Michael Andrew Marshall v. State

Affirmed and Memorandum Opinion filed May 23, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00202-CR
MICHAEL ANDREW MARSHALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1502046
MEMORANDUM OPINION
Appellant Michael Andrew Marshall appeals his conviction for aggravated
robbery contending there is insufficient evidence to support his conviction. We
affirm.
BACKGROUND
In the morning of February 27, 2016, Complainant Raul Ortiz was remodeling
a small house he bought. He was working in the attic when he heard noises. He
looked outside and saw Appellant and another man jumping over the chain link
fence. Appellant entered the porch and climbed up the ladder to the attic. The other
man, who was holding a semi-automatic gun, entered the house through the back
door. Appellant demanded Complainant’s wallet. Complainant told Appellant that
he only had $150 in his wallet and he threw the money down toward Appellant.
Appellant then climbed down the ladder and went to Complainant’s car. Appellant
tried to start Complainant’s car, but it would not start.
In the meantime, the other man came around the house and pointed the gun at
Complainant. Complainant came down from the attic and fought with the man.
During the fight, Complainant got shot in the chin but managed to take the gun away
from the man. Complainant tried to shoot him, but the gun would not fire. Appellant
then returned and a struggle ensued between Appellant and Complainant. Appellant
wrested the gun from Complainant, reloaded the gun, and shot Complainant in the
side. Appellant and the other man then fled the scene.
Appellant was indicted for aggravated robbery with a deadly weapon. A jury
found Appellant guilty as charged and assessed his punishment at 50 years’
confinement. Appellant filed a timely appeal.
ANALYSIS
Appellant challenges the sufficiency of the evidence to support his conviction.
More specifically, he argues the State presented insufficient evidence he was the
perpetrator.
When reviewing the legal sufficiency of the evidence, we consider the
combined and cumulative force of all admitted evidence and any reasonable
inferences therefrom in the light most favorable to the verdict to determine whether
a jury was rationally justified in its decision. Johnson v. State, 509 S.W.3d 320, 322
2
(Tex. Crim. App. 2017); see also Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). The jury is the sole judge of credibility and weight to be attached to the
testimony of witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013).
In conducting a sufficiency review, we do not engage in a second evaluation
of the weight and credibility of the evidence; instead, we ensure the jury reached a
rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). The jury may credit the testimony of the witnesses it chooses
to believe, disbelieve any or all of the evidence or testimony proffered, and weigh
the evidence as it sees fit. Id.
In reviewing the sufficiency of the evidence, we look at ‘“events occurring
before, during and after the commission of the offense and may rely on actions of
the defendant which show an understanding and common design to do the prohibited
act.”’ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova
v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not necessary that every
fact and circumstance point directly and independently to the defendant’s guilt; it is
enough that the combined and cumulative force of all the incriminating
circumstances supports the conviction. Id.
To establish Appellant committed aggravated robbery in this case, the State
was required to prove he committed robbery while using or exhibiting a deadly
weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2019). As relevant here,
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 threatens
or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2)
(Vernon 2019). A person commits theft if he unlawfully appropriates property with
intent to deprive the owner of property. Id. § 31.03(a) (Vernon 2019).
3
The jury was also instructed on the law of parties. 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, the person solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. Id. §
7.02(a)(2) (Vernon 2011). A conviction under the law of parties requires a showing
that at the time of the offense, the parties were acting together, each contributing to
their common purpose. Goggins v. State, 541 S.W.3d 318, 321 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d). Mere presence of an accused at the scene of
an offense will not support a conviction under the law of parties, but it is a
circumstance that combined with other facts may show the accused was a
participant. Id.
Contrary to Appellant’s assertion, there is legally sufficient evidence to
establish he “was the perpetrator” and to support his conviction. Here, Complainant
identified Appellant at trial and testified he is sure Appellant was the perpetrator
“[b]ecause I saw him face-to-face. He asked me for my wallet, and then he shot
me.” Complainant also testified he “instantly” identified Appellant in a photo array,
circling photo number 2 on the array. The State published the photo array to the
jury, showing Appellant’s photo circled. Additionally, Complainant testified he saw
Appellant in May 2016 at Complainant’s daughter’s graduation from Shadydale
Elementary School and that he called the police when he saw Appellant at the school.
Appellant claims that, “[a]t most, the State established that the ‘tall’ robber
looked like LeBron James.” Appellant points to Complainant’s testimony, in which
he acknowledged he did not “remember exactly” if he described Appellant as
looking like Shaquille O’Neal or LeBron James “because this was about two years
ago,” but if the police report stated Appellant looked like LeBron James, “then I
think that that’s what I said.”
4
However, Appellant improperly discounts the substantial evidence the State
presented to the jury as discussed above. Complainant’s testimony alone is
sufficient to support the jury’s finding Appellant was guilty of aggravated robbery.
See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (“We conclude that
the testimony of the eye witness alone was sufficient to support the jury’s verdict.”);
Jackson v. State, 530 S.W.3d 738, 742 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (“The testimony of a single eyewitness can be enough to support a
conviction.”).
In addition to Complainant’s testimony, the jury heard a recording Appellant’s
brother’s girlfriend, Tyasia Morgan, made of Appellant after the aggravated robbery.
During the conversation with Morgan, Appellant stated he shot a “Mexican dude”
during a robbery near Shadydale Elementary School. Appellant also stated that he
and another man did not steal the victim’s car but that he shot the victim and drove
away. Morgan also identified Appellant’s voice on the recording and testified
Appellant’s children attended Shadydale Elementary School at the time of the
aggravated robbery. Further, a map admitted into evidence at trial showed
Complainant’s house was located very close to Shadydale Elementary School. This
evidence corroborated Complainant’s testimony as well as his in-court and out-of-
court identifications of Appellant.
Viewing all of the evidence in the light most favorable to the verdict, we
conclude that a jury, as the sole judge of the credibility of the witnesses, reasonably
could have found beyond a reasonable doubt that Appellant committed aggravated
robbery. See Goggins, 541 S.W.3d at 322; see also Davis v. State, 177 S.W.3d 355,
359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We conclude the evidence is
sufficient to support Appellant’s conviction and we overrule Appellant’s issue.
5
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Do Not Publish — Tex. R. App. P. 47.2(b).
Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
6