Malbrough v. State
| Decision Date | 01 September 2020 |
| Docket Number | NO. 01-18-00941-CR,01-18-00941-CR |
| Citation | 612 S.W.3d 537 |
| Parties | Quinton MALBROUGH, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
A jury found appellant, Quinton Malbrough, guilty of the felony offense of directing the activities of a criminal street gang1 and assessed his punishment at confinement for sixty years. In five issues, appellant contends that the evidence is legally insufficient to support his conviction, he is entitled to a proper review of the factual sufficiency of the evidence, and the trial court erred in instructing the jury on the law of parties and in making a deadly-weapon finding in its written judgment.
We modify the trial court's judgment and affirm as modified.
Harris County Sheriff's Office ("HCSO") Sergeant B. Katrib testified that in spring 2015, he investigated a series of aggravated robberies involving cellular telephone stores in Harris County, Texas. The aggravated robberies that Katrib investigated included: (1) the March 18, 2015 aggravated robbery of a Cellular Sales cellular telephone store located at 9501 West Road in Harris County; (2) the April 3, 2015 aggravated robbery of a RadioShack electronics and cellular telephone store located at 5185 West 34th Street in Harris County; (3) the April 15, 2015 aggravated robbery of an A-Wireless cellular telephone store located at 15375 Wallisville Road in Harris County; (4) the April 26, 2015 aggravated robbery of an AT&T cellular telephone store located at 2123 Crosby Freeway in Harris County; and (5) the May 21, 2015 aggravated robbery of a Connectivity Source cellular telephone store located at 566 West FM 1960 in Harris County.
According to Sergeant Katrib, the March 18, 2015 aggravated robbery was reported at 7:57 p.m. The April 3, 2015 aggravated robbery was reported at 1:35 p.m. The April 15, 2015 aggravated robbery was reported at either 6:35 p.m. or 6:49 p.m. The April 26, 2015 aggravated robbery was reported at 2:35 p.m. And the May 21, 2015 aggravated robbery was reported at 6:34 p.m. or 6:44 p.m. Appellant was involved with or linked to the aggravated robberies.
Cellular Sales is a retailer for Verizon Wireless. Robert Penny, a regional director for Cellular Sales, testified that on March 18, 2015, an aggravated robbery occurred at a Cellular Sales cellular telephone store located at 9501 West Road in Harris County. According to Penny, two individuals entered the store that evening, "robbed the people that were there," and took a large number of cellular telephones and devices from the store. One of the individuals participating in the aggravated robbery had a firearm. Two employees were working at the time.
When Penny arrived at the store after the robbery, the store's employees were very distressed and indicated that they had been scared during the robbery. One of the employees was "still shaking." Penny stated that the total value of the cellular telephones and devices that were taken during the aggravated robbery was about $60,000 or $70,000.
John Davis testified that, on the evening of March 18, 2015, he was at the Cellular Sales cellular telephone store when the store was "robbed at gunpoint." According to Davis, while he was talking with a sales associate in the store, two Black males entered. One "guy came up to [Davis and the sales associate that was helping him] with something over his face and a hoodie and a gun pointed at [them]." The other male started "corralling" the other sales associate in the store and moving her toward Davis. The men said, "Take us to the phones, the room with the phones," and they began pushing Davis and the two sales associates toward the back of the store. When Davis and the two sales associates made it into the inventory room, the men "ask[ed] for all of the phones" and gave Davis and the sales associates a pillowcase to put the cellular telephones inside. The men knew that "one of the phones in the safe ha[d] [a] tracker in it" and so they asked Davis and the sales associates "not to give them the one with the tracker in it."2 After the men had the cellular telephones, they told Davis and the sales associates to lie down on the ground and to not come out. Although the men tried to leave the store through a backdoor, when they were unable to, they left through the front door.
According to Davis, the men looked young, either in their "[l]ate 20s" or "early 30s." They seemed calm, comfortable, well-planned, and like it "wasn't their first time." Davis feared for his life, and one of the sales associates was "stricken with fear." Davis called for emergency assistance after the men left. Davis believed that the men took a lot of cellular telephones from the store.
A copy of a videotaped surveillance recording from the aggravated robbery as well as a copy of the audio recording of Davis's telephone call for emergency assistance were admitted into evidence at trial. A list of the cellular telephones and devices that were taken from the Cellular Sales store during the aggravated robbery was also admitted into evidence.
HCSO Deputy S. McWhirter testified that on March 18, 2015, while on patrol, he responded to a call for emergency assistance related to an aggravated robbery of a Cellular Sales cellular telephone store. While at the store, McWhirter was approached by an employee of the nearby Kroger grocery store who had seen two men fleeing in a car after the robbery. McWhirter was able to review a videotaped surveillance recording of the Kroger grocery store's loading dock, which showed a four-door silver Nissan Altima car waiting behind the store. That same car is visible on the videotaped surveillance recording from the Cellular Sales cellular telephone store before the aggravated robbery occurs.
Sergeant Katrib testified that the March 18, 2015 aggravated robbery was committed by Anthony Hill, Levonte Williams,3 and Deondrick Mitchner.4
Jose Plietez testified that on April 3, 2015, he was a store sales manager at a RadioShack electronics and cellular telephone store located at 5185 West 34th Street in Harris County. On April 3, 2015, while Plietez was working in the back room of the store—where the most expensive items like cellular telephones, tablets, and headphones were stored—an aggravated robbery occurred. Plietez first noticed on a monitor that there were three people around the front counter of the store and that one of his employees, a sales associate, had his hands up. Plietez pushed a panic button which sent an emergency alert to law enforcement officers. Plietez did not attempt to forcefully close the safe that, at the time, was open in the store's back room, because he was afraid that he or the sales associate would be retaliated against.
According to Plietez, the three individuals committing the aggravated robbery came into the back room where Plietez was and they asked for the cellular telephones and other devices. They instructed Plietez to put the cellular phones and devices into a bag and told him to "make sure not to put a tracker inside of ... the bag." The three individuals took most of the safe's contents. One of the individuals also took Plietez out to the front of the store and told him to "[p]ut all of the money that was in the [cash] register ... in the bag." When the three individuals left, they "t[ook] off to the back" of the store. Plietez and the sales associate secured the store's entrances and exits and called for emergency assistance.
Plietez testified that during the aggravated robbery he feared for his life and he was afraid for his safety and the safety of the sales associate. He estimated that the three individuals took about $200 from the cash register and about $20,000 worth of cellular telephones and devices from the store.
A copy of a videotaped surveillance recording from the aggravated robbery was admitted into evidence at trial.
Houston Police Department ("HPD") Officer E. Gutierrez testified that on April 3, 2015, while on patrol, he responded to a call for emergency assistance at the RadioShack electronics and cellular telephone store. Upon arrival at the store, Gutierrez learned that the individuals who had committed the aggravated robbery fled in a tan four-door car.
A-Wireless is a retailer for Verizon Wireless. Darell Jerome Miles, Jr. testified that on April 15, 2015, he was working as a sales associate at an A-Wireless cellular telephone store located at 15375 Wallisville Road in Harris County. On that day, two Black males wearing black masks entered into the store and "began to rob" it. The men had a firearm. Miles went to the cash register and then got on the ground. Eventually, one of the individuals wearing a black hoodie came and got Miles and two female customers and brought them to the back of the store where the safe was located. The men then told Miles to fill a "bed sheet" or tablecloth with cellular telephones and devices, and Miles did so. The men stole a large amount of cellular telephones and devices with a high retail value from the store's safe.
Miles testified that he was afraid that the men committing the aggravated robbery would shoot him if he did not cooperate with the robbery. And Miles stated that "anytime someone put[s] a gun in your face, you don't know what they're going to do." Miles called for emergency assistance after the men left the store. According to Miles, the two men who robbed the store took steps to conceal their identities and the men broke two customers' cellular telephones during the robbery, A woman outside of the store told Miles that the men got into a car and "t[ook] off."
A copy of a videotaped surveillance recording from the aggravated robbery as well as a copy of the audio recording of Miles's telephone call for emergency assistance were admitted into evidence at trial.
HCSO Deputy ...
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