Eddie Roy Taylor v. The State of Texas--Appeal from 284th District Court of Montgomery County

IN THE

TENTH COURT OF APPEALS

No. 10-02-112-CR

EDDIE ROY TAYLOR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 284th District Court

Montgomery County, Texas

Trial Court # 01-11-06847-CR

O P I N I O N

Eddie Roy Taylor appeals his conviction by a jury of the offense of aggravated robbery. Following Taylor's plea of true to two enhancement paragraphs, the jury found the paragraphs true and assessed his punishment at 75 years in the Texas Department of Corrections, Institutional Division. Taylor contends in two issues that the evidence is legally and factually insufficient to support his conviction. We affirm.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Bobby Lynn Davenport testified that on August 28, 2000, she was the manager of the Chevron store where the robbery occurred. She identified State s exhibit 1 as the surveillance tape taken at the time of the robbery.

Jeannie Mims, a video analyst for the Houston Police Department, testified that the camera, or several of the cameras, were out of focus. She indicated that she was not able to enhance the video, but she did produce and identify several photographs from the surveillance tape. She stated that the photographs showed the person committing the robbery holding what appeared to be a large chrome pistol in his right hand and pointing it at the clerk.

Brent Alexander Fotion testified that on August 28, 2000, he was the cashier at the Chevron store at the time of the robbery. He indicated that he had wiped down the counter at the beginning of his shift. Referring to appellant and Christopher Taylor, a codefendant, Fotion testified that he did not recall seeing either of them come into the store that evening prior to the armed robbery. He indicated that the robbery occurred around 10:30 to 10:45 p.m. He stated that while he was doing paperwork, an assailant came through the east door of the store with a purple sweater lifted up over his face. He said that as the assailant approached the counter, a gun came up on top of the counter.

Fotion testified that the assailant said, "This is no joke," or "This is not a joke. Give me all the money out of the till." He indicated that the assailant had something up over his face during the entire robbery. He said that he only had a second or so to get a full-fledged view of the assailant. He related that he saw the assailant's left hand going to the counter itself. He stated that he eventually gave the assailant the money. He testified that the assailant left the building after getting the money.

Fotion testified that he saw his assailant get into a four-door Fleetwood Cadillac after the robbery. He indicated that he did not see which side of the car the assailant entered. When asked if he could see anyone else in the vehicle, he replied, "No, I could not. Actually I could make out the silhouette and that was about it." Later, he clarified his statement to indicate that he saw the silhouette of a second occupant in the vehicle. He indicated that he reported the robbery to 911. He identified State s exhibit 6 as a weapon that looked like the weapon used in the robbery.

Fotion testified that Conroe police requested he go home. He indicated that police called him within an hour at his apartment, asking him to go to a Motel 6 on I-45. He stated that upon his arrival he observed several individuals who were under arrest. He identified Christopher Taylor as his assailant.

Raymond Howard Hill, a crime scene investigator for the City of Conroe Police Department, testified that he went to the Chevron store after the robbery and was able to obtain fingerprints from the area of the counter that the cashier had indicated as the area that the assailant might have touched.

Michelle Randolph, an ex-girlfriend of Christopher Taylor, testified that she was with appellant, Christopher Taylor, and others at the appellant's house on the evening of the robbery. She indicated that Christopher Taylor and appellant left the house somewhere between 10 and 10:45 p.m. She said Christopher Taylor was driving the car when they left. She said they went to the Motel 6 after they returned, where they encountered police.

Officer Jimmy Chilcutt, a latent fingerprint examiner for the Conroe Police Department, testified that he compared known fingerprints of Christopher Taylor to a print taken from the counter where the robbery occurred and that the print on the counter was that of Christopher Taylor.

Lenny Robinson, a friend and former co-worker of appellant, testified that at the time of trial he was in prison for violation of his probation. He indicated that on the evening of the robbery he was with appellant, Christopher Taylor, and others at appellant's place of residence. He stated that on one occasion Christopher Taylor and appellant left the residence and were gone about an hour or so. He related that Christopher Taylor had counted out a few dollars to appellant after they had returned. He indicated that he did not know the amount. He said he had seen Christopher Taylor with a handgun at the house. He said appellant brought a shotgun from the house to the car before they went to the Motel 6, saying that he wanted to sell it. He reported that police confronted them at the Motel 6.

Officer Joseph Farah testified that on August 28, 2000, he was a police officer with the Conroe Police Department. He indicated that he was present when Christopher Taylor was arrested at the Motel 6. He stated that Christopher Taylor was the driver of the car at the time of his arrest.

James Scott Moore testified that on August 28, 2000, he was a deputy sheriff with the Montgomery County Sheriff's Office, assigned to the patrol division. He indicated that while patrolling just outside the city he observed a car, its motor running and someone sitting in the driver's seat, parked to the side of a Citgo store. He related that he was suspicious because the parking places in front of the store were all unoccupied. He said that a black male with no shirt and baggy pants came out and got in the passenger side of the vehicle. He identified Christopher Taylor as the individual who had been in the store and who got into the passenger side of the vehicle. He related that he obtained a license plate number of the vehicle, which was a large, dark-brown, four-door Cadillac.

Officer Moore testified that thereafter he received a dispatch concerning the robbery at the Chevron store, involving a large dark brown Cadillac. He stated that he called the Conroe Police Department on his radio and told them that he had seen a vehicle similar to the one described. He provided them with a license plate number of the vehicle he had seen. He said that the Chevron store is located approximately 8-9 miles from the Citgo store and that it would take about 10 minutes to get there. He estimated that the vehicle left the Citgo store probably about 10:05-10:06 p.m.

The evidence shows that Christopher Taylor, not appellant, committed the robbery. The Texas Penal Code provides that a person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code 7.02(a)(2) (Vernon 1994).

Considering all of the evidence, including evidence that appellant and Christopher Taylor left appellant s place of residence and returned together, evidence that Christopher Taylor was accompanied by just one other person at both the Citgo store and the robbery, and evidence that Christopher Taylor gave money to appellant after the robbery, a jury could reasonably conclude that appellant was with Christopher Taylor both at the Citgo store and at the Chevron store during the robbery. Given the same evidence, including evidence that Christopher Taylor was the passenger in the car at the Citgo store, and evidence of the suspicious location of the car at the Citgo store, the jury could reasonably conclude that appellant was serving as the driver of the getaway car during the robbery and that he knew that a robbery was taking place. We hold that the evidence is legally sufficient to support appellant s conviction. See Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985).

Appellant relies upon Scott v. State, 946 S.W.2d 166 (Tex. App. Austin 1997). We find Scott to be distinguishable. In Scott, evidence showed that the defendant drove the party who committed a robbery to the scene and away from the scene. Id. at 168-69. However, in Scott, the jury was charged that to convict the defendant it must find that before a codefendant committed robbery, the defendant entered into a conspiracy and agreed to become a party to aid in the robbery and did so by driving the getaway car after the robbery. Id. at 167. While the charge in this case contained a charge on conspiracy, it also instructed the jury that it could convict appellant if it found beyond a reasonable doubt that appellant solicited, encouraged, directed, aided, or attempted to aid Christopher Taylor to commit the offense.

Appellant urges that at best the evidence shows that he was merely present when the robbery was committed and that the evidence failed to show that he had any prior knowledge that Christopher Taylor was going to commit the robbery. As noted, we believe the evidence shows that appellant was not merely present during the robbery but was driving the getaway car with knowledge that the robbery was taking place. We overrule appellant s issue one.

Applying the test for determining the factual sufficiency of the evidence, we do not find the evidence proving guilt is so obviously weak as to undermine confidence in the verdict, nor do we find that the proof of guilt is greatly outweighed by contrary proof. Further, we do not find that it is necessary to find the evidence factually insufficient in order to prevent manifest injustice. We overrule appellant s issue two.

The judgment is affirmed.

JOHN G. HILL

Senior Justice

Before Chief Justice Davis,

Justice Vance, and

Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed November 20, 2002

Do not publish

[CR25] [CRPM]