                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00127-CR

CRYSTAL THOMPSON,
                                                       Appellant
v.

THE STATE OF TEXAS,
                                                       Appellee



                          From the 77th District Court
                            Freestone County, Texas
                           Trial Court No. 18-102-CR


                         MEMORANDUM OPINION


      The jury convicted Crystal Thompson of the offense of aggravated robbery. The

trial court found the enhancement paragraph to be true and assessed punishment at

thirty-five years confinement. We affirm.
                                SUFFICIENCY OF THE EVIDENCE

       In the first issue, Thompson argues that the evidence is insufficient to support her

conviction. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

       When addressing a challenge to the sufficiency of the evidence, we consider
       whether, after viewing all of the evidence in the light most favorable to the
       verdict, any rational trier of fact could have found the essential elements of
       the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
       99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
       Crim. App. 2017). This standard requires the appellate court to defer “to
       the responsibility of the trier of fact fairly to resolve conflicts in the
       testimony, to weigh the evidence, and to draw reasonable inferences from
       basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We may not re-weigh
       the evidence or substitute our judgment for that of the factfinder. Williams
       v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
       a sufficiency review must not engage in a “divide and conquer” strategy
       but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
       at 232. Although juries may not speculate about the meaning of facts or
       evidence, juries are permitted to draw any reasonable inferences from the
       facts so long as each inference is supported by the evidence presented at
       trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016)
       (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17
       (Tex. Crim. App. 2007). We presume that the factfinder resolved any
       conflicting inferences from the evidence in favor of the verdict, and we
       defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim.
       App. 2012). This is because the jurors are the exclusive judges of the facts,
       the credibility of the witnesses, and the weight to be given to the
       testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
       2010). Direct evidence and circumstantial evidence are equally probative,
       and circumstantial evidence alone may be sufficient to uphold a conviction
       so long as the cumulative force of all the incriminating circumstances is
       sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

       We measure whether the evidence presented at trial was sufficient to
       support a conviction by comparing it to “the elements of the offense as

Thompson v. State                                                                           Page 2
       defined by the hypothetically correct jury charge for the case.” Malik v.
       State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
       correct jury charge is one that “accurately sets out the law, is authorized by
       the indictment, does not unnecessarily increase the State’s burden of proof
       or unnecessarily restrict the State’s theories of liability, and adequately
       describes the particular offense for which the defendant was tried.” Id.; see
       also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
       as authorized by the indictment” includes the statutory elements of the
       offense and those elements as modified by the indictment. Daugherty, 387
       S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

       Crystal Thompson was working the night shift at McDonald’s on January 10, 2018.

Thompson and Akeevah Jackson, the night manager, were the only two employees in the

store after 11:00 p.m.   Supervising manager, Mike Gose, testified that store policy

required the lobby doors to be locked at 11:00 p.m. Only drive through service was

available until the store reopened the following morning. Gose stated that all doors

remain shut throughout the night and that no one is allowed to go in or out until 6:00

a.m. when the morning managers arrive and unlock the lobby doors.

       The security video from McDonald’s shows Thompson unlocking a door and

propping it open just after midnight on January 10, 2018. At approximately 3:15 a.m.,

Jackson was in the office counting the money from the day. Thompson came by the office

and told Jackson she was going to use the restroom. Moments later the security video

shows Thompson making a phone call outside of the restroom. Robert Thompson

entered the store at approximately 3:25 a.m. and went into the office where Jackson was

counting the money. Robert hit Jackson in the head with a pistol and told her to get on

Thompson v. State                                                                       Page 3
the ground. Thompson came into the office moments later. Thompson got on the

ground, and the security video appears to show Robert kick her before leaving the office.

Robert left the McDonald’s through the back door setting off an alarm. Thompson

followed Robert to the back door and closed the back door.

       Jackson called 9-1-1 to report the robbery. Officer Rodney Price, with the Fairfield

Police Department, responded to the robbery call. Officer Price saw a person matching

the description of the suspect running in the area.         After a chase, Officer Price

apprehended the suspect and detained him. Officers found the stolen money and the

pistol when searching the area. The pistol recovered was a BB pistol that had the weight

and appearance of a firearm.

       After Robert was detained, officers asked both Jackson and Thompson if they

knew him. Jackson said that she did not, but Thompson did not respond. Officers later

learned that Robert and Thompson are married. Gose came to the store in response to

the robbery. He reviewed the security video with law enforcement. Thompson was

placed under arrest.

       Thompson was charged as a party to aggravated robbery. The law of parties

authorizes conviction for the collective conduct of two or more people. Johnson v. State,

560 S.W.3d 224, 229 (Tex. Crim. App. 2018). "A person is criminally responsible as a party

to an offense if the offense committed by his own conduct, by the conduct of another for

which he is criminally responsible, or by both." TEX. PENAL CODE ANN. § 7.01 (a) (West


Thompson v. State                                                                    Page 4
2011). Under Section 7.02(a)(2) a person is criminally responsible for the conduct of

another if he intends commission of the offense and does something to help the other

person to commit it. Johnson v. State, 560 S.W.3d at 230.

       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).

       Thompson contends that the State had to prove that she knew Robert would use

or exhibit the BB pistol at the time she acted to assist him in the commission of the offense.

Thompson specifically argues that the evidence is insufficient to show that she knew

Robert was going to use or exhibit a deadly weapon.

       A conviction for an aggravated offense must be supported by evidence that the

defendant committed, or was criminally responsible for committing, the aggravating

element. Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986); Wyatt v. State, 367

S.W.3d 337, 341 (Tex. App.—Houston [14th Dist.] 2012, pet. dism'd, untimely filed);

Woods v. State, No. 05-18-00444-CR, Tex. App. 2019 LEXIS 6271 * 31 (Tex. App. — Dallas,

July 23, 2019, pet. ref’d). For a party to an offense to be liable for the use or exhibition of

a deadly weapon as an element of aggravated robbery, there must be evidence that the

defendant not only participated in the robbery before, while, or after a deadly

weapon was displayed, but did so while being aware that the deadly weapon would be,

was being, or had been used or exhibited during the offense. Woods v. State at *31; Wyatt

Thompson v. State                                                                       Page 5
v. State, 367 S.W. 3d at 341-42. Our sufficiency review is not limited to evidence that the

defendant knew in advance the deadly weapon would be used or exhibited during the

robbery. Woods v. State at *31.

       The record is clear, and Thompson does not dispute, that Robert used or exhibited

the BB pistol during the commission of the offense. Thompson argues the evidence does

not show that she knew Robert would use or exhibit the BB pistol. However, the record

shows that Thompson came into the office where Robert struck Jackson in the head with

the BB pistol. Thompson encountered Robert in the office and told officers he pushed her

to the ground and kicked her. Thompson also followed Robert as he left the McDonald’s.

The evidence supports a finding that Thompson participated in the robbery while the

weapon was displayed and was aware that the BB pistol was being or had been used or

exhibited during the robbery.      We find that the evidence is sufficient to support

Thompsons’s conviction for aggravated robbery. We overrule the first issue.

                                      JURY CHARGE

       In the second issue, Thompson argues that the trial court failed to properly instruct

the jury regarding the offense charged. In analyzing a claim of jury charge error,

we must first determine if error exists. See Almanza v. State, 686 S.W.2d 157, 173-74 (Tex.

Crim. App. 1985); Riggs v. State, 482 S.W.3d. 270, 273 (Tex. App. — Waco 2015, pet. ref’d).

If it does not, our inquiry ends. Riggs v. State, 482 S.W.3d. at 273. If, however, we find




Thompson v. State                                                                     Page 6
error in the charge, we next consider whether an objection to the charge was made and

analyze the error for harm. Id.

       If an error was properly preserved by objection, reversal will be necessary if there

is some harm to the accused from the error. Almanza v. State, 686 S.W.2d at 171.

Conversely, if error was not preserved at trial by a proper objection, a reversal will be

granted only if the charge error causes egregious harm, meaning the appellant did not

receive a fair and impartial trial. Id. Jury-charge error is egregiously harmful if it affects

the very basis of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory. Riggs v. State, 482 S.W.3d. at 273. However, the Court of Criminal

Appeals has suggested that it is unlikely that charge error in the abstract portion of the

charge which is not present in the application paragraph will be egregiously harmful. Id.

       For both preserved and unpreserved charging error, the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence, including

contested issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole. To obtain a reversal

for jury-charge error, an appellant must have suffered actual harm, not merely theoretical

harm. Id.

       Thompson specifically argues that the jury charge failed to properly tailor the

culpable mental states to the elements they applied to and that those errors were

exacerbated because the trial court failed to instruct the jurors that they must find she


Thompson v. State                                                                       Page 7
knew Robert would use or exhibit the BB pistol before they could convict her as a party

to aggravated robbery.

          There are three "conduct elements" which may be involved in an offense: (1) the

nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding

the conduct. Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). An offense may

contain any one or more of these "conduct elements" which alone or in combination form

the overall behavior which the Legislature criminalized, and it is these essential "conduct

elements" to which a culpable mental state must apply. Id. Thus, the culpable mental

state definitions in the charge must be tailored to the conduct elements of the charged

offense. Cook v. State, 884 S.W.2d at 487. Where the charged offense does not include a

particular conduct element, it is error for the court's charge to contain a definition of the

culpable mental state for that conduct element in the abstract portion of the charge. Riggs

v. State, 482 S.W.3d. at 274. A trial court does not err, however, in defining the culpable

mental states for nature, result, and circumstances surrounding conduct when all three

of the conduct elements are contained within the offense. See Patrick, 906 S.W.2d 481,492

(Tex. Crim. App. 1995); Gutierrez v. State, 446 S.W.3d 36, 40 (Tex. App. —Waco 2014, pet.

ref'd).

          The court's charge in this case defined "intentionally" and "knowingly" according

to Texas Penal Code Section 6.03. Those definitions are as follows:




Thompson v. State                                                                      Page 8
       (a) A person acts intentionally, or with intent, with respect to the nature of
       his conduct or to a result of his conduct when it is his conscious objective
       or desire to engage in the conduct or cause the result.
       (b) A person acts knowingly, or with knowledge, with respect to the nature
       of his conduct or to circumstances surrounding his conduct when he is
       aware of the nature of his conduct or that the circumstances exist. A person
       acts knowingly, or with knowledge, with respect to a result of his conduct
       when he is aware that his conduct is reasonably certain to cause the result.

TEX. PENAL CODE ANN. § 6.03(a) (b) (West 2011).

       Aggravated robbery, as charged in this case, is committed when, in the course of

committing theft, a person threatens or places another in fear of bodily injury or death

and the person uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02(a)(2),

29.03(a)(2) (West 2019). The element "in the course of committing theft" refers to the

circumstances surrounding the conduct, rather than the result. Gutierrez v. State, 446

S.W.3d at 40. Because the form of robbery alleged is "aggravated" by the use of a deadly

weapon, that element refers to the nature of conduct rather than the result of conduct

because a weapon is "deadly" if it is "capable" of causing serious bodily injury in the

manner of its use, without regard to whether the actual result is the infliction of serious

bodily injury. Id.

       Because the charge used language of all three conduct elements in its definitions

of the culpable mental states and all three conduct elements are present in this case, the

trial court did not err in charging the jury. See Gutierrez v. State, 446 S.W.3d at 40.

Moreover, because Thompson did not object to the charge, a reversal will be granted only

if the charge error causes egregious harm. Where the application paragraph correctly

Thompson v. State                                                                       Page 9
instructs the jury, an error in the abstract instruction is not egregious. Medina v. State, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999).

       Thompson also argues that the charge failed to instruct that she must have known

Robert would use or exhibit a deadly weapon. The trial court instructed the jury:


       Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt, that on or about the 10th day of
       January, 2018, in Freestone County, Texas, Crystal Thompson did then and
       there while in the course of committing theft of property and with intent to
       obtain or maintain control of the property, intentionally or knowingly
       threaten or place Akeevah Jackson in fear of imminent bodily injury or
       death, and the defendant did then and there use or exhibit a deadly
       weapon, namely BB pistol; or if you find from the evidence beyond a
       reasonable doubt that on or about the 10th day of January, 2018, in
       Freestone County, Texas, Robert Thompson did then and there while in the
       course of committing theft of property and with intent to obtain or maintain
       control of the property, intentionally or knowingly threaten or place
       Akeevah Jackson in fear of imminent bodily injury or death, and Robert
       Thompson did then and there use or exhibit a deadly weapon, namely BB
       pistol and that the defendant, Crystal Thompson, with the intent to promote
       or assist the commission of the offense, if any, solicited, encouraged,
       directed, aided or attempted to aid Robert Thompson to commit the offense,
       if she did, then you will find the defendant "Guilty" of the offense of
       Aggravated Robbery as charged in the indictment.

The jury was authorized to convict Thompson of aggravated robbery with a deadly

weapon only if it found beyond a reasonable doubt that she acted with intent to promote

or assist Robert Thompson in the commission of the offense by encouraging, aiding, or

attempting to aid him in the robbery of Jackson with a deadly weapon. No greater

specificity in the charge was required. Woods v. State, No. 05-18-00444-CR, Tex. App. 2019




Thompson v. State                                                                     Page 10
LEXIS 6271 * 13. (citing Vasquez v. State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012)). We

overrule the second issue.

                                      CONCLUSION

       We affirm the trial court’s judgment.




                                         JOHN E. NEILL
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed August 19, 2020
Do not publish
[CRPM]




Thompson v. State                                                                  Page 11
