Roberts v. State

• Citation: 221 S.W.3d 659
• Decision Date: 25 April 2007
• Docket Number: No. PD-1891-04.,PD-1891-04.
• Parties: Andrew ROBERTS, Jr., Appellant v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

221 S.W.3d 659

Andrew ROBERTS, Jr., Appellant v. The STATE of Texas.

No. PD-1891-04.

Court of Criminal Appeals of Texas.

April 25, 2007.

John A. Kuchera, Waco, for Appellant.

Christy Barber, Asst. Criminal District Atty., Waco, Matthew Paul, State's Atty., Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., WOMACK, KEASLER, and COCHRAN, JJ., joined.

In this case, we address the scope of this Court's review of a court of appeals' opinion that affirms on factual-sufficiency grounds.

A jury convicted appellant of aggravated robbery. The evidence shows that the robbery victim (Barnes), who had known appellant for more than 40 years, gave appellant a ride in his car to an apartment complex, commonly referred to as "the projects," where both men had grown up. As appellant and Barnes sat in the car in the parking lot of the complex, Barnes became suspicious that he was about to be robbed by other men in the parking lot. Barnes told appellant to get out of the car, but appellant delayed. Appellant eventually got out of the car, leaving the front passenger door open. Appellant got in the back seat of the car and began "bouncing up and down." Barnes saw appellant waving in the back seat just before several men with guns surrounded the car. One of these men got into the front passenger seat through the front passenger door that appellant had left open. Barnes heard one of the men tell appellant that "we'll take care of you later." Barnes interpreted this to mean that appellant would later receive some form of compensation from the robbers. The men robbed Barnes of property belonging to him, including his car. No one robbed appellant.

Barnes testified at trial that there was no doubt in his mind that appellant set him up for the robbery.

Q. [STATE]: When [appellant] got out, did he leave the front door open?

A. [BARNES]: Yes.

Q. You've got your front door open?

A. Got my front door open.

Q. And you've got [appellant] sitting in the back seat jumping up and down?

A. Jumping up and down. And then I'm looking around saying, you have to go. When I turned to the left, I see a couple of guys coming this way. When I turned back, [appellant] waving like this here, he doing this here. (Indicating.)

Q. Who did you think he was waving to?

A. I am not really dominoing that. I really don't get it. I see this and I see this bouncing. It all seemed strange to me. I know I want to go, and I know something is not right because I know the hood, I know what's happening.

Q. Let's go two or three days later. Did you have an opportunity to think of this action of [appellant's] doing this?

A. Not that long. Really that night.

Q. All right.

A. Yeah.

Q. When you recollected on it, what was in your mind, the intent of him doing that?

A. Well, that's when the guys came on and got me.

Q. So you believe he was waving the guys up?

A. No doubt in my mind. Not a doubt in my mind that's what he was doing. As a matter of fact, I couldn't have got robbed or even been in that situation if he hadn't hit me up. I wouldn't have even been there. It never would have happened.

Q. So after you saw the waving, tell the jury what took place.

A. After I saw the waving, I turned around and saw the waving and I turned back. This guy was coming in. Then one guy jumped in the car, put a gun on me here. [Appellant] got out of the back seat and stood there. Another guy put a gun here. I looked up, I got seven nines on me and two guys standing off with nines. And [appellant] standing over there and the dude tell [appellant] when he get out of the car, "Drew, we'll take care of you later."

Q. One of the guys who came up and surrounded you told [appellant] what?

A. "Drew, we'll take care of you later."

Q. What did you interpret that to mean?

A. We going to pay you off later.

Appellant did not testify at trial, but the trial court admitted his grand-jury testimony into evidence. Appellant testified before the grand jury that he was not involved in the robbery and that he even tried to prevent it by telling the robbers to leave Barnes alone. The grand jury indicted appellant.

Evidence was also presented that, in his initial statement to the police, Barnes made no claim that appellant set him up for the robbery or that appellant was waving from the back seat just before the robbers approached Barnes' car. The detective handling the case (January) testified that it is not unusual for victims of traumatic situations to later recall details of the crime. January also testified that appellant never gave a written statement and that appellant reluctantly assisted the police investigation of the crime. January testified that he believed appellant assisted in the robbery. January acknowledged that appellant voluntarily spoke to the police, that appellant was never named as a suspect in any of January's reports, that appellant had identified some of the other participants in the robbery, and that appellant said that he was too frightened to give a written statement. January testified that it was not uncommon for witnesses to crimes in the projects to be afraid to testify. January also explained that other men involved in the robbery were much younger than appellant and were part of an organized criminal group of which appellant was not a member.

Two of the other robbers (Williams and Betacourt), who pled guilty in exchange for reduced sentences, testified that appellant was not involved in the robbery. Williams testified that appellant looked "surprised" during the robbery. He also testified that he had changed his story "[j]ust twice." Betacourt testified that appellant looked "perplexed, confused" during the robbery. Betacourt could not count the number of times that he had "robbed people." The jury convicted appellant.

Appellant claimed on direct appeal that the evidence is factually insufficient to support his conviction. In a memorandum opinion affirming appellant's conviction, the court of appeals held in a 2-1 decision that the evidence is factually sufficient to support the conviction. See Roberts v. State, No. 10-03-00260-CR, slip op. at 1-2, 2004 WL 2406599 (Tex.App-Waco, delivered October 27, 2004) (not designated for publication). The entire factual-sufficiency analysis in the court of appeals' majority opinion states:

Rodrigo Barnes, a childhood friend of Andrew Roberts, Jr., was carjacked at gunpoint by a neighborhood gang. Roberts knew the gang members and was in the back seat of Barnes's parked Mercedes Benz when the carjacking occurred. Barnes had been trying to get Roberts out of the vehicle before the robbery, but Roberts was detaining him. Barnes believed Roberts was setting him up for the robbery by signaling the gang while sitting in the back seat. Roberts and two of the gang members who pled guilty to aggravated robbery said he did not assist in the robbery. Roberts was convicted of aggravated robbery. He was sentenced to thirty-five years in prison. We affirm.

Roberts first contends that the evidence is factually insufficient to support his conviction as a party to the aggravated robbery. Viewing the evidence under the appropriate standard of review, we find the evidence factually sufficient to support the conviction. Zuniga v. State, [144 S.W.3d 477, 482-84 (Tex.Cr.App. 2004)]. Issue one is overruled.

Roberts, slip op. at 1-2, 2004 WL 2406599 at *1.¹

This Court exercised its discretionary authority to grant review. The ground upon which we granted review states, "Does an intermediate appellate court have a duty to explain how it arrived at its decision on error assigned to sufficiency of the evidence at trial?"

We understand appellant to argue that the court of appeals' factual-sufficiency analysis provides too little detail for this Court to determine whether the court of appeals properly applied the factual-sufficiency standard in affirming appellant's conviction. We further understand appellant to claim that the court of appeals' factual-sufficiency analysis should have provided the same amount of detail that is required when a direct-appeal court reverses on factual-sufficiency grounds. Appellant requests that this Court remand the case to the court of appeals "with orders" to "fully articulate" in another opinion "its reasoning regarding factual sufficiency of the evidence."

Factual-sufficiency jurisprudence in civil cases is very persuasive in criminal cases like this because factual-sufficiency jurisprudence in criminal cases is meant to be "in line with civil practice." See Watson, 204 S.W.3d at 415. The factual-conclusivity clause in Article V, Section 6, of the Texas Constitution, makes a direct-appeal court's factual-sufficiency decision final and conclusive upon this Court.² See Watson, at 439. This Court's review of a direct-appeal court's factual-sufficiency decision is limited by the factual-conclusivity clause to determining only whether the direct-appeal court properly applied "rules of law." See Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69-70 (Tex.1898) (purpose of factual-conclusivity clause was to restrict Texas Supreme Court's jurisdiction to questions of law and to make direct-appeal court's factual-sufficiency decisions conclusive).³

This concept is illustrated in the Texas Supreme Court's landmark decision in In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex.1951).⁴ There, the Texas Supreme Court decided that the factual-conclusivity clause did not prohibit it from taking jurisdiction to decide, as a matter of law, that the direct-appeal court applied an incorrect standard (a no-evidence standard) in addressing a party's factual-sufficiency claim. Id.; see also Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex. 1986) (In Re King's Estate established that "the supreme court might take jurisdiction, notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to determine if...