AFFIRMED; Opinion Filed December 31, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01413-CR

                             ERIK JAMAL JACKSON, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-1163319-H

                             MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                   Opinion by Justice Stoddart
       A jury convicted Erik Jamal Jackson of aggravated robbery and sentenced him to 15

years’ confinement. In two issues, Jackson argues the trial court erred by failing to instruct the

jury on the lesser-included offense of theft and by failing to instruct the jury on the accomplice

witness rule. We affirm the trial court’s judgment.

       The State alleged Jackson intentionally and knowingly, while in the course of committing

theft of property and with the intent to obtain or maintain control of the property, threatened and

placed the victim in fear of imminent bodily injury and death, and Jackson used and exhibited a

firearm. At trial, the victim of the crime was the State’s first witness. Ramiro Adame testified

that on December 23, 2011, he left a bar about 1:00 a.m. He saw a “girl” in the parking lot and,

because it was cold outside, Adame asked the girl if he could help her. The girl told Adame she

was waiting for a friend, but accepted Adame’s offer to wait in his car until her friend arrived.
       Adame testified that once the girl was in the car, she was texting with someone on her

phone. Adame stated “she kept saying that she had a friend coming by or close by, and he’s

going to pick me up.” After about 10 minutes, her friend still had not arrived. The girl asked

Adame for money. When he said he was not going to give money to her, she offered to have sex

with Adame for money; he declined this offer.

       A gas station was down the street from the bar. Adame wanted to go to the gas station

and get something to drink and the girl rode in the car with him. During this time, the girl

continued texting on her phone.

       When they returned to the car after going into the gas station, Adame offered to take the

girl back to the bar. Instead, as they drove back, she instructed him to turn on to a side street and

said her friends would pick her up there. At some point, the girl told Adame to park. He

described the area where he parked: “There’s a small convenience store, kind of like a gas

station, and there’s a warehouse there and there’s a parking lot. Eventually there’s a lot, a

parking lot, so she told me to park right behind there or right just kind of like behind the gas

station at the warehouse, and I parked right there where she told me to.” No other cars were in

the parking lot.

       As soon as Adame parked, someone opened his car door. Adame testified: “So they pull

me out and say get out of the car. I kind of tried to turn around, and I didn’t have a chance

because they told me to don’t [sic] look at them, and they had a gun pointed at me, so they told

me to don’t [sic] look at them so I just followed their directions.” Adame thought there was

more than one attacker. The people who took him out of his car, took everything he had in his

pockets, including his wallet and iPhone. They also took some items from the car.




                                                –2–
       Adame testified the girl was not robbed and did not seem scared; she left with the people

who robbed him. Adame stated he did not see his attackers well and would not be able to

identify them.

       Demone Butler testified as the State’s second witness. He was charged with aggravated

robbery along with Jackson and Monique Adley, the “girl” who was in the car with Adame.

Adley was Jackson’s girlfriend. Butler testified he attempted to go to a club with Jackson,

Adley, Jackson’s brother, and some other people on December 23, 2011, but they were not

admitted because they were underage. Butler and Jackson’s brother each had a gun.

       Butler testified that after they were turned away from the club, Jackson said “he’s about

to go make some money.” Butler believed this meant Jackson planned to have Adley prostitute

herself. They left the club and Jackson drove his car (carrying Butler and Adley) to a parking lot

where they dropped off Adley.

       Butler testified he and Jackson drove away after dropping off Adley and went to a vacant

“road next to some office buildings.” Jackson said the location was where they would pick up

Adley. When they parked near the office buildings, a car carrying Jackson’s brother and his

friends parked alongside them. Jackson, his brother, and his brother’s friends all got out of their

cars. Butler testified that when Jackson was exiting the car, he asked Butler for Butler’s gun.

Butler refused to give it to him.

       Butler stayed in Jackson’s car and the other men retreated into the darkness. He did not

see where they went or what happened, he did not see a robbery occur, he did not see whether

anyone had a gun. After a couple of minutes, the men and Adley returned to the cars and the

cars drove away. When Jackson and Adley got back into the car, Adley was “going through

some cards,” credit cards. They also had an iPhone with them. No one talked about what

happened.

                                               –3–
       Jackson drove to a restaurant and then a gas station. Butler testified that at the gas

station, a “cop car started pulling up, and one of the cops gets out, and he was like we tracked her

right here or whatever and I think he’s like that. And then [Jackson] grabbed the phone from her,

and he hands it to me and he told me to put it up.” Butler testified he put the phone in the

armrest in the back seat. The police arrested Jackson, Butler, and Adley.

       Officer Donald Ritchie was a Dallas police officer on December 23, 2011. On that night,

he received a call at 2:28 a.m. about a robbery. He met Adame at a gas station. Adame told

Ritchie he had been robbed by several black males and a black female; they took his money,

wallet, phone, and property. When Ritchie learned Adame’s phone was an iPhone, Ritchie used

his own iPhone to track it. Ritchie was “able to see that the phone was still active and moving at

that time.” Ritchie began driving and following the iPhone; he followed the iPhone to a gas

station. The iPhone signal was stationary at the gas station for a while. When the signal moved

again, Richie was able to determine which car the phone was in. Ritchie relayed the vehicle’s

information to another officer who stopped the car. The officer found the iPhone, several other

cell phones, a gun, a Halloween mask, and cash in the car. He did not find a wallet or credit

cards. Jackson, Butler, and Adley were in the car. The iPhone was located in the backseat of the

car where Butler had been sitting.

       Jackson testified in his defense. Jackson stated he and Adley went to a club that was in

close proximity to the club where Adame met Adley. Butler was with them. Jackson and Adley

had an argument. After they were unable to get into the club, Jackson testified he told Adley “I

wasn’t going to waste no more gas or time on taking her nowhere else.” Adley got out of the car

and began pacing back and forth in front of the car. Adley then retrieved her purse from the car

and walked away. Jackson said he did not leave the parking lot because he was expecting his

brother to come to the club. Ten to fifteen minutes later, his brother and two friends arrived.

                                                –4–
       Jackson sent Adley a text that said “go to the spot?” Thirty seconds later, Adley replied

“go to the spot.” Jackson testified a restaurant was “the spot.”

       Jackson testified he and his brother drove their cars to a nearby restaurant. Jackson

looked inside the restaurant to see if Adley was there. When he discovered she was not, Jackson

called her on her phone. Adley told him that she was at a gas station; a guy had seen her walking

and offered to give her a ride. Adley told Jackson she would ask the man to take her to the

restaurant. The phone hung up and Adley did not arrive at the restaurant. Jackson called Adley

again, but she did not answer. Jackson became concerned because she was not answering her

phone, her phone had hung up while they were talking, and Adley was in the car with a man.

Jackson stated he decided to go to the gas station to find Adley; his brother was going to drive

his own car to the gas station.

       As they drove, Jackson noticed his brother was in the wrong lane. His brother was

following a car matching the description of Adame’s car. Adame turned on a side street and

Jackson’s brother followed. Due to traffic lights and the lane Jackson was in, he was delayed in

following Adame and his brother. When Jackson turned on the side street, he did not see

Adame’s or his brother’s car. Jackson began driving through the warehouses and “I come out of

the last one and I see Ms. Adley coming up the street, on the sidewalk.” Adley got into

Jackson’s car. Jackson testified: “She had a puzzled look on her face, and she got in the car. . . I

kind of started yelling at her because I’m not understanding why you’re over here anyways,

what’s going on or why are you even over here.”

       Jackson said Adley told him the following story about encountering Adame:

               That’s when she tells me about how she got in the car with Adame. She
       said that she -- that Adame had seen her walking west of the club, Club Kendall’s,
       and he had stopped and offered her a ride. She told him no. He offered again. She
       told him no, that she had a ride, she’s good, she doesn’t need a ride from him. So
       he tried to bribe her to get in the car, it was cold outside. So she finally was like
       oh, okay, so she got in the car. From there Adame said well, let me go to the store
                                                –5–
       first, so he made a stop at the store. That’s when I found out that that’s -- the
       RaceTrac is where they was at. That’s how I found out that they got to the
       RaceTrac.


       After Jackson picked up Adley, he contacted his brother and they agreed to meet at a gas

station. When Jackson arrived at the station, his brother was already there. He testified his

brother walked to his car and “[t]hat’s when he handed me the phone.” It was an iPhone.

Jackson stated he sat down in his car with the iPhone; Jackson did not know how the iPhone

came to be in the backseat of the car where the police found it.

       Jackson denied he was present when Adame was robbed. He did not see Adame’s car

parked. Jackson stated Butler also did not participate in the robbery. He stated the money in

Adley’s purse was from Adame because Adame paid Adley for sex. Although Jackson stated

several times he believed no robbery occurred, in a separate proceeding Adley pleaded guilty to

aggravated robbery.

       In his first issue, Jackson asserts theft is a lesser-included offense of aggravated robbery

and the trial court erred by failing to instruct the jury on theft. In his brief, Jackson argues the

basis for his request for the theft instruction is Butler’s testimony that when the police

approached Jackson’s car, Jackson gave the phone to Butler to put in the armrest. Jackson

argues this action is some evidence Jackson knew the phone was stolen.

       The trial court’s decision to submit or deny a lesser included offense instruction is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004). We apply a two-pronged test to determine if the trial court should have given a jury

charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.

2007). We first determine if the proof necessary to establish the charged offense includes the

lesser offense. Id. If it does, we then review the evidence to determine that if appellant is guilty,

he is guilty only of the lesser offense. Id. at 536.
                                                 –6–
       The second step is a question of fact and is based on the evidence presented at trial.

Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requires the reviewing

court to determine whether “there is some evidence in the record which would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.”

Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the lesser

included offense is a “valid, rational alternative to the charged offense.” Id. Moreover, it “is not

enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather

there must be some evidence directly germane to a lesser-included offense for the factfinder to

consider before an instruction on a lesser-included offense is warranted.” Skinner v. State, 956

S.W.2d 532, 543 (Tex. Crim. App. 1997).

       Even if we were to conclude that theft is a lesser-included offense of aggravated robbery

in this case, we cannot conclude that if Jackson is guilty, he is only guilty of theft. A person

commits the offense of theft if he unlawfully appropriates property with the intent to deprive the

owner of the property. TEX. PENAL CODE § 31.03(a). An appropriation of property is unlawful if

it is without the owner’s effective consent or if the property is stolen and the actor appropriates

the property knowing it was stolen by another. Id. § 31.03(b). In his brief, Jackson argues the

latter: he took possession of the iPhone knowing it was stolen.

       There is no evidence in the record showing that Jackson knew the iPhone was stolen, but

did not participate in the robbery. Jackson denied being involved in the robbery, said he did not

see a robbery occur, and testified he did not believe a robbery occurred. He did acknowledge

taking possession of Adame’s iPhone and now argues there was some evidence he knew the

iPhone was stolen even though he did not participate in the robbery. The record does not support

this conclusion. Based on the evidence presented at trial, the only means by which Jackson

would have known Adame’s iPhone was stolen when he took possession of it—whether he took

                                                –7–
possession at the scene of the crime or at the gas station when his brother handed it to him—is if

Jackson participated in the robbery. If Jackson did not participate in the robbery and did not

have knowledge of a robbery, as he maintained in his testimony, then there was no way for him

to know the iPhone was stolen. Therefore, Jackson could not have been only guilty of theft and

the trial court did not abuse its discretion by denying Jackson’s request for a lesser-included-

offense instruction. We overrule Jackson’s first issue.

       In his second issue, Jackson argues that, with respect to Butler’s testimony, the trial court

erred by failing to instruct the jury on the accomplice witness rule. A “conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence tending to connect

the defendant with the offense committed.” TEX. CODE. CRIM. PROC. ANN. art. 38.14; see also

Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (accomplice-witness instruction

informs jury it cannot use accomplice-witness testimony unless there also exists some non-

accomplice evidence connecting defendant to the offense).

       Jackson did not object at trial to the trial court’s failure to include an accomplice-witness

instruction in the jury charge.     Therefore, we reverse the trial court only if the record

demonstrates that the error resulted in egregious harm. Casanova v. State, 383 S.W.3d 530, 533

(Tex. Crim. App. 2012).      The court of criminal appeals has articulated the standard for

determining egregious harm under Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.

1985) (op. on reh’g)) in the context of the failure to submit an accomplice-witness instruction.

Id. In Casanova, the court stated that if “the omission is not made known to the trial judge in

time to correct his error, appellate review must inquire whether the jurors would have found the

corroborating evidence so unconvincing in fact as to render the State’s overall case for

conviction clearly and significantly less persuasive.” Id. (quoting Saunders v. State, 817 S.W.2d

688, 692 (Tex. Crim. App. 1991)); see also Herron, 86 S.W.3d at 632 (under egregious harm

                                               –8–
standard, omission of accomplice witness instruction is generally harmless unless the

corroborating (non-accomplice) evidence is “so unconvincing in fact as to render the State’s

overall case for conviction clearly and significantly less persuasive.”).

       Whether the trial court’s error in failing to submit an accomplice-witness instruction is

harmful is “a function of the strength of the corroborating evidence.” Casanova, 383 S.W.3d at

539. The Casanova court stated:

       As the strength of the corroborating evidence increases, however, a reviewing
       court may no longer be able to declare that the lack of an accomplice-witness
       instruction resulted in egregious harm . . . And as the corroborating evidence
       gains in strength to the point that it becomes implausible that a jury would fail to
       find that it tends to connect the accused to the commission of the charged offense,
       then a reviewing court may safely conclude that the only resultant harm is purely
       theoretical and that there is no occasion to reverse the conviction, even in the face
       of an objection, since the jury would almost certainly have found that the
       accomplice witness’s testimony was corroborated had it been properly instructed
       that it must do so in order to convict.

Id. at 539-40 (internal citations omitted)

       The State showed Jackson’s girlfriend, Adley, accepted Adame’s offer to stay in his car

while she waited for some friends. While she was in the car, she constantly was texting

someone. At Adley’s direction, Adame parked his car in a vacant parking lot. As soon as

Adame parked, he was robbed at gunpoint; the people who robbed him took his iPhone and

wallet. However, Adley was not robbed, did not seem scared, and left with the people who

robbed Adame. Adley subsequently pleaded guilty to aggravated robbery.

       Jackson admitted to being in the vicinity where the robbery occurred at the time the

robbery occurred. He admitted Adley had been in his car and she got out of his car in the same

geographic vicinity. Jackson admitted that before the robbery he exchanged text messages with

Adley about “go[ing] to the spot.” He also admitted to being in possession of the stolen

iPhone—a fact confirmed by the police officer’s testimony.



                                                –9–
       The non-accomplice testimony in this case is not so unconvincing as to render the State’s

case clearly and significantly less persuasive. See id. at 533; Herron, 86 S.W.3d at 632. Rather,

the corroborating evidence and the inferences to be drawn from the evidence more than

sufficiently tend to connect Jackson to the robbery. It is implausible that the jury would have

failed to find the corroborating evidence connected Jackson to the offense. Had it been properly

instructed, the jury almost certainly would have found Butler’s testimony was corroborated. See

Casanova, 383 S.W.3d at 539-40. Therefore, we conclude Jackson did not suffer egregious

harm from the trial court’s failure to include an accomplice-witness instruction in the jury

charge. We overrule Jackson’s second issue.

       We affirm the trial court’s judgment.




                                                  /Craig Stoddart/
                                                  CRAIG STODDART
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47
121413F.U05




                                               –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ERIK JAMAL JACKSON, Appellant                       On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-12-01413-CR        V.                        Trial Court Cause No. F-1163319-H.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Fillmore
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 31st day of December, 2014.




                                            –11–
