Gerald Desmond Griffin v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00193-CR
GERALD DESMOND GRIFFIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1360873D
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MEMORANDUM OPINION 1
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Appellant Gerald Desmond Griffin appeals his convictions and sentences
for aggravated robbery and engaging in organized crime. We affirm.
Background Facts
On the evening of October 6, 2012, Marcus Brooks drove Naomi Cilumba
to her friend’s apartment after having dinner together. They were sitting in
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See Tex. R. App. P. 47.4.
Brooks’s car talking when they noticed someone circling the car trying to see in.
The person then opened the driver’s side door and held a gun to Brooks’s head.
The person wore a dark-colored bandana around his face and an orange hoodie.
Brooks saw another person standing behind the car also wearing an orange
hoodie. He also noticed an “older-model vehicle” behind him.
The man with the gun tried to open the back door of the car, at which point
Brooks was able to grab the gun from him. Brooks testified that he grabbed for
the gun because “that was [his] . . . only time to make [his] move, to make it
through the night.” Both attackers ran off, and Brooks shot at one of them “four
to five times.” Brooks and Cilumba drove away, and Brooks called the police.
Fort Worth police arrived at the apartment complex where the shooting had
occurred and found Keandrick Reed lying in the parking lot. Reed had been
shot, and people were tending to his wounds. Police found a bloody bandana
“that had been tied to be fashioned around your face,” bullet casings, and a cell
phone. Police later found a hoodie that matched the description that witnesses
had given of the suspects. Both the bandana and hoodie were bloody and had
bullet holes.
Reed confessed to the attempted robbery and named Demarrio Handy as
the person who had the gun that night. He also stated that Appellant had picked
them up and had taken them to the location of the incident. Reed testified that
they had planned to commit robbery and split the money among the three of
them.
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Reed testified that he, Handy, and Appellant were members of a street
gang called the Untamed Gorillas or 7 Tre. Appellant was an “OG,” short for
“Original Gangster,” a high-ranking member of the gang. Reed said that as a
lower-ranking member of the gang, he would have to follow orders that an OG
gave.
Appellant was charged with aggravated robbery and engaging in organized
crime. See Tex. Penal Code Ann. §§ 29.03(a)(1), (2) (West 2011), §§ 31.03,
71.02 (West Supp. 2014). A jury found Appellant guilty of both charges, found
the two habitual offender enhancement paragraphs true, and assessed
punishment at seventy-five years’ confinement for each. The trial court
sentenced Appellant accordingly with the two seventy-five year sentences to run
concurrently. Appellant then filed this appeal.
Discussion
1. Law of parties
In his first issue, Appellant challenges the sufficiency of the evidence
supporting the jury’s finding that he is liable for the aggravated robbery under the
law of parties. In our due-process review of the sufficiency of the evidence to
support a conviction, we view all of the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d
166, 170 (Tex. Crim. App. 2014). This standard gives full play to the
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responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs,
434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326,
99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
Even if a person does not personally commit the offense, a court may find
him guilty as a party 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.” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).
To determine whether an individual is a party to an offense, the reviewing court
may look to events before, during, and after the commission of the offense.
Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). There must be
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sufficient evidence of an understanding and common design to commit the
offense. Id. Evidence may be direct or circumstantial. See id. Each fact need
not point directly to the guilt of the defendant as long as the cumulative effect of
the facts is sufficient to support the conviction under the law of parties. Id.
Reed testified that he had known Appellant for two years, and they had
been introduced by Handy. Reed said he, Handy, and Appellant were all
members of the same gang. A police officer also testified that Appellant, Reed,
and Handy were documented gang members of the Untamed Gorillas.
Reed testified that Appellant was an OG in the gang and that Reed had to
follow orders that an OG gave. Reed said that Handy owned two guns, one of
which had been given to him by Appellant. The night of the robbery, Appellant
called Reed and told him, “I’m on the way.” Reed said that Appellant did not tell
him what he wanted to do but that Reed knew what they were going to do. Reed
said they planned on robbing someone for money. The plan would be to split the
money amongst the three of them. Reed said that Appellant dropped him and
Handy off at the apartment complex and that Appellant would be their ride back
to Arlington, where they lived.
Reed’s cellphone had Appellant’s phone number saved under his name
and nickname. A police officer testified that the same number was sent out on
Twitter from Appellant’s account. Reed’s call history pulled from his phone
showed seven incoming and outgoing calls between Reed and Appellant on the
night of the robbery starting at 11:52 p.m. until 12:36 a.m., about thirty minutes
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before the robbery. There were no other calls made or received during that time.
Three incoming calls came in after 1:00 a.m., but Reed did not answer them.
Brooks testified that he saw an “older-model vehicle” behind him after the
robbery had occurred. Reed testified that Appellant drove an “older model” car
and had been driving that car the night of the robbery. A police officer testified
that Reed and Handy did not own cars and that they could not have walked to
the apartments from their homes that night. The officer believed that Appellant
had driven Reed and Handy to the apartments. He also stated that Appellant,
Reed, and Handy were all suspects in “other related cases in Arlington related to
the same factors.” Appellant’s Twitter account also showed that he had gone to
Louisiana in late October 2012.
The evidence shows that Appellant and Reed communicated frequently in
the hour before the robbery. Because of Appellant’s status in the gang, he had
the authority to give orders to Reed and Handy. The jury could believe that
Appellant drove Reed and Handy to the apartments with the intent to commit
robbery and split the proceeds. See Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994), cert. denied, 519 U.S. 1030 (1996) (“In determining
whether the accused participated as a party, the court may look to events
occurring before, during[,] and after the commission of the offense, and may rely
on actions of the defendant which show an understanding and common design to
do the prohibited act.”). The jury could also believe that after the robbery attempt
failed and Reed was arrested, Appellant fled to Louisiana to escape prosecution.
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See id. at 299 (reasoning that acts designed to reduce the likelihood of
prosecution, conviction, or incarceration for the offense on trial demonstrate a
consciousness of guilt). Viewing the evidence in the light most favorable to the
verdict, we conclude that a rational trier of fact could have found beyond a
reasonable doubt that Appellant, with intent to promote or assist the aggravated
robbery, solicited, encouraged, directed, aided, or attempted to aid Reed and
Handy to commit the aggravated robbery. See Tex. Penal Code Ann.
§ 7.02(a)(2); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule
Appellant’s first issue.
2. Street gang membership
In his second issue, Appellant argues that even if the evidence is sufficient
to show that he is culpable for the robbery, the evidence is still insufficient to
support the jury’s finding that he committed the robbery to establish, maintain, or
participate as a member of a criminal street gang. See Tex. Pen. Code Ann.
§ 71.02(a)(1).
Appellant acknowledged that he is a member of the Untamed Gorillas, a
documented criminal street gang. Although there was evidence that Reed and
Handy belonged to other gangs, the evidence also showed that they were both
members of the Untamed Gorillas. The State’s gang expert testified that it was
“pretty common” for someone to be a member of more than one gang at the
same time. The only gang with which Appellant was affiliated was the Untamed
Gorillas. The evidence showed that Appellant’s status in the gang allowed him to
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give orders to Reed and Handy. When asked why he went with Appellant on the
night of the robbery, Reed said, “Because I had no choice.”
The jury could have reasonably believed that Appellant was able to order
Reed and Handy to rob someone and split the proceeds without Appellant
assuming the risk of being present during the robbery because he was a leader
of their gang. Viewing the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have determined beyond a reasonable
doubt that Appellant participated in the aggravated robbery with the intent to
participate as a member of the criminal street gang, the Untamed Gorillas. See
Tex. Penal Code Ann. § 71.02(a); Roy v. State, 997 S.W.2d 863, 869 (Tex.
App.—Fort Worth 1999, pet. ref’d). We overrule Appellant’s second issue.
Conclusion
Having overruled Appellant’s two issues, we affirm the trial court’s
judgments.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 18, 2015
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