Affirmed and Opinion filed January 28, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00114-CR

                  ASHTIN LAWATHA JOHNSON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1327274

                                     OPINION


      Appellant Ashtin Johnson was convicted of capital murder and
sentenced to imprisonment for life without the possibility of parole.
Appellant now appeals his conviction, contending in a single issue that the
evidence is legally insufficient to support his conviction. We disagree and
affirm the trial court’s judgment.
                                BACKGROUND

      Late on the night of October 16, 2011, appellant left his home with two men,
Martez Levy and a man known as “Tray,” and two women, Ceymone Anthony and
Beonkay Kesee. They drove down Bissonnet Street to an area where appellant said
there was a lot of prostitution, and Anthony and Kesee got out of the vehicle at an
apartment complex. Ernesto Vasquez and Ben Hernandez were driving by some
condominiums near Bissonnet Street so Vasquez could solicit a prostitute, and they
encountered Anthony and Kesee. The women offered Vasquez sex in exchange for
thirty dollars if he came to their apartment. They instructed him to pull into the
parking lot of the condominiums and follow them.

      While Vasquez parked, Kesee contacted Levy. Levy told appellant to come
with him, and he and appellant walked down a breezeway between the
condominiums towards the women. Appellant said Tray went to cover the back as
he “was supposed to do.” Vasquez met the women and started walking with them
towards the apartments. Hernandez waited by the car.

      Appellant and Levy each grabbed one of Vasquez’s arms. Anthony and
Kesee laughed as Levy pulled out a gun and struck Vasquez in the face. Levy
yelled to appellant to get Hernandez, and appellant attempted to, but decided not to
pursue him. Levy continued to strike Vasquez but he did not fall, so appellant
grabbed him to wrestle him to the ground. Levy told appellant to check Vasquez’s
pockets. Vasquez reached into his pockets and gave appellant two ten dollar bills.
Anthony and Kesee both insisted that Vasquez had more money, so appellant
searched Vasquez’s other pockets and took his wallet. When appellant looked
through it, he only found “fake Mexican” money in it. Levy struck Vasquez again
with the gun while he was on the ground and shot him in the head. Appellant left
the scene with Levy and Tray. Anthony and Kesee kept calling Levy to pick them

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up. Appellant later gave Levy the wallet he had taken from Vasquez, and Levy
told him that he would destroy it.

      Appellant gave a statement to police admitting his presence at the time of the
offense, but claimed that he did not know what was happening until after Vasquez
was shot. Appellant claimed he did not know Levy was going to rob the men until
he struck Vasquez with the gun and told appellant to go through his pockets.
Appellant stated he felt threatened by Levy and had no choice but to comply with
his orders. Appellant admitted Levy had been bragging that he had a .45 but
appellant contended he did not know Levy had the gun with him that night.

      Appellant was indicted for capital murder. The jury charge included the
definition of the law of parties and specifically applied the law of parties in the
application paragraph. The jury found appellant guilty of capital murder and, in
accordance with the jury’s verdict, the trial court sentenced appellant to life
without parole.

                                ANALYSIS

I.    Standard of review

      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In making this review, an appellate court considers all evidence in the
record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999)).


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      We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Romero v. State, 406 S.W.3d 695, 697 (Tex.
App.—Houston [14th Dist.] 2013, pet. struck). We defer to the jury’s
responsibility to resolve any conflicts in the evidence fairly, weigh the evidence,
and draw reasonable inferences. Id. The jury alone decides whether to believe
eyewitness testimony, and it resolves any conflicts in the evidence. Id. Therefore,
the testimony of a single eyewitness can be enough to support a conviction. Id.
(citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). In addition,
because it is the sole judge of the weight and credibility of the evidence, the jury
may find guilt without physical evidence linking the accused to the crime. Id. In
conducting a sufficiency review, we do not engage in a second evaluation of the
weight and credibility of the evidence, but only ensure the jury reached a rational
decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d).

II.   Applicable law

      A person commits capital murder if he intentionally causes the death of an
individual in the course of committing or attempting to commit robbery. Tex.
Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011 & Supp. 2013). A person
commits robbery if, in the course of committing theft and with the intent to obtain
or maintain control of the property, he 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. Penal Code Ann. §
29.02(a)(1)-(2) (West 2011). Theft is the unlawful appropriation of property with
the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03
(West Supp. 2013). Appropriation of property is unlawful if it is without the
owner’s effective consent. Id. § 31.03(b)(1).

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      A person may be guilty as a party to capital murder if the defendant
committed the offense by his own conduct or by the conduct of another for which
he is criminally responsible. Tex. Penal Code Ann. § 7.01(a) (West 2011); see
Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). “A person is
criminally responsible for an offense committed by the conduct of another if: . . .
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense.” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). “If, in the attempt to
carry out a conspiracy to commit one felony, another felony is committed by one
of the conspirators, all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was committed in furtherance
of the unlawful purpose and was one that should have been anticipated as a result
of the carrying out of the conspiracy.” Tex. Penal Code Ann. § 7.02(b) (West
2011).

      Proof of a culpable mental state invariably depends on circumstantial
evidence. See Heckert v. State, 612 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.]
1981); Martin v. State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.]
2007, no pet.). A culpable mental state can be inferred from the acts, words, and
conduct of the accused. Martin, 246 S.W.3d at 263.

      We may look to events before, during, and after the commission of the
offense to determine whether there is sufficient evidence that an individual is a
party to an offense.     Gross, 380 S.W.3d at 186.          We may also consider
circumstantial evidence.      Id.   “There must be sufficient evidence of an
understanding and common design to commit the offense.” Id. It is unnecessary
that each fact point directly to the guilt of the defendant so long as the cumulative
effect of the facts are sufficient to support the conviction under the law of parties.

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Id. “However, mere presence of a person at the scene of a crime, or even flight
from the scene, without more, is insufficient to support a conviction as a party to
the offense.” Id.

III.   Sufficient evidence supports appellant’s conviction.

       A person may be charged with an offense as a principal, a direct party, or a
co-conspirator. See Tex. Penal Code §§ 7.01 (person is “criminally responsible” if
offense is committed by his own conduct or by the “conduct of another for which
he is criminally responsible”); 7.02(a)(2) (describing criminal responsibility for
direct party); 7.02(b) (describing criminal responsibility for party as co-
conspirator). Because the evidence offered at trial established Levy shot Vasquez,
the issue is whether the evidence supports appellant’s conviction as a direct party
or co-conspirator. As explained below, we conclude the evidence is sufficient to
support appellant’s conviction as a co-conspirator under section 7.02(b) because
the evidence supports a finding that appellant should have anticipated the
possibility of a murder resulting from the course of committing robbery.

       Section 7.02(b) is quoted above, and it frames our sufficiency inquiry in this
case as follows: appellant is guilty of capital murder if (1) he was part of a
conspiracy to rob Vasquez; (2) one of the conspirators murdered Vasquez; (3) the
murder was in furtherance of the conspiracy; and (4) the murder should have been
anticipated as a result of carrying out the conspiracy. Hooper v. State, 214 S.W.3d
9, 14 n.4 (Tex. Crim. App. 2007). Appellant challenges the first and fourth
elements, but we conclude that sufficient evidence of those elements supports the
jury’s guilty verdict.

       A.    Evidence of a conspiracy

       Appellant claims there is no evidence that he conspired with Levy to rob


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Vasquez. Appellant points to his own statement, in which he claimed that he did
not know Levy was going to rob Vasquez until Levy pulled out the gun and struck
Vasquez. Appellant also claimed his actions were a result of his fear of Levy.
Further, appellant relies upon the facts that he did not pursue Hernandez and
money was left on the ground by Vasquez’s body as evidence that he did not know
Levy planned to rob Vasquez.

      The evidence showed that after the two women determined Vasquez had
money to pay for prostitution, Kesee contacted Levy. Anthony and Kesee then led
Vasquez to a spot where Levy and appellant were waiting, while Tray stayed back
with the car as appellant said he “was supposed to do.” Levy and appellant each
grabbed one of Vasquez’s arms, and Levy struck Vasquez in the face with a gun.
Levy told appellant to get Hernandez but when Vasquez failed to fall, appellant
grabbed him and wrestled him to the ground.        Levy told appellant to check
Vasquez’s pockets.    After Vasquez gave appellant twenty dollars, appellant
searched his pockets and took his wallet.     When appellant found only “fake
Mexican” money, Levy struck Vasquez again and shot him in the head. Appellant
then left the scene with Levy and gave Vasquez’s wallet to Levy.

      Based on this evidence that appellant and his companions coordinated their
movements throughout the offense, as well as appellant’s remark about what one
of his companions “was supposed to do,” a rational jury could have found beyond
a reasonable doubt a prior or contemporaneous plan to commit this robbery in
which appellant participated. There was no evidence that appellant ever argued
with or refused to follow Levy’s directions. See Thompson v. State, 54 S.W.3d 88,
95 (Tex. App.—Tyler 2001, pet. ref’d) (holding evidence of conspiracy sufficient
and noting lack of evidence “that any member of the group did anything but
cooperate with the terms of the plan to commit robbery”). Although appellant said

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he was afraid of Levy, there was no evidence presented, other than appellant’s own
statement, that supported his claim. Appellant asserted that he decided not to go
after Hernandez, but a rational trier of fact could reasonably have found appellant
could not go after Hernandez because he was busy subduing Vasquez. Appellant’s
own statement that he did not conspire to rob Vasquez does not render the
evidence to the contrary insufficient. Accordingly, we hold there was sufficient
evidence of appellant’s involvement in a conspiracy to rob Vasquez.

      B.     Evidence that the murder should have been anticipated

      Appellant also asserts there is no evidence that he should reasonably have
anticipated the possibility of a murder occurring in the course of the robbery
because there is no evidence he knew or had reason to believe that Levy had a gun
with him that night. Further, appellant claims there is no evidence that he had
reason to believe Levy was a violent person or would commit murder.

      “Knowledge of a co-conspirator’s violent propensity or intent to commit
aggravated assault is not an element of the offense under either theory of party
liability, so the lack of evidence of such knowledge is not dispositive of
sufficiency.” Hooper, 214 S.W.3d at 14. Accordingly, appellant’s purported lack
of knowledge of Levy’s violent nature or intent does not render the evidence
insufficient. Moreover, appellant’s claim that he had no reason to believe Levy
was violent is contradicted by other evidence, including the coordinated use of
force to subdue the complainant and appellant’s statement that he feared Levy. See
Gonzalez v. State, No. 13-10-00086-CR, 2012 WL 361733, at *4 (Tex. App.—
Corpus Christi Feb. 2, 2012, pet. ref’d) (mem. op., not designated for publication)
(holding defendant’s participation in violent robbery and his fear of co-defendants,
among other facts, provided sufficient evidence that murder should have been
anticipated as result of robbery).

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       As to whether appellant was aware Levy had a gun, appellant admitted that
he knew Levy had a .45 caliber silver gun. The evidence further demonstrates that
appellant knew Levy had the gun with him, at the latest, when Levy used it to
strike Vasquez—which was before appellant and his companions robbed Vasquez
of his money. “Evidence that a defendant knew his co-conspirators might use guns
in the course of the robbery can be sufficient to demonstrate that the defendant
should have anticipated the possibility of murder occurring during the course of the
robbery.” Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d); see also Nava v. State, 379 S.W.3d 396, 406–09 (Tex. App.—
Houston [14th Dist.] 2012) (holding evidence showed appellant knew gun was
brought when co-conspirator removed something wrapped in white towel from
truck during criminal transaction), aff’d, 2013 WL 6636809 (Tex. Crim. App. Dec.
18, 2013); Turner v. State, No. 01-11-00839-CR, __ S.W.3d __, 2013 WL
4520897, at *6–7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2013, no pet.) (holding
evidence sufficient that appellant should have anticipated murder when he knew
co-conspirator had a gun and appellant stated he first saw the gun on the night of
the offense when co-conspirator showed it to victim).1                    We conclude the
cumulative effect of the evidence of events before, during, and after the robbery
would permit a rational trier of fact to conclude beyond a reasonable doubt that
appellant should reasonably have anticipated the possibility of a murder occurring
in the course of the robbery.


1
   Cf. Tippitt v. State, 41 S.W.3d 316 (Tex. App.—Fort Worth 2001, no pet.) (evidence
insufficient to find murder should have been anticipated where there was no evidence defendant
knew the shooter had a gun when they entered the complainant’s home, and defendant was not in
the room when the shooter pulled the gun and fired). Tippitt’s rejection of “inference stacking”
was abrogated by Hooper, in which the Court of Criminal Appeals explained that juries are
permitted to draw multiple reasonable inferences from the evidence, whether direct or
circumstantial, but are not permitted to draw conclusions based on speculation. Hooper, 214
S.W.3d at 16.
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         Because the evidence demonstrates appellant conspired with Levy to rob
Vasquez and that appellant should have anticipated the murder of Vasquez as a
result of carrying out the robbery, a reasonable juror could have found appellant
guilty of the offense as a conspirator. Accordingly, we overrule appellant’s sole
issue.

                              CONCLUSION

         Having overruled appellant’s issue, we affirm the trial court’s
judgment.




                                      /s/    J. Brett Busby
                                             Justice



Panel consists of Justices McCally, Busby, and Donovan.
Publish – Tex. R. App. P. 47.2(b).




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