Terrance Devaughn Edwards v. State ( 2019 )

Affirmed as Modified and Memorandum Opinion filed June 11, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00460-CR
TERRANCE DEVAUGHN EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1510607
MEMORANDUM OPINION
A jury found appellant Terrance Devaughn Edwards guilty of directing
activities of criminal street gangs. See Tex. Penal Code § 71.023. The jury assessed
appellant’s punishment at fifty-five years. Appellant timely brought this appeal and
raises five issues. For the reasons stated below, we modify the judgment and affirm
the judgment as modified.
BACKGROUND
From March to May of 2015, six aggravated robberies took place at various
cellphone stores in the Houston area. The investigation into the robberies revealed a
similar modus operandi and led investigators to believe the persons involved in
robbing the stores were part of a criminal street gang. Further, investigators
discovered the robbers were financed, directed, and/or supervised by identifiable
leaders. The investigation culminated in the arrest and indictment of appellant for
directing activities of a criminal street gang. Several accomplices testified at trial.
The jury found appellant guilty as charged and assessed his punishment.
SUFFICIENCY OF THE EVIDENCE
We initially consider appellant’s fifth issue in which he claims the evidence
is legally insufficient to support his conviction because, if sustained, that issue would
afford the greatest relief. See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d
1, 4 n.1 (Tex. App.–Houston [14th Dist.] 2002, no pet.) (stating reviewing court
should first address complaints that would afford the greatest relief). Because in
appellant’s third issue he contends the non-accomplice evidence was insufficiently
corroborated by other evidence, we separate the testimony of the accomplices from
that of the other witnesses in our discussion of the evidence adduced at trial.
The Evidence
A. Robbery of March 18, 2015
John Davis and two female associates were working at Cellular Sales, a
Verizon cellphone store located at 9105 West Road, when two men entered. Davis
and the sales associates were directed to put the phones from the safe — Apple
iPhones and Samsung Galaxy phones — into three pillowcases. The men were
aggressive, and both had guns. During the course of the robbery, one man pointed
2
his gun at the head of a sales associates who was kneeling on the floor and both men
pointed their guns directly at Davis. Davis was afraid he would be shot and feared
for his life. The men’s faces were covered by bandanas from the nose down and the
men were wearing hoods on top of their heads. Davis testified that he could tell both
men were African-American but that he would not be able to positively identify
them. Davis could not identify appellant in court.
It appeared to Davis the robbers had done this before. The robbers stated they
did not want the phone with a GPS tracker1 and rejected one with what appeared to
be a “sticky note.” Davis could not tell which phone had a tracker. As the men left,
they told Davis and the sales associates to lay face down.
Approximately two or three minutes later a deputy sheriff arrived and was
informed the suspects had fled. A Kroger employee told the deputy that she had seen
two males, one carrying what appeared to be several bags, run to the Kroger loading
dock, get into a car, and head north. A surveillance video at the loading dock showed
a car that appeared to be an early to mid-2000 Nissan Altima.
The store manager, Bobby Penny, was notified of the robbery. A list of the
inventory taken was compiled and the value of the phones stolen was $36,125.
At trial, surveillance video from inside the store was admitted into evidence.
B. Robbery of April 3, 2015
Jose Pleitez was a sales manager for a Radio Shack located at 5185 West 34th
Street on April 3, 2015, when the store was robbed. Pleitez was in the back of the
store when he heard a commotion at the front, where his co-worker, Adrian Barone,
was working. On the monitor, Pleitez saw people robbing the store. Pleitez activated
1
The phone with the tracker blends in with the others, but when picked up activates and
acts as a tracking device.
3
the alarm but did not close the safe for fear the robbers would hurt him or Barone if
they heard the noise. Barone was brought to the back of the store with his head
covered. Pleitez saw the robbers with at least two guns. The robbers wore masks and
gloves but Pleitez could see portions of their arms and based upon the tone of their
skin testified the robbers were African-American. They took Pleitez to the front and
demanded all the cash from the register. Pleitez complied. The robbers returned to
the back of the store with Pleitez and told him not to “hold back” on the merchandise.
Pleitez was threatened and told not to include any tracking devices. The robbers went
straight to the safe for the phones and to the register for the cash. After the robbers
left, the police were called. Pleitez estimated the robbers took about $300 to $500 in
cash from the register and approximately $20,000 to $30,000 in merchandise —
mostly smart phones.
At trial, a video recording from the store’s surveillance system was admitted
into evidence.
C. Robbery of April 15, 2015
Darrell Jerome Miles, a sales associate for a Verizon store on Wallisville
Road, was at work when the store was robbed. Miles had been assisting two women
in purchasing phones, and they began to leave the store. Miles was walking to the
back when the women began running in that direction. Two African-American males
wearing masks came into the store; Miles walked towards the register and lay on the
ground. The women in the back tried to shut the door on one of the males chasing
them and they began struggling with the door. Miles arose and began opening the
register, when he was instructed to get down. Miles’ co-worker was taken to the back
of the store. The man struggling with the two women took their phones and slammed
them onto the ground. Miles and his co-worker were instructed to get the cellphones.
There were two safes from which cellphones were taken and placed in two black
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bags. One of the safes also contained cash. At one point, a gun was put to Miles’
head and he was told to hurry up. Miles’ co-worker was told to “get the register” but
the men decided against it and left. Miles said the men did not have time and were
there for the phones.
Surveillance footage from the store was admitted into evidence during trial.
The surveillance footage shows one man looking at his watch as if to gauge the time
spent inside the store and Miles thought they worked as if they were on a time limit.
It did not appear the men were talking on their own phones. Miles thought the men
knew what they were doing and were experienced in committing this type of crime.
He called 9-1-1 after the men left. The men took a large number of phones —
predominantly iPhones and Samsung Galaxy phones — with a value of about
$46,174. The getaway vehicle had been stolen and was recovered within two miles
of the store. Three brown pillowcases were found inside.
Sergeant Ben Katrib with the Harris County Sheriff’s Office was assigned to
follow up on the investigation. The suspects had fled north toward a residential
subdivision north of the store. Katrib recovered video from residential surveillance
cameras which showed a silver Buick automobile with a man waiting inside. Two
males, one of whom had a bag similar to the one on the store surveillance video, got
into the Buick and proceeded north.
D. Robbery of April 26, 2015
Brandon Nolen worked at an AT&T store at 2123 Crosby Freeway on April
26, 2015. The store did not have video surveillance. Two customers, Raymond
Polka, Jr., and his sixteen-year old nephew, Dalton James Grosshart, were in the
store. Two males and one female, all African-American, entered through the front
door. Two of them had handguns and all three had black masks. Polka testified that
both the female and the smaller male had guns, but he did not recall that the larger
5
male had a gun. Grosshart testified that two of the three had weapons. Nolen thought
the guns had a shape and slide like a Glock. Polka saw one of the guns up close and
it looked like a Glock. Polka testified that he is familiar with firearms and it was
definitely that style. Grosshart also testified that one of the pistols looked like a
Glock.
Nolen tried to run but a man pointed a gun at him and told him to stop or he
would shoot. Nolen stopped, and was told not to move and to get on the ground. The
gun was pushed into Nolen’s back and he complied. The second person took control
of Polka and Grosshart, who were ordered to lie on the ground. The third person
locked the door.
Nolen, Polka and Grosshart were ordered to the back room and told to get
down. Polka’s and Grosshart’s phones were broken when the larger man threw the
phones to the ground and stomped on them. Nolen was given a bag and told to open
the safe. The intruders rushed him, pressed the gun against his shoulder, and got
louder and more aggressive. Their behavior escalated when Nolen had trouble
opening the safe. They told Nolen to hurry and put everything in the bag. Nolen was
shaking and scared. He started filling the bag before he “froze” and was told to lay
on the ground. The robbers pointed their weapons at Grosshart and Polka but did not
say they would shoot them. One of the men took the bag and began filling it.
The robbers took the majority of phones in the safe, including a tracker phone.
Nolen testified that none of the suspects said anything to him about a tracker phone.
At trial, Nolen testified he created an inventory list and most of the phones taken
were iPhones and Samsung Galaxy phones, and that the robbers appeared to know
what they were looking for and selected those model phones. Nolen recalled the
robbers saying to get more money and hurry up but did not recall if they made him
open the cash register or if took any cash. The robbers stopped unloading the safe,
6
told Nolen to put his head down and placed a gun to the back of his head. When
Nolen looked up, the robbers were gone. Nolen called 9-1-1. Polka testified the
robbery took less than five minutes, and stated, “They definitely had a plan in place
and executed it.” Neither Polka nor Nolen saw any of the three robbers talking on
their phones.
There was a “Bloodhound” tracker in the stolen phones, which activated. A
“bloodhound” is a GPS tracker designed to look like a normal cellphone; however,
when it travels a certain distance from a designated location, it is activated, and the
signal goes straight to dispatch. Based on the information provided by the tracker, a
deputy identified a likely suspect vehicle and activated his vehicle’s emergency
lights. The suspect vehicle eventually stopped, and three people ran in a northerly
direction into a patch of woods. The driver remained in the vehicle. When another
unit arrived, the driver, identified as James Philpot, was taken into custody.
Firearms and ammunition were recovered from the stopped vehicle,
specifically a black Glock .45 caliber pistol and magazine, a black Glock .40 caliber
pistol and extended magazine, and a black Sig Sauer .45 caliber pistol and magazine.
Two bags filled with cellphones and related items were found on the floorboard in
the back of the vehicle. Cash also was found in the vehicle.
A search began for the three suspects who fled on foot. Black clothing and a
pair of earbuds were found. After a search of the wooded area was discontinued,
officers went to a church just north of the searched area. They were approached by
a witness who had observed two African-American males run from the wooded area
into the Kingman subdivision. The officers drove to the neighborhood and located
two suspects. Both men were wet and muddy, indicating they had been inside the
wooded area. They were detained and later identified as Deondrick Mitchner and
Levonte Williams.
7
Jaimi Hawkins, the female suspect, was later arrested after an individual came
forward with information. That individual provided cellphone video of Hawkins
bragging about having committed the robbery.
Sergeant Katrib asked to be assigned to the April 26 robbery because he
believed it might be related to the April 15 robbery, based upon the relative locations
of the two stores and the similarities between the two robberies. Also, a hooded
sweatshirt recovered in the wooded area after the April 26 robbery was similar to a
sweatshirt worn by one of the suspects in the April 15 robbery. Katrib found it
significant that in both the April 15 and April 26 robberies, suspects took a
complainant’s cellphone and smashed it to the ground.
Before interviewing any suspects, Katrib gathered information on a group of
individuals committing aggravated robberies on the east side of Harris County,
specific to that area. There were several names involved and the suspects were
considered to be members of a gang, because they were individuals that had decided
to work together to get money.
E. Robbery of April 27, 2015
Anne Reston was working at a T-Mobile store located at 2500 Green Oak
Drive in Kingwood, Texas, when two men entered with their faces covered by
ripped-up T-shirts. They cocked their guns and said it was a robbery. The store was
equipped with video surveillance. The shorter man told everyone what to do while
the other man, who had been wearing iPhone earbuds, did not say much. Reston did
not recall hearing him talk on a phone. Reston and her co-worker, Francisco, were
told to go in the back of the store, where the phones and deposits were kept. Reston
was told to open the safe but lied and said she was new and did not have access.
Reston emptied the cash registers as she was directed. One of the men put phones
into a T-Mobile bag from the store. A man tried to enter the store but saw Reston
8
emptying the registers with a gun right behind her. Reston believed he called the
police. The robbers went out the front door and Reston pushed the panic button.
Reston did not recall the exact value of the phones stolen but stated it was more than
ten of the expensive ones, ranging from $700 to $1,000 each.
Houston Police Department Officer Gary Sanchez responded to the call.
Sanchez was informed a citizen was following the suspect vehicle and shots had
been fired at the citizen. The vehicles were coming towards Sanchez’s location and
when he began pursuit, the civilian backed off. The vehicle was described as a silver
Nissan Altima, license plate FJS 8457. The vehicle made a U-turn and shots were
fired in Sanchez’s direction. Sanchez followed and notified dispatch that he was in
pursuit, shots had been fired, and the three occupants in the vehicle appeared to be
changing clothes. The vehicle came to a stop on the highway and three males exited
the vehicle — one went northbound, one went southbound, and the remaining male
entered the driver’s seat and proceeded southbound. One of the men on foot was
taken into custody at a gas station by Officer Travis Vaughn of the Humble Police
Department. He was later identified as Dominic Rodriguez. The other man on foot
was found in a Chili’s restaurant and taken into custody by Officer Dwayne Pruitt,
Jr., of the Houston Police Department. He was later identified as Randall Sullivan.
A “hoodie-type” sweatshirt that could have been discarded by one of the suspects
was found in some nearby bushes.
Detective Kenneth Edie of Houston Police Department was assigned to
investigate. When Edie arrived at the T-Mobile store, the two suspects who had been
apprehended had been taken back to the store. Edie identified the two suspects as
Rodriguez and Sullivan. Edie testified Rodriguez’s appearance that night was
consistent with one of the suspects on the store’s surveillance video and with
9
someone who had discarded a hoodie seen in the video. The suspects were charged
with evading arrest.
Edie received information that Rodriguez and Sullivan were connected to
suspects in other robberies that the Harris County Sheriff’s Office was investigating.
Detective Edie and Sergeant Katrib began a joint investigation. Katrib had audio
recordings that tended to connect the April 27 robbery with the other cases. Edie
reviewed the recordings and determined they were relevant to the various
investigations.
Two days after the robbery, the getaway vehicle, identified by the license plate
FJS 8457, was found abandoned. The back window on the passenger’s side of the
vehicle was broken out.
F. Robbery of May 21, 2015
Jose Barrera was employed by Connectivity Source, a Sprint provider, on May
21, 2015, at a store located at 566 West FM 1960. The store was equipped with video
surveillance. Two masked men ran into the store. The men took approximately forty
phones from a safe. One of the men said not to put a tracker in the bag and threatened
to come back if he found one. There was a tracking device in the safe and the other
employee put a tracker in the bag. A man holding a gun commanded Barrera to take
the money from the drawer. One of the weapons looked like a handgun; it was silver
and black with an extended clip. Barrera and his co-workers stayed in the back room
for several minutes after the men left. Someone called 9-1-1. A tracking device is
mentioned in the call.
Matthew Garrett Major, Field Operations for Sprint Connectivity Source, was
alerted that a GPS tracking device was moved. He called the store, but no one
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answered. Major accessed the security cameras and realized a robbery was in
progress. Major called the police department.
Deputy Terrence Bullard of the Harris County Sheriff’s Office responded, and
as he approached the scene he saw a light-colored Mercedes Benz exit a parking
spot. There were two African-American males in the front seat. Video surveillance
from a Chili’s restaurant across the street from the Sprint store shows that the vehicle
used as the getaway car arrived as the robbers were exiting the store and the gold
Mercedes Benz followed the getaway vehicle. The video does not show appellant’s
face.
Using the tracker’s location, the lead patrol car, with lights and sirens
activated and other deputy patrols following, pursued the getaway vehicle, a
Mercury Grand Marquis with temporary plates. During the chase, one of the officers
was flagged down by two citizens regarding a firearm on the road. The firearm was
taken into police possession. Eventually, the Mercury Grand Marquis turned into a
subdivision, went down a dead-end street, and stopped. Two people immediately
exited the vehicle and jumped over a fence. There was one person left in the vehicle.
A deputy held him at gunpoint until another unit arrived and removed him from the
vehicle. That man was identified as Antoine Duplechin-Holden.
Officers located the individuals who had fled on foot. The suspects were
tracked by a police dog to a metal storage building at the back of a residence. The
suspects were detained and eventually taken back to the store where they were both
identified by Barrera. Those men were later determined to be George Randall and
Christin Criswell.
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G. Geolocation Evidence
Following the robbery on May 21, 2015, Katrib interviewed George Randall,
Antoine Duplechin-Holden, and Christin Criswell. Photographic lineups shown to
the three suspects resulted in positive identifications of Quinton Malbrough2 and
appellant. Randall, Antoine, and Criswell consented to a search of their cellphones.
On Randall’s cellphone, the contact “Streetz” had phone number (***) ***-0232.3
Randall’s log had a call from that number. Philpot’s phone also had a contact for
“Streetz” with the same number, (***) ***-0232. Philpot, Antoine and Anthony Hill
testified that appellant’s nickname is “T-streetz.” Mitchner testified appellant’s
nickname is “Streetz.” The subscriber for that phone number is Yereka Lee and
evidence was introduced that she and appellant had a child together. Katrib testified
that he identified the voice on the receiving end of a phone call made to (***) ***-
0232 as appellant. Katrib then identified appellant in the courtroom.
Katrib testified the phone records showed who was communicating before,
during, and after the robberies. The phone records demonstrated the approximate
location of the cellphone at the time of the offense, where that cellphone traveled,
and with which other cellphones — before, during, and after the robberies — there
was communication. Katrib testified there was sufficient corroboration from the
cellphone records to establish probable cause to arrest appellant. Warrants to arrest
appellant and Malbrough were obtained.
2
As noted below in the excerpt from the jury charge, Malbrough was identified as part of
the leadership of the criminal street gang,
3
We have redacted a portion of the cell phone numbers.
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Records showed calls from appellant to the number associated with the store
where Ali Riaz worked.4 Those calls corresponded with some of the dates of the
robberies.
Deputy Victor Vagliente of the Harris County Sheriff’s Office accompanied
Katrib as part of a warrant execution team. Katrib executed an arrest warrant for
Malbrough, while Vagliente executed a search warrant by entering Malbrough’s
apartment. Vagliente recovered guns, black gloves, and ski masks from the
apartment.
Katrib conceded that appellant never entered the stores. Appellant is not seen
in any of the surveillance video from the robbed stores and there is no DNA or
fingerprint evidence tying appellant to the stores or the vehicles. During his
interview with Katrib, appellant denied knowing the individuals who committed the
robberies.
Katrib also provided information to James Taylor, of the Communications
Intelligence Unit of Houston Police Department, about which phone numbers
corresponded to the various suspects. Taylor prepared a report based upon the phone
records and testified at trial to his findings. We summarize Taylor’s findings, as
related to the issues in this case, below.
H. Evidence of Telephone Communication
On March 18, 2015, there was a call from Mitchner to Malbrough, close in
time to when the robbery was reported to the police. The call was made in the direct
area of the robbery.
4
As noted below, Riaz was charged with felony theft, specifically theft by receiving stolen
property, for purchasing the stolen cellphones.
13
On April 3, 2015, Malbrough called Williams at 12:54 p.m., thirty to forty
minutes before the robbery. The call was prefaced by star 67 to block the number
from being displayed on Williams’ cellphone. Within three minutes of the robbery
being reported to police, Hill called appellant from a location close to the robbery
scene. Additional calls were made at approximately 1:13 p.m., 1:16 p.m., 1:27 p.m.,
and 1:50 p.m. that day. Three calls between Malbrough and Williams were made
immediately before and after the robbery. Almost immediately after the robbery,
calls were made between appellant and Riaz. From 4:52 p.m. to 4:58 p.m. that day,
there were repeated calls between appellant’s phone and Malbrough’s phone through
the cell tower adjacent to Riaz’s store.
On April 15, 2015, there was a phone call from appellant to Williams at 6:35
p.m., just prior to the robbery. Calls were made immediately following the robbery.
There was a call between appellant and Riaz at 6:57 p.m. Several hours after the
robbery, there were seven calls between appellant and Malbrough. Those calls went
through cell towers located in the area near the robbery. There were also text
messages from Randall to appellant and Malbrough that day.
On May 4, 2015, there were text messages to appellant from Randall and
between Randall and Malbrough.
The day before the robbery on May 21, 2015, there were text messages from
Malbrough to Randall. On the day of the robbery, approximately twenty minutes
before it was reported, there was a call between Malbrough and Randall. The calls
went through a cell tower in the area near the store being robbed.
Taylor testified the only communications between the group of analyzed
records and Riaz were with appellant’s phone. Although Taylor received records for
a large number of different handsets associated with appellant’s phone, the records
14
did not show that anyone other than appellant ever contacted the number associated
with Riaz.
Taylor analyzed the communications and mapped the locations of the phones
on the dates and at the times when the robberies occurred. The phones associated
with appellant and Malbrough were in an area consistent with being at or near the
scene of multiple incidents at the times of the respective episodes. The phones
associated with appellant and Malbrough communicated with individuals who
committed the respective crimes during the time of the crimes.
Taylor admitted that cell tower records cannot tell precisely where a cellphone
is at any time or who is holding the phone. Further, Taylor testified most of the calls
involved Malbrough.
I. Accomplices
The trial court found, and instructed the jury in the charge, that the following
witnesses were accomplices as a matter of law: Jaimi Hawkins, Antoine Duplechin-
Holden, Anthony Hill, Deondrick Mitchner, and Denarwin McCoy. As appellant
acknowledges in his appellate brief, Ali Riaz was not included in the accomplice-
witness instruction. Appellant makes no complaint that the charge was erroneous,
but he asserts Riaz was also an accomplice, because at the time of trial he was
charged with felony theft, specifically theft by receiving stolen property, for
purchasing the stolen cellphones. In support, appellant cites Blake v. State, 971
S.W.2d 451, 454 (Tex. Crim. App. 1998), for the holding that an accomplice is a
person who could be prosecuted for the same offense, or a lesser-included offense,
as the defendant.
In addition to being charged with directing activities of a criminal street gang,
appellant was charged with the lesser-included offenses of aggravated robbery and
15
felony theft. In Ash v. State, 533 S.W.3d 878, 886 (Tex. Crim. App. 2017), the court
clarified that “a witness is an accomplice as a matter of law . . . [i]f the witness has
been charged with the same offense as the defendant or a lesser-included offense.”
Because Riaz was charged with a lesser-included offense of the offense with which
appellant was charged, Riaz’s testimony is subject to the accomplice-witness rule.
Accordingly, we also separate it from the above evidence. See Ash, 533 S.W.3d at
886; see also Blake, 971 S.W.2d at 454.
1. Ali Riaz
Riaz recognized appellant and identified him. Riaz’s initial encounters with
appellant occurred when appellant came to the store where Riaz worked to pay for
monthly prepaid contracts. Riaz did not recall whether appellant bought a phone
from him. About eight or nine months after appellant began coming to the store,
appellant started selling phones to Riaz, one to two at a time, for $20 to $25 per
phone. Appellant gradually brought in more phones, up to four or five at a time,
every week or every few weeks. This occurred about ten to fifteen times. Riaz could
not recall in what month those transactions occurred. In their last transaction in April
2015, appellant brought in thirty to thirty-five phones at one time.
Riaz testified that he checked the IMEI (International Mobile Equipment
Identity) number of each phone — a 15-digit code unique to the phone — while
appellant was in the store and none of the phones were blacklisted. Appellant
frequently called Riaz seeking an offer but if they could not agree on price, appellant
did not come into the store and the sale did not take place. The number of sales that
did not occur was substantially more than the number that did. Riaz estimated they
did not come to an agreement sixty to seventy times. When questioned about a prior
16
statement where Riaz said it was twice, Riaz said he must have misunderstood the
question.
Riaz testified that he would verify the phone was not stolen based upon its
IMEI number and, after a price was negotiated, pay appellant cash for the phone.
Riaz testified that stolen phones were “blacklisted” by the carrier and had no value.
Riaz was instructed by the store’s owner, Furquan Narejo, to run the IMEI numbers
each time to ensure the phones were not stolen. Riaz testified that every time
appellant brought him a phone, he ran the IMEI number and none was reported
stolen.
According to Riaz, the phones were kept in the store after they were purchased
from appellant. They were then sold to a man named Attif and the sales were
conducted at Attif’s house. The profit gained from selling the phones purchased from
appellant went to Narejo. The phones were in the box, but not in shrink wrap, which
would have indicated the phone had been activated. Appellant told Riaz that from
the money received from the sales he had to pay other people, but he did not say who
they were. Riaz paid about $150 below market price for the phones. The cash to buy
the phones came from Narejo.
Riaz testified that on the occasion when appellant brought in thirty or more
phones to sell, Riaz paid him $12,000 to $13,000 cash from Narejo, plus $4,000 to
$5,000 from the store. Riaz testified that was not a normal transaction. According to
Riaz, he ran all the IMEI numbers and Narejo told him to buy all the phones.
Riaz’s store was burglarized in July 2015, at a time when it was closed. Phones
and accessories were stolen. Katrib showed Riaz photographs of suspects and asked
if he recognized anyone. Katrib did not ask Riaz to identify anyone involved in the
robbery. Riaz circled appellant’s picture. Riaz confirmed that the person he
identified was appellant. Riaz did not believe that appellant was only selling phones
17
to him. Riaz testified that he did not think the phones he purchased from appellant
were stolen.
Riaz paid between $475 to $500 for the phones with smaller gigabytes. That
amount would increase $100 for phones with more gigabytes. Riaz estimated that
before the large sale, he cumulatively had paid appellant about $25,000 for the
smaller sales. Riaz always paid appellant in cash, brought to appellant by Narejo,
who authorized the purchases, or from the cash register. Riaz estimated that
appellant was paid $40,000 to $45,000 for all the transactions between them.
2. Anthony Hill
Hill participated in the March 18 and April 3 robberies. He identified appellant
in the court room. Hill had known appellant for approximately four years. Hill
described appellant as a friend and said he thought of him as a big brother. Hill said
their relationship was important to him.
On March 18, 2015, Hill received a call from Sullivan, a friend from school,
asking Hill to come to his house. When Hill arrived, several individuals were at the
house, including appellant. Appellant told Hill to follow him. Hill was the driver for
Williams and Mitchner, and the three of them were in a 2005 Nissan Altima. Hill
testified the target for the robbery was chosen by Malbrough and appellant.
Appellant was communicating with Hill by speakerphone, and Hill was able to hear
both appellant and Malbrough. Williams had a pistol, and his role was to hold the
gun and take the money. Mitchner’s role was to hold the bag and make sure all the
phones were placed inside. While they were driving to the target location, appellant
told Williams and Mitchner to go in the store, get all the phones, and run.
Appellant and Malbrough were acting as lookouts from across the street. Over
the phone, appellant described what was happening during the robbery to Hill, who
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could not see inside the store. When Williams and Mitchner came out, Hill was ready
because appellant had told him they were coming. Williams and Mitchner exited the
store with two sacks of phones and got in Hill’s car. Hill drove to a set of apartments
where the phones were transferred to Malbrough’s car. The phones were to be sold
by Malbrough and appellant. Appellant would not identify the buyer. Later that day
at Sullivan’s house, appellant paid Hill $750. Appellant also paid Williams,
Mitchner, Sullivan, Marcus Rogers, McCoy, and Torrey Smith, but Hill did not
know the amounts. Hill did not know why those who did not directly participate in
the robbery were paid. Appellant had a large sum of money after selling the phones
and paid cash. According to Hill, appellant and Malbrough were in control and made
the decisions — they chose the robbery targets, who would participate in the
robberies, and what role each person played.
On April 3, 2015, Hill received another call from Sullivan to be the driver in
another robbery. Williams, Criswell and Randall were to enter a Radio Shack chosen
by Malbrough. They were in a car driven by Hill, who was followed by Malbrough
and appellant in another vehicle. Hill was able to communicate with Malbrough and
appellant by speakerphone, but he did not receive any instructions because Williams,
Criswell, and Randall already knew what to do. Williams, Criswell and Randall went
into the store. Williams and Randall were armed. Hill was not on the phone with
appellant or Malbrough during the robbery, but testified appellant and Malbrough
were in the area acting as lookouts. Appellant and Malbrough assigned specific jobs
to Williams, Criswell, and Randall and issued instructions during the robbery to the
men in the store. Both appellant and Malbrough were in charge; they provided the
leadership and made the decisions.
Williams, Criswell, and Randall returned to Hill’s vehicle with the stolen
phones. They proceeded to Malbrough’s house to count the phones. Hill was only
19
paid $300 because the phones were worth less than those stolen on March 18.
Appellant paid everyone after the robbery. Malbrough and appellant were the only
ones that handled the money. Hill told appellant several weeks later that he did not
want to be the driver for any more robberies.
On cross-examination, Hill altered his testimony. Specifically, Hill testified
that for the March 18 robbery, it was Sullivan, and not appellant, that told Hill they
wanted him as the driver. Hill said Malbrough picked the store and told him to
follow, and Malbrough was driving the car. During the drive, appellant did not tell
Hill where to go, and they were not on the phone at the time. Appellant did not tell
Williams and Mitchner what to do; they knew what to do. When Hill pulled up to
park, he could see Malbrough’s car and it was too far away for Malbrough and
appellant to be able to see what was happening in the store. When Hill was paid at
Sullivan’s house, it was Sullivan who handed him the money. Hill agreed that “[t]his
was a loose group of guys getting together” to commit aggravated robbery.
Regarding the April 3 robbery, Hill testified that he could not see Malbrough’s
car when he parked at the Radio Shack. Appellant and Malbrough never said they
would be lookouts. It was Malbrough who handed Hill the money after the robbery.
Hill agreed that Katrib told him that Malbrough and appellant were lookouts and
claimed that he was under the influence of marijuana, promethazine, and Xanax
when he was arrested and first talked to Katrib. Hill said he was intimidated by
Katrib. Hill admitted there were mistakes in his statements to the officer and in his
testimony. Hill testified that no one was ordered or told what to do because they
already knew.
On redirect, Hill admitted that he regretted accepting the plea bargain. Hill
said appellant is not a bad person and helps others when they need it. Hill did not
20
want to see appellant in trouble and admitted that he was trying to prevent appellant
from being convicted.
3. Deondrick Mitchner
Mitchner participated in the March 18 and April 26 robberies. He identified
appellant in court, whom he first met on March 18, 2015. Mitchner was introduced
to appellant by his brother, Williams. Mitchner had met Malbrough about a year
earlier. Appellant gave Mitchner the “rundown,” and he and Williams agreed to do
the robbery. Appellant told Mitchner to get in and out as quickly as possible.
Mitchner said he believed appellant had chosen the location. However, Mitchner
also testified that both appellant and Malbrough gave him “the rundown” and
Malbrough was saying it “the most” while appellant agreed with Malbrough.
Mitchner also admitted he did not know who chose the location.
Hill drove Mitchner and Williams to the cellphone store. When Mitchner
entered the car, the weapons were already inside. While they were in the car, Hill
was on the phone with someone that Mitchner believed was appellant. Appellant
was in a separate car with Malbrough, but Mitchner did not see their car in the
parking lot outside the store. Malbrough and appellant told Mitchner they were going
to drive around and scope out the area.
Before Mitchner entered the store, appellant called and asked Mitchner if he
was ready. Appellant had told Mitchner not to get any tracker phones. Mitchner
carried a weapon during the robbery and Williams carried the bag. After the robbery,
they ran out the front door and around the store to the back where Hill was waiting.
The men then went to a location selected by appellant to transfer the phones to him.
Mitchner thought the phones were turned over to appellant. Appellant sold the stolen
phones and paid Mitchner and Williams. Mitchner was paid $1,500. Mitchner was
in a car with appellant and Malbrough when he was paid. Mitchner did not see
21
appellant pay Williams but believed Williams had been paid. Mitchner testified
Malbrough handed Mitchner the cash in the car, but also stated he did not remember
if it was appellant who paid him.
At trial, Mitchner identified Williams in the surveillance video from the store
robbery on April 15, 2015.
Mitchner and Williams also participated in the April 26 robbery, along with
Hawkins. Rogers chose the store and he picked up Mitchner. They switched to a
gold car driven by Philpot. Mitchner, Williams, and Hawkins went into the store.
Mitchner and Williams were armed but Hawkins was not; her job was to get the
phones. The weapons were in the car when Mitchner entered it. They left the store
with stolen cellphones.
As they were driving down the freeway, a police vehicle pulled up behind
them. After they stopped, Mitchner, Williams, and Hawkins ran into some woods.
They came to a residential area and about fifteen minutes later, police cars arrived.
Mitchner was arrested. According to Mitchner, the plan was to sell the phones.
Mitchner “guessed” the driver was supposed to sell them.5
After his arrest, Mitchner was taken to the police station and met with Katrib.
Mitchner referred to appellant and Malbrough as Batman and Robin when asked
about their relationship. Mitchner had his cellphone when arrested. Mitchner
identified his e-mail address and cellphone number. Mitchner believed Malbrough’s
number was saved on his phone and that he exchanged text messages with
Malbrough.
5
It is unclear whether “the driver” refers to Rogers or Philpot.
22
4. Jaimi Brandi Hawkins
Hawkins participated in the aggravated robbery on April 26, 2015. Rogers
picked Hawkins up “to go rob a store.” Williams and Mitchner were with Rogers
and both had firearms in their pockets. They all wore hoods and had masks to cover
their faces. Philpot drove Hawkins, Williams, and Mitchner to the store in a Pontiac
Torrent. Philpot had the idea to call the store to ensure they had iPhones.
Williams entered the store first, followed by Mitchner and Hawkins. Hawkins
went straight to the back of the store and placed about forty phones from the safe,
which was already open, into a duffel bag. Hawkins did not see Williams or Mitchner
threaten the clerk with a gun to open the safe.
After the robbery, Hawkins got into the car with Rogers. After driving about
a mile, they switched to Philpot’s car. They were chased and stopped by police and
they all got out and ran. Hawkins ran into the woods and later went home. She was
arrested a week later. Hawkins identified items found in the Pontiac driven by
Philpot as the phones taken from the store and the firearms carried by Williams and
Mitchner. Hawkins did not know appellant and had only seen him once before. She
did not recognize him in the courtroom.
5. Denarwin James McCoy
McCoy testified that he participated in the April 27, 2015, robbery. McCoy
identified himself on the video surveillance admitted into evidence.
23
6. Antoine Duplechin-Holden
Antoine participated in the robbery on May 21, 2015, along with Randall and
Criswell. According to Antoine, Randall was committing aggravated robberies that
were orchestrated by appellant and Malbrough. Antoine identified appellant in court.
Randall introduced Antoine to appellant and Malbrough. Appellant and
Malbrough were already watching the intended target, a Sprint store. Antoine and
Randall talked to appellant and Malbrough three to four times about committing an
aggravated robbery. At the third meeting, they prepared for the aggravated robbery.
Appellant told Antoine the plan for the robbery. The first step would be to obtain a
stolen car. Appellant said there would be two people in the stolen car and one person
in the getaway car. Two people would enter the store and get the phones and money.
Those three would leave in the stolen car, drive to the getaway car, and take the
getaway car to an assigned destination. Appellant said he and Malbrough would be
watching from afar. It was no more than ten days from that meeting until the robbery.
On the day of the robbery, Randall picked Antoine up at Antoine’s house.
Randall, Criswell, and Antoine went to the east side and waited for the stolen car, a
Dodge Durango. Antoine could tell it was stolen because there was a screwdriver in
the ignition. Randall was the driver, and Criswell and Antoine were to enter the store.
The Durango broke down on the freeway and was abandoned. They then took
Antoine’s car, a 2001 Grand Marquis, after replacing the license plates with paper
tags from another car and drove to the Sprint store.
Appellant provided the firearms a few days earlier. They had followed
appellant to a two-story home where he retrieved a black backpack with two guns
— a .45 Kimber with a 30-round clip and a .357 Magnum.
24
Malbrough and appellant were in Malbrough’s gold Mercedes Benz.
Appellant and Malbrough were already watching the store and told the others to
stand by. During the robbery, Antoine was able to see Malbrough’s parked vehicle
in the first parking space in front of a Chili’s restaurant. Antoine, Randall, and
Criswell were parked in front of another store. Appellant and Malbrough called
Randall’s phone — Antoine could hear both their voices on speakerphone — and
they were told to get ready because a lady was going to leave and there were two
workers in the store. Antoine predominantly heard appellant’s voice. They were told
the woman had left and appellant said, “Y’all get ready. It’s — y’all can start now.”
Randall pulled up between Chili’s and the Sprint store, and Criswell and
Antoine exited the vehicle at the front door. Randall told Antoine who would go in,
who was going to hold the bag or the gun, and how to empty the safe. Antoine did
not know who showed Randall how to rob the store. Antoine had the phone in his
pocket on speakerphone the whole time and was able to hear instructions and
communicate with Randall.
Criswell and Antoine entered the store. Criswell had the weapon and Antoine
had the bag. Criswell told the people in the store to go to the back. There were three
males inside, two of whom were employees, and they were told to get down. One
employee opened the vault with the phones and placed them in a bag as fast as he
could. Antoine did not have a gun in the store, only a bag. Antoine did not steal
money from anyone’s pocket but believed Criswell did. Antoine and Criswell took
phones and iPads, grabbed the money from the register, and left.
Antoine saw the faces of appellant and Malbrough in Malbrough’s car when
he exited the store. After they drove away, they did not see Malbrough’s car again.
Randall was ready because he knew when to pick them up from the store. Before the
robbery, Antoine heard over the speakerphone that they were to return to the east-
25
side condos with the stolen property. Antoine and Criswell were in the back seat
checking for a tracker phone. Randall proceeded north. Antoine saw a squad car
driving too fast and doing too much maneuvering, and he alerted Randall. Randall
sped up and so did the squad car, lights activated. More than one squad car was
following them. Criswell “threw the gun outside — shot the window.” The magazine
for that gun also was thrown out. Antoine did not know what happened to the other
gun. During the pursuit, appellant and Malbrough called Randall after Randall called
them.
Eventually, Randall turned into a cul-de-sac. Criswell and Randall ran from
the car, but Antoine could not exit the car. A police officer was there immediately
and arrested Antoine. Police searched for Criswell and Randall for approximately
two or three hours until apprehending them. Antoine saw Randall but did not see
Criswell until they got to Harris County. Antoine’s phone was taken when he was
arrested. He did not have appellant’s or Malbrough’s number in his phone, but he
had Randall’s number.
Antoine expected to be paid “probably about more than $3,000,” but no
amount was ever actually agreed upon. Antoine was never paid because he got
caught.
Appellant never went into the Sprint store and Antoine did not know if
appellant had a gun in his possession. No one made Antoine do anything, but,
according to Antoine, appellant and Malbrough were the leaders and they were
orchestrating and organizing the crimes. Appellant and Malbrough were the ones
“[w]atching the store to commit the crime.” Appellant never called Antoine’s phone.
No one had to tell Antoine that appellant was the leader.
26
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view all the evidence in
the light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011); see also Jackson v. Virginia, 443 U.S. 307, 318–19, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The jury is the exclusive judge of the credibility
of the witnesses and the weight to be given to the evidence. See Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the jury’s
responsibility to fairly resolve conflicts in testimony, weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Id. This standard
applies to both circumstantial and direct evidence. Id. We do not engage in a second
evaluation of the weight and credibility of the evidence, but only ensure the jury
reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.
1993).
Although the charge did not include Riaz in the accomplice-witness
instruction, we measure the sufficiency of the evidence as defined by the
hypothetically correct jury charge. McCombs v. State, 562 S.W.3d 748, 759 (Tex.
App.—Houston [14th Dist.] 2018, no pet.) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden or restrict the State’s theories of liability, and adequately describes
the offense for which the defendant is on trial. Id. Our use of the hypothetically
correct jury charge ensures a judgment of acquittal is reserved for cases in which
there is an actual failure in the State’s proof of the crime, rather than a mere error in
the jury charge. Id.
27
Analysis
As applicable to the facts of this case, a person commits the offense of
directing activities of a criminal street gang “if the person, as part of the identifiable
leadership of a criminal street gang, knowingly finances, directs, or supervises, the
commission of, or a conspiracy to commit . . . by members of a criminal street gang
. . . a felony offense that is listed in Article 42A.054(a), Code of Criminal Procedure
. . .” Tex. Penal Code § 71.023(a)(2). The felony offense at issue in this case is
aggravated robbery. See Tex. Code Crim. Proc. art. 42A.054(a)(10). A criminal
street gang is defined as three or more persons who have a common identifying sign
or symbol, or an identifiable leadership, who continuously or regularly associate in
the commission of criminal activities. Tex. Penal Code § 71.01(d). Specifically,
appellant contends the jury could not have found that he (1) was part of the
“identifiable leadership” of a “criminal street gang;” (2) the aggravated robberies
were committed by a “criminal street gang;” or (3) that he knowingly financed,
directed, or supervised the commission of the aggravated robberies.
As the evidence set forth above demonstrates, the modus operandi of the six
robberies of the cellphone stores reflects a common scheme or plan. Although the
robberies were not all committed by the same individuals, there was significant
overlap: Williams was involved in four robberies; Hill was involved in two
robberies; Mitchner was involved in two robberies; Criswell was involved in two
robberies; Randall was involved in two robberies; and Sullivan was involved in three
robberies. The jury heard testimony that appellant was one of two leaders who
directed and/or supervised the six robberies. Specifically, there was testimony that
appellant chose locations, assigned tasks to specific individuals, provided weapons,
and even had Hill follow him to the target store on March 18, 2015. Antoine’s
testimony as to appellant’s involvement in the robbery on May 21, 2015, is
28
corroborated by the video evidence showing a gold Mercedes Benz following the
getaway car after the robbery. From this body of evidence, a rational trier of fact
could find there were three or more persons, with an identifiable leadership, who
regularly associated to commit criminal activities. Consequently, a rational fact-
finder could find the aggravated robberies were committed by a criminal street gang.
See Tex. Penal Code § 71.01(d).
Further, the jury heard evidence that appellant chose at least one of the stores
to rob; he provided weapons for at least two of the robberies; he acted as a look-out
for three robberies; he communicated on three occasions with one or more of the
participants during the robbery or a flight therefrom; he was paid by Riaz in cash for
phones ten to fifteen times; and he paid participants of at least two robberies in cash.
Accordingly, a rational trier of fact could find appellant knowingly financed,
directed, and/or supervised the cellphone store robberies.
Considering all the evidence in a light most favorable to the verdict, we
conclude a rational juror could have found appellant guilty beyond a reasonable
doubt of directing activities of a criminal street gang. See Jackson, 443 U.S. at
319; Gear, 340 S.W.3d at 746. Appellant’s first issue is overruled.
ACCOMPLICE-WITNESS TESTIMONY
In appellant’s third issue he asserts the testimony of the accomplice-witnesses
was not sufficiently corroborated. Article 38.14 of the Code of Criminal Procedure,
entitled “Testimony of Accomplice,” requires that before a conviction may rest upon
the testimony of an accomplice witness, it must be corroborated by independent
evidence tending to connect the accused with the crime. Tex. Code Crim. Proc. art
38.14; Simmons v. State, 282 S.W.3d 504, 505 (Tex. Crim. App. 2009). The law
does not impose legal-sufficiency standards upon a review of accomplice witness
testimony under Article 38.14. Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim.
29
Ohio App. 1999). The accomplice-witness rule is a statutorily-imposed sufficiency review
that is not derived from federal or state constitutional principles defining legal
sufficiency standards. Id. “The burden established by the Legislature is that there be
other evidence tending to connect the defendant with the offense.” Id.
To satisfy the accomplice-witness rule’s requirements, the corroborating
evidence does not need to be sufficient in itself to establish guilt. Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Nor is it necessary for the non-
accomplice evidence to directly link the accused to the commission of the offense.
Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). The evidence must simply
link the accused in some way to the commission of the crime and show that rational
jurors could conclude the evidence tended to connect the accused to the offense.
Simmons, 282 S.W.3d at 508. Each case must be decided on its own facts and
circumstances. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Gill,
873 S.W.2d at 48. All facts, both direct and circumstantial, may be examined in
ascertaining whether sufficient corroboration exists. Gosch v. State, 829 S.W.2d 775,
777 (Tex. Crim. App. 1991).
Therefore, in our review we eliminate all accomplice-witness testimony from
consideration and then determine whether the remaining non-accomplice-witness
testimony and evidence tends to connect the accused with the commission of the
crime. Malone, 253 S.W.3d at 257; Yost v. State, 222 S.W.3d 865, 872 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d). When there are two views of the evidence—
one tending to connect the accused to the offense and the other not—we defer to the
fact-finder’s view of the evidence. Smith, 332 S.W.3d at 442.
As set forth above, most of the evidence against appellant was the testimony
of the accomplices. For his conviction to stand, there must be some other evidence
tending to connect him to the aggravated robberies. The cellphone records and
30
Officer Taylor’s testimony based on those records provides the requisite
corroborative evidence.
Taylor testified that on April 3, 2015, Hill called appellant at 1:35 p.m. from
a location close to the robbery scene. The call was made within approximately three
minutes of the robbery being reported to police. From 1:43 p.m. to 3:15 p.m., calls
were made between appellant and Riaz. Around 5:00 p.m., calls were made between
appellant and Malbrough that went through the cell tower adjacent to Riaz’s store.
Taylor further testified that on April 15, 2015, there was a phone call of
approximately 13 minutes from appellant to Williams at 6:35 p.m., just before the
robbery. Immediately after the robbery, at 6:57 p.m., a fifteen-second call between
appellant and Riaz occurred. Seven calls were made between appellant and
Malbrough between 8:04 p.m. and 8:35 p.m. that evening.
The records and testimony regarding calls made on April 3, 2015, and April
15, 2015, are circumstantial evidence that tend to connect appellant to the aggravated
robberies. See Nolley v. State, 5 S.W.3d 850, 853 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (stating corroborative evidence may be circumstantial and it need not
directly link the defendant to the crime as long as it tends to link him to the crime).
A direct link is not required. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim.
App. 1996). As this court recognized in Longoria v. State, 154 S.W.3d 747, 758
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d), evidence of communications
between a defendant and perpetrators during the course of a robbery and
immediately afterward constitute strong circumstantial evidence that tend to connect
the defendant to the crime. Cf. Cerna v. State, 441 S.W.3d 860, 866 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (among other things, the fact that defendant
exchanged text messages with accomplice just before murder corroborated
testimony of accomplice). The evidence that appellant was in the area of more than
31
one robbery at the time of those robberies, coupled with the evidence that appellant,
and only appellant, contacted Riaz on the phone after several robberies, tends to
connect appellant to the robberies. See Dowthitt, 931 S.W.2d at 249 (noting that
“mere presence” is insufficient by itself to corroborate accomplice testimony but
when coupled with other suspicious circumstances may tend to connect the accused
to the offense).
Because the non-accomplice evidence links appellant “in some way” to the
aggravated robberies, a rational juror could conclude the evidence tended to connect
him to the offenses. See Simmons, 282 S.W.3d at 508. Accordingly, we overrule
appellant’s third issue.
CHARGE ERROR
Punishment Phase
In appellant’s first issue he claims the trial court erred in instructing the jury
in the punishment-phase charge that it could assess a fine in any amount not to
exceed $10,000. The statute under which appellant was convicted does not provide
for the imposition of a fine. See Tex. Penal Code § 71.023(b). Accordingly, we agree
the trial court erred in giving the instruction and note the State does not argue
otherwise.
However, since no objection was made to the charge, the error is reversible
only if it resulted in egregious harm. Bluitt v. State, 137 S.W.3d 51, 52–53 (Tex.
Crim. App. 2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985);
Lopez v. State, 515 S.W.3d 547, 551 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d). We conclude the error was harmless.
The State did not request a fine as part of appellant’s punishment and, in fact,
the State asked the jury to ignore that option. More importantly, no fine was assessed.
32
The punishment assessed by the jury, confinement for fifty-five years, is within the
lawful range of punishment for the offense charged. See Tex. Penal Code § 71.023(b)
(“An offense under this section is a felony of the first degree punishable by
imprisonment in the Texas Department of Criminal Justice for life or for any term
of not more than 99 years or less than 25 years.”). Because the record does not reflect
that the error in the charge resulted in harm to appellant, issue one is overruled.
Guilt-Innocence Phase
In his second issue, appellant contends the trial court erred in instructing the
jury as to the law of parties as related to the offense of directing activities of criminal
street gangs. The charge to the jury as to guilt or innocence provided:
All persons are parties to an offense who are guilty of acting
together in the commission of the offense. A person is criminally
responsible as a party to an offense if the offense is committed by his
own conduct, by the conduct of another for which he is criminally
responsible, or by both.
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. Mere presence
alone will not constitute one a party to an offense.
...
If you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, Quinton Malbrough, heretofore on or about the
30th day of June, 2014 and continuing through June 18, 2015, did then
and there unlawfully, as part of the identifiable leadership of a criminal
street gang, knowingly finance, direct, or supervise the commission of
the offense of aggravated robbery by members of said criminal street
gang, and that the defendant, Terrence Devaughn Edwards, with the
intent to promote or assist the commission of the offense, if any,
solicited, encouraged, directed, aided or attempted to aid Quinton
Malbrough to commit the offense, if he did, then you will find the
defendant guilty of directing the activities of a certain criminal street
gang, as charged in the indictment.
33
Appellant argues the law of the parties should not apply to this offense.
Assuming, without deciding, it was error to submit a party instruction, Appellant did
not object and we may not reverse his conviction unless we find egregious harm. See
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Almanza, 686
S.W.2d at 157). In addition to authorizing conviction as a party, the charge
authorized appellant’s conviction as a principal. “Where the evidence clearly
supports a defendant’s guilt as a principal actor, any error of the trial court in
charging on the law of parties is harmless.” Black v. State, 723 S.W.2d 674, 675
(Tex. Crim. App. 1986); accord Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim.
App. 1999). As set forth above, the evidence clearly supports appellant’s conviction
as a principal. Accordingly, we conclude the record does not reflect appellant
suffered egregious harm from any error in charging the jury on the law of the parties.
See Molina v. State, 450 S.W.3d 540, 549 (Tex. App.—Houston [14th Dist.] 2014,
no pet.); Washington v. State, 417 S.W.3d 713, 723–24 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d). Issue two is overruled.
DEADLY -WEAPON FINDING
In appellant’s fourth issue he asserts the judgment should not include an
affirmative deadly-weapon finding. The record reflects defense counsel asked the
trial court not to enter a deadly-weapon finding in the judgment and the trial court
refused, as follows:
[Defense Counsel]: Since the State abandoned the deadly weapon
language in the indictment, I would ask that the Court not enter a deadly
weapon finding in the judgment.
[The State]: Your Honor, we would request a deadly weapon finding.
One of the elements of aggravated robbery, which is included in the
indictment even after the surplusage was abandoned, a deadly weapon
was used or displayed.
THE COURT: The Court’s in recess
34
...
[Defense Counsel]: Judge, I had a request earlier and I make a request
again that this Honorable Court not enter a deadly weapon finding in
the judgment and sentence because the State abandoned the deadly
weapon language in the indictment before the jury deliberated on the
case.
[The State]: And I would request the Court make a finding that a deadly
weapon was used or displayed. Deadly weapon is included in the
allegation of aggravated robbery in the indictment, and it’s supported
by the evidence in the case.
THE COURT: But did the State abandon that language in the
indictment prior to trial?
[The State]: Judge, we abandoned those alternative manners and means
as surplusage during the course of the trial prior to submitting the
charge to the jury; but that’s – it’s – the deadly weapon language is not
only included in those two options, it’s also included in the aggravated
robbery allegation, the manner and means, which the State retained in
the indictment.
THE COURT: Okay. Anything further from the State?
[The State]: No, Your Honor.
THE COURT: Anything further from Defense?
[Defense Counsel]: No, Your Honor.
THE COURT: Defense counsel, your motion is denied.
There are three ways we can determine that the trier of fact made an
affirmative finding of a deadly weapon:
(1) the indictment specifically alleged a “deadly weapon” was used
(using the words “deadly weapon”) and the defendant was found guilty
“as charged in the indictment;”
(2) the indictment did not use the words “deadly weapon” but alleged
use of a deadly weapon per se (such as a firearm); or
(3) the jury made an express finding of fact of use of a deadly weapon
in response to submission of a special issue during the punishment stage
of trial.
35
Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016).
The indictment contained in the record before this court alleged that appellant
“did then and there unlawfully, as part of the identifiable leadership of a criminal
street gang, knowingly FINANCE, DIRECT, AND SUPERVISE THE
COMMISSION OF the OFFENSES of AGGRAVATED ROBBERY BY
MEMBERS OF SAID CRIMINAL STREET GANG.” Thus, the indictment did not
use the words “deadly weapon” or allege the use of a deadly weapon per se. Further,
a special issue on the use of a deadly weapon was not decided by the jury.
There was no affirmative finding by the trier of fact on the use of a deadly
weapon. See Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985). We sustain
appellant’s fourth issue and modify the judgment to delete the deadly-weapon
finding.
CONCLUSION
As modified, the judgment of the trial court is affirmed.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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