Kris Sigler v. The State of Texas--Appeal from 159th District Court of Angelina County

MEMORANDUM OPINION
No. 04-02-00301-CR
Kris SIGLER,
Appellant
v.
The STATE of Texas,
Appellee
From the 159th Judicial District Court, Angelina County, Texas
Trial Court No. 22,696
Honorable Paul E. White, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

Kris Sigler was charged with the offense of aggravated robbery. A jury found Sigler guilty of the alleged offense and sentenced him to 65 years imprisonment and fined him $5,000. Sigler's court-appointed appellate attorney filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). A copy of counsel's brief was delivered to Sigler, who was advised of his right to examine the record and to file a pro se brief. Sigler filed a pro se brief, claiming: (1) there is insufficient evidence to convict him of the alleged offense; and (2) the trial court submitted an erroneous charge to the jury. We affirm.

Background

On December 10, 2001, Sigler and his companion, Sam Moreland, stormed into the Save-A-Lot grocery store in Lufkin, Texas wearing ski masks. During the ensuing robbery, Moreland threatened the store's employees with a sawed-off shotgun, while Sigler took more than $5,000 from the store's safe. Sigler and Moreland were apprehended shortly after the robbery. Sigler was subsequently charged with the offense of aggravated robbery. The State's charging instrument alleged Sigler, "while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten[ed] or place[ed] Teresa Hunziker in fear of imminent bodily injury or death, and the defendant did . . . use or exhibit a deadly weapon, to wit: a firearm." The court's charge, to which Sigler did not object, provided a general instruction on the law of parties. (1) The charge essentially gave a definition of the law of parties and never applied the law of parties to the facts of the case. The charge applied the law to the facts only in the context of Sigler being guilty as a principal. The jury subsequently found Sigler guilty as charged in the indictment and sentenced him to 65 years imprisonment and fined him $5,000.

Discussion

Sigler contends that the evidence is legally insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, we review the evidence in a light most favorable to the verdict and 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 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Importantly, we review sufficiency of the evidence by measuring the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). Because the law of parties, if raised by the evidence would be included in a hypothetically correct charge, it must be used in measuring the sufficiency of the evidence. See Howard v. State, 966 S.W.2d 821, 824-25 (Tex. App.--Austin 1998, pet. ref'd).

A person commits a robbery when, in the course of committing theft and with the intent to obtain or maintain control over property, 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 aggravated robbery if he commits robbery as defined above and uses or exhibits a deadly weapon. Id. 29.03(a)(2). "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."

Id. 7.02(a)(2).

To establish liability as a party, the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3-4 (Tex. Crim. App. 1985). Evidence is sufficient to convict a person under the law of parties where the person is present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Id. "Mere presence alone without evidence of intentional participation is insufficient." Id. The fact finder may base its determination on the events occurring before, during, and after the commission of the offense, and may rely on the actions of the accused which show an understanding and common design to do the criminal act. Id.

We must now determine whether a rational juror could have found Sigler, either as a principal or as a party, guilty of the alleged offense. The evidence presented against Sigler consisted of the testimony of LaDonna Stewart, Teresa Hunziker, Gerald Williamson, Debra Walsh, Terry Williams, Tyrone Williams Sr., Tammy Brina, and Ron Stubblefield.

LaDonna Stewart

LaDonna Stewart, a patron of the Save-A-Lot store, testified she was at the store at the time the robbery occurred. Stewart testified two men came into the store shortly before closing time, announcing "this is a holdup." The shorter of the two men wore a black ski mask, while the taller of the two wore a camouflage ski mask. Stewart further stated that the taller man wore a black shirt and carried a gun.

According to Stewart, the man with the gun pointed it at one of the store's employees and threatened to "blow the clerk's brains out" if she did not open her cash register. The clerk had difficulty opening the register so the store's assistant manager tried to assist. After the assistant manager could not open the register, one of the men knocked the assistant manager to the ground. The man then dragged the assistant manager to the area of the store where the store's safe was hidden. Shortly thereafter, the men fled from the store.

Teresa Hunziker

Teresa Hunziker, assistant manager of the Save-A-Lot store, testified two African American men came into the store and announced "this is a holdup." Hunziker could not identify the men because they were wearing ski masks. Hunziker testified one of the men wore a black ski mask, while the other wore a black ski mask and a green hat. She testified the shorter of the two men wore a red shirt and carried a black trash bag. Hunziker stated the shorter of the two men did not possess a weapon. The taller of the two men carried a sawed-off shotgun.

According to Hunziker, the man with the gun ordered one of the store's clerks, Rhonda Jones, to open her register. When Jones could not open the register, the man threatened to blow Jones's head off. Hunziker testified that she tried to assist Jones in opening the register, but could not open it. When Hunziker failed to open the register, the man carrying the trash bag knocked her to the ground and struck her twice. The man then proceeded to drag her to the area of the store where the store's safe was hidden. Hunziker opened the safe and the man took what money he could. Both men then fled the store together.

Tammy Brina

Tammy Brina, a cashier at the Save-A-Lot store, testified that two men came into the store shortly before closing time and announced "this is a holdup." Brina testified the taller of the two men wore a black ski mask with a camouflage hat. She testified that this man carried a sawed-off shotgun. The shorter of the men wore a black ski mask which was red on the inside. He also wore a maroon shirt with a camouflage shirt over the top of it.

Ron Stubblefield

Ron Stubblefield, a detective with the Lufkin Police Department, testified that Sigler was shorter than Moreland.

Gerald Williamson

Gerald Williamson, a Lufkin Police Officer, testified he received a call indicating an armed robbery had occurred at the local Save-A-Lot store. Williamson testified he was informed that two Caucasian males wearing camouflage clothing and carrying a shotgun fled the Save-A-Lot store and ran toward the nearby Alamo Apartments. Williamson drove to the apartment complex and observed an African American man, near apartment 913B, removing a green jacket. Because the man did not fit the description he had received from dispatch, Williamson continued his search for the suspects. Williamson proceeded to the Save-A-Lot store after his search of the apartment complex was unsuccessful. Upon arriving at the scene of the robbery, Williamson learned that the suspects were African American -- not Caucasian.

Williamson immediately returned to apartment 913B of the Alamo Apartments. Williamson met the owner of the apartment, Tyrone Williams, and another individual, Sam Moreland. Sigler was not present. While speaking with the men, Williamson observed a hole at the base of Williams's apartment. Upon closer inspection, Williamson discovered a camouflage hat, sawed-off shotgun, black ski mask, one green rubber glove, and one pair of black gloves. Williamson also testified the green shirt/jacket he previously observed the individual removing outside apartment 913B was found on the love seat of Williams's apartment.

Debra Walsh

Debra Walsh, the Crime Scene and Identification Technician for the Lufkin Police Department, testified a black trash bag was recovered from the barbeque pit outside apartment 913B. Walsh further testified that Sigler's car keys were found in the pocket of a shirt recovered from inside apartment 913B. She described the shirt which contained the keys as a maroon thermal shirt with a green shirt over the top of it.

Terry Williams

Terry Williams, a relative of Sigler, testified that he was an employee of the Save-A-Lot store. Terry testified that sometime before the robbery occurred, Sigler came into the Save-A-Lot and asked various questions about the store, including what time the store closed.

Tyrone Williams Sr.

Tyrone Williams, Sr. testified Sigler was his nephew. According to Williams, Sigler and Moreland came to his apartment at around 8:00 pm on the night of the robbery. Both men were out of breath. Williams testified that the men had indicated "a dog got loose and was chasing them." Williams further testified that he did not remember what Sigler was wearing when he arrived at the apartment. However, he did remember that Sigler took off his shirt and left it on his couch. Williams also stated that he noticed reddish colored cotton/lint in Sigler's hair. Williams also testified that Moreland was wearing all black clothing when he arrived at the apartment.

Analysis

It can be reasonably inferred from the testimony presented that Sigler and Moreland were the men who robbed the Save-A-Lot store. Sigler was the man who carried the trash bag, while Moreland was the one who exhibited the firearm during the robbery. Thus, it is evident that the record is devoid of any evidence which would indicate Sigler used or exhibited a firearm at any time during the robbery. All of the evidence points to Moreland as the one who used or exhibited a firearm. Because there is no evidence that Sigler used or exhibited a firearm, we hold a reasonable jury could not have found Sigler guilty as a principal. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574.

Although the evidence is insufficient to convict Sigler as a principal, the evidence is sufficient to show he was a party to the offense. Sigler was physically present at the time of the robbery. His conduct from the time he and Moreland entered the store until the time the men fled the store suggests that he and Moreland were acting in concert with one another. The record indicates that upon entering the store, Sigler and Moreland acted in unison -- Moreland held everyone in the store at gunpoint, while Sigler stole the store's money. Sigler and Moreland then fled togther toward the Alamo Apartment complex once the robbery was complete. Based on the evidence presented, a reasonable jury could have believed that Sigler was guilty as a party. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Thus, we hold the evidence is legally sufficient to support Sigler's conviction. Sigler's first complaint is overruled.

Charge Error

Sigler also contends that because the court's charge failed to apply the law of parties to the facts, he was egregiously harmed. When a defendant complains of charge error on appeal, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is error, we must determine if the error caused sufficient harm to warrant reversal. Id. at 170-71. The extent of harm requiring reversal is controlled by whether the error was properly preserved at trial. Id. at 171. Where the defendant failed to object to the error at trial, we reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Egregious harm includes errors: (1) affecting the case's foundation; (2) denying the defendant a valuable right; (3) significantly affecting a defensive theory; or (4) making the case for guilt or punishment clearly and substantially more compelling. Hutch, 922 S.W.2d at 171; Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Hutch, 922 S.W.2d at 171. As noted earlier, the court's charge instructed the jury on the law of parties only in the abstract. The charge failed to apply the law of parties to the facts. The failure to apply the law of parties to the facts constitutes charge error. See Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). Sigler did not object to the jury charge; therefore, he must demonstrate the failure to apply the law of parties to the facts resulted in egregious harm. See Almanza, 686 S.W.2d at 171. We have reviewed the record in this case and believe that Sigler was not denied a fair and impartial trial. Although none of the State's witnesses could personally identify Sigler or Moreland, there is ample circumstantial evidence suggesting Sigler and Moreland were the individuals responsible for robbing the Save-A-Lot store. Further, there is ample evidence suggesting Sigler and Moreland were acting together, with Moreland as the gunman and Sigler as the money man. The record reveals that the State's sole theory of the case was that Sigler was a party to the offense. Moreover, the State's closing argument, which was made without objection, directed the jury to focus on the "rule of parties" included in the instructions of the court's charge. The State emphasized "this is the law [referring to the law of parties] and you should follow it." Under such circumstances, we cannot say Sigler was egregiously harmed by the charge's failure to apply the law of parties to the facts. Sigler's second complaint is therefore overruled.

Conclusion

The judgment of the trial court is affirmed (2) and counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App.--San Antonio 1996, no pet.).

Catherine Stone, Justice

Do Not Publish

1. A court may charge on the law of parties even though that theory of culpability is not alleged in the indictment. Howard v. State, 966 S.W.2d 821, 824 (Tex. App.--Austin 1998, pet. ref'd).

2. We note that Sigler also complains that the judgment in this case contains an affirmative deadly weapon finding that should be deleted. We have reviewed the judgment and find no such affirmative finding. Therefore, Sigler's complaint lacks merit.