she saw Anderson exit the Dollar
General store with the money bag Jackson prepared. As Anderson was getting into
his car, Meeks testified she saw Nelson run up to Anderson. Nelson tried to grab the
money bag from Anderson, but Anderson resisted, and a tussle ensued. After
wrestling the money bag from Nelson, Anderson closed his car door and tried to
drive away. According to Meeks, Nelson ran away and then returned momentarily
with a gun in her hand. Nelson shot at Anderson’s car four or five times before
Anderson crashed the car in the street. After the crash, Nelson ran over to
Anderson’s car. She broke the driver’s side window, grabbed the deposit bag, and
ran back to a getaway car.
Meeks testified that when she saw what happened, she exited the Dollar Store
and ran over to Anderson’s car to check on him. Meeks and several Dollar General
customers called 911 to report the shooting. Jackson, who Meeks testified was
standing next to her when the robbery and shooting occurred and was the Assistant
Manager on duty, stayed inside the store. She did not check on Anderson or call
911.
5
B. Robinson
Robinson was granted immunity by the State. She testified that she and
Jackson met in in 2007 when they were in the 7th grade and living in Atlanta,
Georgia. According to Robinson, she and Jackson were close friends and they
continued to be close even after Jackson moved to Houston, Texas a year or two
before the shooting.
Robinson met her girlfriend Nelson in high school, but they did not begin to
date until 2016. By 2017, Robinson and Nelson were both addicted to heroin.
According to Robinson, Nelson paid for the heroin when she was working, but they
otherwise had to borrow money from Nelson’s grandmother or friends to support
their $200 a day heroin addiction. When asked if Nelson had a “hot temper,”
Robinson testified that Nelson would get irritated and agitated when she was high
on heroin.
In September 2017, Robinson and Nelson were living with Robinson’s sister
at an apartment complex in Atlanta, Georgia. Robinson testified that one day, after
she and Nelson argued, Nelson locked herself in the bedroom and threatened to kill
herself. Robinson, who knew Nelson had a gun, heard gunfire and called the police.
When Robinson broke into the bedroom, she noticed that Nelson had only fired the
weapon at the window. Nelson was arrested and the police seized her gun.
6
As a result of the incident, Nelson and Robinson were forced to move out of
Robinson’s sister’s apartment. Nelson and Robinson, who were both unemployed,
first stayed with friends or lived out of Robinson’s car. Later, in December 2019,
Robinson called Jackson to ask for help. Jackson offered to let her stay with her at
her apartment in Houston. Nelson and Robinson, who arrived in Houston at least a
week before the shooting, stayed with Jackson at her apartment. Robinson testified
that she told Jackson about Nelson’s gun incident before she and Nelson came to
Houston.
After they arrived in Houston, Robinson told Jackson that she and Nelson
were addicted to drugs. According to Robinson, Nelson purchased heroin when they
were staying with Jackson and Nelson would smoke the heroin inside Jackson’s
apartment. Robinson and Nelson looked for work in Houston without success.
According to Robinson, Nelson’s grandmother sent Nelson money while they were
in Houston. Nelson used the money to pay for her and Robinson’s $200 per day
heroin addiction, and Nelson was “desperate to get money” after spending her
grandmother’s money.
Robinson testified that she never saw Nelson with a gun when they were in
Houston. She also testified that Jackson was not a violent person and that she had
never seen Jackson with a gun. Robinson testified that Nelson did not tell her how
she was planning to get money to pay for their heroin addiction after they spent
7
Nelson’s grandmother’s money, and she never heard Jackson and Nelson discuss a
plan to rob the Dollar General store.
Robinson testified that Nelson paid Kevin Berry (“Berry”), a private Uber
driver Nelson met on Craigslist, to drive them around in Houston.3 Nelson called
Berry the morning of Anderson’s murder and arranged for Berry to drive her and
Robinson to the Dollar General store. Berry picked up Robinson and Nelson from
Jackson’s apartment complex and drove them to the Dollar General store. When
they arrived, Berry parked the car down the street from the store. Nelson got out
and Berry and Robinson waited for her in the car. After a few minutes, Robinson
heard gunshots and then Nelson ran up to the car and told Berry, “Drive, drive.”
According to Robinson, Nelson had a “Dollar General bag” filled with cash when
she got back in the car. Berry drove the women back to Jackson’s apartment and
then to the Greyhound bus station where the couple caught a bus back to Georgia.
They stopped on the way to the bus station, however, for Nelson and Robinson to
3
Berry, who was also granted immunity by the State, testified that he drove Nelson
and Robinson to Walmart three days before the shooting to pick up money. The
next day, Berry drove Nelson and Robinson to buy drugs. According to Berry, they
did not pay him for that trip. Berry testified that Nelson was wearing a gun both
days. Nelson contacted Berry and arranged for him to pick her and Robinson up at
Jackson’s apartment the day of the shooting. Nelson told Berry that she needed to
be somewhere by 12:30 p.m. According to Berry, Nelson threw $200 in cash at him
when she got back in the car. Berry testified that he never met Jackson.
8
buy heroin. According to Robinson, Nelson paid for the heroin with the cash she
had just taken from Anderson.
C. Detective Matthew Brady
Detective Matthew Brady (“Detective Brady”), a homicide detective with the
Houston Police Department, was assigned to investigate Anderson’s death. He
testified at trial that Jackson spent several hours after the shooting reviewing
surveillance videos with police officers at the scene. He testified that Jackson
directed the officers to customers who had been in the store prior to the shooting as
possible suspects.
Detective Brady and his partner, Detective Michael Casso (“Detective
Casso”), interviewed Jackson twice as part of the investigation.
1. Jackson’s First Interview
Detective Brady and Detective Casso first interviewed Jackson on January 30,
2018—about one month after the incident. The video recording of Jackson’s
interview, marked as State Exhibit 170, was admitted into evidence and played for
the jury.
Detective Brady testified that Jackson “lied consistently [during the interview]
until [the detectives] confronted her with some evidence, and then she would adjust
her statement.” Jackson first told the Detectives she was using her mother’s cell
phone the day of the shooting because she did not have a phone and that she gave
9
the police her mother’s phone number when she was questioned by police at the
scene. She later admitted that she had been using her own cell phone and gave police
the wrong phone number the day of the shooting. Jackson also told the Detectives
that she threw her cell phone into a lake on the day of the shooting. She stated she
wanted no one to find her text messages with Nelson and that she bought a new
phone with a new phone number.
Jackson told the Detectives that no one was staying with her at her apartment
the day of the shooting. Later, when confronted with pictures of Robinson, she
admitted Robinson was a friend who stayed with her at her apartment a few days.
But Jackson claimed that Robinson had returned to Georgia a few days before the
shooting. At first, Jackson also denied knowing Nelson and acted surprised when
Detective Brady showed her a photograph of Nelson. Jackson admitted she
recognized Nelson in the picture, but she claimed that Robinson had traveled from
Georgia alone and had met Nelson in Houston. Jackson repeatedly denied that
Nelson had stayed at her apartment. She claimed Nelson never stayed with her and
only came to Jackson’s apartment while Robinson was there. Jackson eventually
came clean with the Detectives and admitted that Nelson and Robinson both traveled
from Georgia together and stayed at her apartment for four days.
Jackson also denied knowing anything about the robbery. She acted surprised
or feigned ignorance when the Detectives shared some of the facts they discovered
10
during their investigation, including the fact Robinson had been in the getaway car
with Nelson on the day of the shooting. The Detectives told Jackson they believed
the robbery was an “inside job” and that she was involved. They explained to
Jackson that they had been able to trace the robbery back to her based on her
relationship with Robinson.
Jackson claimed she knew nothing about Nelson’s plan to rob the Dollar
General store. She denied “setting up” the robbery or telling Nelson or Robinson
anything about the money drop. The Detectives asked for the truth, but Jackson
continued to deny any involvement in the incident. It was not until the Detectives
confronted her with other facts, including the fact Robinson and Nelson had both
been picked up from her apartment in the getaway car shortly before the robbery and
dropped off at her apartment after, that Jackson admitted some knowledge of the
robbery.
According to Jackson, the robbery was Nelson’s idea. Even though she
admitted telling Nelson who would be working the day of the shooting and giving
Nelson a description of everyone who worked at the Dollar General store, including
Anderson, Jackson claimed Nelson had figured out the rest on her own. She denied
alerting Nelson when Anderson left the store or telling Nelson how much money
Anderson was carrying with him.
11
When asked how her conversation with Nelson started, Jackson told the
Detectives that two days before the shooting, Nelson told her she needed money and
wanted to get a job. Jackson told her manager at the Dollar General store that Nelson
was looking for a job, but the store was not hiring. According to Jackson, Nelson
said she “needed to go do something crazy,” which Jackson understood to mean
Nelson was going to “get some money.” According to Jackson, Nelson asked her
about the other employees at the Dollar General store, and she wanted to know “how
the money worked.” Jackson admitted telling Nelson “everything,” including when
employees make the store’s bank deposits and that Anderson would be making the
bank run around 1 p.m. the day of the shooting. She also admitted she gave Nelson
a physical description of Anderson and texted Nelson as Anderson was leaving the
store to make the deposit. Jackson also told the Detectives she sent Nelson a picture
of a different money bag employees at the store had previously deposited. Jackson
claimed no one ever suggested that Nelson steal the money from Jackson, as opposed
to another Dollar General employee, when making a money run.
Although she claimed that Nelson never stated she was planning to rob
someone, Jackson later admitted she knew Nelson was coming to the Dollar General
store to get the money. Jackson told the Detectives that Nelson was just supposed
to take the money from Anderson and run. She claimed Nelson was not supposed
to pull out a gun and she claimed she did not believe Nelson was the type of person
12
who would shoot someone. When asked if Anderson was a passive guy, Jackson
said she did not know. Jackson told the Detectives that the store’s policy is to hand
over the money in the event of a robbery, but she denied telling Nelson about the
policy. Jackson at first denied receiving any money from the robbery. She later
admitted that Nelson left $500 for her at her apartment, but she claimed she got rid
of the “blood money” and never spent it.
Despite repeatedly claiming she had never seen Nelson with a gun, Jackson
later admitted she knew Nelson had a gun, and that Nelson “always” had the gun
with her. Jackson admitted she once saw part of the gun when Nelson was wearing
the gun on her hip, but the gun was mostly covered by Nelson’s shirt. Jackson told
the Detectives she eventually left the store to go outside after the shooting, and that
she called her manager to report the incident.
2. Jackson’s Second Interview
Detective Brady and Detective Casso interviewed Jackson again on February
14, 2018. They did so after interviewing Robinson and Nelson, who had been
arrested in Georgia for Anderson’s murder. A video recording of Jackson’s second
interview, marked as State Exhibit 171, was admitted into evidence and played for
the jury.
13
Jackson, who was arrested at the beginning of the interview, waived her
Miranda4 rights and spoke with the Detectives. Jackson told Detective Brady and
Detective Casso that Nelson first suggested taking the money from Jackson when
Jackson was making a bank deposit, but Jackson decided that another store employee
should make the deposit instead because Jackson did not want to “get in trouble”
with Dollar General. Jackson also claimed she told Nelson that Dollar General
instructs its employees not to resist during a robbery.
Jackson admitted texting Nelson when Anderson arrived at the store and as he
was leaving the store with the money bag. Jackson admitted that Nelson wore a gun
on her hip and that she had seen Nelson with the gun before the robbery. Jackson
told the Detectives that she “didn’t know that [Nelson] was going to bring the gun. . .
I probably would have thought that she would have carried it, but I didn’t think she
would have brought the gun.” When asked if she assumed Nelson would bring the
gun with her to the robbery, Jackson stated, “I didn’t know but yeah, it’s like
common sense like she was probably going to bring it.” Jackson stated that Nelson
“always” had the gun with her, and she never left it at the apartment because “she
always had it.” Jackson told the Detectives that her role was to provide Nelson with
information about the store and the bank run, but the rest was up to Nelson. She
claimed she did not ask Nelson if she planned to use the gun during the robbery.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
14
Jackson also admitted she knew Nelson used heroin and crack. While she
never saw Nelson do drugs, Jackson stated she knew Nelson and Robinson used
drugs at her apartment because she could smell “a burnt smell” in her restroom.
Jackson told the Detectives she helped Nelson look for employment in Houston and
that Nelson “needed money” and was “desperate for crack.”5 Jackson also told the
Detectives she got rid of everything. She threw her cell phone and the money Nelson
left behind for her in a lake because she was scared and she “didn’t want nobody to
know.”
D. The Indictment and Jury Charge
The State charged Jackson with capital murder.6 The jury charge authorized
the jury to convict Jackson of capital murder (1) as the principal or (2) as a party to
the offense under the law of parties pursuant to Section 7.02(a)(2) or Section 7.02(b)
of the Texas Penal Code. See TEX. PENAL CODE § 7.01, 7.02(a)(2), 7.02(b). The
jury also was authorized to convict Jackson of one of the lesser-included offenses of
felony murder, aggravated robbery, or robbery under these same theories of criminal
liability. See id. The jury convicted Jackson of capital murder and the trial court
5
Jackson also admitted that her boyfriend, who is incarcerated, spoke to Robinson to
discuss what to do after the robbery. Jackson told the Detectives she gave her
boyfriend Robinson’s number.
6
Detective Brady testified that Jackson was initially charged with aggravated
robbery, but the State later upgraded the charge to capital murder.
15
assessed her punishment at confinement for life with no possibility of parole. This
appeal followed.
Sufficiency of the Evidence
In one issue, Jackson argues the evidence is insufficient to support her
conviction for capital murder because there is insufficient evidence (1) she conspired
with Nelson to commit robbery, or (2) that she should have foreseen capital murder
would result from carrying out the conspiracy to commit robbery. See TEX. PENAL
CODE § 7.02(b). According to Jackson, the evidence shows that, at most, she
conspired with Nelson to commit theft. Jackson further argues there is insufficient
evidence she should have foreseen capital murder would result from carrying out the
conspiracy because Jackson is not a violent person, she did not encourage Nelson to
use violence, she did not know Nelson would use a gun, and she did not expect for
Anderson to resist Nelson’s efforts to take the money from him because Dollar
General employees are trained to hand over the money upon demand and to not
resist.
The State argues the evidence is sufficient to support Jackson’s conviction for
capital murder because there is evidence Jackson and Nelson conspired to steal the
money from Anderson, Jackson knew Nelson “always” carried a gun with her, and
Jackson admitted it was “common sense” to bring a gun to a robbery.
16
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all evidence in the light most
favorable to the jury’s verdict to determine whether any “rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319. “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor” and “the standard of review on appeal is the same
for both direct and circumstantial evidence cases.” Kuciemba v. State, 310 S.W.3d
460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004)).
As the trier of fact, the jury is the sole judge of the weight and credibility of
the evidence. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). As the
sole judge of credibility, the jury may accept one version of the facts and reject
another, and it may reject any part of a witness’ testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). We defer to the jury to resolve fairly any
“conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson, 443 U.S. at 318–19). A reviewing court, faced with a
record of historical facts supporting conflicting inferences, must presume the
17
factfinder resolved any such conflicts in favor of the prosecution, and must defer to
that resolution. Jackson, 443 U.S. at 326.
B. The Indictment and the Jury Charge
The State charged Jackson with capital murder. The indictment states:
The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County, Texas,
DINESHA RENEE JACKSON, hereafter styled the Defendant,
heretofore on or about December 17, 2017, did then and there
unlawfully, while in the course of committing and attempting to
commit the robbery of Dequan Anderson, intentionally cause the death
of Dequan Anderson by shooting the Complainant with a Deadly
Weapon, namely a firearm.
Although the indictment alleges that Jackson was the principal actor in the capital
murder, the charge authorized the jury to convict Jackson of capital murder as a
principal actor or as a party to the offense under the law of parties pursuant to Section
7.02(a)(2) or Section 7.02(b) of the Texas Penal Code. See TEX. PENAL CODE
§ 7.02(a)(2), (b). The charge provides:
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 17th day of December, 2017, in Harris County,
Texas, the defendant, Dinesha Renee Jackson, did then and there
unlawfully, while in the course of committing or attempting to commit
the robbery of Dequan Anderson, intentionally cause the death of
Dequan Anderson by shooting Dequan Anderson with a deadly
weapon, namely a firearm; or
If you find from the evidence beyond a reasonable doubt that on
or about the 17th day of December, 2017, in Harris County, Texas,
Kayla [sic] Nelson, did then and there unlawfully, while in the course
of committing or attempting to commit the robbery of Dequan
Anderson, intentionally cause the death of Dequan Anderson by
18
shooting Dequan Anderson with a deadly weapon, namely a firearm,
and that the defendant, Dinesha Renee Jackson, with the intent to
promote or assist the commission of the offense, if any, solicited,
encouraged, directed, aided or attempted to aid Kaila Nelson to commit
the offense, if she did;7 or
If you find from the evidence beyond a reasonable doubt that on
or about the 17th day of December, 2017, in Harris County, Texas, in
the attempt to carry out a conspiracy to commit the felony of robbery,
the felony of capital murder is committed by Kayla [sic] Nelson and the
defendant, Dinesha Renee Jackson, though having no intent to commit
the offense of capital murder, but in furtherance of the unlawful purpose
should have anticipated the offense of capital murder would be
committed as a result of carrying out the conspiracy, then you will find
the defendant guilty of capital murder, as charged in the indictment.8
C. Applicable Law
A person commits capital murder if she “intentionally or knowingly causes
the death of an individual” and “intentionally commits the murder in the course of
committing or attempting to commit kidnapping, burglary, robbery, aggravated
sexual assault, arson, obstruction or retaliation, or terroristic threat.” TEX. PENAL
CODE §§ 19.02(b)(1), 19.03(a)(2). A person commits robbery “if, in the course of
7
See TEX. PENAL CODE § 7.02(a)(2) (“A person is criminally responsible for an
offense committed by the conduct of another if . . . acting with the 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.”).
8
See TEX. PENAL CODE § 7.02(b) (“If, in the attempt to carry out a conspiracy to
commit one felony, another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of the unlawful purpose and
was one that should have been anticipated as a result of the carrying out of the
conspiracy.”).
19
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.”9 Id. § 29.02(a). “A person commits criminal conspiracy if, with
intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of
them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of
the agreement.
TEX. PENAL CODE § 15.02(a). “An agreement constituting a conspiracy may be
inferred from acts of the parties.” Id. § 15.02(b); see also Rivas v. State, 473 S.W.3d
877, 886 (Tex. App.—San Antonio 2015, pet. ref’d) (stating “direct evidence of an
agreement among conspirators is not required and rarely exists”); see also Eggert v.
State, No. 11-05-00227-CR, 2007 WL 1644061, at *1 (Tex. App.—Eastland June 7,
2007, pet. ref’d) (not designated for publication) (noting that because conspirators’
work is clandestine in nature, circumstantial evidence is sufficient to support
conviction) (citing Butler v. State, 758 S.W.2d 856, 860 (Tex. App.—Houston [14th
Dist.] 1988, no pet.)).
9
A person commits theft if he unlawfully appropriates property with intent to deprive
the owner of property. TEX. PENAL CODE § 31.03(a). The offense is a state jail
felony if “the property is stolen from the person of another.” Id. § 31.03(e)(4)(B).
20
A person may be convicted as a party to an offense, including capital murder,
“if the offense is committed by his own conduct, by the conduct of another for which
he is criminally responsible, or by both.” TEX. PENAL CODE § 7.01(a); see Gross v.
State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). The law of parties, set forth
under Section 7.02 of the Texas Penal Code, may be applied to a case even though
no such allegation is contained in the indictment. See In re State ex rel. Weeks, 391
S.W.3d 117, 124 (Tex. Crim. App. 2013) (“Regardless of whether it is pled in the
charging instrument, liability as a party is an available legal theory if it is supported
by the evidence.”); see also Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App.
2002) (“It is well-settled that the law of parties need not be pled in the indictment.”).
Under Section 7.02(a)(2) of the Texas Penal Code, 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. TEX. PENAL CODE
§ 7.02(a)(2). And under Section 7.02(b), a person is criminally responsible for an
offense committed by another under a theory of conspiracy. That section provides:
If, in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators
are guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the
carrying out of the conspiracy.
Id. § 7.02(b).
21
When determining whether a person is a party to an offense, courts “may look
to ‘events before, during, and after the commission of the offense.’” Gross, 380
S.W.3d at 186 (quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex. Crim. App.
1977)). Circumstantial evidence is sufficient to prove a defendant’s status as a party,
but “[t]here must be sufficient evidence of an understanding and common design to
commit the offense.” Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
App. 2004)). “Each fact need not point directly to the guilt of the defendant, as long
as the cumulative effect of the facts [is] sufficient to support the conviction under
the law of parties.” Id.D. Analysis
Jackson argues there is insufficient evidence she conspired with Nelson to
commit robbery because although she and Nelson agreed that Nelson would steal
the money bag from Anderson, Jackson and Nelson “never discussed that the theft
would involve a weapon, and Jackson told the detectives that no one was supposed
to get hurt.” Jackson further argues that even if she conspired with Nelson to commit
robbery, there is insufficient evidence she should have foreseen that capital murder
would result from Nelson carrying out their conspiracy. She argues there is no
evidence Jackson “encouraged the use of violence” when she and Nelson planned
the robbery, Jackson has no history of violence, Jackson knew Dollar General
22
employees are trained not to resist a robber’s demands to hand over money, and
Jackson did not know Nelson would use a gun during the commission of the robbery.
1. Evidence of Conspiracy to Commit Robbery
The evidence, when viewed in the light most favorable to the jury’s verdict,
establishes that Jackson gave Nelson all the information she needed to carry out the
robbery, including the time, the place, and the description of the intended victim,
Anderson. After repeatedly denying that she even knew Nelson, Jackson eventually
admitted that she had explained to Nelson how Dollar General handles its daily bank
deposits and that she gave Nelson a description of everyone who worked at the store,
including Anderson. Jackson, who decided that Anderson would make the midday
bank run, told Nelson that Anderson was scheduled to arrive at work at 1 p.m., and
she texted Nelson when Anderson arrived at work and when he left the store to go
the bank.
Jackson knew that Nelson was an unemployed heroin addict who needed
money to pay for her expensive addiction. Jackson admitted that Nelson used drugs
at her apartment because she could smell “a burnt smell” in her restroom. And as
she told Detective Brady and Detective Casso, Nelson “needed money” and was
“desperate for crack.” Jackson also admitted she had seen Nelson with a gun, and
she knew that Nelson always wore a gun on her hip and never left it behind. Jackson
also knew Robinson had used the gun before and had been arrested in Georgia for
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discharging the gun in Robinson’s sister’s apartment. Robinson testified she told
Jackson about the gun incident in Georgia, and she also testified that Nelson would
get agitated when high on drugs. A jury could reasonably infer from this evidence
that Nelson had a propensity for violence.
Although she denied knowing that Nelson was planning to bring the gun to
the robbery, Jackson admitted to Detective Brady and Detective Casso that she
“probably would have thought that [Nelson] would have carried [the gun].” When
asked if she had assumed that Nelson was going to bring the gun with her to the
robbery, Jackson stated, “I didn’t know but yeah, it’s like common sense she was
probably going to bring it.” Jackson stated that Nelson “always” had the gun with
her, and she never left it at the apartment because “she always had it.” The jury
could have reasonably inferred from this evidence that Jackson knew Nelson would
bring the gun with her to the robbery. See Hooper, 214 S.W.3d at 13 (stating jury is
entitled to draw reasonable inferences from basic facts to ultimate facts).
After setting the wheels in motion, Jackson stood back and watched from the
store window as Nelson ran up to Anderson’s car and, after failing to wrestle the
money away from Anderson, shot at Anderson’s car as he attempted to drive away.
Jackson, who did nothing to stop Nelson, stayed inside the store after the shooting
and called the store manager. Unlike Meeks, Jackson never called 911 for help or
attempted to render aid to Anderson.
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Jackson also tried to destroy evidence by throwing her cell phone and the $500
Nelson left for her at her apartment into a lake later that night. She also misled
officers at the scene by giving them a fake cell phone number and spending hours
reviewing surveillance videos with officers at the scene directing them to customers
who had been in the store prior to the shooting as possible suspects. Jackson was
also less than forthcoming when she was first interviewed by Detective Brady and
Detective Casso, repeatedly changing her story when confronted with evidence that
refuted her claims. And even during her second interview, Jackson was less then
forthcoming, offering new information or facts only after being pressed for more
information from Detective Brady and Detective Casso.
A jury reasonably could conclude from all of this evidence that Jackson
conspired with Nelson to rob Anderson. See TEX. PENAL CODE § 15.02(b) (“An
agreement constituting a conspiracy may be inferred from acts of the parties.”); see
also Hooper, 214 S.W.3d at 13 (stating jury is entitled to draw reasonable inferences
from basic facts to ultimate facts). Although Jackson told Detective Brady and
Detective Casso that the plan was for Nelson to simply grab the money from
Anderson and run, and that no one was supposed to get hurt, as the sole fact finder,
it was the jury’s role to assess the weight and credibility of the evidence and resolve
any conflicts in the evidence and the jury apparently did not find Jackson’s
statements credible. See Jackson, 443 U.S. at 326. As the reviewing court, we must
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defer to the jury’s resolution of this issue. See id.; see also Ervin v. State, 333 S.W.3d
187, 201 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding evidence
sufficient to prove defendant conspired to commit robbery because defendant drove
alleged co-conspirators to carwash, co-conspirators had guns and were wearing
bandana masks and hoodies, defendant knew co-conspirators were going to rob man
washing his car, and defendant picked up co-conspirators from carwash after
robbery); Nunez v. State, 215 S.W.3d 537, 541 (Tex. App.—Waco 2007, pet. ref’d)
(holding evidence sufficient to prove defendant conspired to rob restaurant because
defendant hid in bushes near restaurant late at night wearing dark clothes and ski
cap, fled from scene, took same path of escape as alleged co-conspirator, and gun
and ski cap were found near bushes); Hanson v. State, 55 S.W.3d 681, 690 (Tex.
App.—Austin 2001, pet. ref’d) (holding evidence sufficient to prove robbery
conspiracy when defendant knew about plan to rob victim at victim’s home by
hitting victim over his head, went with alleged co-conspirators to victim’s home,
carried hammer used in attack in his knapsack, and afterwards retrieved hammer and
washed knife used by co-conspirators to attack victim); Thompson v. State, 54
S.W.3d 88, 95 (Tex. App.—Tyler 2001, pet. ref’d) (holding evidence sufficient to
prove robbery conspiracy because defendant knew of plan to rob two men, defendant
participated in plan, and noting lack of evidence “that any member of the group did
anything but cooperate with the terms of the plan to commit robbery”).
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2. Evidence of Murder as a Foreseeable Result
Based on this same evidence, a jury also reasonably could conclude that
Jackson should have foreseen the possibility of murder occurring during the course
of the robbery given that Nelson was an unemployed heroin addict with a propensity
for violence who was desperate for money and always carried a gun with her. See
Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(“Evidence that a defendant knew his co-conspirators might use guns in the course
of the robbery can be sufficient to demonstrate that the defendant should have
anticipated the possibility of murder occurring during the course of the robbery.”);
see also Ervin, 333 S.W.3d at 201–02 (holding murder was anticipated result when
defendant participated in robbery conspiracy and knew co-conspirators were armed).
While Jackson told the Detectives she did not know Nelson was going to bring the
gun with her to the robbery or think that Nelson would bring it with her, it was the
jury’s exclusive role to assess the weight and credibility of the evidence and resolve
any conflicts in the evidence. See Jackson, 443 U.S. at 326. As the reviewing court,
we must presume the jury resolved any conflicts in favor of the prosecution and we
defer to the jury’s resolution. See id.Jackson argues this case is distinguishable from our prior opinion in Love v.
State, 199 S.W.3d 447 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In Love,
the defendant, who worked as a night manager for Whataburger, recognized one of
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the men in a car that pulled up to the drive-through window, and he went outside to
speak to him. Id. at 449. The defendant told that man, his co-conspirator, that he
should return to the restaurant to commit a robbery on a night when the defendant
worked, and they would pretend not to know one another, and the defendant would
give him the money. Id. The defendant told his co-conspirator that if someone else
was working that night, he should not believe any employee who told him he did not
have keys to the restaurant’s safe or know how to open the safe because that
employee could open the safe. Id.When the defendant came back inside the store, he told his co-workers that
the men he had been talking to outside had guns and were attempting to rob someone
at the restaurant, but that the defendant knew one of the men and was able to
convince them not to rob anyone. Id. The defendant told everyone to be careful in
case the men attempted to rob someone at the restaurant again. Id. at 449–50. The
defendant, who left work early the night of the robbery, left an intellectually disabled
co-worker in charge of the restaurant. Id. at 450. The co-worker was shot and killed
when he refused to provide the keys to the safe to the co-conspirator. Id. at 451.
On appeal, this Court held there was sufficient evidence the defendant should
have anticipated there was a possibility one of his co-conspirators would commit
murder during the course of the robbery he helped plan. Id. at 453–54. Jackson
argues there is insufficient evidence she should have anticipated the possibility
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Nelson would commit murder during the course of the robbery because unlike the
defendant in Love, she did nothing to increase the chance of force or violence being
used in the robbery, and she did not know that Nelson would use a gun during the
robbery. On the contrary, the jury reasonably could have inferred that Jackson knew
Nelson would bring the gun with her to the robbery because Jackson knew Nelson
always carried a gun with her, she “probably would have thought that [Nelson]
would have carried [the gun]” to the robbery, and she admitted it was “like common
sense [Nelson] was probably going to bring it” to the robbery. See Hooper, 214
S.W.3d at 13 (stating jury is entitled to draw reasonable inferences from basic facts
to ultimate facts). Although Jackson may not have done anything to increase the
likelihood Nelson would use force or violence to accomplish the robbery, such
conduct is not required to establish criminal liability under the law of the parties, nor
is the absence of such evidence dispositive in a sufficiency of evidence inquiry. See
Jackson, 443 U.S. at 319 (stating courts examine all evidence in light most favorable
to jury’s verdict to determine whether any “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt”).
We thus hold there is sufficient evidence supporting the jury’s finding that
Jackson conspired with Nelson to commit robbery, and that Jackson, who knew that
Nelson always had her gun with her and never left it behind, should have foreseen
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the possibility of murder occurring during Nelson’s efforts to carry out their
conspiracy to rob Anderson.
We overrule Jackson’s challenge to the sufficiency of the evidence supporting
her conviction for capital murder.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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