Kombila Essongue v. State

Opinion issued November 13, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00659-CR
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KOMBILA ESSONGUE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1518925
MEMORANDUM OPINION
A jury convicted appellant, Kombila Essongue, of the first-degree felony
offense of aggravated robbery.1 Pursuant to an agreement between appellant and the
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
State, the trial court assessed appellant’s punishment at twenty-five years’
confinement. In two issues, appellant contends that the State failed to present
sufficient evidence to establish (1) his identity as a perpetrator of the robbery and
(2) his criminal responsibility for the offense under the law of parties.
We affirm.
Background
In the summer of 2016, Qiong Liu worked at a real estate office across the
street from the Chinese Community Center in southwest Houston, near the
Chinatown district and the West Sam Houston Tollway. On July 25, 2016, Liu drove
her black Lexus SUV to the community center’s parking lot and spent her lunch
break in her vehicle, eating lunch and playing games on her cell phone. Liu kept the
driver’s side door slightly open to allow a breeze to circulate through the car.
While Liu was sitting in her car, three men approached the Lexus. The first
man opened the driver’s side door all the way and demanded that Liu get out of the
vehicle. Liu noticed a second man, who said nothing but pointed a gun in her
direction. Liu realized that she was “in trouble,” and she got out of the vehicle. When
she was outside of the Lexus, she noticed a third man, later identified as appellant,
who climbed into the backseat of her car. Liu tried to plead with appellant, asking
him to “stop the car,” but he merely smiled at her as he got into the backseat. Liu
2
testified that she and appellant made eye contact, and she estimated that their
interaction lasted approximately thirty seconds.
The three men drove away in Liu’s car, and Liu briefly ran after her car. The
trial court admitted a surveillance video from the Chinese Community Center that
depicted Liu’s car driving away and Liu chasing after the car. The three men inside
of her car could not be seen on the surveillance video. Liu ran into the Chinese
Community Center and called 9-1-1. On the 9-1-1 call, Liu mentioned seeing a
woman driving a car, and at trial she testified that, when she got out of her car at
gunpoint, she saw a woman sitting in a vehicle nearby, and this woman quickly
followed behind the men when they drove away in Liu’s car.
Houston Police Department (HPD) Officer K. Canales testified that he works
in a gang unit based on the west side of Houston. Officer Canales’s unit had received
several reports in late July 2016 that a stolen vehicle, later identified as Liu’s Lexus,
was involved in committing several offenses in the general area of the Chinatown
district and the West Sam Houston Tollway. The unit, which was composed of a
mixture of plainclothes officers and officers in uniform driving marked patrol cars,
went to the area on August 1, 2016, one week after Liu’s vehicle was stolen, to
search for the vehicle. Officer Canales was in plainclothes and an unmarked vehicle
when he saw a black Lexus SUV that matched the description of the target vehicle
in an apartment complex. One of the other plainclothes officers notified Officer
3
Canales that three men got into the car, and Canales started following the Lexus as
it left the apartment complex. The Lexus had a paper license tag, which appeared
suspicious,2 and when Officer Canales witnessed the driver of the Lexus roll through
a stop sign, Canales requested that one of the uniformed officers in his unit make a
traffic stop of the Lexus.
Officer J. Baker was one of the uniformed officers involved in the search for
the stolen Lexus, and he and his partner responded to Officer Canales’s request to
conduct a traffic stop of the Lexus. Officer Canales continued to observe the Lexus,
and he testified that the Lexus did not stop when Officer Baker turned on his
emergency lights. The driver of the Lexus pulled into an apartment complex on
Corporate Drive, but instead of stopping, the driver pulled back onto the road and
quickly drove away before turning into another apartment complex along Corporate
Drive. After they turned into the second apartment complex, three men jumped out
of the Lexus, which continued to roll until it crashed into a fence, and fled the area
on foot. Officer Canales apprehended one of the men along Corporate Drive, and
Officer Baker followed another man through the apartment complex until another
officer apprehended that man near a large fence. Officers secured and photographed
2
Officer Canales testified that, with stolen cars, it is a common practice for the
perpetrators to take the actual license plate off of the vehicle and replace it with a
paper tag so that, if the vehicle is stopped and an officer checks the number on the
paper tag, the vehicle will not immediately register as stolen.
4
the Lexus, which included taking a picture of the paper tag attached in place of the
license plate and a picture of a pistol that was discovered inside the backseat console.
While the foot chase was occurring, Officer Baker was able to broadcast a
physical description of the driver of the Lexus. He gave a general description
concerning clothing and stature, but the primary identifying feature of the driver was
his dreadlocks, which was a different hairstyle from the other two men who had fled
the Lexus. Officer J. Sicola heard the broadcast and help set up a perimeter a few
blocks away along the West Sam Houston Tollway. Officer Sicola observed a man
matching the description contained in the broadcast walking along the frontage road
of the West Sam Houston Tollway. He took this man into custody and drove him
back to the apartment complex where the Lexus had crashed. Officer Baker
identified the man apprehended by Officer Sicola as the driver of the Lexus. This
man was later identified as appellant. Officer Baker identified appellant in court as
the driver of the Lexus, and he noted that, at the time of trial, appellant no longer
had the distinctive dreadlocks that he had had at the time of his arrest.
Liu identified the Lexus that the officers recovered as her vehicle.3 The trial
court admitted a picture of the interior of the vehicle that displayed a gun resting on
the backseat console, and Liu testified that this gun looked similar to the gun pointed
3
In one of the photographs of Liu’s car admitted into evidence, a paper tag can be
seen covering the license plate. When the State asked Liu about this tag, she testified
that she did not put that tag on her vehicle.
5
at her during the robbery. Liu also testified that, after her vehicle was recovered, she
viewed three photo-arrays with a detective. The third photo-array contained
appellant’s picture, and Liu circled that picture and identified appellant as the person
who climbed into the backseat of her car. Liu stated that she recognized him because
of his “big eyes” and boney facial structure. Liu did not positively identify appellant
in court, although she stated that appellant looked “very similar” and that his “[f]ace
[looked] like it changed a little bit.” On cross-examination, Liu testified that she told
the detective showing her the photo-arrays that she was “80 percent” certain about
her identification.
Officer T. Fontenot, with the HPD Robbery Division, was assigned to this
case after the recovery of the Lexus and the arrest of appellant. Officer Fontenot
testified that it was not unusual for someone to steal a car and then still have that car
in their possession a week later. He also testified that he interviewed Liu and showed
her three photo-arrays. Liu did not identify anyone in the first two photo-arrays. Liu
identified appellant’s photograph in the third photo-array, and she told Officer
Fontenot that the person she identified had participated in the robbery by climbing
into the backseat of the Lexus and smiling at her as the car drove away. She also told
Officer Fontenot that she was 80 percent certain about her identification. Officer
Fontenot, like Officer Baker, testified that appellant’s appearance had changed
6
during the time between his arrest and the time of trial. Specifically, appellant had
cut off his dreadlocks.
Officer Fontenot also testified that he spoke with appellant and appellant
offered an alibi; namely, that he had been at work at Mr. Clean Car Wash on
Richmond Avenue, north of the Westpark Tollway and west of the West Sam
Houston Tollway, at the time Liu was robbed. Officer Fontenot reviewed
documentation from the car wash that included both a handwritten and a computer-
generated timecard for appellant. The timecards reflected that, on July 25, 2016,
appellant clocked in to work at either 1:22 or 1:23 p.m. 4 Officer Fontenot testified
that, based on the surveillance video from the Chinese Community Center, the
robbery of Liu occurred at 1:03 p.m. He testified that several routes could be taken
from the Chinese Community Center where Liu was robbed to the Mr. Clean Car
Wash where appellant worked, and that the longest route was projected to take
fourteen minutes. He therefore concluded that it was reasonable for appellant to have
been involved in the robbery at 1:03 p.m. and still be able to clock in to work at 1:23
p.m.
Officer Fontenot also reviewed a surveillance video from the car wash. The
surveillance video depicted a female employee of the car wash working as a cashier
4
The handwritten timecard, completed by appellant, stated a clock-in time of 1:22
p.m., whereas the computer-generated timecard, completed when the car wash’s
cashier clocked appellant in, stated a clock-in time of 1:23 p.m.
7
and James Le, the owner and manager of the car wash, also standing behind the cash
register. The video showed appellant walk into the room and clock in with the cashier
at 1:22 p.m. Officer Fontenot spoke with Le, who confirmed that appellant had not
been at work on July 25 prior to 1:22 p.m. Based on Liu’s identification, the chase
and subsequent recovery of the Lexus, and the information received from the car
wash, Officer Fontenot concluded that appellant was a party to the robbery of Liu.
Le testified that the car wash workers were independent contractors who were
not required to work all of the hours that they were scheduled to work. He stated that
because the car wash business was unpredictable, primarily due to the weather, his
workers would arrive at the car wash and clock in when cars arrived, and they could
clock out whenever they liked.5 He described the clock-in process, testifying that the
cashier would clock the worker in on the computer and tell the worker the time, and
the worker would handwrite his name and clock-in time on a chart kept by the cash
register. For the worker to be paid, the computer-generated clock-in time and the
handwritten clock-in time would have to match, with allowances made for slight
discrepancies. Le testified that it was not unusual for his workers to clock in for an
5
The State introduced a schedule from the car wash reflecting that appellant was
scheduled to work on Mondays—which included July 25, 2016, the date of the
robbery of Liu—from 9:00 a.m. to 6:00 p.m. Le testified that, despite the schedule,
appellant would not have been required to arrive at work precisely at 9:00 a.m., and
he would not have been required to stay at work until 6:00 p.m.
8
hour or two in the morning, take a lengthy break, and clock back in during the
afternoon.
Le testified that, on July 25, appellant was scheduled to work as a “prep”
worker, which is an important position that helps control the flow of cars. Le recalled
that the car wash was short-handed on that particular day, and he asked the cashier
where his prep workers were. Right at that time, appellant walked in from the
parking lot to clock in, and when Le asked appellant why he was late, appellant
responded, “I [had] something to do.” Le testified that he saw appellant being
dropped off at the car wash. He also testified that he had not seen appellant at the car
wash earlier that day, and he specifically stated that he looked in the workers’ break
room to find a prep worker but could not find anyone, which is when he decided to
speak to the cashier. Le testified that July 25, 2016, was a sunny day, and thus
weather would not have prevented his workers from arriving at work.
Appellant called Adam Garcia, a former manager at the Mr. Clean Car Wash,
to testify on his behalf. Garcia testified that appellant typically arrived at work early,
around 8:00 or 8:30 a.m., and that sometimes he would be at work for awhile without
getting paid because the workers could not clock in until a car had arrived to be
washed. He testified that appellant arrived at work around 8:45 or 9:00 a.m. on July
25, 2016. On cross-examination, Garcia testified that a computer was not used to
clock workers in during July 2016, and workers would only handwrite their times
9
on a chart. He testified that the computer-generated timesheet for appellant that had
been entered into evidence was fake. Garcia also testified that, as a manager, he
would typically retrieve workers from the break room when cars arrived at the car
wash, and he stated that appellant was in the break room prior to his clocking in on
July 25, 2016.
Appellant’s stepfather, Pedro Ekumu, also testified on his behalf. Ekumu
testified that he lived in an apartment with his wife, appellant, and appellant’s sister,
and that, on July 25, 2016, appellant left the apartment around 8:00 a.m. to go to
work. On that morning, appellant told his parents that he did not have money for
transportation, so appellant and his mother went to a local store to make change so
appellant would have money for bus fare. On cross-examination, Ekumu testified
that his wife returned to the apartment after going to the store with appellant, and
she told Ekumu that she had left appellant at a bus stop.
The jury charge authorized the jury to convict appellant as both a primary
actor and under the law of parties. The jury found appellant guilty of the offense of
aggravated robbery. Pursuant to an agreement between appellant and the State, the
trial court assessed appellant’s punishment at twenty-five years’ confinement. This
appeal followed.
10
Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence establishing his identity as one of the men who robbed Liu. In his second
issue, he contends that the State failed to present sufficient evidence that he was
criminally responsible for the offense under the law of parties.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v.
State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive
judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility,
may accept one version of the facts and reject another, and it may reject any part of
a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Rivera v. State, 507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st
11
Dist.] 2016, no pet.). We give great deference to the jury’s credibility
determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We
resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446,
448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination.”). Circumstantial evidence is as probative as direct
evidence in establishing guilt, and circumstantial evidence alone can be sufficient to
establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013)
(quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact
need not point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper, 214 S.W.3d at 13.
B. Identity
The State must prove identity—that the accused is the person who committed
the charged offense—beyond a reasonable doubt. Wiggins v. State, 255 S.W.3d 766,
771 (Tex. App.—Texarkana 2008, no pet.); Smith v. State, 56 S.W.3d 739, 744 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). The State may prove identity by
“either direct or circumstantial evidence, coupled with all reasonable inferences
from that evidence.” Gardner, 306 S.W.3d at 285; Smith, 56 S.W.3d at 744.
12
Although a direct in-court identification of the defendant is the “preferred
procedure” for establishing identity, it is not the only means by which the State can
prove the identity of the accused. Wiggins, 255 S.W.3d at 771; see Greene v. State,
124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (stating that
eyewitness identification is not necessary to establish identity). If there is no in-court
identification of the defendant as the perpetrator of the offense, “[t]he sufficiency of
the evidence is then determined from the cumulative effect of all the evidence; each
fact in isolation need not establish the guilt of the accused.” Wiggins, 255 S.W.3d at
771; Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.)
(stating that even if no eyewitness can identify defendant as perpetrator, if other
evidence shows defendant is perpetrator, failure of complainant to make positive in-
court identification does not make verdict improper). The absence of an in-court
identification “is merely a factor for the jury to consider in assessing the weight and
credibility of the witnesses’ testimony.” Wiggins, 255 S.W.3d at 771.
Here, Liu testified that on July 25, 2016, she was eating lunch and playing
games on her cell phone while sitting in her Lexus SUV parked in the parking lot of
the Chinese Community Center when three men walked up to her car. The first man
opened the driver’s side door all the way and demanded that Liu get out of the
vehicle; the second man said nothing but pointed a gun at Liu; and the third man also
said nothing but made sustained eye contact with Liu and smiled at her as he ignored
13
her pleas and climbed in the backset of the Lexus. At trial, Liu did not give a positive
in-court identification of appellant as the third man involved in the robbery; instead,
she testified that he looked “very similar” and that it appeared as though his face had
“changed a little bit.” The State elicited testimony that after police had recovered
Liu’s vehicle and arrested appellant, who had been driving the vehicle, Liu viewed
three photo-arrays and identified appellant’s picture in the third photo-array. She
told Officer Fontenot, and testified at trial, that at the time of viewing the photo-
array, she was 80 percent certain that the person she identified was the man involved
in the robbery who climbed in the backseat of her Lexus. She stated that she
recognized this man due to his boney facial structure.
On appeal, appellant argues that Liu’s equivocal identification of him as one
of the robbers was not sufficient to support the jury’s guilty verdict. Appellant cites
several cases from our sister courts for the proposition that an uncertain in-court
identification of the accused, without more, has been held insufficient to uphold a
conviction and that corroborating evidence is needed in addition to an equivocal
identification to support the verdict. See, e.g., Criff v. State, 438 S.W.3d 134, 137–
38 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Prihoda v. State, 352 S.W.3d
796, 803 (Tex. App.—San Antonio 2011, pet. ref’d); Redwine v. State, 305 S.W.3d
360, 366 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Here, however, there
14
is corroborating evidence, aside from Liu’s identification, tying appellant to the
charged offense.
Liu identified appellant’s picture in a photo-array with “80 percent” certainty
that he was the man who participated in the robbery by making eye contact with her
and smiling at her as he climbed into the backset of her Lexus. Although Liu did not
positively identify appellant in court as one of the perpetrators, she did testify that
he looked “very similar” and that it appeared as though his face had “changed a little
bit.” Two officers—Officer Baker and Officer Fontenot—testified that appellant’s
appearance had changed in between the time of his arrest and the time of trial.
Specifically, appellant had cut off his distinctive dreadlocks.
The State also presented evidence that, toward the end of July 2016, there had
been several reports of a black Lexus SUV involved in various criminal offenses in
the Chinatown district of southwest Houston, near the Chinese Community Center
where the robbery of Liu had occurred. A particular HPD unit was tasked with
finding this vehicle, and on August 1, 2016, one week after the robbery of Liu,
officers spotted the Lexus in a nearby apartment complex. Officers followed the
Lexus, which had a suspicious looking paper tag affixed to it in place of the license
plate, until the driver committed a traffic violation, and then a marked patrol unit
attempted to conduct a traffic stop. The driver of the Lexus led the officers on a short
chase before its occupants—three black men, who matched the general description
15
of the perpetrators that Liu had provided to officers—jumped out of the vehicle and
fled, leaving the Lexus to crash into the fence of an apartment complex. A foot chase
ensued, and officers eventually apprehended all three of the Lexus’s occupants,
including appellant, who was identified as the driver of the Lexus. Liu identified the
Lexus as her vehicle. When shown a picture of a gun that was recovered from the
backseat console, Liu stated that the gun looked like the one used to threaten her
during the earlier robbery.
Thus, in addition to Liu’s tentative pretrial identification of appellant as one
of the robbers, the State presented evidence that, one week after the robbery,
appellant was discovered driving Liu’s vehicle, that the vehicle displayed a
“suspicious” paper tag instead of an actual license plate, and that appellant fled from
police, both in the Lexus and on foot. It is “well settled” that a defendant’s
unexplained possession of property recently stolen in a theft or burglary permits an
inference that the defendant is the one who committed the theft or burglary. See
Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State,
185 S.W.3d 904, 905 (Tex. Crim. App. 2006). Moreover, factfinders may
permissibly draw an inference of guilt from the circumstance of flight. See Clayton
v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007); see also Clay v. State, 240
S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight evinces a
consciousness of guilt.”).
16
Appellant argues that the alibi evidence that he presented is such that no
rational factfinder could find beyond a reasonable doubt that he was involved in the
robbery of Liu. Specifically, he points to Garcia’s testimony that, at the car wash
where Garcia worked with appellant, workers could not clock in until a car arrived
to be washed and thus workers often spent significant amounts of time at the car
wash before they were officially clocked in. Appellant also points to Garcia’s
testimony that, on the day of the robbery, appellant arrived at the car wash around
9:00 a.m. and that, when appellant was seen on the car wash’s surveillance video
clocking in, he was walking from the workers’ break room, not the parking lot.
The State, however, presented documentation in the form of the handwritten
clock-in chart and the computer-generated time card, as well as the surveillance
video from the car wash, that appellant clocked in at 1:22 p.m. on July 25,
approximately twenty minutes after the robbery of Liu. The State also presented Le’s
testimony that he had not seen appellant at the car wash earlier in the day, that he
had searched the break room for a “prep” worker such as appellant immediately
before walking to the cashier, and that he saw a car drop appellant off at the car
wash. Le saw appellant walk into the car wash from the parking lot, not from the
break room. It was within the province of the jury to assess the credibility of Garcia
and Le and to resolve the conflicts in their respective testimony. See Williams, 235
S.W.3d at 750 (stating that we may not re-evaluate weight and credibility of evidence
17
or substitute our judgment for that of factfinder). When, as here, the record supports
conflicting inferences, we presume that the factfinder resolved the conflict in favor
of the verdict, and we defer to that determination. See Murray, 457 S.W.3d at 448–
49.
Although Liu’s identification of appellant was equivocal, the State presented
other evidence corroborating appellant’s identity as one of the perpetrators of the
robbery. See Prihoda, 352 S.W.3d at 803 (stating that uncertain in-court
identification does not make verdict improper if there is other corroborating
evidence; in such case, uncertainty of witness is relevant to weight of testimony and
is for jury to consider). We conclude that, when viewing the evidence in the light
most favorable to the verdict, as we must, a rational jury could have found beyond a
reasonable doubt that appellant was one of the men involved in the robbery of Liu.
We hold that the State presented sufficient evidence establishing appellant’s identity
as one of the perpetrators of the robbery.
We overrule appellant’s first issue.
C. Law of Parties
In his second issue, appellant contends that the State failed to present
sufficient evidence that he was criminally responsible as a party to the aggravated
robbery offense. Specifically, appellant argues that the evidence shows that he was
18
merely present at the scene of the robbery and fled with the suspects, not that he had
a plan to commit the offense with the suspects.
To establish that appellant committed the offense of aggravated robbery, the
State was required to prove that appellant, while in the course of committing theft of
property owned by Liu, and with intent to obtain and maintain control of the
property, intentionally and knowingly threatened and placed Liu in fear of imminent
bodily injury and death while using and exhibiting a deadly weapon, namely, a
firearm. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011); id. § 31.03 (West
Supp. 2017) (setting out elements of theft). The jury charge also authorized the jury
to convict appellant under the law of parties. Under 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, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a)(2) (West 2011).
To determine whether a person is a party to an offense, we may look to events
occurring before, during, and after the commission of the offense, and we may
consider circumstantial evidence. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim.
App. 2012). “There must be sufficient evidence of an understanding and common
design to commit the offense.” Id. The mere presence of a person at the scene of the
crime, or even flight from the scene, without more, is not sufficient to support a
19
conviction under the law of parties. Id. Evidence is sufficient to convict a defendant
under the law of parties when the defendant is physically present at the commission
of the offense and encourages its commission by acts, words, or other agreement.
Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref’d).
The evidence must show that, at the time of the offense, “the parties were acting
together, each contributing some part towards the execution of their common
purpose.” Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.]
2013, pet. ref’d). Each fact need not point directly to the defendant’s guilt, but the
cumulative effect of the facts must be sufficient to support the conviction under the
law of parties. Gross, 380 S.W.3d at 186.
Appellant argues that the State produced no evidence that the other robbery
suspects and appellant had an agreement to commit the robbery. Appellant points
out that Liu did not testify that appellant had a weapon or made any verbal threats to
her, and he argues that Liu did not testify that his presence “contributed to her
decision to relinquish her vehicle” because Liu had already gotten out of the Lexus
when she saw appellant climb into the backseat. Appellant argues that the evidence
reflects that he was merely present at the scene of the robbery and fled with the
suspects. He also argues that his possession of the Lexus a week after the robbery
does not demonstrate that he committed a culpable act before or during the robbery
20
because post-offense conduct alone cannot form the basis of a conviction under the
law of parties.
However, Liu testified that three men approached her Lexus when it was
parked in the Chinese Community Center parking lot. The first man opened the
driver’s side door all the way and ordered her to get out of the Lexus. The second
man said nothing but pointed a gun at Liu, which prompted Liu to get out of her
vehicle. The third man, later identified as appellant, also said nothing and did not
have a gun, but he climbed into the backseat of the Lexus. Liu testified that she
pleaded with appellant in an attempt to regain her vehicle, but appellant merely
smiled at her from the backseat. After she got out of the Lexus, Liu observed another
vehicle, driven by a woman, sitting nearby and then following quickly behind the
Lexus as it drove away. One week later, appellant was discovered driving Liu’s
Lexus, and he fled from police officers both in the car and on foot when the officers
tried to conduct a traffic stop. The Lexus had a fake paper tag attached where the
license plate was supposed to be, and officers recovered a pistol from the backseat
console. Liu testified that the pistol looked similar to the one used during the
robbery.
The State thus presented evidence that appellant was part of a group of three
men who approached Liu and demanded that she relinquish her vehicle. One of the
men threatened Liu with a gun. When Liu pleaded specifically with appellant,
21
appellant ignored her pleas and smiled at her as the men drove away in her vehicle.
Appellant was then later discovered driving her vehicle. The evidence established
more than appellant’s mere presence at the scene, and it established more than
appellant’s involvement after the robbery had been completed. See Gross, 380
S.W.3d at 186 (“There must be sufficient evidence of an understanding and common
design to commit the offense.”). We conclude that the State presented evidence from
which a jury could rationally infer that appellant, when he approached Liu’s vehicle
with the other two men and climbed into the car while one of the men pointed a gun
at Liu, acted with the intent to promote or assist the commission of the aggravated
robbery and aided the other men in the commission of the robbery. See TEX. PENAL
CODE ANN. § 7.02(a)(2); Nelson, 405 S.W.3d at 123 (stating that, to uphold
conviction under law of parties, there must be some evidence that “the parties were
acting together, each contributing some part towards the execution of their common
purpose”). We therefore hold that the State presented sufficient evidence to support
appellant’s conviction under the law of parties.
We overrule appellant’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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