Clifton v. State, No. 03-06-00648-CR (Tex. App. 8/20/2009)

• Decision Date: 20 August 2009
• Docket Number: No. 03-06-00648-CR.,03-06-00648-CR.
• Parties: ALBERT JERMAIN CLIFTON, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

ALBERT JERMAIN CLIFTON, Appellant, v.THE STATE OF TEXAS, Appellee.

No. 03-06-00648-CR.

Court of Appeals of Texas, Third District, Austin.

Filed: August 20, 2009.

Do Not Publish.

Appeal from the District Court of Travis County, 167th Judicial District, No. D-1-DC-06-203379, Honorable Michael Lynch, Judge Presiding.

Affirmed.

Before Justices PATTERSON, PEMBERTON and ONION^*.

MEMORANDUM OPINION

JOHN F. ONION, Jr., Justice.

AppellantAlbert Jermain Clifton appeals his convictions on two counts of aggravated robbery.Tex. Penal Code Ann. § 29.03(a)(2)(West 2003).After the jury found appellant guilty of both counts in a single indictment, the trial court assessed punishment when appellant pled "true" to allegations that he had been previously convicted of two felonies.The trial court imposed sentences of eighteen years' imprisonment on each count.The sentences are to run concurrently.

POINTS OF ERROR

Appellant advances four points of error.First, appellant challenges the legal sufficiency of the evidence to sustain the convictions for aggravated robbery based on the law of parties.Second, appellant contends that the trial court erred in not giving appellant's special requested jury charge on the State's burden to prove that appellant was criminally responsible for the aggravating element of each offense.Third, appellant urges that the trial court erred in overruling the motion to suppress physical evidence.Fourth, appellant asserts that the trial court abused its discretion in admitting into evidence a co-conspirator's hearsay statement.

BACKGROUND

About 6:45 a.m. on the morning of June 24, 2006, Hildegardo Garcia and his teenage son, David, parked their Ford F-150 truck on Battle Bend Drive in Austin, Travis County, near the KIA automobile agency.They were to pick up a friend of Hildegardo's who owned a ranch where they were to lay water lines later that day.David Garcia testified that he saw what appeared to be a gold-colored Chrysler P.T. Cruiser stop at a nearby stop light and then the driver backed the motor vehicle near their truck.David revealed that a young, slightly built Hispanic male wearing a red shirt and baggy pants got out of the passenger side of the gold-colored car.He approached David's father, Hildegardo, who was in the driver's seat of the truck.The Hispanic male, later identified as Paul Serrato, pointed a silver and black pistol at Hildegardo and demanded money.David said that his father struggled to get his wallet out of his pants, then opened his wallet to let the dollar bills fall to the floorboard of the truck.His father then showed the empty wallet to Serrato indicating that he had no money.At this point, according to David, Serrato came around the front of the truck to the passenger side where David was seated next to an open window.Serrato pointed the pistol at David's chest and David began picking up the money from the floorboard.David testified that at this time a large African-American male, six foot or so tall and twice the size of Serrato, got out of the driver's side of the gold-colored car, wearing a dark shirt with a red towel around his neck.He was later identified as appellantAlbert Clifton.David did not see any weapon in appellant's possession, but noted that appellant approached his father's side of the truck while Serrato held the pistol on him on the other side of the truck.It appeared to David that appellant was talking to his father while he was handing money to Serrato at gunpoint.Appellant then looked at David and, said to David "yeah, you too."David interpreted this to mean that David should also surrender his money.David estimated that he handed Serrato $150.David and his father were instructed by Serrato to drive away, that they would be followed, to throw away their cell phones, and not to call the police.Appellant got back into the driver's seat of the gold car and Serrato got in the passenger's seat.David reported that they were followed by the gold car for some distance, but when his father turned off the access road into a street, the gold car drove onto I-H 35.A partial Texas license plate number "711" was observed on the gold-colored car.David and his father drove to a friend's house and called the police.

Hildegardo generally corroborated his son's testimony.Both testified that they had not consented to the taking of their money by Serrato and that they had been placed in fear of their lives at gunpoint.Hildegardo testified that there was $ 300 in his wallet, far more than David estimated.Hildegardo recalled appellant got out of the gold car at the same time as Serrato and then stood by that car.He did not remember appellant talking to him or saying anything to David.¹At trial both Hildegardo and David Garcia made in-court identifications of appellant as a participant in the armed robberies.

Austin Police Officers Luis Delgado and James Morgan responded to the Garcias' call and interviewed them at the friend's home where they had driven.Officer Delgado talked with Hildegardo in the Spanish language while Officer Morgan discussed the events with David.Officer Delgado passed his information to Officer Morgan, who in turn gave information to the police dispatcher who issued a BOLO (Be on the Lookout) to all police units.This included the description of the two assailants, the goldish P.T.-type Cruiser, and the silver and black pistol.The two police officers returned to their substation to write their reports.Within a short time, they learned that suspects matching the descriptions in the BOLO had been detained.They went to the scene of the detention where the vehicle and the suspects matched the descriptions given by the Garcias.

Austin Police Officer Keith Wade was on patrol on the morning of Saturday, June 24, 2006.He had heard a BOLO about an aggravated robbery on Battle Bend Road which gave the descriptions of the two suspects who had used a handgun.The BOLO described the vehicle as a Chevrolet HHR which resembled a P.T. Cruiser with a partial license plate number "711."As Officer Wade later passed the Texas Department of Public Safety office, Driver's License Division, at 4719 South Congress, he observed a gold-colored vehicle matching the BOLO description parked in the front parking lot.This location was about a mile and a half from the Battle Bend address given in the BOLO, and it was two hours or so after the alleged robbery.Officer Wade turned his vehicle around and drove past the gold vehicle again.He saw a young Hispanic male in the driver's seat with the window down.He could not tell if anyone else was in the gold vehicle because of its tinted windows and the heavy rain.The dispatcher was called and back-up units were requested.

Officer Wade turned his vehicle around again and drove back, approaching the gold vehicle in the parking lot, but stopping about seventy-five feet away to await the arrival of the additional police units.He then observed that the car was a Chevrolet HHR, not a P.T. Cruiser, with a partial license plate number "731" instead of "711."Officer Wade soon observed the Hispanic male get out of the gold vehicle with a red gas can and move to the rear of the vehicle.When the Hispanic male made eye contact with Officer Wade, he dropped the gas can and started back to the driver's door of the gold vehicle.

Officer Wade became concerned because if the Hispanic male got to the car, an automobile chase would ensue on slick rainy streets, endangering the suspects, the police, and the public.He pulled his police unit within fifteen feet of the gold vehicle, drew his pistol, got out of the police unit, and ordered the Hispanic male to get on the ground.The suspect did not want to comply but eventually did.Before securing the suspect, Officer Wade heard a noise in the gold vehicle and he saw the car rock or move.Through a back window, the officer saw a silhouette inside the car.He yelled to that individual to keep his hands up and "to stay right there."The suspect inside the car was slow to respond and continued to move.Officer Wade could not hear what the suspect inside the car was saying.Officer Wade knew a handgun had been used and was possibly in the possession of one of the suspects.At this time, the Hispanic male, Serrato, on the ground yelled toward the car, "waste him, dog, waste him" and "shoot him and get out of here."Officer Wade was still the only officer on the scene.No shots were fired.Officer Jesse Barunda arrived and took steps to secure Serrato on the ground.Officer Wade was then able to get the man, later identified as appellant, out of the gold vehicle.No weapon was found on appellant's person.Officer Wade then saw a handgun on the floorboard of the car on the driver's side.He left the weapon there for the crime scene unit.Appellant was wearing a red bandana around his neck which was apparently the red towel David Garcia thought he saw on appellant.

Officer Rodrick Mayberry arrived on the scene.He described appellant as an African-American, 6' 3" tall, and weighing about 300 pounds.Appellant had $779 on his person when arrested.At the jail booking, some valuables were taken from appellant including what appeared to be diamond earrings that David Garcia remembered appellant wearing at the time of the robberies.

Lee Hernandez, a crime unit specialist, arrived on the scene of the arrests and took custody of the handgun in the car and its magazine.There was a bullet in the chamber.She also secured $216.35 in cash taken from Serrato.Hernandez swabbed the handgun grip and trigger for DNA purposes.On June 27, 2006, in accordance with a search warrant, a buccal swab was taken from appellant's mouth.

Cassie Carradign, a forensic scientist and DNA supervisor at the Austin Police Department testified that appellant's known DNA sample matched the DNA profile taken from the pistol's handle or grip.

Jason Flator, a...