Jackson v. State

• Decision Date: 04 March 2016
• Docket Number: No. 06–15–00151–CR,06–15–00151–CR
• Citation: 487 S.W.3d 648
• Parties: Evender Gene Jackson, Appellant v. The State of Texas, Appellee.
• Court: Texas Court of Appeals

487 S.W.3d 648

Evender Gene Jackson, Appellant

v.The State of Texas, Appellee.

No. 06–15–00151–CR

Court of Appeals of Texas, Texarkana.

Date Submitted: December 28, 2015

Date Decided: March 4, 2016

Jessica Edwards, Attorney at Law, Greenville, TX, for appellant

G. Calvin Grogan, Assistant District Attorney, Noble D Walker, Jr., Hunt County District Attorney, Greenville, TX, for appellee

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

A jury convicted Evender Gene Jackson of aggravated robbery with a deadly weapon. After he pled true to the State's enhancement allegation, the trial court sentenced Jackson to fifty years' imprisonment. On appeal, Jackson argues (1) that the evidence is legally insufficient to support the jury's verdict, (2) that the testimony of an accomplice witness was not sufficiently corroborated, (3) that the trial court erred in failing to submit an accomplice-witness instruction in the jury charge, and (4) that his counsel rendered ineffective assistance in failing to request an accomplice-witness instruction.

We find that the evidence was legally sufficient to support the jury's verdict. We also conclude that the testimony of the accomplice witness was sufficiently corroborated. While we find that the trial court erred in omitting an accomplice-witness instruction in the jury charge, we also conclude that Jackson was not egregiously harmed by the omission. Finally, we hold that Jackson is unable to show that but for counsel's ineffectiveness, if any, there is a reasonable probability that the result of the proceeding would have been different. Consequently, we affirm the trial court's ruling.

I. Factual Background

At gunpoint, two men beat and robbed twenty-one-year-old Spencer Sweeden as he was walking home through their neighborhood at approximately 3:00 a.m. At trial, Sweeden described the events involving the aggravated robbery in detail. He testified that a man wearing a “vest with many pockets” rode past him on a bicycle and entered the garage of a home on Washington Street in Commerce, Texas. At trial, Sweeden identified the man on the bicycle as Jackson. According to Sweeden, Jackson and a taller man with “cornrows” and wearing a t-shirt and basketball shorts exited the home and approached Sweeden on the street. Sweeden identified Jackson's accomplice as Dean.¹

Sweeden testified that Jackson and Dean warned him that he was walking through “a predominately black neighborhood” in a manner that made him very uncomfortable. In an attempt to dissuade Jackson and Dean from harming him, Sweeden, who was carrying a carbon dioxide (CO2) pistol, told the men that he “was strapped.” Undeterred, Jackson grabbed Sweeden's CO2 pistol and started beating him. Sweeden testified that Dean pointed a shotgun toward him while Jackson beat him and stole his wallet, keys, and hat. Sweeden said that Jackson and Dean allowed him to escape after they both reminded him “that the streets were real and that [he] didn't belong there.” Sweeden ran home and called 9–1–1.

Within five minutes of the emergency call, police officers from the Commerce Police Department arrived at Sweeden's home and obtained his description of the suspects and information about the location of the crime. Officer Marcus Cantera soon spotted Jackson riding his bicycle while wearing the vest described by Sweeden. Cantera stopped Jackson and found Sweeden's identification in the stolen wallet. He arrested Jackson and transported him to the Commerce Police Department.² Soon thereafter, the police returned Sweeden's wallet, keys, and hat to him.

At Jackson's trial, Dean admitted that he held Sweeden at gunpoint while Jackson beat and robbed him. However, Dean claimed that he initially stayed in the garage while Jackson approached Sweeden in the street. Dean further stated that he only decided to join the altercation after Jackson stated that Sweeden had a weapon. Dean also indicated that Jackson did not know that he was going to bring a shotgun to the fray.

After hearing this evidence, the jury found Jackson guilty of aggravated robbery and entered a deadly-weapon finding.

II. The Evidence Was Legally Sufficient to Convict Jackson of Aggravated Robbery

In his first point of error on appeal, Jackson argues that the evidence is legally insufficient to support the jury's finding that he committed aggravated robbery. Yet, Jackson does not deny either that he beat Sweeden, that he stole from him, or that Dean used a shotgun during the offense. Instead, he asserts (1) that the evidence was insufficient to “establish that there was a plan or agreement to commit robbery with Dean” and (2) that “there is no evidence on which the jury could [have] inferred that [Jackson] intended to promote or assist in the use of a deadly weapon.”

A. Standard of Review

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318–19, 99 S.Ct. 2781 ); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007)

.

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)

. The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. at 240.

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property being stolen, such person (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02 (West 2011)

. That person commits aggravated robbery if he or she “uses or exhibits a deadly weapon” during the robbery. Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). The indictment alleged, and the State was required to prove, that Jackson,

individually and acting together with EDDIE JAMES DEAN, JR.[,] did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place SPENCER SWEEDEN in fear of imminent bodily injury or death, and EVENDER GENE JACKSON, JR.[,] did then and there use or exhibit a deadly weapon, to wit: a shotgun.

As demonstrated by the State's indictment, Jackson was charged individually and as a party to the offense, and the trial court instructed the jury on the law of the parties. “A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a)

(West 2011). A “person is criminally responsible for an offense committed by the conduct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). “Each party to an offense may be charged with commission of the offense.” Tex. Penal Code Ann. § 7.01(b) (West 2011).

B. Analysis

1. Legally Sufficient Evidence Supports the Finding that there Was an Agreement Between Jackson and Dean to Commit Aggravated Robbery

“Evidence is sufficient to convict the defendant under the law of parties where he is physically present at the commission of the offense, and encourages the commission of the offense by words or other agreement.” Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994)

; see

Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App.1985) (citing Tarpley v. State, 565 S.W.2d 525 (Tex.Crim.App.1978) ). “The agreement, if any, must be before or contemporaneous with the criminal event.” Beier, 687 S.W.2d at 3–4 (citing Urtado v. State, 605 S.W.2d 907 (Tex.Crim.App.1980) ). “Mere presence alone without evidence of intentional participation is insufficient.” Id. at 4 (citing Acy v. State, 618 S.W.2d 362 (Tex.Crim.App.1981) ).

“A conviction for an aggravated offense must be supported by evidence that the defendant committed, or was criminally responsible for committing, the aggravating element.” Wyatt v. State, 367 S.W.3d 337, 341 (Tex.App.—Houston [14th Dist.] 2012, pet. dism'd)

(citing Stephens v. State, 717 S.W.2d 338, 340–41 (Tex.Crim.App.1986) ). Thus, in an aggravated robbery case involving a defendant who is charged as a party to the offense, it is insufficient to merely prove that the defendant intended to promote or assist a theft; rather, the State must prove that the defendant intended to promote or assist an aggravated robbery by soliciting, encouraging, directing, aiding, or attempting to aid another person in committing the aggravated robbery. See

Wyatt, 367 S.W.3d at 341 ; Wooden v. State, 101 S.W.3d 542, 548 (Tex.App.—Fort Worth 2003, pet. ref'd). “In determining whether the accused participated as ...