Gardner v. State, No. 13-07-446-CR (Tex. App. 10/2/2008)
| Decision Date | 02 October 2008 |
| Docket Number | No. 13-07-446-CR.,13-07-446-CR. |
| Parties | JONATHAN KEITH GARDNER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 163rd District Court of Orange County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
A jury found appellant, Jonathan Keith Gardner, guilty of aggravated robbery1 and assessed his punishment at twelve years in prison, plus a $10,000 fine. In five issues, Gardner challenges the legal and factual sufficiency of the evidence to support his conviction and complains of charge error. We affirm.
On the morning of November 2, 2006, Rosemary Pollard went to the home of Ronald Mills, Jr., in Orange, Texas, and told Horace Lesiene she wanted to talk to Mills. Lesiene told Pollard that Mills did not want to talk to her. After Lesiene left Mills's house, Mills saw Pollard in his garage. She told Mills she had left her purse in his house. Mills let her inside, and while they looked for the purse, Gardner and Steven Lewis came into Mills's kitchen. When Mills saw them in the kitchen, both told him, "'This is a robbery, fool.'" Gardner tried to knock Mills out by hitting him with pots and pans. He also wanted to tie up Mills with a phone cord. While Mills fought Lewis, Gardner took knives from the kitchen table, and both men tried to stab Mills with the knives. Gardner told Mills, " " Lewis grabbed a butcher knife from the kitchen sink and plunged it into Mills's stomach. Mills testified that because he "was losing so much blood" he stopped fighting. When the prosecutor asked him, "So what did they take out of the kitchen?", he said, "[J]ust laptop computers." He said that money was also taken.
Mills underwent surgery to repair the stab wound to his stomach. He spent about three and one-half weeks in the hospital. Mills did not give any of the three permission to come into his house and steal his property.
At the time of the robbery, Ronald Preston, who was in a parked vehicle, saw an Explorer park near his vehicle. Three individuals, Gardner, another man, and a woman, got out of the Explorer and went into a house. A short time later, Preston saw two of them, "Mr. Lewis" and "Ms. Rosemary," leave the house and get in the Explorer. He did not see Gardner get into the Explorer. After the Explorer left, the police arrived at the scene.
When Officer Kelli Griffin arrived at Mills's home, Mills told her that Mills told Officer Griffin that he had been attacked. Officer Griffin, a former paramedic, testified that because of the amount of blood she saw at the scene, she felt Mills's injury could have been life threatening. She saw a bloody butcher knife inside Mills's garage, and she found a steak knife on his driveway. When the prosecutor asked Officer Griffin, "[D]o you believe that if this [butcher] knife were thrust into someone's abdomen, that it could cause serious bodily injury or possibly death?", she replied, "Yes." When the prosecutor asked her, "So, in your opinion, would this [butcher] knife be considered a deadly weapon?", she replied, "Yes, in my opinion, I do." On cross-examination, Officer Griffin said that Mills did not tell her that Rosemary Pollard had said anything about leaving her purse at his house.
Gardner, Lewis, and Pollard gave Detective Sarah Jefferson-Simon statements about their involvement in the incident. During the guilt-innocence stage, she read the statements to the jury. In his statement, Gardner said he had picked up Pollard and Lewis and that Pollard wanted to go to Mills's house to get "dope." Upon arrival, Pollard went to Mills's garage. About ten minutes later, she waved for Gardner and Lewis to come to the garage. Lewis got out and told Gardner that he was "going to get some dope." Gardner drove around the block a couple of times, went to Mills's door, and saw Mills "swinging at Bobo [Lewis] because Bobo had a knife in one hand and a screwdriver in the other." Lewis was asking Mills where the dope was. Gardner went into the house, asked Mills where the drugs were, and hit Mills with his fist. After they left Mills's house, Pollard gave Gardner $300. He said Lewis told him that he had stabbed Mills.
Pollard's statement reflects that she, Gardner, and Lewis went to Mills's house to buy marihuana and that Gardner and Lewis attacked Mills, hitting him with their fists. Lewis asked Mills where the money was. Mills told him he had $300 and that they could take it. Pollard grabbed the money and took a camera. She said Gardner took Mills's laptop computer. She saw Gardner hit Mills twice with a steel pot. When they got in the truck, Lewis said that he had "cut Mr. Mills."
In his statement, Lewis stated that he, Pollard, and Gardner went to Mills's house to buy marihuana. When Lewis gave Mills five dollars, Mills "went to tripping and swung off from me, and I swung back at him, and the fight ensued." Mills grabbed a knife, and during the fight, Mills "some kind of way" "got stabbed, and once that happened, everybody left the house, because Ronald [Mills] was hollering." Lewis said that he left on foot and that the others left in the truck. He later met with Pollard and Gardner at which time Pollard gave them each $ 100.
Gardner testified that at the time in question, he, Lewis, and Pollard went to Mills's house for the purpose of getting some blunts (marihuana rolled up in a cigar). Upon arrival, Pollard went into the house and then returned, telling them Mills did not have any marihuana. Lewis decided to ask Mills himself and went into the house. About two minutes later, he and Pollard went to the house and saw Mills and Lewis "tussling." Mills was "swinging his hands" and Lewis "was going at him like this with a knife." Gardner testified that Gardner left after he saw what was going on. He denied any involvement in the robbery. He said that he and Pollard left in the vehicle and that Pollard gave him about $300. Gardner testified that after the incident, he "hauled tail" and went to Beaumont.
Gardner testified that he had two felony convictions, one for delivery of a controlled substance and the other for unauthorized use of a motor vehicle.
Neither Lewis nor Pollard testified at trial.
In his first issue, Gardner challenges the legal and factual sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). 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, 443 U.S. at 319. The trier of fact is the sole judge of the weight and credibility of the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing a factual sufficiency claim, we review the evidence in a neutral light rather than the light most favorable to the verdict. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)). Evidence is factually insufficient if the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or if the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). We do not reverse for factual insufficiency if the greater weight and preponderance of the evidence actually favors conviction. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing Watson, 204 S.W.3d at 417).
In this case, the jury could convict Gardner of aggravated robbery if they believed from the evidence beyond a reasonable doubt that on or about November 2, 2006, in Orange County, Texas either:
STEVEN CURTIS LEWIS, did then and there, while in the course of committing theft and with intent to obtain and maintain control of property of Ronald Mills, Jr., without the effective consent of the said Ronald Mills, Jr., and with intent to deprive the said Ronald Mills, Jr., of said property, did then and there by using or exhibiting a deadly weapon, to wit: a knife, that in the manner of its use and intended use is capable of causing serious bodily injury or death, intentionally or knowingly cause bodily injury to Ronald Mills, Jr., by stabbing the said Ronald Mills, Jr., with said knife, and JONATHAN...
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