James Pope v. State of Texas--Appeal from 385th District Court of Midland County

Opinion filed July 26, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00316-CR

__________

   JAMES POPE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR29577

O P I N I O N

The jury convicted James Pope of the offense of aggravated robbery. The jury assessed appellant=s punishment at fifteen years confinement. The issue on appeal is whether the evidence was legally sufficient to support appellant=s aggravated robbery conviction under the law of parties. Because the evidence was legally sufficient to support the conviction, we affirm the judgment of the trial court.

Background

Appellant was indicted for aggravated robbery by using or exhibiting a deadly weapon during the course of committing a robbery. Specifically, the indictment alleged that appellant, in the course of committing theft and with the intent to obtain and maintain control of property of Darcy Elliot, intentionally and knowingly threatened and placed Elliot in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, to-wit: a firearm.

After the conclusion of the evidence, the trial court instructed the jury on the law of parties. The trial court gave the following instruction:

Now, bearing in mind the foregoing instructions, if you believe beyond a reasonable doubt that HAROLD SANDERS, on or about the 14TH DAY OF APRIL 2004 in the County of Midland and State of Texas, as alleged in the indictment, did then and there while in the course of committing theft and with the intent to obtain or maintain control of property of DARCY ELLIOT, did then and there by using or exhibiting a deadly weapon, to-wit: a firearm, intentionally or knowingly threaten or place DARCY ELLIOT in fear of imminent bodily injury or death, AND YOU FURTHER BELIEVE from the evidence beyond a reasonable doubt that [appellant], acting with the intent to promote or assist the commission of the said offense of AGGRAVATED ROBBERY by HAROLD SANDERS, did then and there solicit, encourage, direct, aid, or attempt to aid the said HAROLD SANDERS to commit the said offense of AGGRAVATED ROBBERY, you will find [appellant] guilty of the offense of AGGRAVATED ROBBERY as charged in the indictment and so say by your verdict, but if you do not so believe or if you have a reasonable doubt thereof, you will acquit [appellant] of the offense of AGGRAVATED ROBBERY and say by your verdict Anot guilty@ of AGGRAVATED ROBBERY.

The trial court=s charge also included an instruction on the law of parties on the lesser included offense of robbery. The jury found appellant guilty of the offense of aggravated robbery.

Discussion of the Law

A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of property of another, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003). A person commits the offense of aggravated robbery if, in the course of committing robbery, he uses or exhibits a deadly weapon. Tex. Penal Code Ann. ' 29.03(a)(2) (Vernon 2003). A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. ' 1.07(a)(17)(A), (B) (Vernon Supp. 2006).

Under the law of parties, a person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is criminally responsible. Tex. Penal Code Ann. ' 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with the 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) (Vernon 2003). In determining whether a defendant participated in an offense as a party, we may examine the events occurring before, during, and after the commission of the offense; and we may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Although the mere presence of an accused at the scene of an offense is not alone sufficient to prove that a person is a party to the offense, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.CAustin 2001, pet. ref=d).

Issue on Appeal

In a sole appellate issue, appellant asserts that the evidence was legally insufficient to support his conviction for the following reasons: (1) there was no testimony that the actions of appellant placed anyone in fear of imminent bodily injury or death and (2) there was no evidence that appellant knew Sanders was going to use a gun in the course of robbing Elliot. The State asserts that the evidence was legally sufficient to convict appellant of aggravated robbery under the law of parties.

Standard of Review

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Evidence at Trial

On April 14, 2004, Elliot was working at her job as the night auditor for the Holiday Inn and Suites. She testified that, at about 5:00 a.m., two men entered the Holiday Inn. Elliot said that one of the men approached the front desk and asked her about room rates while the other man walked around in the lobby. Elliot told the man the room rates, and the man told her that he wanted to check some other places and that the men might be back later. Elliot said that the men left the Holiday Inn. Although Elliot did not identify the men by name in her testimony, the evidence at trial demonstrated that Sanders was the man who asked Elliot about room rates and that appellant was the man who walked around in the lobby. The evidence also demonstrated that Sanders was wearing a blue jumpsuit, also referred to in the record as coveralls.

About twenty minutes later, appellant and Sanders returned to the Holiday Inn. Elliott testified that the man wearing the blue jumpsuit (Sanders) came to the front desk and said, AWe are going to get the room.@ She said that she did not see appellant Aright off@ because she could not see him from where she was standing. Elliot said that Sanders pulled a gun out of his pocket, pointed the gun at her, and said, AGive me the money.@ Elliot testified that she was afraid and in fear of imminent bodily injury or death. She said that she handed Sanders a work bag with $200 inside of it. She also said that she did not give Sanders and appellant consent to take the money. Rather, she gave the money to Sanders because he had a gun in her face. Elliot said that Sanders made her walk down to the end of the counter and, at that time, she saw appellant. Elliot testified that Sanders continued to point the gun at her and told her Anot to go for the phone too fast or they would come back and get [her].@ Elliot said that she did not know whether appellant could have heard the discussion between Sanders and her. Elliot said that Sanders and appellant left the hotel together.

Surveillance cameras at the Holiday Inn recorded both incidents. The State introduced into evidence the videotape, which included audio sound, and the videotape was played for the jury. The incidents depicted in the videotape were consistent with Sanders=s testimony. With respect to the 5:00 a.m. incident, the videotape showed, among other things, the following: Sanders and appellant entering the Holiday Inn; Sanders approaching the front desk and talking with Elliot; appellant walking around and looking around in the lobby area; Sanders walking over and talking with appellant after Sanders talked with Elliot; Sanders walking back to Elliot and talking with her; and Sanders and appellant leaving the Holiday Inn together.

With respect to the 5:20 a.m. incident, the videotape showed, among other things, the following: Sanders and appellant entering the hotel; Sanders approaching Elliot and demanding the money; appellant standing inside the Holiday Inn and looking outside the front doors; appellant bending over while apparently looking for something on the floor; Sanders telling Elliot not to call the police too fast; and appellant leaving the hotel, followed closely by Sanders. The audio sound for the videotape indicated that Elliot gave Sanders $200.

Midland Police Officer Cameron Garner Ramsey was the first officer on the scene at the Holiday Inn after the robbery. She testified that, when she arrived at the scene, Elliot was shaken, crying, scared, and pretty distraught. Officer Ramsey said that she viewed the videotape and that, based on the videotape, she was able to get a description of the suspects. She said that two patrol sergeants arrived at the scene and that they helped her broadcast the description of the suspects.

Midland Police Officer Steven Sanders heard the description of the suspects in the Holiday Inn robbery on his radio. He testified that, at about 4:30 a.m. that morning, he had helped three men who had run out of gas in a 1992 Lincoln Town Car on Florida Street. Officer Sanders said that the description of the robbery suspects indicated that they were dressed like two of the individuals he had helped on Florida Street. Officer Sanders ran a license plate check on the 1992 Lincoln Town Car, and it came back to a AWillie Leonard.@ The evidence demonstrated that Leonard was appellant=s nephew.

A camera in Officers Sanders=s patrol car recorded the incident in which Officer Sanders helped the men who had run out of gas. The State introduced into evidence a copy of the videotape, and the videotape was played for the jury. The videotape showed Officer Sanders driving up to three men who were pushing a car toward a convenience store or gas station that was a short distance away from them. The videotape also showed Officer Sanders getting out of his patrol car and helping the men push the car to a gas pump. Officer Sanders testified that the videotape showed appellant, Sanders, and Leonard.

Midland Police Detective Darin Clements arrived at the Holiday Inn after the robbery. He testified that he reviewed the videotape of the robbery. Detective Clements said that the officers searched for Leonard and located Leonard=s car at the Norris Apartments. He said that, as he and another officer approached the car, they noticed that appellant was sleeping in the backseat. Detective Clements testified that appellant was wearing the same clothes that the Alookout@ man was wearing in the Holiday Inn videotape. When asked what he meant by Alookout,@ Detective Clements said that the videotape showed the man standing by the front door, looking out the front door, looking down the hallway, and basically watching out for the subject who was holding up the lady. He said that the Alookout@ could have warned the subject holding up the lady if someone was coming. Detective Clements testified that the Alookout@ man in the videotape was aiding or attempting to aid the commission of a crime.

Detective Clements testified that he and another officer woke appellant up and asked him about Leonard. Appellant told them that Leonard was in Apartment A. The officers found Leonard and Sanders inside Apartment A and then took appellant, Sanders, and Leonard into custody. Detective Clements said that Sanders was not wearing the same clothes that he had worn at the Holiday Inn. Detective Clements said that the gun Sanders used during the Holiday Inn robbery was a firearm and a deadly weapon.

Midland Police Detective Peter Dehlinger arrived at the Norris Apartments after the officers detained appellant, Leonard, and Sanders. Detective Dehlinger testified that patrol officers transported appellant to the police station. At that time, officers were looking for the blue jumpsuit that Sanders had worn and the gun that Sanders had used during the robbery. Detective Dehlinger testified that he asked appellant about the gun and the jumpsuit that were used in the robbery. During direct examination, Detective Dehlinger said appellant told him Sanders had put the gun and the jumpsuit into a car in the backyard of Sanders=s father=s house located at 713 South Lincoln. However, during cross-examination, Detective Dehlinger testified that he could not recall whether appellant specifically used the word Agun@ when appellant was asked about the gun and the jumpsuit. Detective Dehlinger also testified that he located Sanders=s father=s house with appellant=s help and that officers received consent from Sanders=s father to search the backyard. He said that officers found the gun and the jumpsuit inside a Honda that was parked in the backyard.

Detective Dehlinger took a recorded statement from appellant. Detective Dehlinger testified that appellant told him the following in the statement: that appellant admitted to being at the door in the Holiday Inn; that he did not know whether Sanders had used a gun at the Holiday Inn; that he had not seen a gun; that Sanders had lied about the reason for wanting to go to the Holiday Inn; that Sanders had said he wanted to go to the Holiday Inn to get a girl and a room; that he had not seen Sanders for a number of years before the date of the robbery; and that Sanders had $80 to $100 when they went to the Holiday Inn.

Midland Police Detective Charles Sims testified that he viewed the videotapes from Officer Sanders=s vehicle and from the Holiday Inn. He said that the videotape of the Holiday Inn robbery showed appellant standing near the front doors as if he were posted at that position. He also said that it is common for a lookout to look out the doors to make sure nobody is coming to the scene. Detective Sims testified that he asked appellant where the gun was that was used in the robbery. He said that appellant told him the gun was in a Honda next to the Norris Apartments. Detective Sims and Detective Fraley looked for the Honda but they could not find it. Detective Sims said that he and Detective Fraley asked Detective Dehlinger to bring appellant to the scene and that appellant directed the officers to Sanders=s father=s house. Detective Sims testified that, after Sanders=s father consented to a search, he opened the door of the Honda and saw the blue coveralls inside the car. He said that, as he was pulling the coveralls out of the car, a revolver fell out of the coveralls and onto the ground.

Midland Police Department Identification Specialist Larry Shackelford arrived at Sanders=s father=s house and photographed the evidence that was discovered during the search. At trial, Identification Specialist Shackelford identified the coveralls and the gun that Detective Sims found during the search. The State introduced into evidence the coveralls and the gun.

Appellant testified that, on the night of the incident at the Holiday Inn, he and Leonard ran out of gas in Leonard=s vehicle. He said that Officer Sanders helped them push the car. He also said that Sanders walked from across the street and helped them push the car. Appellant testified that he recognized Sanders from having gone to school with him but that he had not seen Sanders in the last thirty or thirty-five years. Appellant testified that Sanders offered to give them $3 for gas if they would take him to the Holiday Inn to meet his boss. Appellant said that they used the $3 for gas and that Leonard drove them to the Holiday Inn.

With respect to the first incident at the Holiday Inn, appellant testified that he went inside the Holiday Inn and stood by the front door. He said that he walked to the restaurant and to the swimming pool. He testified that Sanders asked the hotel clerk about the cost of a room. Appellant said that Sanders asked him if he wanted to rent a room and that he responded that he did not want to rent a room. Appellant said that he and Sanders left the Holiday Inn and got back into Leonard=s car. Appellant testified that he wanted to go home and that Leonard headed for home but that Sanders convinced Leonard to go back to the Holiday Inn. He said that Sanders told them he was still looking for his boss.

With respect to the second Holiday Inn incident, appellant testified that he did not go inside the Holiday Inn. Rather, appellant said that he stood at the entrance of the hotel and looked for an aspirin that he had dropped on the floor during the first Holiday Inn incident. However, the videotape of the incident showed appellant standing inside the Holiday Inn. Appellant said that he did not hear what Sanders and the clerk were saying. He said that he had no idea Sanders had pulled out a weapon and that he did not know Sanders was attempting to rob the clerk. He testified that Sanders had lied to them about the reason for going to the Holiday Inn. He said that Sanders told them that he was going to meet his boss to pick up some money and then they could meet some girls and get a room.

Appellant further testified that, after the second Holiday Inn incident, they left the hotel and drove to a location where Sanders took off his work coveralls. He said that Sanders left the coveralls in a backyard. Appellant testified that Leonard drove toward the Norris Apartments. Appellant said that he fell asleep in the backseat of the car while they were on their way to the apartments and that he continued to sleep in the car after Leonard parked it at the apartments. Appellant testified that the police woke him up. He said that he showed the police officers the location where Sanders had left the coveralls. He also said that he never saw a gun and never mentioned a gun to the police officers.

Analysis

Viewing the evidence in its entirety, the evidence was legally sufficient to support appellant=s conviction under the law of parties. Based on the evidence, a rational trier of fact could have concluded that appellant acted with the intent to assist the commission of the offense by aiding or attempting to aid Sanders in committing the offense and that appellant aided or attempted to aid Sanders in using the gun to threaten Elliot. The evidence established that appellant and Sanders were together before, during, and after the robbery at the Holiday Inn. They arrived at the Holiday Inn together on two occasions. They exited the hotel together on the first occasion and appellant exited the hotel, followed closely by Sanders, on the second occasion. During the first incident at the Holiday Inn, appellant walked around in the lobby area of the hotel and familiarized himself with the area. The jury could have concluded that appellant and Sanders gathered information during the first incident as part of a plan to come back and rob the hotel and that appellant and Sanders continued to plan the robbery after they left the hotel on the first occasion.

During the second incident, as Sanders robbed Elliot and pointed a gun at her, appellant stood watch inside the front doors of the Holiday Inn. The videotape of the robbery showed appellant looking out the front doors of the hotel. The testimony of Detectives Clements and Sims supported a conclusion that appellant acted as a lookout man for Sanders during the robbery. Detective Clements testified that the Alookout@ in the videotape stood by the front door, looked out the front door, looked down the hallway, and basically watched out for the man holding up the lady. Detective Sims stated that it is common for a lookout man to look out the doors to make sure nobody is coming to the scene. After the robbery, appellant left the hotel, followed closely by Sanders. Appellant and Sanders got into Leonard=s car after the robbery, and they stayed together until they arrived at the Norris Apartments. Detective Sims testified that he asked appellant where the gun was that had been used during the robbery and that appellant told him the gun was in a Honda next to the Norris Apartments. The officers found the gun in the Honda. Although appellant testified that he never mentioned a gun to the police, the jury, as the sole judge of the credibility of the witnesses and of the weight to be given to their testimony, was entitled to accept Officer Sims=s testimony and to reject appellant=s testimony. Articles 36.13, 38.04; see Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Based on the evidence (1) that appellant and Sanders were together before, during, and after the robbery; (2) that appellant was present at the scene during the robbery; (3) that appellant acted as a lookout during the robbery; and (4) that appellant told Detective Sims where the gun was after the robbery, a rational trier of fact could have concluded that appellant knew Sanders planned to use the gun and actually used the gun during the commission of the robbery.

The State did not have the burden to prove that appellant pointed the gun at Elliot. Rather, the State had the burden to prove that appellant was guilty of the aggravated robbery under the law of parties. Elliot testified that she was in fear of imminent bodily injury or death when Sanders pointed the gun at her. The evidence was legally sufficient to establish appellant was a party to the aggravated robbery by acting with the intent to assist the commission of the offense by aiding or attempting to aid Sanders in committing the offense. See Johnson v. State, 6 S.W.3d 709, 711 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (holding that evidence was sufficient to support conviction for aggravated robbery under law of parties where the defendant performed reconnaissance of the robbery location before the robbery and drove the getaway car); Brewer v. State, 852 S.W.2d 643, 647 (Tex. App.CDallas 1993, pet. ref=d) (holding that evidence was sufficient to support conviction for aggravated robbery under the law of parties where the defendant dropped off his accomplice and picked up the accomplice shortly after the shooting); Cumpian v. State, 812 S.W.2d 88, 90 (Tex. App.CSan Antonio 1991, no pet.) (holding that evidence was sufficient to support conviction for burglary of a building under the law of parties where the defendant appeared to be the Alook-out person@). We overrule appellant=s issue.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

July 26, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.