BILLY PINK HARDIN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00682-CR
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BILLY PINK HARDIN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-58165-JVM
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        A jury convicted Billy Pink Hardin of aggravated robbery and assessed punishment, enhanced by two prior felony convictions, at seventy-five years' imprisonment. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
 
        On October 6, 2005, David Rose and Keaton Cummings robbed the Nu Cliff grocery store at gunpoint shortly after it opened for the day. Appellant drove Rose and Cummings to the store and drove them away from the scene after the robbery had occurred.
        Quang Nguyen testified that he saw a man standing near the store's check cashing office pointing a gun towards his father-in-law, Myung Kim. Before Nguyen could react, a second man pointed a gun at Nguyen's face. Nguyen opened the cash register and gave the second man the money. The first gunman walked to the front door and stood as a lookout. The second gunman grabbed Nguyen around the neck, put a gun against Nguyen's head, and pulled him toward the check cashing office. He ordered Nguyen to tell Kim to open the locked door to the check cashing office. Kim appeared to be in shock and did not open the office door. Both gunmen began shooting at Kim, but the bulletproof glass around the office deflected the bullets. Nguyen testified that both he and Kim carried guns because the store had been robbed on at least three previous occasions. Kim pulled out a gun and began firing towards a small opening near the ceiling of the office. The gunman at the front door said, “[T]he po-po is coming,” then ran out of the store. The second gunman pulled Nguyen towards the back of the store. Nguyen pried himself free, pulled out his own gun, and fired three shots. The second gunman ran through the store and out the front door. Nguyen chased the gunman around the corner, firing several more gunshots. When Nguyen ran out of bullets, he went back to the store, where he discovered a customer had been wounded. The police arrived a short time later. About six days after the robbery, Nguyen identified a photograph of David Rose as the gunman who stood by the front door. Nguygen testified that when he ran outside the store, he did not see Rose or a car speeding away.
        Myung Kim testified that he went into the check cashing office after he opened the store for the day. Kim saw a man who had a gun come into the store, knock on the locked office door, and order Kim to open the door. Kim pushed an “emergency button” to alert the police, but did not open the door. A second man grabbed Nguyen around the neck and pointed a gun at Nguyen's head. The man said, “[I]f you are not going to open the door, I am going to kill him.” Kim testified that he did not open the door because he was afraid and thought the police would arrive. When Kim heard gunshots, he pulled a gun from under a table in the office and fired at the ceiling. After the gunshots stopped and the store was quiet, Kim opened the office door and saw a woman who was bleeding.
        Yolanda Perez testified that she was in the store to pay a bill. As she stood at the check cashing window, an armed man went to the office door and told the man inside to open it. She turned around to leave, but a second armed man told her to get down and to not look at him. After she laid on the floor, she heard “a lot of shooting.” When she tried to get up, she was struck by bullets in the arm and leg. After the shooting stopped, she was taken to a hospital.
        John Tancred, an emergency room paramedic, testified that two different gunshot victims were brought into the emergency room shortly after 8:00 a.m. on October 6, 2005. A man who was later identified as Keaton Cummings came into the hospital first. When Tancred cut Cummings's clothing off in order to treat him, he found a black ski mask in Cummings's jeans pocket. Tancred placed all of Cummings's clothing into a bag and gave it to a police officer. A short time later, a woman arrived with gunshot wounds to her arm and leg. Someone told Tancred that the woman had been involved in a store robbery.
        Several Dallas police officers investigated the robbery. Detective Terry Cornelius testified that he saw surveillance tapes from cameras at the hospital's emergency room doors that showed a vehicle with three men inside it stop at the entrance. A man got out of the vehicle, went into the hospital, returned with a wheel chair, and helped another man from the backseat of the vehicle to the wheel chair. After the man wheeled the second man into the hospital, he returned to the vehicle and drove away. Cornelius determined that Cummings was the man in the wheel chair. The vehicle was registered to “Mildred Hardin and Billy Hardin.” One day after the robbery, officers located appellant at his girlfriend's house. The girlfriend gave the officers consent to search her house and garage. Officers found a handgun and ammunition clip in the master bedroom closet. Later analysis determined that bullets and casings found at the store were fired from the handgun found in the master bedroom closet. Officers found appellant's car in the girlfriend's closed garage. There were blood stains on the backseat of appellant's car, and a ski mask, black bandana, latex gloves, and three pairs of white cloth gloves were inside the car.
        Detective Patrick Bland testified that he talked with appellant at the girlfriend's house. Appellant was alone in his car when he picked up a man and dropped the man off at the hospital because the man looked injured. At the time that appellant talked with Bland, appellant did not know the officers had a surveillance video from the hospital showing three individuals in appellant's vehicle. After appellant gave written consent to search his vehicle, Bland transported him to the police station.
        Detective Fidel Perez testified that he interviewed appellant at 11:35 a.m. on October 7, 2005. Appellant initially said he was driving down the street and saw a man on the side of the road who appeared to be injured. Appellant was alone in his car. He put the man in the car and drove him to the hospital. The man went inside the hospital and appellant drove away. After further questioning, appellant said that he got off work on the morning of October 6, 2005, and went home to his apartment to check the mail. He saw his long-time friend David Rose and another man he did not know sitting by his apartment door. Rose asked appellant for a ride to the store. Appellant drove Rose and the other man to the store, parked in front, and waited in the car while the men went inside. When appellant heard gunshots coming from inside the store, he drove off but circled around the block. Appellant saw Rose and the other man walking down the street, so he stopped the car. Rose got in the front passenger seat and the other man got in the back seat. The other man said that he had been shot and asked to go to the hospital. Appellant drove to the emergency room entrance. Rose got out of the car, went inside and brought out a wheel chair, then pushed the other man in the wheel chair back inside the hospital. When Rose returned to the car, appellant drove to his girlfriend's house where he cleaned the blood from the back seat. Appellant saw a silver pistol on the floorboard, so he took it into his girlfriend's house and put it in the master bedroom closet. Perez testified that appellant had to pass by several other stores because neither appellant's apartment nor the girlfriend's house was located in the same neighborhood as the store that was robbed. Appellant's signed statement to the police was read to the jury.
        Wanda Moen, a human resource administrator for Vinylex, and Donald McGee, a supervisor at Vinylex, testified on appellant's behalf. Moen testified that appellant had worked for Vinylex for about six years and usually worked twelve-hour shifts. The company, a manufacturing facility, provides both latex and cotton gloves to their workers. Company records indicated that appellant worked from 7:00 p.m. on October 5, 2005 to 7:00 a.m. on October 6, 2005. Both Moen and McGee testified they did not know what appellant did when his shift ended and he left the building.
        Appellant did not testify at the trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        To obtain a conviction for aggravated robbery, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly, while in the course of committing theft, threatened and placed Quang Nguyen in fear of imminent bodily injury and death, and used or exhibited a deadly weapon, a firearm, during commission of the robbery. See Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003).
        The jury was instructed that it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). 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. See id. § 7.01(a). 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. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.).
Discussion
 
        Appellant argues that the evidence is legally and factually insufficient because nothing shows he participated as a primary actor or a party in the robbery. Appellant asserts that because two other individuals committed the robbery and he merely gave those men a ride to the hospital, the evidence is insufficient. The State responds that the evidence is legally and factually sufficient to show appellant participated in the aggravated robbery.
        There was evidence presented that appellant drove Rose and Cummings to a store that was not in their neighborhood, passing several other stores along the way. Appellant waited in the car while Rose and Cummings robbed the store, then appellant drove around the block and picked up Rose and Cummings after the robbery. After appellant took Cummings to the hospital, he drove to his girlfriend's house, cleaned bloodstains from the back seat, and hid a gun that was used in the robbery inside the girlfriend's house. The police found several items in appellant's car that are commonly used in robberies, such as a ski mask, bandana, and gloves. Appellant initially told the police that he was alone in the car and just happened to pick up an injured man. However, appellant signed a written statement that said Rose was a long-time friend who asked him for a ride to the store, and appellant drove both Rose and Cummings to the store. In his statement, appellant claimed he drove away from the store when he heard the gunshots, but he went around the block and picked up Rose and Cummings after he saw them walking down the street.
        The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9.
        Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction for aggravated robbery. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We overrule appellant's two points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070682F.U05