Barnes v. State

• Decision Date: 29 November 2001
• Docket Number: No. 03-00-00495-CR,03-00-00495-CR
• Citation: 62 S.W.3d 288
• Parties: (Tex.App.-Austin 2001) Anthony Barnes, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Page 288

62 S.W.3d 288 (Tex.App.-Austin 2001)

Anthony Barnes, Appellant v. The State of Texas, Appellee

No. 03-00-00495-CR

Court of Appeals of Texas, Austin

November 29, 2001

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0991880, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

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Before Justices Kidd, B. A. Smith and Onion^*

John F. Onion, Jr., Justice

This appeal is taken from a conviction for aggravated robbery. See Tex. Pen. Code Ann. § 29.03(a)(2) (West 1994). After the jury found appellant Anthony Barnes guilty, the trial court¹ accepted appellant's plea of "true" to the two enhancement paragraphs of the indictment,² and assessed appellant's punishment at eighteen years' imprisonment.

Points of Error

Appellant advances four points of error. In the first two points, appellant challenges the legal and factual sufficiency of the evidence to sustain the conviction, noting the application of the law of parties. Appellant further blends into these points of error the claim that the evidence is insufficient to corroborate the testimony of the accomplice witness, which we will treat separately but as a part of our sufficiency discussion.

In the third point of error, appellant contends that the trial court erred in including in the judgment an affirmative finding of the use of a deadly weapon when the jury, as trier of fact, made no such affirmative finding. In the fourth point of error, appellant urges that the trial court erred in failing to submit a jury instruction requiring the jury to determine, if appellant acted as a party, that appellant knew that a deadly weapon would be used or exhibited in the commission of the offense charged. After modification of the judgment to delete the affirmative finding of the use of a deadly weapon, we will affirm the conviction.

Facts

In view of the challenges to the sufficiency of the evidence, the facts become vitally important. In April 1999, Elvira Combs was employed at the International House of Pancakes (IHOP) restaurant at 1101 S. MoPac Expressway in Austin. On a Thursday, Friday, Saturday, and Sunday, she was involved, inter alia, in training appellant to be a "manager on duty" at IHOP. She recalled that during this training period, appellant jumped ahead of the training schedule, asking where the receipts each day were deposited, how many employees were involved in making the daily deposit, the location of the bank, and mode of transportation used. Combs thought it was unusual because appellant repeatedly asked these questions.

On Monday, April 5, 1999, Combs was the only manager on duty. Appellant was not scheduled to work, but he called three times asking how busy the restaurant was that day, how much money had been made, and whether Combs was the only manager on duty. Combs thought the number of times appellant called was unusual for an employee who had worked only a week and a half.

About 5:30 p.m. on April 5, Combs left the restaurant to make the IHOP's daily deposit. She had $3,000 or more in her purse. Her husband, Gary, and their two daughters had arrived to take her to the bank. The eight-year-old daughter came into the restaurant to get her mother while the three-year-old daughter remained in the Combs' maroon car with her father. As the eldest child got in the front seat and Elvira Combs was getting in the back seat, Gary Combs yelled "Elvira, we're about to get robbed." A man had been seen getting out of a gray car in the parking lot of the restaurant. He was carrying a gun and wearing a greenish ski mask. Combs heard her husband's scream, and turned to see a masked man waving a black gun at her daughter in the front seat.³

Elvira Combs moved in front of her daughter and the gunman pointed the gun at Comb's head and demanded: "Hand me your bag." She could not recognize the voice as the man was whispering. The man weighed about 150 pounds, was of medium height from 5'6" to 5'10", had a medium to husky build, was wearing denim jeans, a white hooded shirt, and a dark colored mask with speckles. The man grabbed Combs's purse with the deposit money and ran. The gunman ran across the adjoining parking lot of the steak house next door and in the direction of an access road next to Zilker Park. The gray car drove around the IHOP restaurant apparently to meet the gunman. Elvira Combs went to call "911" and Gary Combs, with the family out of the car, began to pursue the gunman.

Gary Combs almost hit the gunman with his car. The gunman took off his mask, threw it down, then slipped and fell on the side of the road. Combs briefly saw the face of the gunman and observed that it was an African-American man whose teeth were red from his bloody lip, apparently from his fall. Combs did not get a good look at the man before the man ran off into the thick woods of Zilker Park. Combs drove his car back onto the access road, drove over a hill and saw the gray car. It had pulled into a park entrance off the access road and made a U-turn to face the access road. Combs drove his vehicle right up next to the driver of the gray car and got a good look at the driver from a distance of three to four feet. The driver was an African-American man with a light complexion or a Mexican-American man with a dark complexion, who had short hair, a thin face, and a goatee. Combs wrote down the license plate number of the gray car. Another car pulled up behind the gray car and the gray car's driver, who was putting on a mask, "took off." Combs returned to the IHOP restaurant and gave the license number and a description of the gray car to Officer Michael Metcalf. The officer determined the license plate number was registered to a Jenkins Johnson. Other police units were alerted over the radio to be on the lookout for a gray car with the license plate number reported.

Dalton Renner, a motorist at the intersection of MoPac and Bee Caves Road, observed the robbery. As the gunman fled, Renner turned into a driveway in order to impede the masked ski mask flew into the air and he fled into the Zilker Park woods.

Danette Contreras, another motorist, observed the robbery from the frontage road next to IHOP and saw the gunman flee. She did not get a good look at his face though he removed his mask as he fled. Contreras observed the gunman being pursued by a maroon car when a gray car approached as if to pick up the gunman. Then, Contreras saw the gunman head into the woods after he was unable to get into the gray car. Contreras then called "911" on her cell phone. She described the gunman as an African-American, 5'7" tall, husky build, wearing a white sweatshirt with a hood. Later, on the other side of Zilker Park, she saw the "silver" car again on Barton Springs Road and got a good look at the driver and described him as a "light-complected black man, skinny." Contreras was still on the phone with "911" and gave "the license plate number from the silver car." She was instructed to return to IHOP where she identified Jenkins Johnson as the driver of the gray or silver car she had seen. She was unable to identify the gunman but knew appellant was not the driver of the gray car.

The co-defendant, Jenkins Johnson, was the State's principal witness. Johnson testified that he had been granted testimonial immunity; that his testimony in the instant case could not be used against him in his own trial for aggravated robbery. Johnson stated that on April 5, 1999, he did not know appellant's last name though appellant was married to Johnson's cousin, and that he had loaned appellant $600 which had not been repaid. On April 5, Johnson received a telephone call from appellant who stated he had "a way" of repaying Johnson the $600 due on the loan. Johnson drove to appellant's house where he learned appellant planned to get the money "from his job," but that they would need a gun. The two men drove to the home of Johnson's friend, Alejandro Alcantara, to borrow a gun. On the way, appellant intimated to Johnson that the gun would be used to commit a robbery at appellant's place of employment. Johnson and appellant borrowed a nine millimeter Baretta handgun from Alcantara and then drove to the Oshman's store in Northcross Mall to purchase ski masks and gloves. Johnson tried on one of the masks prior to purchase and then did so again later in the car. Johnson did not know whether he tried on the same mask both times. According to Johnson, appellant may have tried on one of the masks, either in Oshman's or later in the car. Johnson said appellant was wearing a dark colored turtleneck shirt.

From Oshman's, Johnson related they drove in his gray 1983 Chevrolet Impala to the IHOP where appellant worked, arriving about 4:50 or 5:00 p.m. They drove around the restaurant to "scope out the area." Appellant told Johnson that a female employee would be leaving the restaurant with the money to be deposited. They finally parked in the IHOP parking lot to wait. Appellant then told Johnson that Johnson had to commit the robbery because appellant would be recognized by his voice. Appellant agreed to meet Johnson in Johnson's car on the other side of the steakhouse adjoining IHOP after the robbery. Both men then donned their masks.

When a lady came out of the restaurant, appellant indicated to Johnson that she was the right person. Johnson testified that he got out of his car, ran towards the woman, and grabbed her purse. Johnson was wearing a white hooded shirt and the gun was in his pants. He may have slightly displayed the gun. After obtaining the purse, he ran to the other side of the steakhouse, but appellant was not there with the car. Someone in another car tried to hit him and barely missed. Johnson stumbled and fell. He took his mask off. At this time, appellant drove up in Johnson's gray car, got out of the car and stood there looking at Johnson. Johnson said that he made no attempt to get into...