Sorrells v. State, No. 13-07-00633-CR (Tex. App. 11/12/2009)

• Court: Texas Court of Appeals
• Writing for the Court: Valdez
• Decision Date: 12 November 2009
• Docket Number: No. 13-07-00633-CR.,13-07-00633-CR.
• Citation: Sorrells v. State, No. 13-07-00633-CR (Tex. App. 11/12/2009), No. 13-07-00633-CR. (Tex. App. Nov 12, 2009)
• Parties: ERIC DESHON SORRELLS, Appellant, v. THE STATE OF TEXAS, Appellee.

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Unpublished Opinion

ERIC DESHON SORRELLS, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-07-00633-CR.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed November 12, 2009.

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 331st District Court of Travis County, Texas.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and VELA.

Dissenting Memorandum Opinion by Justice VELA.

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice VALDEZ.

A jury found appellant, Eric Deshon Sorrells, guilty of aggravated robbery, a first-degree felony, and assessed punishment at twenty years' imprisonment. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). In four points of error, Sorrells contends that: (1) the trial court erred in refusing to charge the jury on the lesser-included offense of assault; (2) the evidence supporting his conviction is legally insufficient; (3) the evidence supporting his conviction is factually insufficient; and (4) the trial court erred in refusing to sever Sorrells's case from his co-defendant. Because we hold that the evidence is legally insufficient to prove aggravated robbery, we reform the judgment to reflect conviction of the lesser-included offense of assault by threat and affirm the judgment as reformed. We reverse the judgment as to punishment and remand the case for a new hearing on punishment.

I. Background

In the early morning hours of January 30, 2005, after spending a Saturday night on Austin's Sixth Street, Frances Reynolds waited with a friend on a curb outside of the Spill club ("Spill") for her boyfriend, Nathaniel Rice, who was retrieving her car from a nearby parking lot. Reynolds had consumed a few cherry vodka sours, felt "a little bit" tipsy, and the heels that she wore caused her feet to hurt; she therefore leaned against a silver Mercedes SUV parked on the street. A white male approached Reynolds and told her to "get off the car" because "he knew whose car it was." Reynolds stood up for a moment, then leaned back onto the vehicle. The man walked away and into Spill. Moments later, a black male wearing a "block style" black and gray sweater and a black leather jacket, later identified as Sorrells, emerged from Spill. He approached Reynolds, and told her to "get the f*** off the car" because she was damaging it. Reynolds turned to see if there were any scratches on the hood; when she turned back around, she saw that Sorrells had a gun. With gun in hand, Sorrells hit Reynolds across the side of the head. Reynolds swung back in "self-defense." Sorrells pushed her, and she pushed back. The events that ensued are best described from the vantage point of each witness.

1. The Altercation

Reynolds testified that shortly after the scuffle between she and Sorrells ensued, her boyfriend, Rice, arrived on the scene. As Rice approached, Sorrells turned, pulled back the slide of the gun, and said, "[D]o you have a problem with me, too?" Rice swung and punched Sorrells, and the two started fighting. A man wearing a blue, "flannel-type" jacket ran up to Rice and punched him. Rice fell to the ground. Reynolds then saw the man in the flannel jacket hold a gun to the back of Rice's head. Reynolds ran to Spill's entrance and asked for someone to call 911, but no one complied. When she turned back to check on Rice, the altercation had ended. Rice had a bloody mouth, a black eye, and a ripped shirt. He told Reynolds that his jewelry had been stolen.

Rice testified that after retrieving Reynolds's car, he drove to the front of Spill and saw three black males standing at arms length from Reynolds. As Rice stepped out of the car, he noticed Reynolds "scuffling, fighting, and arguing" with Sorrells. Rice approached, asking, "[W]hat the h***?" At that moment, Sorrells "pulled out a gun and cocked it at [Rice]"; this was the first time that Rice saw the gun. Sorrells pointed the gun at Rice's torso, and Rice "pushed the gun out of the way and swung at Sorrells." Sorrells struck back, hitting Rice with the gun. At that moment, a man wearing a flannel jacket punched Rice on the right side of the head, Rice was knocked to the ground, and "jumped by multiple people." At some point, the beating ceased, and the people hitting him dispersed. Rice became aware that he was no longer wearing his Figaro necklace with a Versace lion medallion, valued at approximately $1,000, or his three to four inch Versace cross embellished with several diamonds, worth approximately $ 2,200. When police arrived moments later, Rice told them that his jewelry had been stolen. As a result of the altercation, Rice sustained scrapes, bruises, and a busted lip.

Reynolds and Rice's friend, Kevin Fritz, also testified. Fritz had accompanied Rice to the parking lot to retrieve Reynolds's car. As the men drove to the front of Spill, Fritz saw Reynolds arguing with Sorrells. Sorrells hit Reynolds, pulled out a gun, pulled the slide back, and hit Reynolds again. Fritz followed as Rice got out of the car and approached Sorrells. Upon noticing Rice, Sorrells turned and pointed the gun at Rice. Rice took a swing at Sorrells, and then another man came up behind Rice and hit him in the head. A third man joined the fight, and the two men "jumped" Rice. Fritz saw Sorrells point a gun at Rice. Fritz ran up and pushed Sorrells out of the way. The men turned their attention from Rice and began fighting with Fritz. Someone hit Fritz with a gun; after being "dazed" and stumbling for a few seconds, Fritz looked up and saw the three men running into Spill. At some point during the altercation, Fritz noticed Rice's lion medallion necklace on the ground.

Rice's friend, Omar Ponce, testified that he was outside Spill on the night in question and saw Rice arguing with a black male that he later identified as Andre Oliver, the co-defendant in this case. Ponce testified that as he moved towards Rice in an attempt to intervene, Oliver pointed a gun at him. However, on cross-examination, Ponce testified that a man wearing a black leather jacket pointed a gun at him, and that the man in the black leather jacket was the only person that Ponce saw in possession of a gun.

2. The Apprehension

Officer Charles Riley testified that in the early morning hours of January 30, 2005, he was dispatched to an incident outside of Spill. Officer Riley arrived on the scene within twenty or thirty seconds and saw several people in front of Spill; everyone was loud and yelling that "someone had taken something" and "someone had a gun." Officer Riley learned that the gunman, a black male wearing a black leather jacket, had gone inside Spill. Concerned he would have trouble entering Spill, Officer Riley ran down the block, turned the corner and ran into the alley behind Spill. Officer Riley saw three individuals in the otherwise desolate alley. The individuals were about three-quarters of the way down the alley and were walking in the direction opposite Officer Riley. Officer Riley shouted, "Austin police, show me your hands." The individuals continued walking, with their hands in their pockets. Officer Riley quickly walked towards the individuals, continued to identify himself, and asked to see their hands. He also radioed to other officers that three potential suspects were in the alley. One individual, later identified as Rachel Hardeman, turned and looked at Officer Riley, then, while still walking, removed her hand from her jacket pocket and deposited an object into the side of a cardboard recycling receptacle. She then placed her hand back inside her pocket. When additional officers arrived, Officer Riley directed one to secure the receptacle, and the others assisted Officer Riley in detaining the individuals.

After the individuals were secured, Officer Riley searched the receptacle. Inside, he found "a bunch of boxes" and "a pistol." Officer Riley began his investigation by focusing on Hardeman because she had thrown the gun into the receptacle. Officer Riley noticed that the black leather jacket Hardeman was wearing was too big for her. Inside a pocket of the jacket, Officer Riley located a lion medallion necklace, which was later identified as the one Rice reported stolen. The other individuals detained were both black males. One, later identified as Oliver, wore a blue denim jacket. An empty, collapsible shoulder holster was found in an interior pocket of his jacket. The other man, later identified as Sorrells, wore a black and tan sweater, but was not wearing a jacket. Rice's $2,200 Versace cross was never found.

The officers placed each suspect in a separate patrol car and drove them to the front of Spill. The officers separately asked Reyonlds, Rice, and Fritz if they could identify any of the individuals in the patrol cars. No one identified Hardeman. Officer Brian Green testified that he separately took Reynolds, Rice, and Fritz to the car where Sorrells was seated. Each identified Sorrells as the man who had been wearing a black leather jacket.

On June 14, 2006, Sorrells was indicted by a grand jury for aggravated robbery. Sorrells pleaded not guilty and, on August 14, 2007, was tried with Oliver by jury. After the State's case in chief, Oliver called one witness, and Sorrells called none. The State tendered the charge that was ultimately submitted to the jury. The tendered charge abandoned the first paragraph of the indictment.¹ Sorrells requested the lesser-included offense of assault, but his request was denied. The jury found Sorrells guilty of aggravated robbery with a deadly weapon, the only offense the jury was instructed on, and assessed punishment at twenty years' imprisonment. This appeal ensued.

II. Legal Sufficiency

In his second point of error, Sorrells challenges the legal sufficiency of the evidence supporting his conviction.

A. Standard of Review and Applicable Law

In conducting a legal sufficiency review, the reviewing court must ask whether "`any rational...