Opinion issued June 28, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-15-00726-CR
                           ———————————
                KENTRELL MAURICE BUTLER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1390406


                       MEMORANDUM OPINION

      A jury convicted appellant, Kentrell Maurice Butler, of aggravated robbery

with a deadly weapon and assessed his punishment at fourteen years’ confinement.

In two points of error, appellant contends that (1) the trial court erred when it

overruled his objection to having a portion of the testimony read back to the jury,
and (2) the evidence was factually insufficient to support his conviction for the

charged offense. We affirm.

                                    Background

      Umaid Jawani, the complainant, owns a novelty smoke and gift shop in

Humble, Texas. On the morning of November 8, 2012, Jawani arrived at his shop

and cleaned the glass showcases displaying merchandise as he did every morning

before opening at 9:00 a.m. Shortly thereafter, two black men wearing hoodies

entered the store and bought some cigarette paper. The men wore the hoods pulled

over their heads which struck Jawani as peculiar because the weather was warm that

day. Concerned that he was going to be robbed, Jawani watched as the two men

walked outside, turned around, and ran back to the shop.

      Once inside, the man wearing the black hoodie pointed a large black gun at

Jawani and demanded that Jawani tell them how to open the cash register, while the

man in the red hoodie jumped over the counter and took approximately $200 from

the register. One of the men broke the glass on top of one of the showcases and

grabbed some of the expensive pipes. Afterwards, the men instructed Jawani to lay

on the ground behind the counter. After the men left the store, the man in the red

hoodie returned and grabbed a small gun from one of the showcases and ran out of

the store. Jawani testified that he was unable to identify the robbers.




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      When Deputy Smith with the Harris County Constable’s Office arrived at the

scene, he tested the counter for fingerprints and collected blood samples found on

the counter and on a green pipe. Dimitry Payavla, a latent print examiner with the

Harris County Sheriff’s Office, testified that one of the fingerprints lifted from the

counter belonged to appellant, and that the impression left by appellant’s fingerprint

on the counter revealed that it had been made with more pressure than the other

fingerprints.     Wendi Phelps, the technical operations manager of the forensic

genetics lab at the Harris County Institute of Forensic Sciences, tested the blood

samples taken from the showcase counter and the green glass pipe. Phelps testified

that the DNA from those two samples was consistent with appellant’s DNA profile

obtained from his buccal swabs.

      During its deliberations, the jury sent out several questions to the trial court.

In one of them, the jury stated, “[w]e would like to review the officer’s testimony of

the collection of the blood from the countertop.” The court responded with the

following written message:

      Ladies and Gentlemen:

             The Texas Code of Criminal Procedure specifically dictates the
      procedure the Court must follow in reading testimony back to the jury.
      It provides:

                “If the jury disagrees as to the statement of any witness,
                they may, upon applying to the Court, have read to them
                from the court reporter’s notes that part of such witness’s
                testimony or the particular point in dispute, and no other.”

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            In other words, the Court cannot have the entire testimony of a
      witness read back; your request must be specific as the point in
      dispute.

             With these instructions in mind, if you would like certain
      testimony read back to you, please specify your point in dispute, as well
      as the name of the witness whose statement is in dispute and the lawyer
      questioning the witness at the time of the statement.

      Using the form provided by the court, the jury responded as follows:

Name of witness:                 Constable Smith

Lawyer questioning witness:       Mosely [sic] – Prosecutor

Point or statement in dispute    Constable was asked or spoke about the condition
                                 and collection of the blood sample, how easy or
                                 simple was to collect (Relative Dryness)

      The trial court then told counsel that the court reporter had pulled up the

portion of Deputy’s Smith’s testimony responsive to the request, which read as

follows:

             Q: Why did you collect the green glass object?

             A: Because it had a blood drop on it.

             Q: The blood that you observed in the store that morning or early
             afternoon I guess by the time you got there?

             A: M-h’m.

             Q: Did it appear to be blood that was dried up and had been there
             awhile?

             A: Just – not a long time, just a little dry but not too dry.



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              Q: Okay, Did you have any difficulty collecting it?

              A: No.

        Defense counsel objected to the quoted portion of testimony on the grounds

that the jury’s request was not specific and there was no question tying the

parenthetical comment about relative dryness to the question regarding how easy it

was to collect the blood sample. Trial counsel requested that the trial court provide

only the last two lines of the testimony to the jury. The trial court overruled the

objection, stating that it believed that the entirety of the quoted testimony was

responsive to the question. The above-quoted testimony was then read back to the

jury.

        The jury subsequently found appellant guilty of aggravated robbery with a

deadly weapon and assessed his punishment at fourteen years’ confinement. This

appeal followed.

                            Jury’s Request for Testimony

        In his first point of error, appellant contends that the trial court erred when it

overruled his objection to providing the jury with the portion of Deputy Smith’s

testimony regarding the dryness of the blood sample. Instead, he argues, the trial

court should have read back the portion of testimony responsive to the only question

the jury asked, i.e., whether the blood sample was difficult to collect.




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     A. Standard of Review and Applicable Law

       Code of Criminal Procedure article 36.28 provides that “if the jury disagree[s]

as to the statement of any witness they may, upon applying to the court, have read

to them from the court reporter’s notes that part of such witness testimony or the

particular point in dispute, and no other . . . .” TEX. CODE CRIM. PROC. ANN. art.

36.28 (West 2006); see Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App.

2005) (“This statute seeks to balance our concern that the trial court not comment

on the evidence with the need to provide the jury with the means to resolve any

factual disputes it may have.”). After determining that the jurors dispute a portion

of testimony, the trial court must “strike a balance between reading too much or too

little testimony in response to the jury’s request.” Arnold v. State, 234 S.W.3d 664,

676 (Tex. App.—Houston [14th Dist.] 2007, no pet.). When such a circumstance

arises, the trial court must interpret the communication, decide what portion of the

testimony best answers the question, and limit the testimony accordingly. Brown v.

State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994) (en banc). Furthermore, the

manner and extent of its response cannot be held wrong unless the trial court abused

its discretion. Id.

B.     Analysis

       Here, in response to the jury’s question that it be allowed to review Deputy

Smith’s testimony about the collection of blood from the countertop, the trial court



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instructed the jury that testimony could only be read back if the jury made a request

that included the specific point in dispute in its deliberations. In response, the jury

narrowed its request to “the condition and collection of the blood sample, how easy

or simple [it] was to collect (Relative Dryness).” In response, the court reporter read

the following testimony back to the jury:

      Q: Why did you collect the green glass object?

      A: Because it had a blood drop on it.

      Q: The blood that you observed in the store that morning or early
      afternoon I guess by the time you got there?

      A: M-h’m.

      Q: Did it appear to be blood that was dried up and had been there
      awhile?

      A: Just – not a long time, just a little dry but not too dry.

      Q: Okay, Did you have any difficulty collecting it?

      A: No.

      The jury’s request asked about both the condition of the blood and its

collection. The reread portion of Deputy Smith’s testimony was responsive to the

specific request by the jury and did not exceed the scope of the jury’s inquiry. See

Brown, 870 S.W2d at 56 (concluding that court of appeals properly concluded that

trial court’s reread to jury did not exceed scope of jury’s inquiry in murder trial, and

that testimony could not have been further limited and still accurately answered



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jury’s inquiries); see also Rice v. State, No. 05-08-00722-CR, 2009 WL 3647397, at

*3 (Tex. App.—Dallas 2009, no pet.) (mem. op., not designated for publication)

(concluding that trial court did not abuse its discretion in providing jury with

excerpted portion of witnesses’ testimony which answered three questions asked by

jury because questions were asked together and concerned same portion of witness’s

testimony).    Because the trial court did not abuse its discretion, we overrule

appellant’s first point of error.

                             Sufficiency of the Evidence

       In his second point of error, appellant contends that the evidence is factually

insufficient to support the jury’s verdict that he is guilty of aggravated robbery with

a deadly weapon. Specifically, he argues that the evidence failed to prove beyond a

reasonable doubt the elements of identity and intent of the charged offense.

   A. Standard of Review and Applicable Law

       We now review the factual sufficiency of the evidence in criminal cases using

a legal sufficiency standard of review. See Ervin v. State, 331 S.W.3d 49, 54 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d). Thus, we review appellant’s challenge

to the sufficiency of the evidence under the standard enunciated in Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). We examine all of the evidence in

the light most favorable to the verdict and determine whether a rational trier of fact

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



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Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789. Because the jury is the sole judge

of the credibility of the witnesses and of the weight given to their testimony, any

conflicts or inconsistencies in the evidence are resolved in favor of the verdict.

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).

      A person commits aggravated robbery if, in the course of committing theft

and with intent to obtain or maintain control of property, the person intentionally or

knowingly threatens or places another in fear of imminent bodily injury and uses or

exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (West

2014). “A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” Id. § 7.01. “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 . . . .” Id. § 7.02(a)(2).

   B. Analysis

      Appellant contends that the evidence is insufficient to uphold the jury’s guilty

verdict because (1) Jawani was unable to identify appellant as one of the two men

who robbed him; (2) evidence that one of the fingerprints from the countertop in

Jawani’s shop belonged to appellant did not indicate when the print was made and




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did not show intent; and (3) evidence that appellant’s DNA profile matched the DNA

found on the glass pipe and showcase countertop did not establish intent.

      Here, the jury heard evidence that two men entered Jawani’s shop, that the

man in the black hoodie pointed a gun at Jawani while the man in the red hoodie

jumped over the counter, and that they demanded that Jawani tell them how to open

the cash register. The evidence further showed that the man in the red hoodie took

approximately $200 from the register while the man in the black hoodie continued

to point the gun at Jawani, and that the men smashed a glass showcase to take some

of the expensive pipes and a gun that were on display. Jawani also testified that they

told him to empty his pockets and give them his cell phone. This is sufficient

evidence from which the jury could have concluded that the two men intended to

rob Jawani’s store. Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789.

      With regard to the element of identity, we note that “[e]vidence as to the

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

evidence and does not need to be proven by eyewitness identification.” Earls v.

State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). Here, Jawani testified that he

cleaned the glass showcase counters in his shop every morning before opening, and

that he knew the blood had not been on the countertop before the two men entered

his store that morning. He further testified that the robbers smashed one of the glass

showcases to take several of the pipes on display. Payavla, the fingerprint examiner,



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testified that one of the fingerprints lifted from the counter belonged to appellant,

and that the impression left by appellant’s fingerprint on the counter revealed that

more pressure had been applied when it was made than other fingerprints found.

Deputy Smith testified that the blood found on the counter had not yet dried,

indicating that it had not been on the counter long before it was collected. Phelps,

who tested the blood samples found on the counter and the green glass pipe, testified

that the DNA from those two samples was consistent with appellant’s DNA profile

obtained from his buccal swabs. The jury could have rationally inferred from this

evidence that appellant cut himself when taking merchandise during the robbery

which is why the blood had not yet dried when officers arrived at the scene. Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that the evidence was sufficient to support the jury’s finding that appellant

committed aggravated robbery with a deadly weapon.        Jackson, 443 U.S. at 318–

19, 99 S. Ct. at 2789. We overrule appellant’s second point of error.




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                                   Conclusion

      We affirm the trial court’s judgment.




                                                  Russell Lloyd
                                                  Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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