Burton v. State

• Decision Date: 05 January 2017
• Docket Number: NO. 02–16–00067–CR,02–16–00067–CR
• Citation: Burton v. State, 510 S.W.3d 232 (Tex. App. 2017)
• Parties: Cordrecus Dunque BURTON, Appellant v. The STATE of Texas, State
• Court: Texas Court of Appeals

510 S.W.3d 232

Cordrecus Dunque BURTON, Appellant

v.The STATE of Texas, State

NO. 02–16–00067–CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: January 5, 2017

Barry Johnson, Fort Worth, TX, Attorney for Appellant.

Sharen Wilson, Crim. Dist. Atty., Debra Windsor, Asst. Crim. Dist. Atty., Chief, Post Conviction, David Richards, Kelly Meador, D. Graham Norris, Asst. Crim. Dist. Attys., Fort Worth, TX, Attorney for State.

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

OPINION

BONNIE SUDDERTH, JUSTICE

In two issues, Appellant Condrecus Dunque Burton appeals his conviction for aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). We affirm.

Background

On February 18, 2015, Brittany Darby, an Arlington resident, drove to a car wash in Arlington to clean out her car. According to Darby, she went there alone. When she arrived, she put her purse in the trunk of the car and then walked around to the back passenger seat and began picking up items from the floor of her car. According to Darby, she suddenly felt someone slap her on her rear end. She testified that when she turned around, she was looking down the barrel of a pistol and thought she was going to die. At trial, Darby identified the man holding the pistol as Appellant.

Darby testified that Appellant demanded she get into her car, so she did, and he got into the car with her and continued to point the pistol at her. She described Appellant as "continu[ing] to ask [her] where it's at" and she replied that she did not have anything, but he was adamant and dug through her glove compartment, the middle console, and the rest of the car. Darby testified that she did not know what Appellant was talking about or looking for. At one point, Appellant told Darby, "B***h, I'll blow your brains out." Appellant continued to rifle through the car and eventually accused Darby of hiding whatever he was looking for on her person and felt under her jacket. Darby testified that Appellant said, "B***h, move your hands," when she placed them in her lap, to which she responded that he was making a big mistake.¹

At that point, Appellant got out of the car and moved toward the trunk of the car. When Darby followed him, Appellant told her, "B***h, get back in the car." Darby refused to get back in the car, and when Appellant grabbed her purse from the trunk, she told him he was not going to take it and reached for her bag to take it back. Appellant then struck her in her face. Darby testified that she fought back and grabbed the collar of his shirt, but Appellant pushed her hard enough that she fell down and hit the back of her head. Appellant "took off running" and Darby got up and ran after him, yelling and screaming for help. Appellant ran into an apartment complex across the street and she followed him. Other people in the apartment complex attempted to help Darby catch Appellant, and at some point, he ran back to Darby, gave her the purse back, and said, "B***h, take your s**t. It's not that serious."

Three women who worked at a dentist's office located across the street from the car wash were returning from lunch when they heard somebody screaming for help and saw a woman and a man, later identified as Appellant, struggling at the carwash. Two of the women, Julie Zamora and Vanessa Perez, testified at trial. Zamora testified that she saw Appellant hit the woman in the face, grab her purse, and run across the street toward the apartment complex. Zamora ran after Appellant and caught up to him as he reached the entrance to the apartment complex, which was next door to the dentist's office. Appellant ran past her, although Zamora noted that he was not running very fast. Perez testified that Darby was crying hysterically and screaming for help.

Nicholas Lewis lived in the apartment complex and was outside on February 18 when he heard screaming and saw a man he identified as Appellant carrying a purse run through a gate in the fence around the complex. Lewis testified that Appellant tried to hide between some of the cars in the complex parking lot and that, when Lewis approached him, Appellant pulled a gun out of the pocket of his hooded sweatshirt, pointed it at Lewis, and said, "Back up, m*****f****r!" Lewis raised his hands and backed away, thinking that he was about to be shot. Appellant walked away, and the police arrived soon after his interaction with Lewis.

Appellant's mother, Tonya, and girlfriend, Makayla Garland, testified in his defense. His mother testified that she had given Appellant $1,202 on the morning of February 18. Garland testified that she picked him up at his mother's house that morning and dropped him off near the carwash. She circled the block, and when she approached the carwash, she saw Appellant speaking to another man by the fence of the carwash. She also recalled seeing a gray car at the carwash. She did not stop at the carwash but continued driving, looking for a place to get gas. When she came back to the carwash about five minutes later, she saw that Appellant was fighting with someone. Garland drove around the corner and called Appellant's mother before returning to the carwash. When she returned to the carwash, Appellant was no longer there, but several other people were there. Appellant's mother arrived and she and Garland looked for Appellant for approximately 15 minutes, but Garland testified that they left as soon as they saw the police.

Avery Harris testified that he walked past the car wash on February 18 and saw two men fighting, Appellant and a man Harris knew as "J Rock." Harris also testified that he saw a woman standing by a black car with its trunk open. During the fight, Harris saw that a gun fell on the ground and Appellant picked it up. Harris testified that J Rock left in his car and then Appellant ran across the street while the woman was screaming, "Stop him, stop him!" Harris did not intervene, but instead went to the nearby convenience store. When he emerged from the store a few minutes later, the police had arrived.

Appellant testified in his own defense that after he picked up the $1,202 from his mother, Garland took him to the car wash to purchase marijuana from J Rock, a drug dealer. Appellant testified that J Rock was smoking marijuana with Darby and that when he arrived, J Rock was walking away from Darby's car, and Darby was standing outside the car with the door open. J Rock's car was also parked in the carwash area. According to Appellant, he asked J Rock for two ounces of marijuana and pulled out the $1,202 in front of J Rock. Appellant testified, "[J Rock's] eyes like got big when he saw the substantial amount of money that I had." Appellant testified that he gave J Rock $100 and that J Rock went to the trunk of Darby's car, purportedly to retrieve the marijuana for Appellant, but instead J Rock grabbed a gun from the trunk, pointed it at Appellant, and told Appellant to give him the rest of Appellant's money. When Appellant hesitated, J Rock put his hand in Appellant's pocket. Appellant grabbed J Rock's hand, and J Rock pulled out a gun and pointed it at him, at which point Appellant "froze up and stopped and [J Rock] just pulled the money out."

Appellant alleged that J Rock took all of the $1,202 and then turned to walk back to Darby's car, so Appellant tried to grab the gun from J Rock. The two began to wrestle over the gun. Appellant described Darby as "standing looking like she was shocked" while he was fighting with J Rock over the gun.

Appellant estimated that he and J Rock fought over the gun for about 45 seconds before it fell on the ground, and J Rock kicked the gun towards Darby and told Darby to get it. Appellant testified that Darby hesitated, enabling him to reach the gun before she did, and he picked it up. Darby screamed, and J Rock ran to his car and drove away. Appellant then went to the trunk of Darby's car to look for his money and grabbed a purse that was in the trunk. After that, Appellant ran across the street, thinking he was running toward J Rock's car, and Darby was screaming that Appellant had a gun and to stop him. Appellant testified that he ran into the apartment complex and that J Rock also drove into the apartment complex through a different entrance. Appellant admitted that Lewis had seen him hiding behind a car, where Appellant claimed he was hiding from J Rock.

Appellant denied slapping Darby's rear end or hitting her in the face at any point during the incident.

Passion Walker testified that she purchased drugs from J Rock at his house on the morning of February 18 and that she later saw Appellant and J Rock arguing next to J Rock's car, a gray Oldsmobile which according to her was parked at the corner store near the car wash. Walker testified that J Rock ran to a black car at the car wash, threw something to a woman standing at the open trunk of the black car, and ran in the opposite direction, toward the apartments across the street from the car wash. Walker testified that Appellant ran "a whole totally different direction" and that she did not hear anyone screaming.

Appellant was charged by a one-count, two-paragraph indictment with aggravated robbery. The jury found Appellant guilty of aggravated robbery with a deadly weapon, and the trial court sentenced him to 30 years' confinement.

Discussion

Appellant brings two issues on appeal. In his first issue, Appellant argues that his constitutional right to a unanimous verdict was violated because the trial court failed to instruct the jury that it must unanimously agree on which paragraph of theindictment it found him guilty. In his second issue, Appellant challenges the sufficiency of the evidence to support his conviction.

I. Unanimity of the verdict

Appellant argues that his right to a unanimous verdict was violated when the trial court submitted the charge on aggravated robbery with a deadly weapon in the disjunctive. Appellant does not dispute that he did not object to the jury charge at trial, but "all...