Victor T. Stevens v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00139-CR
NO. 02-10-00140-CR
NO. 02-10-00141-CR
VICTOR T. STEVENS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Victor T. Stevens appeals his convictions for fraudulent use or
possession of five or more but less than ten items of identifying information,
fraudulent use or possession of ten or more but less than fifty items of identifying
information, two counts of aggravated robbery with a deadly weapon, and theft of
a vehicle valued at $20,000 or more but less than $100,000. In three points,
1
See Tex. R. App. P. 47.4.
Stevens argues that the trial court erred by not submitting an accomplice-witness
instruction in the jury charge for the aggravated robbery offenses, that legally
insufficient evidence exists to sustain his convictions, and that the trial court
erred by allowing testimony about Stevens‘s alleged gang activity. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
At around 2:00 or 3:00 a.m., three men entered a house rented to three
Texas Christian University students and robbed the people inside at gunpoint.
Ryan Ross and Albert Rayle were spending the night at the house in addition to
the three tenants. One of the robbers put a pistol to the back of Ross‘s head and
forced his face down on the couch. Another robber pointed a gun at Rayle and
led him upstairs to the bedrooms. The robbers kept asking the students where
―the stash‖ was. Forrest Goodall, one of the tenants of the house, opened the
door to his room and saw a man holding a sawed-off shotgun to the back of
Rayle‘s head. The robbers rummaged through Goodall‘s room, asking ―Where‘s
the stash? Where‘s the stash?‖ The three robbers tied up the students and left
in Goodall‘s Ford truck with credit cards and other items from the home.
A few days after the robbery, a Fort Worth police officer saw the stolen
Ford truck at a motel in Fort Worth. A person at the motel told the police that the
truck was related to room 135 of the motel. Police knocked on the door to room
135, and Monica Reyes answered. She was in the room with her sleeping
children. Reyes initially denied knowing anything about the truck, but when
police later returned, she told them that Stevens had given her a ride in the truck
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to get food for her children; she had assumed Stevens owned the truck. She
informed the police that her husband was Arturo Gonzalez, a friend of Stevens.
Police obtained Reyes‘s consent to search the room and found a black Nike bag
under the bed. The bag contained IDs and credit cards belonging to the TCU
students, as well as clothing that Reyes had seen Stevens wearing earlier that
day. She told police that she did not know the bag was there. Reyes was initially
charged with possession of the stolen credit cards, but the district attorney‘s
office did not take the case; she was never a suspect in the robbery. Police
found fingerprints belonging to Stevens on the stolen Ford truck and on a
checkbook box that was inside the black Nike bag.
Goodall ultimately identified Stevens from a police photo spread as the
robber who had held the sawed-off shotgun during the robbery. Goodall was
unable to identify the other two robbers.
In three cause numbers, Stevens was charged with fraudulent use or
possession of five or more but less than ten items of identifying information,
fraudulent use or possession of ten or more but less than fifty items of identifying
information, two counts of organized criminal activity—aggravated robbery, two
counts of aggravated robbery with a deadly weapon, and theft of a vehicle
valuing $20,000 or more but less than $100,000. The jury acquitted Stevens of
both counts of organized criminal activity; convicted him of the remaining counts;
and assessed his punishment at thirty-five years‘ imprisonment for both robbery
convictions, fifteen years‘ imprisonment for the theft conviction and for each
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fraudulent-use-or-possession conviction, and a $1,500 fine for each conviction.
The trial court ordered that the sentences run concurrently.
III. ACCOMPLICE-WITNESS INSTRUCTION
In his first point, Stevens argues that the trial court erred by refusing to
include his requested accomplice-witness jury instruction in the charges for the
aggravated robbery offenses. He argues that he was entitled to the instruction
because Reyes was in possession of the bag containing stolen items and
because she had received a ride in the stolen truck.2 The State argues that the
trial court did not err by refusing to include an accomplice-witness instruction
because no evidence showed that Reyes was a party to the aggravated robbery
offenses.
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State,
287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine
whether error occurred. If it did, we must then evaluate whether sufficient harm
resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.
Under the accomplice-witness rule, a conviction cannot be secured upon
an accomplice‘s testimony unless corroborated by other evidence tending to
connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14
(West 2005); Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.), cert.
2
Stevens argues that police saw Reyes in the stolen truck, but this is not
supported by the record. Reyes told police, and testified at trial, that Stevens
gave her a ride in the truck.
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denied, 552 U.S. 1028 (2007). An accomplice witness is a person who
participates in the offense before, during, or after its commission with the
requisite mental state and who testifies against another. Smith v. State, 332
S.W.3d 425, 439 (Tex. Crim. App. 2011); see Tex. Penal Code Ann. § 7.02(a)
(West 2011) (the law of parties); Tex. Code Crim. Proc. Ann. art. 38.14 (the
accomplice-witness rule). An accomplice must have engaged in an affirmative
act that promotes the commission of the offense that the accused committed.
Smith, 332 S.W.3d at 439. A person is not an accomplice if the person knew
about the offense and failed to disclose it or helped the accused conceal it or if
the person was merely present at the crime scene. Id. And complicity with an
accused in the commission of another offense apart from the charged offense
does not make that witness an accomplice witness. Druery, 225 S.W.3d at 498.
A witness may be an accomplice either as a matter of law or as a matter of
fact, and the evidence in each case determines what jury instruction, if any,
should be given. Id.; Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App.
2006), cert. denied, 549 U.S. 1287 (2007). If the evidence is clear that the
witness is an accomplice as a matter of law, that is, the witness has been, or
could have been, indicted for the same or lesser-included offense, then the trial
court must instruct the jury on the law of accomplice-witness testimony. Cooke,
201 S.W.3d at 747–48. If there is conflicting evidence about whether a witness is
an accomplice, the court should submit the question to the jury inquiring whether
the jury finds that the witness is an accomplice as a matter of fact. Id. at 748. If
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there is no evidence that a witness is an accomplice, the trial court is not
obligated to provide an accomplice-witness instruction. Id.
In this case, the evidence shows that three men participated in the
robbery; no evidence suggests that a woman went to the house or was with the
robbers on the night of the robbery. Several days after the robbery, Reyes
received a ride from Stevens in the stolen truck, but she assumed that the truck
belonged to him. Although a bag containing the students‘ stolen IDs and credit
cards was found under a bed in the motel room rented to Reyes, she told police
that she did not know it was there. Even if evidence existed that Reyes knew the
truck was stolen or knew the bag was under the bed, no evidence shows that,
acting with the required culpable mental state, she actively participated in the
robbery before, during, or after its commission or that she acted in a manner to
promote the robbery. See, e.g., Druery, 225 S.W.3d at 500 (―[M]erely assisting
after the fact in the disposal of a body does not transform a witness into an
accomplice witness in a prosecution for murder.‖) (citing Paredes v. State, 129
S.W.3d 530, 536 (Tex. Crim. App. 2004)); Roden v. State, 338 S.W.3d 626, 630
(Tex. App.—Fort Worth 2011, pet. ref‘d) (holding that accomplice-witness
instruction not required when evidence showed that witness dragged one robber
away from house and was inside appellant‘s house with stolen property but also
showed that witness did not enter burglarized house and steal property).
Consequently, we hold that the trial court did not err by refusing to include an
accomplice-witness instruction in the jury charges for the aggravated robbery
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offenses. We overrule Stevens‘s first point.
IV. LEGAL SUFFICIENCY
In his second point, Stevens argues that legally insufficient evidence exists
to support his five convictions for fraudulent use or possession of five or more but
less than ten items of identifying information, fraudulent use or possession of ten
or more but less than fifty items of identifying information, two counts of
aggravated robbery with a deadly weapon, and theft of a vehicle valued at
$20,000 or more but less than $100,000. The State‘s sole response is that
Stevens‘s point is inadequately briefed.
In order to present issues to this court for review, an appellant‘s brief must
contain clear and concise arguments for the contentions made, with appropriate
citations to authorities and to the record. Tex. R. App. P. 38.1(i). If a party does
not refer the appellate court to the pages in the record where the error allegedly
occurred, the appellate court may properly overrule the point as inadequately
briefed. Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App.) (stating that the
court ―has no obligation to construct and compose appellant‘s issues, facts, and
arguments ‗with appropriate citations to authorities and to the record‘‖), cert.
denied, 129 S. Ct. 625 (2008).
In his brief, Stevens provides the applicable standard of review and
argues, without citation to the record, that the State ―did not meet its burden of
proof, proof beyond a reasonable doubt, in that it failed to prove that [Stevens]
committed the offense[s] as is set out in the indictments.‖ Stevens does not set
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forth the elements of the offenses for the five convictions that he challenges for
legal sufficiency, and he does not provide any argument, record references, or
substantive analysis as to how the evidence is insufficient to support any of the
elements of those offenses. Given these circumstances, given that there are five
convictions for four different offenses that involve different elements, given that
the State relies only on inadequate briefing in its response without analyzing the
evidence as to any of the five convictions, and given the large record, we are
constrained to agree with the State that Stevens‘s legal sufficiency challenge to
these five convictions is inadequate. We conclude that his inadequate briefing
presents nothing for review, and we overrule his second point. See Tex. R. App.
P. 38.1(i); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.) (holding that
merely stating standard of review for determining sufficiency of evidence
constitutes inadequate briefing and presents nothing for appellate review), cert.
denied, 522 U.S. 844 (1997).
V. EVIDENCE OF GANG MEMBERSHIP
In his third point, Stevens argues that the trial court erred by allowing
testimony of his alleged gang membership. Although he does not specifically
point to the testimony forming the basis of his complaints and does not explain
how the testimony was inadmissible, he provides a record citation corresponding
to the testimony of Tarrant County Sheriff‘s Deputy Richard Almendarez. The
State argues that Stevens waived his complaint and that, alternatively, any error
was harmless.
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Deputy Almendarez testified that he received, by email, a photograph of
graffiti that Stevens had drawn on the wall of his jail cell. Deputy Almendarez
testified that he decided to interview Stevens because the graffiti appeared to be
gang-related. When the State asked Deputy Almendarez about his training and
experience ―with regard to spotting the signs of gang activity,‖ defense counsel
objected that the deputy had not been qualified as a gang expert. The trial court
overruled the objection, stating that it ―would like to hear about his qualifications.‖
Deputy Almendarez explained that he has been responsible for ―gang
intelligence‖ within the Tarrant County jail since 1996, that he takes a training
class in gang activity at least once a year, and that he has testified in the area of
gang tattoos and gang affiliation on ―[m]any‖ occasions. Deputy Almendarez
then testified that Stevens had denied any gang affiliation during his interview
and that it is important to know when inmates are affiliated with a gang ―to
maintain the safety and security of the jail facility.‖
A party may challenge expert testimony on at least three specific grounds:
(1) qualification, (2) reliability, and (3) relevance. See Vela v. State, 209 S.W.3d
128, 131 (Tex. Crim. App. 2006). The three requirements raise distinct questions
and issues, and an objection based on one of these requirements does not
preserve error as to another. Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref‘d) (holding that an objection based on
the expert‘s qualifications did not preserve the reliability issue), cert. denied, 129
S. Ct. 1325 (2009); see Tex. R. App. P. 33.1(a).
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Here, even assuming that Stevens‘s complaint on appeal is adequately
briefed,3 his complaint does not comport with his objection at trial. At trial,
Stevens objected to Deputy Almendarez‘s qualifications as a gang expert, but on
appeal, Stevens appears to complain that the deputy‘s testimony was not
relevant—―the testimony did not assist the trier of fact.‖ Accordingly, Stevens‘s
third point was not preserved. See Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009) (―Whether a party‘s particular complaint is preserved depends
on whether the complaint on appeal comports with the complaint made at trial.‖);
Turner, 252 S.W.3d at 584 n.5. We overrule Stevens‘s third point.
VI. CONCLUSION
Having overruled Stevens‘s three points, we affirm the trial court‘s
judgment.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 27, 2011
3
Other than generally asserting that the trial court erred by allowing
testimony of his alleged gang membership, Stevens‘s brief contains only the law
applicable to expert witness qualifications and a conclusory statement that
―[t]here was no evidence that this alleged robbery was gang related and the
testimony did not assist the trier of fact.‖
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