Leadon v. State

• Court: Texas Court of Appeals
• Writing for the Court: Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
• Citation: Leadon v. State , 332 S.W.3d 600 (Tex. App. 2010)
• Decision Date: 14 January 2010
• Docket Number: Nos. 01–08–00839–CR,01–08–00840–CR.,s. 01–08–00839–CR
• Parties: Bruce Erwin LEADON, Appellant,v.The STATE of Texas, Appellee.

332 S.W.3d 600

Bruce Erwin LEADON, Appellant,

v.The STATE of Texas, Appellee.

Nos. 01–08–00839–CR

01–08–00840–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Jan. 14, 2010.

Lana Gordon, Houston, TX, for Appellant.Kenneth Magidson, Michelle Ruth Townsend, Harris County District Attorney, Houston, TX, for Appellee.Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.

OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Bruce Erwin Leadon, was charged twice with aggravated robbery with a deadly weapon for robbing the same restaurant on two separate occasions. See Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2003). The offenses were tried together, and a jury found appellant guilty of both offenses and assessed punishment for each offense at sixty years' imprisonment to run concurrently and a $5,000 fine. In three issues, appellant contends that: (1) the evidence supporting his convictions is legally and factually insufficient; (2) the trial court erred in denying his Batson challenge to the State's peremptory strikes; and (3) the trial court erred in refusing to allow his mother to testify during the punishment phase that appellant is mentally challenged. We affirm.

Background

Appellant was convicted of robbing the same Waffle House restaurant twice, once on May 12, 2007 and again on June 20, 2007, with his half-brother, Terence Briscoe. Both robberies took place during the early morning hours. The Waffle House was located within walking distance and less than a mile away from the apartment that appellant and Briscoe shared with their parents.

In the early hours of the morning on May 12, 2007, appellant and Briscoe entered the Waffle House on Almeda–Genoa Road and chose a corner booth. Karon Blackmon, a waitress at the restaurant, approached the two men to provide menus and silverware and to take their order. After serving appellant and Briscoe, Blackmon left their ticket at the table for payment. Blackmon testified that the restaurant was “[e]xtremely” busy and she was not able to observe everything that the men were doing because she had other customers. However, she noticed that appellant was doodling on his napkin. Appellant and Briscoe approached the cash register, as if to pay for their meal, but instead, Briscoe placed a gun to Blackmon's forehead. Blackmon testified she “basically blacked out” and only remembers backing away from the register with her hands up. Blackmon feared for her life. Briscoe followed her with the gun continuing to point it at her head, and once she backed away from the register, appellant came around the counter, “opened the register, got the money, put it in a backpack and they ran out.”

When the cook at the restaurant realized what was happening, she ran to the motel next door to call the police. Officer Wyatt of the Houston Police Department (“HPD”) was one of the first officers on scene. Officer Wyatt testified that she attempted to lift fingerprints off of the ketchup and syrup bottles on the table at which appellant and Briscoe sat. Wyatt also tagged the pair's receipt and the napkin on which appellant was doodling for further examination by the HPD crime lab. At trial, Officer Wyatt read several phrases from the napkin, including, “Money, money, money is my intuition. Money over bitches. Such an easy decision.” Wyatt testified that “names of gangs” were also written on the napkin.

HPD Officers Rowe and Werner testified that the HPD crime lab found one usable fingerprint on the receipt, but it did not match appellant, Briscoe, or their waitress, Blackmon. Officer Werner compared the print with all of the prints in the Automated Fingerprint Identification System (containing prints of all individuals arrested by HPD and all HPD officers) but did not find a match. However, testimony was given that another waitress and the cook touched the receipt and, thus, either could have left the print.

Blackmon testified that she provided police with a description of the two men. She did not expect to ever see the men again, but said she could never forget the faces of the men who committed the robbery. Scared from the ordeal, Blackmon took some time off work, but eventually returned.

Blackmon was working the late night shift again on June 20, 2007. June 20 was “a slow night,” and there was only one customer, an older man. Only two employees were working that shift: Blackmon waited tables, while Nina Christian cooked the customers' orders. Christian was a new employee, and June 20 was her second night on the job. At around 4:00 a.m., Blackmon took a cigarette break. While Blackmon was on her break, appellant came into the restaurant, this time alone and speaking on a cell phone. After telling Christian he wanted to place a to-go order, he proceeded to the restroom. Christian alerted Blackmon that a customer wanted to place an order. When Blackmon returned from her break, she went to the register where appellant was standing. Blackmon testified that she “couldn't stop staring at [appellant]” because she was certain she recognized him from somewhere but could not immediately place his face. Appellant avoided making eye contact with Blackmon and kept his head down. Then, Blackmon looked up, and through the front window, saw Briscoe approaching the restaurant carrying the “same old backpack” used in the first robbery. Upon seeing Briscoe, Blackmon testified that “it click[ed].” After Blackmon realized that these men were the same men that robbed the store in May, she ran to the back exit. As Briscoe entered the restaurant, appellant left without picking up his order. When Blackmon reached the back door and looked back toward the cash register, Briscoe “was pointing the gun at [Christian.]” Blackmon ran out the back door to the motel next door and called 911. While pointing the gun at Christian, Briscoe moved towards the cash register, opened it, and filled his backpack with money. Christian testified that she was afraid she might be killed.

When the police arrived, Blackmon told the officers that the robbers were the same men that robbed the store in May. Sergeant Nieto of the HPD Robbery Division began investigating the two robberies. Sergeant Nieto created photo arrays containing the pictures of appellant and Briscoe. Both Christian and Blackmon positively identified the two men from the photo arrays. Christian and Blackmon also identified appellant at trial.

Appellant offered four alibi witnesses, all of whom testified that they distinctly remember appellant being at home on both May 12, 2007 and June 20, 2007. Appellant and Briscoe shared a room at their mother and stepfather's apartment, and had a strict curfew of 11 p.m. Their stepfather testified that, because appellant and Briscoe were unemployed, he set strict rules that the men be home by 11 p.m., wake by 6 a.m., and spend the day looking for work. Both appellant's mother and stepfather testified that, on the two nights in question, appellant was at home when they went to sleep that night and when they got up in the morning.

The apartment had a front door and sliding patio door. At the time of the robberies, appellant's stepfather testified that, he had been sleeping on the couch so he could watch the front door to make sure that someone did not “break in.” He testified that there had been a problem at the apartment complex with people “kick-dooring” the apartment doors to gain access. Because he was sleeping near the front door, appellant's stepfather testified that appellant and Briscoe could not have left the apartment during the night on the dates in question.

The patio door led to a second-floor balcony. The patio door was located closest to the room that appellant and Briscoe shared. However, their stepfather testified that he knew the men did not use the patio door to leave the apartment on the nights of the robberies because the railing on the balcony was loose and too weak to support the men's weight. Appellant's mother testified that they left the patio railing loose as a safety precaution so that people could not gain access to the second story patio. However, appellant's mother testified that it was possible to get up to the patio by climbing up to the next-door neighbors' patio and going around the neighbors' apartment.

I. Legal and Factual Sufficiency

In his first issue, appellant contends the evidence supporting his convictions is legally and factually insufficient. Specifically, appellant argues that the evidence is insufficient to establish his identity as the perpetrator of the offense. Additionally, appellant contends that the evidence is insufficient to establish that he acted as a party to the June 20, 2007 aggravated robbery.

A. Aggravated Robbery

In order to convict appellant of aggravated robbery, the State was required to prove beyond a reasonable doubt that appellant, acting as either a principal or a party, while in the course of committing theft, intentionally or knowingly threatened or placed a person in fear of imminent bodily injury or death while using or exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 29.02, 29.03 (Vernon 2003). A firearm is considered a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2008).

B. Law of Parties

A person is criminally responsible as a party to an offense if the offense is committed by their own conduct, by the conduct of another for which she is criminally responsible, or by both. Tex. Penal Code Ann. § 7.02(a) (Vernon 2003). A conviction under the law of parties is appropriate if there is evidence that the defendant was physically present and encouraged the commission of the crime by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994) (op. on reh'g).

Since an agreement between parties to act together in common design can seldom be proven by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an...