Affirmed and Memorandum Opinion filed September 16, 2014.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00263-CR


                    CHRISTOPHER LAMONT PENN, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 185th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1345118


                    MEMORANDUM                         OPINION
      A jury convicted appellant Christopher Lamont Penn of capital murder 1 and
the trial court assessed a mandatory punishment at life imprisonment without
parole.2 Appellant challenges his conviction in four issues, arguing that (1) the
evidence is legally insufficient to support his capital murder conviction because the

      1
          See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).
      2
          See Tex. Penal Code Ann. § 12.31(a)(2) (Vernon Supp. 2014).
State did not establish that appellant robbed or attempted to rob the complainant
Reginald Williams; (2) appellant was denied due process because there is no
evidence to support a finding that appellant robbed the complainant; (3) his
mandatory punishment of life imprisonment without parole violates the United
States and Texas Constitutions because it does not allow consideration of
mitigating evidence; and (4) the court costs should be deleted because the record
does not contain a proper bill of costs. We affirm.

                                  BACKGROUND

      On March 11, 2011, appellant told his brother Anthony Smith that he needed
money and asked about a drug dealer Smith knew. The drug dealer, Markquis
Richard, previously had sold marijuana to Smith. Appellant conveyed to Smith
that he intended to go to Richard’s apartment to rob him of drugs and money.
Appellant threatened to make Smith stop living in appellant’s home if Smith did
not help with the robbery. Appellant and Smith then drove to Richard’s apartment;
they planned to rob Richard only if he was alone.

      Appellant was armed with a knife when he and Smith arrived at Richard’s
apartment. Richard’s brother Malquan King was present in the apartment; Ieasha
Fletcher, two other women, and complainant Reginald Williams also were in
Richard’s apartment helping Richard pack to move the next day. Appellant and
Smith remained in Richard’s apartment briefly, then left so appellant could retrieve
his gun.

      Appellant, armed with his gun, and Smith later returned to Richard’s
apartment while Richard’s brother and friends still were at the apartment. Smith
asked to buy marijuana. As Richard turned to tell his brother to retrieve the
marijuana, appellant grabbed Richard and pointed the gun at Richard’s face.
Appellant told Richard, “You know what time it is. Lay it down,” which Richard
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understood to mean appellant was “fixing to rob” him. Appellant laid Richard on
the ground, pointed and waived the gun at everyone present in the apartment, and
asked repeatedly, “[W]here is it at?”         King pulled a bag out of his pocket
containing a small amount of marijuana and stated that they did not have any more.

      At this point, the complainant jumped up from a nearby bed and ran toward
a bedroom. Appellant fired his gun at the complainant, chased the complainant
into the bedroom, and fired again; the complainant then jumped out of a window.

      Richard got up and ran out of the apartment to find a gun or get help. Smith
took the bag of marijuana from King, and then left the apartment with appellant.
Fletcher ran upstairs to her apartment; she found the complainant close by on the
ground screaming for help. The complainant soon died from a gunshot wound to
the torso.

      Appellant was charged with capital murder; the indictment alleged that
appellant intentionally caused the death of the complainant “while in the course of
committing and attempting to commit” the robbery of the complainant. A jury
found appellant guilty of capital murder, and the trial court imposed a mandatory
sentence of life imprisonment without parole. Appellant filed a timely appeal.

                                     ANALYSIS

I.    Sufficiency of the Evidence

      Appellant argues in his first issue that the evidence is legally insufficient to
support his capital murder conviction because the State did not establish that
appellant robbed or attempted to rob the complainant. According to appellant’s
brief, “[T]he evidence supports [that appellant] was robbing a different individual”
when he shot the complainant.



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      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine whether, based on that
evidence and any reasonable inferences from it, any rational factfinder 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). 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).
This standard of review applies to cases involving both direct and circumstantial
evidence.     Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and the standard of review on appeal is the same for both direct and
circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
App. 2004).

      The jury is the exclusive judge of the credibility of witnesses and the weight
of the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
We defer to the jury’s responsibility to fairly resolve conflicts in the evidence, and
we draw all reasonable inferences from the evidence in favor of the verdict. Id.
Therefore, the testimony of a single eyewitness can be enough to support a
conviction. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). 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).

      A person commits the offense of capital murder if the person intentionally or
knowingly causes the death of an individual in the course of committing or
attempting to commit robbery. See Tex. Penal Code Ann. § 19.02(a)(2) (Vernon

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2011), § 19.03(a)(2) (Vernon Supp. 2014).

      A person commits robbery if, in the course of committing theft and with
intent to obtain or maintain control of the property, the person intentionally,
knowingly, or recklessly (1) causes bodily injury to another; or (2) threatens or
places another in fear of imminent bodily injury or death. See Tex. Penal Code
Ann. § 29.02(a) (Vernon 2011).

      A person commits theft if he appropriates property without the owner’s
consent and with intent to deprive the owner of the property. See Tex. Penal Code
Ann. § 31.03(a), (b)(1) (Vernon Supp. 2014). “‘In the course of committing theft’
means conduct that occurs in an attempt to commit, during the commission, or in
the immediate flight after the attempt or commission of theft.” Tex. Penal Code
Ann. § 29.01(1) (Vernon 2011).

      Appellant does not challenge the sufficiency of the evidence establishing
that he killed the complainant and robbed Markquis Richard and Malquan King.
Appellant concedes in his brief that the “evidence was overwhelming that the
persons robbed were Markquis Richard, and possibly his brother Malquan. . . .
There is evidence of a robbery of Markquis and his brother.”

      Appellant instead challenges the sufficiency of the evidence to support his
capital murder conviction by contending there is no evidence that he killed the
complainant while robbing or attempting to rob the complainant.           Appellant
argues that the complainant was only a “bystander” to the robbery of Richard and
King. Appellant contends he was not stealing or attempting to steal from the
complainant when he shot the complainant; therefore, appellant contends he did
not rob or attempt to rob the complainant.

      In essence, appellant argues that the victim of the theft and the victim of the


                                         5
robbery must be identical, and the individual assaulted in the course of committing
theft must be the intended victim of the theft in order to commit a robbery. We
disagree.

      Theft is the underlying offense for a robbery. Ex parte Hawkins, 6 S.W.3d
554, 560 (Tex. Crim. App. 1999). Robbery is a form of assault. Id.; Boston v.
State, 373 S.W.3d 832, 839 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321
(Tex. Crim. App. 2013). “[T]he offense of robbery includes any violence in the
course of effectuating [a] theft as well as any violence while in immediate flight
from the scene of the theft.” Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim.
App. 1976) (affirming aggravated robbery conviction of defendant who assaulted a
police officer after stealing money from a cash register).

      To prove robbery, the State is not required to prove that the complainant’s
property was taken.     See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a).       “No
completed theft is required for the proscribed conduct to constitute the offense of
robbery.” White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984); Sweed v.
State, 321 S.W.3d 42, 47 (Tex. App.—Houston [1st Dist.] 2010), rev’d on other
grounds, 351 S.W.3d 63 (Tex. Crim. App. 2011); Camacho v. State, 825 S.W.2d
168, 170 (Tex. App.—Fort Worth 1992, pet. ref’d). “Nor is it necessary that the
victim of the theft or attempted theft and the victim of the robbery be the same.”
White, 671 S.W.2d at 41-42 (affirming aggravated robbery conviction of getaway
driver who shot pursuing bystander in order to free companion who had attempted
to steal a purse); Sweed, 321 S.W.3d at 47 (affirming aggravated robbery
conviction and holding appellant was not entitled to a lesser-included instruction
on theft); Camacho, 825 S.W.2d at 170 (affirming conviction of two counts of
aggravated robbery where defendant threatened one employee while stealing
money from him and then threatened another employee before driving away in a

                                          6
car).

        There is ample evidence in this case that appellant and Smith went to
Richard’s apartment intending to steal drugs and money from Richard. Appellant
grabbed Richard and pointed a gun at Richard’s face. Appellant laid Richard on
the ground, pointed and waived a gun at everyone present in the apartment, and
asked repeatedly, “[W]here is it at?” Richard’s brother King then pulled a bag
with a small amount of marijuana out of his pocket. The complainant, who was
among those present in the apartment, jumped up from a nearby bed at that point
and ran toward a bedroom.          Appellant immediately fired his gun at the
complainant; chased the complainant into the bedroom; and fired at the
complainant again, striking the complainant in the torso and killing him. Smith
took the bag of marijuana from King and then left the apartment together with
appellant.

        This evidence is sufficient for a reasonable jury to conclude that appellant
intentionally caused the complainant’s death while in the course of committing the
robbery of the complainant. This evidence is sufficient because the victim of the
theft and the victim of the robbery need not be the same. See White, 671 S.W.2d at
41-42; Sweed, 321 S.W.3d at 47; Camacho, 825 S.W.2d at 170.               Appellant
committed robbery by intentionally causing bodily injury to the complainant in the
course of committing the theft of Richard’s marijuana and with intent to obtain
control of the marijuana.

        Accordingly, we reject appellant’s contention that the evidence in this case
is legally insufficient to support his capital murder conviction on the ground that
there is no evidence that he killed the complainant in the course of robbing or
attempting to rob the complainant. Thus, we conclude that the evidence is legally
sufficient to support appellant’s capital murder conviction.

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      We overrule appellant’s first issue.

II.   Due Process

      Appellant contends in his second issue that he was “denied due process
because there was no evidence in the record that he was robbing” the complainant.
Appellant cites Adames v. State, 353 S.W.3d 854, 859-60 (Tex. Crim. App. 2011),
for this proposition: “[T]he Court of Criminal Appeals explained it was error to
sustain a conviction based upon a charge for which the defendant was not
indicted.” Appellant also states that he “was not indicted for the robbery or
attempted robbery of [Richard] – he was charged with the attempted robbery of
[the complainant]. While the evidence may be sufficient as to [Richard] – it is
wholly insufficient [a]s to [the complainant].” Appellant concludes his argument
by stating that “[t]here is insufficient evidence to support the conviction.
[Appellant] was denied due process and the case should be reversed and an
acquittal rendered.”

       We reject appellant’s contention. First, appellant was not convicted “based
upon a charge for which [he] was not indicted.” Appellant was indicted for
intentionally causing the death of the complainant while in the course of
committing and attempting to commit robbery; and the charge essentially tracked
the indictment language. Second, we already have concluded that the evidence is
legally sufficient to support the jury’s finding that appellant robbed the
complainant and thus is sufficient to support appellant’s capital murder conviction.
Accordingly, there is no due process violation as asserted by appellant.

      We overrule appellant’s second issue.




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III.   Punishment

       Appellant argues in his third issue that the automatic punishment of life
without parole violates the Eighth Amendment of the United States Constitution
and article 1, section 13 of the Texas Constitution because the sentencing scheme
provided no opportunity for the consideration of mitigating evidence.

       The Texas Rules of Appellate Procedure require a party to preserve error for
appellate review by demonstrating the error on the record. Tex. R. App. P. 33.1(a);
Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010),
aff’d, 365 S.W.3d 333 (Tex. Crim. App. 2012).            The party must make the
complaint in a timely manner and state the grounds for the ruling that the
complaining party seeks from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from
the context. Tex. R. App. P. 33.1(a)(1)(A). In raising the complaint on appeal, the
party must ensure the issue is the same as the complaint or objection made during
trial. Clark, 305 S.W.3d at 354. Even constitutional errors can be waived if a
party fails to properly object to the errors at trial. Id. at 355. A challenge to the
constitutionality of a statute may not be raised for the first time on appeal.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenges);
Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied
challenges). Therefore, if a party’s objection at trial does not correspond with its
issue on appeal, the party has waived that issue. Clark, 305 S.W.3d at 354.

       Appellant failed to preserve error by voicing his complaint in the trial court,
and appellant concedes that “[t]here was no objection to the mandatory sentencing
scheme” in the trial court. This court already has rejected a substantially similar
complaint as asserted by appellant based on failure to preserve error in the trial
court and held that this complaint did not constitute a complaint of fundamental

                                          9
error.    Cerna v. State, No. 14-12-01126-CR, 2014 WL 3908117, at *6 (Tex.
App.—Houston [14th Dist.] Aug 12, 2014, no pet. h.); see also Wilkerson v. State,
347 S.W.3d 720, 722–23 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(rejecting similar complaint based on failure to preserve error in the trial court).

         We overrule appellant’s third issue.

IV.      Court Costs

         Appellant argues in his fourth issue that the assessed court costs should be
deleted from the judgment because there is no bill of costs in the record. Appellant
contends that a Harris County Justice Information Management System (JIMS)
“Cost Bill Assessment” is not a proper bill of costs “as contemplated and required
by law” because it was signed by a deputy clerk and dated six days after the trial
court judgment was signed.

         We review the assessment of court costs on appeal to determine if there is a
basis for the costs, not to determine whether there was sufficient evidence offered
at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim.
App. 2014). Traditional sufficiency-of-the-evidence standards of review do not
apply. Id.

         Generally, a bill of costs must (1) contain the items of cost, (2) be signed by
the officer who charged the cost or the officer who is entitled to receive payment
for the cost, and (3) be certified. Id. at 392–93; see Tex. Crim. Proc. Code Ann.
arts. 103.001, 103.006 (Vernon 2006). The Court of Criminal Appeals of Texas
has held that a JIMS report constitutes an appropriate bill of costs if the report
itemizes the accrued court costs in the appellant’s case, contains a certification by
the trial court clerk that the document is a true and correct copy of the original, and
is signed by a deputy clerk. Johnson, 423 S.W.3d at 393.


                                            10
       The record in this case contains a computer-screen printout of the Harris
County Justice Information Management System (JIMS) “Cost Bill Assessment.”
The JIMS report in this record is a compliant bill of costs because it contains an
itemized list of costs in appellant’s case, a certification by the district clerk that the
document is a true and correct copy of the original, and a signature of a deputy
district clerk. See id. at 392-93. That the bill of costs was not prepared until after
the trial court signed the judgment does not defeat the lawfulness of the bill of
costs. Id. at 394. Accordingly, appellant’s argument provides no basis for relief.
There being no challenge to any specific cost or the basis for the assessment of
such cost, the bill of costs supports the costs assessed in the judgment. See id. at
395.

       We overrule appellant’s fourth issue.

                                        CONCLUSION

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


                                  /s/            William J. Boyce
                                                 Justice

Panel consists of Justices Boyce, Busby and Wise.
Do not Publish — Tex. R. App. P. 47.2(b).




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