Mills, Eddie Glen v. The State of Texas--Appeal from 155th District Court of Austin County

Affirmed and Opinion filed April 26, 2005

Affirmed and Opinion filed April 26, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00023-CR

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EDDIE GLEN MILLS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2003R-0091

M E M O R A N D U M O P I N I O N

Appellant Eddie Glen Mills appeals his conviction for robbery. The trial court found appellant guilty of robbery, and after appellant pleaded true to two enhancement paragraphs, sentenced him to twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, in two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction of robbery. We affirm.

 I. Standards of Review.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a 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 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App.1993). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence supporting the verdict considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is strong enough that the beyond a reasonable doubt standard could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. ' 29.02 (Vernon 2003). The phrase Ain the course of committing theft@ in ' 29.02 is defined in ' 29.01(1) as meaning conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. ' 29.01(1).

Under the law of parties, a person is criminally responsible for an offense committed by 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. Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003). While presence of the accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979)). 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 accused that show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).

II. Analysis

A. Legal Sufficiency

Shortly after midnight on August 9, 2003, Ismael Guervara, the complainant, was at a motel in Sealy, Texas when he got into an altercation with Judy Freeman. The complainant testified that Freeman approached him in the motel=s parking lot demanding that he pay her forty dollars, which he refused. Then, Freeman grabbed him by the shirt, punched him three times, and bit his finger when he attempted to push her away. Subsequently, appellant hit the complainant in the head from behind, threw him to the ground, and kicked him.[1] According to the complainant, after he was thrown to the ground and kicked, the appellant and Freeman took his wallet which contained a check for $296 and five dollars in cash.

Brian Bower, a resident at the motel, witnessed most of the incident and testified at trial. After hearing a commotion outside, Bower looked out of his window and saw Freeman and the complainant wrestling. Bower testified he was fifteen feet away when he observed the incident, had a direct view, and had plenty of light to see. Bower witnessed appellant intervene in the scuffle by swinging his fist and jabbing a trowel at the complainant=s face, while Freeman attacked the complainant from behind. Appellant landed a punch and knocked the complainant to the ground. As the complainant lay on the ground, appellant kicked and punched him while Freeman went through his pockets, grabbed his wallet, and removed the contents. Appellant tossed the trowel in a trash can, kicked and punched the complainant again, and fled.

At trial, appellant testified he was defending Freeman from an attack and did not plan or know that Freeman was taking the complainant=s wallet during the incident. Appellant testified he saw the complainant grab Freeman by her shirt and slash at her with a trowel. To defend Freeman, he grabbed the complainant and threw him to the ground, which caused the complainant to drop the trowel. Appellant admitted kicking the complainant numerous times and said he only stopped because Freeman told him to quit. At that point, appellant picked up the trowel from the ground and tapped the complainant on the head, warning him to remember this moment the next time he jumps on a woman. Appellant discarded the trowel and returned once more to kick the complainant because he was once again grabbing Freeman by the neck of her shirt. Appellant and Freeman left the parking lot and went to Freeman=s trailer which is located beside the motel. Inside the trailer, appellant saw Freeman put the stolen items under the mattress, but until that point, he did not know Freeman had taken the contents of the complainant=s wallet. Shortly thereafter, the police arrived and arrested appellant and Freeman.

It is undisputed that appellant hit the complainant numerous times and Freeman took the complainant=s wallet while he was lying on the ground being kicked by appellant. However, appellant claims he was defending Freeman and did not know Freeman was taking the contents of the wallet. Appellant=s testimony was contradicted by the complainant who testified Freeman and appellant took his wallet, and an eyewitness testified Freeman went through the complainant=s pockets, grabbed his wallet, and took out the money while appellant stood above the complainant yelling, kicking, and punching him in the head. The testimony reveals appellant was facing Freeman during the altercation, giving him an unobstructed view of her as she removed the complainant=s wallet. The police found Freeman and appellant together with the money taken from the complainant.

The jury charge included an application paragraph permitting the fact finder to find appellant was a party to the offense. See Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003). Here, viewing all of the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found that appellant, acting with the intent to promote or assist the commission of theft, aided Freeman to commit theft and that with the intent to obtain or maintain control of the complainant=s money, appellant intentionally or knowingly caused bodily injury to the complainant. Accordingly, we hold the evidence is legally sufficient to support appellant=s conviction for robbery. We overrule appellant=s first issue.

B. Factual Sufficiency

Appellant testified he was not involved in a robbery at all, rather he was defending Freeman from an assault by the complainant. Appellant admitted he caused bodily injury to the complainant, specifically that A[complainant] was fairly-well messed up [following the scuffle].@ Appellant=s credibility was impeached with his convictions for two felony offenses, and by his testimony on cross-examination that he had Anumerous shoplifting charges: Wal-Mart, Kmart, and it never bothered me a bit to steal from them folks.@

AA decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.@ Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Moreover, the jury is the sole judge of credibility of the witnesses at trial. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). It is undisputed that appellant was at the scene, intentionally or knowingly caused bodily injury to the complainant, and fled with the person who physically took the contents of the complainant=s wallet. Based on the testimony at trial, the jury could infer appellant was acting with Freeman in the commission of the offense.

After considering the evidence in a neutral light, the evidence supporting the verdict is not too weak to support the finding of guilt beyond-a-reasonable-doubt, and evidence contrary to the verdict is not so strong that the beyond a reasonable doubt standard could not have been met. Therefore, we conclude the evidence is factually sufficient to support appellant=s conviction for robbery. Accordingly, appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed April 26, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Throughout his testimony, the complainant refers to appellant as Ahe@ and appellant and Freeman as Athey.@ Because Freeman, a female, and appellant, a male, are the only two people alleged to be involved in the incident, the pronouns Ahe@ and Athey@ as used by the complainant are sufficient for identification purposes.