Boston v. State

• Decision Date: 27 June 2012
• Docket Number: No. 03–10–00399–CR.,03–10–00399–CR.
• Citation: 373 S.W.3d 832
• Parties: Ronald Glen BOSTON, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

373 S.W.3d 832

Ronald Glen BOSTON, Appellant

v.The STATE of Texas, Appellee.

No. 03–10–00399–CR.

Court of Appeals of Texas,

Austin.

June 27, 2012.

Linda Icenhauer–Ramirez, Attorney At Law, Dal Ray Ruggles, Law Office of Dal R. Ruggles, Austin, TX, for Appellant.

Mark T. Zuniga, Assistant Criminal District Attorney, San Marcos, TX, for State.

Before Chief Justice JONES, Justices PEMBERTON and HENSON.

OPINION

J. WOODFIN JONES, Chief Justice.

A jury convicted appellant, Ronald Glen Boston, of aggravated robbery. SeeTex. Penal Code Ann. § 29.03 (West 2011). The jury further found the enhancement paragraphs of the indictment, alleging two previous sequential felony convictions, to be true and assessed his punishment at confinement for 55 years in the Institutional Division of the Texas Department of Criminal Justice. See id. § 12.42(d) (West Supp.2011). Appellant raises two points of error on appeal. We affirm the judgment of the trial court.

BACKGROUND

Just after 6:00 a.m. on the morning of October 11, 2008, appellant entered a local San Marcos Shell “Super Stop” convenience store along with his brother, Jacob Hemphill.¹ Appellant immediately went to the counter to purchase a bag of chips and ask for cigarettes and cigars while his brother went to the coffee area. After a somewhat extended transaction, where appellant asked for several different types of cigars, keeping the store clerk busy turning around repeatedly to retrieve the requested items, appellant paid cash for his purchase and then walked over to his brother.

After that, the only other customer in the store made her purchase and left the store. Appellant's brother then went up to the counter with a cup of coffee and a Sprite. The store clerk rang up his purchases, and Hemphill gave her some cash. He then removed a gun from his pants. However, he dropped the gun on the floor. Appellant, walking up behind Hemphill at that moment, looked down at the gun, appeared to hesitate briefly, then proceeded toward the door, loitering slightly behind Hemphill at the counter. After retrieving the gun from the floor, Hemphill held it over the counter, pointing it toward the clerk. When the store clerk opened the cash register to complete the transaction, Hemphill, gun still in hand, reached across the counter and grabbed the cash out of the drawer.² Hemphill and appellant then left the store together. Testimony from the store clerk at trial indicated that she never saw the gun.³

Following this robbery, appellant and Hemphill robbed two other convenience stores in Austin and “cased” another—all within a two-hour period. Working together with Austin law enforcement, who had received a Crimestoppers tip about the brothers' identity in the Austin robberies, San Marcos authorities eventually identified appellant and Hemphill as the suspects in the San Marcos robbery. Appellant was arrested by Austin authorities for all the robberies.

As officers were about to execute the arrest warrant, they observed appellant place a rifle in the trunk of a vehicle matching the description of the one present at the Super Stop during the robbery and similar to the one depicted on the surveillance video. Subsequent investigation revealed the car was owned by appellant's mother. On executing a search warrant of the car at the scene of the arrest, police recovered a dark blue Adidas gym bag from the trunk. The bag contained a handgun that looked similar to the gun depicted in the video of the Super Stop robbery, along with ammunition. The gun was registered to another brother of appellant. Also inside the bag was a black hoodie, some black wind pants, and a black “doo rag.” A detective from the Austin Police Department Robbery Unit testified that law enforcement officers refer to bags containing a gun and that type of clothing as “robbery kits.”

Appellant's defense at trial was that he was merely present at the Super Stop, not a party to the aggravated robbery committed by his brother.⁴ The State, however, argued that appellant performed the scouting and lookout role during the robbery and that this Super Stop robbery was just the first robbery in a chain of robberies that appellant and Hemphill planned and committed together. The jury convicted appellant and assessed his punishment at 55 years' imprisonment. The trial court sentenced appellant in accordance with the jury's verdict, ordering the sentence to run consecutive to a ten-year sentence already imposed in Travis County, pursuant to a plea bargain, for one of the Austin robberies.⁵

DISCUSSION

On appeal, appellant's complaints relate to his contention that he cannot be held criminally responsible for the exhibition of a gun by his brother if the store clerk did not see it. We overrule his points of error and affirm the conviction and sentence.

Sufficiency of the Evidence

In his first point of error, appellant complains that the evidence is insufficient to support his conviction for aggravated robbery. First, he argues that the evidence fails to support a finding that a deadly weapon was used or exhibited, the aggravating element, because the evidence showed that the store clerk was not aware of the gun during the robbery. Second, he argues, largely on the same basis, that the evidence is insufficient to prove that the store clerk was threatened or placed in fear of imminent bodily injury or death.

Standard of Review

Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App.2011). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781;Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010). The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge for the case. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App.2009).

In determining the legal sufficiency of the evidence, we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007); Moff v. State, 131 S.W.3d 485, 489–90 (Tex.Crim.App.2004); Allen v. State, 249 S.W.3d 680, 688–89 (Tex.App.-Austin 2008, no pet.). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318, 99 S.Ct. 2781;see Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). A legal-sufficiency review requires us to defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. The jury, as the exclusive judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable inferences therefrom. Clayton, 235 S.W.3d at 778;seeTex.Code Crim. Proc. Ann. art. 38.04 (West 1979). Thus, when faced with a record of historical facts that supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. 2781;Padilla v. State, 326 S.W.3d 195, 200 (Tex.Crim.App.2010).

The standard of review on appeal is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App.2010). Circumstantial evidence is as probative as direct evidence in establishing guilt and may alone be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). Every fact does not need to point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Id. So long as “the verdict is supported by a reasonable inference, it is within the province of the factfinder to choose which inference is most reasonable.” Laster, 275 S.W.3d at 523. As with any question of circumstantial evidence and inference, “the jurors are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.” Obigbo v. State, 6 S.W.3d 299, 306 (Tex.App.-Dallas 1999, no pet.).

Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. Allen v. State, 249 S.W.3d 680, 688 (Tex.App.-Austin 2008, no pet.). We consider only whether the jury reached a rational decision. See Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

Aggravated Robbery

As indicted in this case, a person is guilty of aggravated robbery if he “commits robbery” and, during the commission thereof, “uses or exhibits a deadly weapon.” ⁶Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). A person commits robbery “if, in the course of committing theft ... and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Id.§ 29.02(a)(2) (West 2011). A person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03(a) (West Supp.2011).

Law of Parties

A person is criminally responsible for an offense committed by another if, acting with the intent to promote or assist the commission of the offense, that person solicits, encourages, directs,...