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                                  MEMORANDUM OPINION

                                          No. 04-08-00548-CR

                                      Edward Jamal PRIESTLY,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-0659B
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 22, 2009

AFFIRMED

           Edward Jamal Priestly was convicted by a jury of aggravated robbery with a deadly weapon.

The sole issue presented by Priestly on appeal is that the evidence is legally insufficient to support

his conviction; therefore, the trial court erred in denying his motion for an instructed verdict at the

close of the State’s evidence. We overrule Priestly’s issue and affirm the trial court’s judgment.
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        A challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal

sufficiency of the evidence presented at trial. Gallardo v. State, 281 S.W.3d 462, 472 n.7 (Tex.

App.—San Antonio 2007, no pet). In determining the legal sufficiency of the evidence, we review

all of the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979). The jury, as the trier of fact, is the sole judge of the credibility

of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim.

App. 1999); Jennings v. State, 107 S.W.3d 85, 88 (Tex. App.—San Antonio 2003, no pet.). Because

it is the province of the jury to determine the facts, any inconsistencies in the testimony should be

resolved in favor of the jury’s verdict. Fuentes, 991 S.W.2d at 271; Jennings, 107 S.W.3d at 88.

        A person commits the offense of robbery if, in the course of committing theft and with the

intent to obtain or maintain control of the property, the person intentionally, knowingly, or recklessly

causes bodily injury to another or intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death. TEX . PEN . CODE ANN . § 29.02 (Vernon 2003). A person commits

the offense of aggravated robbery if the person commits the offense of robbery and causes serious

bodily injury to another or uses or exhibits a deadly weapon. TEX . PEN . CODE ANN . § 29.03(a)(2)

(Vernon 2003). In this case, the jury was instructed regarding the law of parties and informed that

Priestly would be criminally responsible for an offense committed by the conduct of Andre Burke,

if acting with intent to promote or assist the commission of the offense, Priestly solicited,

encouraged, directed, aided or attempted to aid Burke to commit the offense. See TEX . PEN . CODE

ANN . § 7.02(a)(2) (Vernon 2003).




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        On October 25, 2006, Mauricio Avalos was found dead beside a creek. That same afternoon,

Priestly, Burke and Phillips were apprehended while driving Avalos’s red minivan. Priestly contends

the evidence is legally insufficient to show that he, either individually or as a party, committed the

offense of aggravated robbery by shooting Avalos and stealing his van. Priestly asserts that the

State’s evidence established only that he was present when the offense occurred, but mere presence

does not make him a party to the offense.

        The identity of the perpetrator of an offense can be proven by direct or circumstantial

evidence, and juries are permitted to make reasonable inferences from the evidence presented at trial.

Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007); Earls v. State, 707 S.W.2d 82, 85

(Tex. Crim. App. 1986). Although Priestly is correct that mere presence does not make a person a

party to an offense, “[p]resence at the scene of the commission of the offense is, however, a

circumstance which, when taken with other facts, may be sufficient to show that the accused was a

participant.” Suarez v. State, 31 S.W.3d 323, 327 (Tex. App.—San Antonio 2000, no pet.). In

addition, “acts committed before, during, and after the offense may be considered by the [jury] in

deciding whether a defendant participated in a common scheme for purposes of party liability.”

Finally, “flight, though not dispositive, can be considered by the trier of fact as an indication of

guilt.” Id.

        Avalos sold all of the electronics in his house two weeks before his death. Avalos told his

wife that he had sold the items to pay old drug debts; however, Avalos was not always truthful with

his wife about his drug habits. Avalos’s mother-in-law testified that he dropped his youngest

daughter at her home around 12:45 p.m. on October 25, 2006. Avalos’s dead body was found fifteen

minutes later around 1:00 p.m.



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       Before Priestly, Burke, and Phillips were apprehended, Charlotte Smith had been seen

driving Avalos’s van. Smith testified that Priestly and Burke came to the motel room where she was

living on October 25, 2006, between 1:00 p.m. and 2:00 p.m. Smith described Priestly’s demeanor

as “hyped up . . . like he was happy with what he had done.” Priestly told Smith, “My plate is full.

I’m hungry but I ate enough.” Smith described Burke, on the other hand, as looking pale and shaken.

Priestly and Burke told Smith they were in Avalos’s van because they intended to sell him “Hoolie

Goolie” or fake cocaine. Priestly and Burke told Smith they were with Avalos when he died.

Priestly told Smith where Avalos’s body would be found. When Smith borrowed the van to go visit

her brother, Priestly told her to use a washcloth so she would not leave fingerprints on the steering

wheel because the van was stolen.

       Priestly and Burke also visited Burke’s ex-girlfriend, Tryphosa Baldwin, on the afternoon

of October 25, 2006. Baldwin testified that the men were driving a red minivan. Baldwin testified

that Priestly used her phone, and Baldwin overheard him laughing and saying, “I popped that

nigger.”

       Phillips testified that Priestly and Burke told him the van was a “rent-a-fee,” meaning the

van’s owner “rented” the van to the men for a few hours in exchange for drugs. When the police

pulled the van over for a traffic violation, Priestly tried to flee, but he was apprehended.

       Christina Vachon, a forensic scientist, testified that Phillips’s hands contained a slight trace

of gunshot residue. One micron of gunshot residue was found on Priestly’s shirt. Additional

microns of gunshot residue were found on Burke’s shirt and Phillips’s shorts. Vachon testified that

a person would have gunshot residue if he fired a weapon, had a weapon that was recently

discharged, or was in a location close to where a weapon was discharged.



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        Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude

that the jury could have determined that Priestly was the perpetrator of the offense against Avalos

or a party to that offense from his presence at the scene of the offense, his knowledge of the location

of Avalos’s body, his possession of Avalos’s van, Smith’s description of his appearance, his warning

Smith to use a washcloth in driving the van, his statement that he “popped that nigger,” the presence

of gunshot residue on his shirt, and his attempt to flee when the van was stopped by police. Because

the foregoing evidence is legally sufficient to support Priestly’s conviction, the trial court did not err

in denying Priestly’s motion for instructed verdict, and the trial court’s judgment is affirmed.



                                                         Phylis J. Speedlin, Justice

DO NOT PUBLISH




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