Thomas, Jermaine Appollo v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Opinion filed December 6, 2005

Affirmed and Opinion filed December 6, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01054-CR

____________

JERMAINE APPOLLO THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 932,474

O P I N I O N

Appellant Jermaine Appollo Thomas appeals his conviction for capital murder in the course of a robbery with a deadly weapon.[1] In his sole point of error, appellant argues that the evidence is factually insufficient to support a conviction for capital murder because it fails to prove that appellant intended the victim=s death. We affirm.

Background

The victim in this case, Ifeanyi Udenenwu, drove an ice cream truck in appellant=s neighborhood. Residents referred to him as AMr. Berry@ or simply Athe ice cream man.@ In addition to ice cream, Mr. Berry sold snack foods and convenience store items from his truck. Mr. Berry was fatally shot during the course of a robbery on December 2, 2002. After killing Mr. Berry, the robbers highjacked his truck, unloaded the merchandise, and set the truck on fire with Mr. Berry=s body still inside.

On the night of December 2, 2002, appellant and three acquaintancesBCecil ABoo@ Henderson, Isiah ALucky@ Gooden, and Tristan TerryBgathered at Henderson=s house. Henderson=s girlfriend, Laeshelia Coleman, was also present. At some point, the men began to discuss Ahitting a lick,@ meaning that they planned to rob someone. According to Coleman, appellant declared that he knew a lick to hit and suggested that they rob Mr. Berry because he sold dope and weed from his truck. Coleman testified that appellant said that they could rob Mr. Berry when he parked his truck for the night. In contrast, appellant testified that the robbery was not his idea and that he did not know who the others intended to rob.

All four men displayed guns at Henderson=s house. Appellant had brought his mother=s loaded gun, which he claimed was for protection, and showed it to the others.[2] Appellant testified, however, that he had never held a gun before that night and that he would never shoot one. Gooden, Terry, and Henderson also displayed their guns, and Gooden declared that he felt like killing someone that night. Appellant testified that he did not take Gooden seriously. According to appellant, Gooden also took appellant=s mother=s gun away from him.

After they decided to rob Mr. Berry, Gooden, Terry, and Henderson left the house. Appellant agreed to pick them up in Gooden=s car if they ran into trouble.[3] Appellant testified that he knew that the others were going to commit a robbery, but that he did not know who the target would be. However, on cross-examination, appellant admitted that he knew the others planned to rob Mr. Berry. After about thirty minutes, Gooden called appellant and told him to pick them up. Appellant first went home and changed into all-black clothing, including a hooded sweat-shirt, a knit cap, a do-rag, a headband, and gloves. Appellant testified that he changed his clothes because he was cold. After changing, appellant met Gooden, Terry, and Henderson at the corner where the ice cream truck was parked.

Appellant testified that he arrived just in time to see Gooden shooting into the window of the ice cream truck. Neighbor Natalie Reyes testified that she saw three or four young black men standing around the truck moments before the shooting. Appellant testified that he did not get out of Gooden=s car; however, Reyes testified that shortly before the shooting, she saw an old blue car parked nearby and that appellant was buying something at the ice cream truck=s window. Both appellant and Reyes testified that three of the men jumped inside the truck. The three men drove away in the ice cream truck, and appellant followed in Gooden=s car. Appellant testified that he followed them because he wanted to get his mother=s gun back.[4]

The vehicles eventually arrived at Industrial Park. Appellant testified that when he got out of the car, he saw the others throwing various items out of the ice cream truck. Appellant testified that he asked for his mother=s gun but did not get it back. When appellant asked about Mr. Berry, Gooden gloated that he had killed him. Appellant testified that he did not believe Gooden until he looked through the truck=s window and saw Mr. Berry=s body. Appellant testified that he was scared and ran to his friend Dirty John=s house, that he did not see any gasoline cans, and that the ice cream truck was not on fire when he fled. A security guard testified that a young black man ran out of the park shortly before the truck exploded; after the explosion, the guard also saw three men pushing a blue car out of the park.

When appellant arrived at Dirty John=s house, he jumped into the back seat of a car and hid. Later, he shed the heavy black clothing and left it on Dirty John=s porch. Appellant testified that he took his clothes off because he was sweaty after running from Industrial Park. Gooden, Terry, and Henderson also arrived at Dirty John=s house.[5] They had been pushing Gooden=s car because it had run out of gas; the car was also filled to the roof with items from the ice cream truck. Dirty John testified that the men wanted him to fill the car with gas from his father=s truck. According to Dirty John, Gooden urged him to work quickly because he had just robbed and killed someone. Dirty John did not see appellant with any money from the robbery and did not ask whether the others had given appellant a share of the cash. Appellant testified that he did not receive any money or property from the ice cream truck.[6]

Once they had refueled the car, appellant and the others drove back to Henderson=s house. Coleman was still there when they arrived, and appellant told her that Gooden had shot the ice cream man. Coleman testified that all four men unloaded the stolen goods from the car and stashed them in the house. Several days later, police found appellant=s mother=s gun at Gooden=s girlfriend=s house; the shots that killed Mr. Berry came from appellant=s mother=s gun.

Factual Sufficiency

In his sole point of error, appellant argues that the evidence is factually insufficient to support his conviction. Specifically, appellant contends that even if the evidence preponderates towards his guilt, it does not prove his guilt beyond a reasonable doubt. We disagree.

In a factual sufficiency review, an appellate court must view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient if, when considered by itself, the evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt and thus renders the conviction clearly wrong and manifestly unjust. Id. at 85; Vasquez v. State,67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Alternatively, evidence is factually insufficient if the evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard cannot be met, even if evidence supporting guilt outweighs the evidence to the contrary. Zuniga, 144 S.W.3d at 484. The reviewing court may not substitute its own judgment for that of the jury and may not intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. Vasquez, 67 S.W.3d at 236.

Appellant was convicted of capital murder in the course of a robbery with a deadly weapon. A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. ' 19.03(a)(2) (Vernon Supp. 2005). A person commits robbery if he unlawfully appropriates property with intent to deprive the owner of property and in the course of doing so, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. ' 29.02(a)(1) (Vernon 2003), '31.03(a) (Vernon Supp. 2005).

The jury instructions authorized the jury to convict appellant of capital murder as a party to the offense. A person is criminally responsible as a party if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003). A person is criminally responsible for the conduct of another if he Asolicits, encourages, directs, aids, or attempts to aid the other person to commit the offense@ and acts Awith intent to promote or assist the commission of the offense.@ Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).

The jury instructions also authorized the jury to convict appellant as a conspirator. A person can be convicted of capital murder as a conspiring party under Texas Penal Code Section 7.02(b). Longoria v. State, 154 S.W.3d 747, 754 (Tex. App.CHouston [14th Dist.] 2004, no pet.). Section 7.02(b) states that if a conspirator commits a felony in the attempt to carry out a conspiracy to commit a different felony, each conspirator is guilty of the felony actually committed as long as Athe offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.@ Tex. Pen. Code Ann. ' 7.02(b) (Vernon 2003). This is true even if the conspirators did not intend to commit the felony that their co-conspirator actually committed. Id. Therefore, appellant could be held criminally responsible for capital murder if the evidence demonstrated that he conspired with Gooden, Terry, and Henderson to commit a robbery, that one of those men committed capital murder in furtherance of the conspiracy=s unlawful purpose, and that appellant should have anticipated that the murder would occur. See Longoria, 154 S.W.3d at 758-59.

Appellant acknowledges that he knew the others were going to commit a robbery and that his role was to drive the get-away car; however, appellant insists that he neither expected nor participated in the murder of Mr. Berry. Therefore, we must determine whether the evidence is factually sufficient to support the following conclusions: (1) the capital murder of Mr. Berry was in furtherance of the conspiracy to commit robbery, and (2) appellant should have anticipated that Mr. Berry would be killed.

We find that the evidence is factually sufficient to support appellant=s conviction for capital murder. The record indicates that Gooden shot Mr. Berry after appellant had arrived in the get-away car as instructed. Immediately after the shooting, Gooden, Terry, and Henderson climbed into the ice cream truck and drove away, followed by appellant. At Industrial Park, three of the men unloaded the truck=s merchandise into the get-away car, and then set the ice-cream truck on fire with Mr. Berry=s body still inside. Afterwards, all four men helped to stash the stolen items at Gooden=s house. We find that these facts are sufficient to prove that the murder of Mr. Berry was in furtherance of the men=s conspiracy to commit robbery. See Johnson v. State, 32 S.W.3d 388, 394 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (holding that evidence was factually sufficient to prove that conspirators committed acts in furtherance of conspiracy to commit robbery when one conspirator shot victim during the robbery, other conspirators ransacked the house, and all conspirators helped to unload stolen property).

We also find that appellant should have anticipated that Mr. Berry would be killed during the course of the robbery. Texas courts consistently have held that a conspirator should have anticipated that a murder would occur when he knew that a co-conspirator was carrying a gun. See, e.g., Longoria, 154 S.W.3d at 756-57 (holding that appellant, who watched for police while armed co-conspirators robbed a house and shot at sheriff=s deputies, should have anticipated that a deputy could die); Flores v. State, 681 S.W.2d 94, 96 (Tex. App.CHouston [14th Dist.] 1984, pet. granted) (holding that appellant in burglary case should have anticipated murder because he knew that his co-conspirator had a gun); Ramirez v. State, No. 14-02-00321-CR, 2003 WL 548600, at *4 (Tex. App.CHouston [14th Dist.] Feb. 27, 2003, pet. ref=d) (not designated for publication) (holding that appellant should have anticipated that victim would be killed when co-conspirator brought a gun to the scene of the robbery). Here, all four men displayed guns at Gooden=s house while they planned the robbery, and all but appellant took guns with them when they left to find the ice cream truck. Furthermore, in appellant=s presence, Gooden declared that he felt like killing someone that night and took appellant=s mother=s loaded gun, which he used to shoot Mr. Berry less than an hour later. These facts clearly demonstrate that appellant should have anticipated that a murder would during the course of the robbery.

Appellant argues that he could not have anticipated that Mr. Berry would die because he had planned the robbery in such a way that no one would need to be killed and because Gooden shot Mr. Berry in the presence of several witnesses.[7] However, as the judge of the weight and credibility of witness testimony, the jury was free to disbelieve appellant=s assertions, and we will not second-guess their decisions about such matters. Vasquez, 67 S.W.3d at 236. Having viewed all of the evidence in a neutral light, we find that the evidence does not merely preponderate toward appellant=s guilt; rather, a reasonable jury could have found appellant guilty beyond a reasonable doubt. Because we find that the evidence is factually sufficient to support appellant=s conviction for capital murder, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed December 6, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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

[1] A jury found appellant guilty and a judge sentenced him to life in prison.

[2] Coleman testified that appellant left and returned with the gun after the men discussed robbing Mr. Berry. However, the evidence is clear that appellant displayed his mother=s gun at Henderson=s house before the robbery occurred.

[3] The record indicates that Gooden drove an early-model dark blue or black Oldsmobile.

[4] The record suggests that at some point, the men discussed throwing Mr. Berry onto the freeway, although it is unclear whether this conversation took place before or after the robbery and shooting occurred. On direct examination, appellant denied that such a conversation had taken place, but he admitted it on cross-examination.

[5] It is unclear whether appellant arrived at Dirty John=s with the other three men. Although appellant testified that he fled Industrial Park while Gooden, Terry, and Henderson were still there, Dirty John thought that appellant had arrived in the blue car with the others. There was also evidence that shortly after they left Industrial Park, the men scattered and hid in various places near Dirty John=s house while a police helicopter scanned the area.

[6] John Robinson, Dirty John=s father, saw Henderson remove a plastic bag from under the porch before the group left. Robinson testified that he thought that appellant and the others had recently committed a crime when they suddenly arrived at his house; when he heard about the incident on the news the next morning, he called Crime Stoppers. Robinson and Dirty John each received $2,000 from Crime Stoppers.

[7] Appellant argues that because the group planned to steal illegal drugs, Mr. Berry would not be able to report the crime; therefore, they would not need to kill Mr. Berry to ensure that he would not incriminate them. Contradictorily, appellant also claims that he stayed out of Mr. Berry=s view because Mr. Berry would recognize him and report him to the authorities; appellant argues that his avoidance of Mr. Berry proves that he expected Mr. Berry to remain alive.