Mercedez Leshion Jones v. State

Affirmed and Opinion filed June 7, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00630-CR
MERCEDEZ LESHION JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1280521
OPINION
Appellant Mercedez Leshion Jones appeals from her conviction for aggravated
robbery. After appellant pleaded guilty, the trial court held a sentencing hearing, found
her guilty, and sentenced her to fifteen years in prison. In a single issue, appellant
contends that the State failed to offer sufficient evidence to support her conviction as
required under article 1.15 of the Texas Code of Criminal Procedure. We affirm.
Procedural Background
Appellant was indicted for, among other things, aggravated robbery with a deadly
weapon, specifically
on or about OCTOBER 3,2010, [appellant] did then and there unlawfully,
while in the course of committing theft of property owned by NOAH
HUNTER, and with intent to obtain and maintain control of the property,
intentionally and knowingly threaten and place CORY-ANN NEIL in fear
of imminent bodily injury and death, and . . . did then and there use and
exhibit a deadly weapon, namely, A FIREARM.1
Appellant pleaded guilty to this offense in writing on April 27, 2011, concurrently
waiving her rights to a jury, to confront and cross-examine witnesses, and against self-
incrimination. At the same time, she also signed a written confession and agreed to an
oral or written stipulation of evidence.
Appellant entered her plea in open court to Judge Lee Duggan, a visiting judge
sitting for Judge Mary Lou Keel. Appellant was not sworn in for these proceedings, and
the State did not introduce appellant’s written confession or any oral or written
stipulation as to the evidence against her. Judge Duggan accepted the guilty plea but
deferred a finding as to appellant’s guilt or innocence. Pursuant to an agreement between
appellant and the State, Judge Duggan ordered the preparation of a Presentence
Investigation Report (PSI).
Judge Keel presided over the sentencing hearing, taking testimony from one of the
victims as well as from the other victim’s father and appellant herself.2 Judge Keel also
represented that she had reviewed the PSI, which included a police offense report,
although the PSI was not introduced into evidence and is not a part of the record on
appeal. Judge Keel did not state that she took judicial notice of the court’s file. At the
conclusion of the hearing, Judge Keel found appellant guilty and sentenced her to fifteen
1
Appellant was also charged with aggravated assault and aggravated rape, but these charges were
dropped apparently as part of the agreement under which appellant pleaded guilty to the aggravated
robbery charge.
2
The witnesses’ testimony is discussed in more detail below.
2
years’ imprisonment.
Governing Law
Although the United States Constitution does not require substantiation of a guilty
plea in state court, Texas Code of Criminal Procedure article 1.15 does provide this
additional procedural safeguard. Tex. Code Crim. Proc. art. 1.15; Menefee v. State, 287
S.W.3d 9, 13 (Tex. Crim. App. 2009). Under the article, a court may not enter a
conviction in a felony case based on a guilty plea unless evidence is presented
establishing guilt in addition to and independent of the plea. Tex. Code Crim. Proc. art.
1.15; Menefee, 287 S.W.3d at 13-14. The evidence does not have to establish the
defendant’s guilt beyond a reasonable doubt but must embrace every element of the
offense charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.]
2010, no pet.).
Evidence substantiating a guilty plea can take several possible forms. Menefee,
287 S.W.3d at 13. Article 1.15 itself states that a defendant may consent to the
presentation of evidence either by oral testimony or in written form, or to an oral or
written stipulation of what the evidence would be, without necessarily admitting to its
veracity or accuracy. Id. Additionally, courts have recognized that a defendant may
enter a sworn written confession, or may testify under oath in open court, admitting his or
her culpability or at least acknowledging generally that the allegations against him or her
are in fact true and correct. Id. A deficiency in one form of proof may be compensated
for by other competent evidence in the record. Id. at 14. Evidence adduced at a
sentencing hearing may also suffice to substantiate a guilty plea. See id. at 18-19
(remanding in part for determination of whether evidence at sentencing hearing was
sufficient); Menefee v. State, No. 12-07-00001-CR, 2010 WL 3247816, at *1, *6-7 (Tex.
App.—Tyler 2010, pet. ref’d) (not designated for publication) (finding evidence at
sentencing hearing was sufficient).
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Analysis
Appellant signed a written confession that was also signed as approved by Judge
Duggan. A written confession approved by the court, and thus considered by the court,
can be sufficient to substantiate a guilty plea even if not introduced into evidence. See,
e.g., Palacios v. State, 942 S.W.2d 748, 750 (Tex. App.—Houston [14th Dist.] 1997, pet.
ref’d); Rexford v. State, 818 S.W.2d 494, 495-96 (Tex. App.—Houston [1st Dist.] 1991,
pet. ref’d). The circumstances in the present case are to some degree distinguishable
from those in Palacios and Rexford. Here, the judge who approved the confession, Judge
Duggan, was not the judge who subsequently found appellant guilty, and there is no
indication in the record that Judge Keel, who did find appellant guilty, considered the
confession. The confession was not introduced into evidence at the sentencing hearing
presided over by Judge Keel, and Judge Keel did not take judicial notice of the court’s
file or indicate that she had reviewed the file generally or the confession specifically.
However, we need not consider whether the written confession could nonetheless
substantiate the guilty plea because the evidence adduced during the sentencing hearing
was sufficient to substantiate the plea.
As stated above, appellant was indicted for aggravated robbery with a deadly
weapon. In order to substantiate appellant’s plea of guilty to the offense as charged, the
State was required to present evidence that appellant, while in the course of committing
theft of property owned by Noah Hunter and with intent to obtain or maintain control of
that property, intentionally or knowingly threatened or placed Cory-Ann Neil in fear of
imminent bodily injury or death through use or exhibition of a deadly weapon,
specifically a firearm. See Tex. Penal Code §29.03. Under the law of parties, appellant
could be held “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).3 A conviction under the law of parties requires a showing that, at the time of
3
At the sentencing hearing, the State urged the judge to find appellant guilty under the law of
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the offense, the parties were acting together, each contributing to their common purpose.
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). 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, which combined with other facts, may show that the accused was
a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979).
In her testimony at the sentencing hearing, Neil, a high school student at the time,
described events occurring in the early morning hours of October 3, 2010. According to
Neil, she had arranged to meet her friend Hunter and was talking to him on the telephone
regarding when and where to meet when Hunter was approached by several people, one
of whom had a gun. Hunter sounded “nervous and a little freaked out.” The phone “cut
off,” after which Neil attempted to call Hunter back numerous times before he again
answered. Within 15 seconds, a different male voice came over the phone. This person
instructed Neil to meet them and not call the police. Neil was afraid and was concerned
about what was happening to Hunter. The male called Neil back several times before she
arrived at a high school football field where she saw Neil standing with appellant and
three males, one of whom had a gun.
Neil further described that Hunter was hit several times, including at least once
with the gun. Neil herself was forcibly raped by two of the males. Afterwards, when one
of the males again began to sexually assault Neil, appellant said, “Stop . . . [l]et’s just get
the money.” Appellant and the three males then discussed “what they were going to do . .
. to get money and stuff.” The group walked to Hunter’s house, where appellant went
around a corner to make sure no one was there and was “on lookout,” while Hunter went
inside, apparently to get his ATM card. They then walked to a gas station near a grocery
store. Two of the males, including one with the handgun, stayed with Neil at the gas
parties. It is well settled that the law of parties may be applied in a case even when no such allegation is
contained in the indictment. Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011); Montoya v.
State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989); see also Conner v. State, Nos. 01-01-00433-CR, 01-
01-00434-CR, 01-01-00435-CR, 2001 WL 1383113, at *2 (Tex. App.—Houston [1st Dist.] Nov. 8, 2001,
no pet.) (not designated for publication) (applying law of parties in article 1.15 substantiation analysis).
Appellant does not argue otherwise in this appeal.
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station, while appellant and the remaining male took Hunter inside to withdraw money
from an ATM. When appellant, Hunter, and the one male returned from the grocery store
with the money, appellant and the three males discussed how to split the money. Finally,
Neil and Hunter were allowed to leave, but only after Neil was told that she had to deliver
at least $200 to them or they would hurt her brother. Neil believed that the telephone
number she was supposed to call when she had the money was appellant’s number.
In her testimony, appellant corroborated much of Neil’s testimony regarding the
events of October 3, 2010; however, appellant attempted to minimize her role in the
events, stating that as the only female in the group, she was afraid that something would
happen to her if she tried to leave. Appellant specifically acknowledged knowing that
one of the males had a handgun prior to the beginning of the encounter with Hunter, and
she acknowledged receiving some of the money that Hunter withdrew from the ATM.
This evidence was sufficient to demonstrate that appellant was criminally
responsible for aggravated robbery. The evidence demonstrated that at the time of the
offense, the parties were acting together, each contributing to their common purpose.
The evidence further demonstrated that in the course of committing theft of property
owned by Hunter and with the intent to obtain or maintain control of that property,
appellant or her accomplices intentionally or knowingly threatened or placed Neil in fear
of imminent bodily injury or death through use or exhibition of a deadly weapon,
specifically a firearm. Accordingly, the evidence substantiates appellant’s guilty plea,
and we overrule her sole issue on appeal.
We affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
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