Ellison, Eric Brian v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Opinion filed June 27, 2002

Affirmed and Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00541-CR

____________

  ERIC BRIAN ELLISON, Appellant

V.

  THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

  HarrisCounty, Texas

Trial Court Cause No. 857,340

O P I N I O N

A jury found appellant, Eric Brian Ellison, guilty of aggravated robbery. SeeTex. Pen Code ' 29.03(a)(2) (Vernon 1994). The jury assessed punishment at, and the trial court sentenced appellant to, 15 years confinement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The complainant, Wayne Dirks, stopped at a convenience store between 9:30 and 10:00 p.m. March 25, 2000. As he was filling his tank, a vehicle stopped behind him at the pumps. Appellant walked over, stood beside Dirks, and said, APut your hands up and don=t turn around.@ Appellant then put a pistol against Dirks= head. In his peripheral vision, Dirks was able to see appellant=s profile.

Dirks heard appellant say, Take it, and someone then took Dirks wallet from his pocket. The wallet contained Dirks driver=s license, credit cards, telephone calling card, and cash. Appellant said, Don t turn around until we are gone. Dirks then heard car wheels squealing and saw a white van or recreational vehicle speed away. Dirks entered the convenience store and reported the offense to the clerks. The police arrived, and Dirks made a report.

Dirks subsequently noticed unauthorized charges on his credit card and telephone calling card statements. Houston Police Officer Paul Reese contacted the establishments where the credit cards had been used. He determined an unauthorized charge occurred at the Channelview Gerland s Food Store around 1:00 a.m., March 26, 2000, just a few hours after Dirks wallet had been stolen. Reese obtained the surveillance videotape taken at the store when the credit card was used and had a still photograph made from the tape.

Reese also obtained the telephone numbers of unauthorized calls made with Dirks stolen calling card. Reese located the addresses of phone numbers to which calls had been placed and met with the residents at those addresses. When he showed one resident the still photograph from Gerland s, the resident identified appellant by name. Another resident at the same address said a second person in the photograph was Lonnie Peoples.

Reese placed appellant=s and People=s photographs in a photographic array with four other photographs of similar description and showed the array to Dirks. Dirks tentatively identified appellant s photograph as being a photograph of the person who held the gun to his head and robbed him. Reese then showed Dirks the still photograph from the surveillance video, and Dirks positively identified appellant because the photograph showed almost the exact view Dirks had the night of the robbery, as opposed to the head-on views in the photographic array. Dirks also identified appellant in court.

Dirks never saw anyone other than appellant during the robbery. Dirks explained he had no reason to believe there was more than one person involved in the robbery, except the fact appellant said, Take it, and someone took Dirks= wallet. Either appellant was talking to himself or there was someone else there.

Appellant denied committing the robbery. He testified he was driving his grandmother s van that day, he loaned the van to his friends for a short time, and when his friends returned, they told him they had committed a robbery. Appellant claimed his friendsCPeoples and two othersCcommitted the robbery. Appellant admitted he and his friends drove to several establishments, including Gerland s, and used the stolen credit cards to buy merchandise.

The indictment alleged appellant did while in the course of committing theft of property owned by WAYNE DIRKS and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place WAYNE DIRKS in fear of imminent bodily injury and death, and appellant did use and exhibit a deadly weapon, to-wit: A FIREARM. It did not allege liability as a party.

The court charged the jury on the law of parties.[1] The court also charged the jury on the substantive offense, in part, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of March, 2000, in Harris County, Texas, the defendant Eric Brian Ellison, did then and there unlawfully, while in the course of committing theft of property owned by Wayne Dirks and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place Wayne Dirks in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 25th day of March, 2000, in Harris County, Texas, Joe Peoples and/or Donnie Pentoha and/or Michael Camacho, did then and there unlawfully, while in the course of committing theft of property owned by Wayne Dirks and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place Wayne Dirks in fear of imminent bodily injury or death, and Joe Peoples and/or Donnie Pentoha and/or Michael Camacho did then and there use or exhibit a deadly weapon, to-wit: a firearm, and that the defendant, Eric Brian Ellison, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Joe Peoples and/or Donnie Pentoha and/or Michael Camacho to commit the offense, if he did, then you will find the defendant guilty as charged in the indictment.

The jury found appellant guilty of aggravated robbery, as charged in the indictment. At neither stage of the trial did the court submit a special issue asking the jury to find whether the defendant used or exhibited a deadly weapon or knew a deadly weapon would be used or exhibited. On the judgment, the trial court circled Yes indicating an affirmative deadly weapon finding.

DISCUSSION

In a single point of error, appellant contends the affirmative deadly weapon finding must be deleted from the judgment because (1) the evidence raised the issue of guilt under the law of parties, and (2) the trier of fact did not make the specific finding required by Texas Code of Criminal Procedure Article 42.12, section 3g(a)(2). Because the evidence did not raise the issue of guilt under the law of parties, the trial court did not err in making an affirmative finding a deadly weapon was used.

Appellant=s point of error is based on provisions in Texas Code of Criminal Procedure article 42.12. Under Article 42.12 section 3g(a)(2), judge-ordered community supervision is not available

to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.

Tex. Code Crim. Proc. art. 42.12 ' 3g(a)(2) (Vernon Supp. 2002).[2] In addition, the statute provides: On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment. Id.

As the court of criminal appeals explained in Polk v. State and reiterated in Vasquez v. State:

[I]n a jury trial, a trial court is required to enter a deadly weapon affirmative finding in three situations: where the jury has (1) found guilt as alleged in the indictment and the deadly weapon has been specifically pled in the indictment; (2) found guilt as alleged in the indictment but, though not specifically pled as a deadly weapon, the weapon pled is per se a deadly weapon; or (3) affirmatively answered a special issue on deadly weapon use.

Vasquez v. State, 56 S.W.3d 46, 47 (Tex. Crim. App. 2001) (citing Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985)). The trial court in the present case properly followed Polk and Vasquez by entering a deadly weapon affirmative finding because the jury found appellant guilty as charged in the indictment and a deadly weapon was specifically pleaded in the indictment.

The only evidence appellant may have had an accomplice was Dirks testimony appellant said, Take it, before someone reached into Dirks pocket. There is no testimony anyone other than appellant possessed the gun. Under appellant s version of events, appellant was not present at all. Thus, the evidence at trial allowed the jury to believe either appellant was holding the gun during the robbery or he was elsewhere. Accordingly, the law of the parties instruction was unnecessary. Once the jury found appellant guilty as a principal as charged in the indictment, the trial court, under Polk and Vasquez, was required to enter the deadly weapon finding.

We overrule appellant=s sole point of error. We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] The charge read in part:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. 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.

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. Mere presence alone will not constitute one a party to an offense.

[2]The legislature amended Article 42.12 section 3g(a) in 2001. See Act of May 21, 2001, 77th Leg., R.S., ch. 786, ' 2, 2001 Tex. Gen. Laws 1528, 1529. The amendment did not effect a change in subsection 3g(a)(2).