                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00030-CR
                                No. 10-12-00031-CR
                                No. 10-12-00032-CR
                                No. 10-12-00033-CR
                                No. 10-12-00034-CR
                                No. 10-12-00035-CR

BOBBY MAHAN,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 77th District Court
                           Limestone County, Texas
                  Trial Court Nos. 12605-A, 12606-A, 12607-A,
                         12608-A, 12609-A and 12610-A


                       MEMORANDUM OPINION


        In Cause No. 10-12-00030-CR, the jury convicted Bobby Mahan of the offense of

burglary of a habitation and assessed punishment at 20 years confinement and a $2,500

fine.   In Cause No. 10-12-00031-CR, the jury convicted Bobby of the offense of

tampering with physical evidence and assessed punishment at 2 years confinement and
a $2,500 fine. In Cause No. 10-12-00032-CR, the jury convicted Bobby of burglary of a

habitation and assessed punishment at 5 years confinement and a $2,500 fine. In Cause

Nos. 10-12-00033-CR, 10-12-00034-CR, and 10-12-00035-CR, the jury convicted Bobby of

aggravated assault with a deadly weapon and assessed punishment at 20 years

confinement and a $2,500 fine for each offense. We affirm.

                                Sufficiency of the Evidence

       In each cause number, Bobby challenges the sufficiency of the evidence to

support her conviction. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:

              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This "familiar standard gives full play 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. "Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , --S.Ct. --, 2012 WL

509637, U.S.L.W. 3667 (June 4, 2012).

       The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

Mahan v. State                                                                             Page 2
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Facts

        Luease Sheppard lives on Highway 84 a few miles outside of Mexia, Texas. Her

grandson, Courtney Durham, his daughter Diamond, and Diamond’s mother, Kelly

Bain were living with her at the time of the offenses.           Luease’s grandson, Chris

Sheppard, lived in the house next door, which was about fifty yards away. On June 19,

2011, Bobby Mahan and her son, Christopher Mahan, went to Luease’s home. Luease

testified that Christopher Mahan broke out a window in her home. Kelly testified that

after he broke the window, Christopher said, “Where is he at?”            Kelly said that

Christopher left, and she called 911. Kelly and Luease both testified that they saw

Bobby Mahan sitting in the driver’s seat of her pickup and that she never left the

vehicle.

        Christopher left Luease’s house and went next door to Chris Sheppard’s home.

Sheppard testified that he was in the bathroom when he heard the back door “just fling

open” and he then heard screaming and yelling. When he stepped into the living room,

Mahan v. State                                                                      Page 3
Sheppard saw Christopher with a gun in one hand and a hammer in the other.

Christopher asked, “Where’s Courtney? … Where is he at?”

       Lonnie Hall was in Chris Sheppard’s home, and he told Christopher that

Courtney was at Luease’s home. Christopher responded, “I done killed everybody else

up there. If you lie to me again, I’m going to kill you.” Christopher shot the television

hanging on the wall and then pointed the gun at Lonnie. Chris Sheppard started

screaming because he thought Christopher was going to shoot Lonnie. Christopher

then turned the gun toward Chris Sheppard and started shooting. Chris Sheppard ran

from the house, and he heard more gunshots coming from the house. Chris Sheppard

went to Luease’s house for help.

       Lonnie testified that Christopher shot at Sheppard as Sheppard ran from the

house. Lonnie went for Christopher’s gun, and they both fell. Lonnie stated that

Christopher hit him twice with the hammer, and then shot him twice in the leg. As they

continued to struggle for the gun, Christopher pulled out a pocket knife and cut Lonnie

across the neck and also on the finger. Lonnie managed to escape from Christopher and

ran out of the front door. Lonnie testified that Christopher came out of the back door of

the house as Courtney Durham was walking toward the house. Christopher then shot

Courtney multiple times. Lonnie stated that Christopher calmly walked to a vehicle

that was waiting for him and left the scene.

       Chris Sheppard testified that he was yelling for Kelly Bain to call 911. Sheppard

saw Bobby Mahan sitting in her truck watching everything take place. Chris Sheppard

saw Lonnie run from the house and Christopher come out from the back of the house.

Mahan v. State                                                                     Page 4
Christopher was reloading his gun, and Courtney was walking toward Chris

Sheppard’s house. When Christopher looked up and saw Courtney, he raised the gun

and shot him. Sheppard stated that Christopher did not stop shooting “until the gun

was empty.” Sheppard testified that Mahan was in the driver’s seat of the truck waiting

for Christopher.    She drove along the shoulder of the road, stopped to pick up

Christopher, and then drove away.

       Courtney testified that on June 19, 2011, he was visiting a neighbor who lived

two houses down from his grandmother, Luease. Sheppard’s house was in between his

grandmother’s house and the neighbor’s house.            Kelly called him and said that

Christopher had broken a window at his grandmother’s house. Courtney left and

began walking to his grandmother’s house. He saw Lonnie and asked him what was

wrong. Courtney then saw Christopher with a gun pointed toward him. Courtney

said, “Don’t shoot me ‘cause I got a little girl. I got a family.” Christopher said, “You

dead” and started pulling the trigger. Courtney testified that he was shot twelve times.

Courtney saw Bobby Mahan driving the vehicle, and he thought she might run over

him or shoot him. Courtney stated that Bobby pulled up and told Christopher “come

on.” Christopher calmly walked to the truck, and they left. Courtney was in the

hospital for three months as a result of his injuries.

       Bobby Mahan testified that she was taking a nap on June 19, 2011, when

Christopher woke her and said he needed to go somewhere. Bobby said that she got in

the passenger seat and dozed off while Christopher drove. When Bobby woke up, they

were parked in Luease’s yard. Christopher was on the front porch talking to Diamond

Mahan v. State                                                                     Page 5
and Luease. The next time Bobby looked up, Christopher was between Luease’s house

and Sheppard’s house. Bobby said that she got out of the truck and went to the door of

Luease’s house. Diamond opened the door and Luease and Kelly were inside of the

house. Bobby heard gunshots from Sheppard’s house, and she went and got back in

her truck.       Bobby testified that she drove close to Sheppard’s house and she saw

Christopher with a gun. Bobby then testified that she saw Christopher shoot Courtney.

       Bobby testified that Christopher came and got in the truck and told her to drive.

Bobby drove until Christopher told her to stop. After Bobby stopped, Christopher came

to the driver’s side of the truck and got out a gun case. He put the gun in the case and

walked into the woods. When he returned, he did not have the gun. Christopher told

Bobby to drive to Mexia because he was going to turn himself in. Bobby drove to

Mexia, and let Christopher out of the truck. She then went to her daughter’s house.

Bobby and her daughter later went to a convenience store where she thought

Christopher might be. There were several law enforcement vehicles at the convenience

store, and Christopher was in the back of a sheriff’s vehicle. Bobby spoke to the sheriff

and informed him that she was Christopher’s mother.

       Sergeant Brett New with Limestone County Sheriff’s Office testified that he

spoke with Mahan at the convenience store. Bobby told Sergeant New that she drove

Christopher to Luease’s house.     Bobby said she was on the porch, when a man ran out

of the house yelling, “He’s got a gun.” Bobby went back to her truck and drove along

the side of the road. She saw Christopher, and he was carrying a gun and had blood on

him. Christopher jumped in the truck and told her to leave. She drove to a cemetery,

Mahan v. State                                                                     Page 6
and Christopher got out of the truck and retrieved a black gun case from the bed of the

truck. Christopher walked into the woods and returned without the gun. Sergeant

New took Bobby to the sheriff’s office where Bobby gave a written statement. In her

written statement, Bobby did not clearly state that she drove to Luease’s house. She

stated that she and Christopher drove out there together.

Parties to Offenses

       Section 7.01 of the Texas Penal Code provides:


                 (a) 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.

                 (b) Each party to an offense may be charged with commission of
                 the offense.

                 (c) All traditional distinctions between accomplices and principals
                 are abolished by this section, and each party to an offense may be
                 charged and convicted without alleging that he acted as a principal
                 or accomplice.

TEX. PENAL CODE ANN. § 7.01 (West 2011).          A person is criminally responsible for an

offense committed by the conduct of another if:


                 (1) acting with the kind of culpability required for the offense, he
                 causes or aids an innocent or nonresponsible person to engage in
                 conduct prohibited by the definition of the offense;

                 (2) 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; or

                 (3) having a legal duty to prevent commission of the offense and
                 acting with intent to promote or assist its commission, he fails to
                 make a reasonable effort to prevent commission of the offense.


Mahan v. State                                                                             Page 7
TEX. PENAL CODE ANN. § 7.02 (a) (West 2011).

       Because Bobby Mahan is not the primary actor, the State must prove conduct

constituting an offense, plus an act committed by Bobby with intent to promote or assist

such conduct. See Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Bobby does not

challenge the sufficiency of the evidence to show that Christopher committed the

charged offenses. Bobby argues that the evidence is insufficient to show that she acted

as a party for each offense in which she was convicted.

       In determining whether an individual is a party to an offense, the court may look

to events occurring before, during, and after the commission of the offense, and may

rely on actions of the defendant that show an understanding and common design to do

the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).

       Prior to the offenses, Bobby Mahan and Christopher Mahan lived in a house

owned by Kelly. Bobby and Christopher did not pay rent, but were responsible for the

utilities. Kelly asked Bobby and Christopher to move out of the house. On June 18, the

day before the offenses, Bobby drove Christopher to Luease’s residence, and

Christopher talked to Courtney about the electric bill for Kelly’s house. Courtney stated

that the electricity to the house had been turned off, and he asked Christopher to pay

half of the bill based upon the agreement between the Mahans and Kelly. Courtney

testified that Christopher gave him money for the bill. After leaving Luease’s house,

Bobby and Christopher and got into an argument.           Christopher threatened to hit

Bobby’s truck with an axe.




Mahan v. State                                                                      Page 8
       On June 19, Christopher and Bobby returned to Luease’s house. Bobby originally

told Sergeant New that she drove to Luease’s house, but at trial she testified that

Christopher drove. There was evidence at trial that Bobby was in the driver’s seat of

the vehicle shortly after arriving at the residence. The factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d at 461.

       Bobby waited in the truck while Christopher broke out the window of Luease’s

house looking for Courtney. Bobby remained in the truck while Christopher walked to

Sheppard’s home carrying a gun and a hammer. After hearing gunshots, Bobby drove

on the shoulder of the road toward Chris Sheppard’s house. She saw Christopher shoot

Courtney, and she drove to the area where Courtney was lying on the ground to pick

up Christopher. Courtney testified that Bobby“told [Christopher] to come on.” The

evidence shows that Bobby and Christopher “calmly” left the scene “like nothing had

happened.” Bobby drove Christopher to the cemetery where he disposed of the gun.

She then took him to Mexia and let him out of the truck.

       It is well settled that the mere presence of an accused at the scene of an offense is

not alone sufficient to support a conviction as a party; however, it is a circumstance

tending to prove guilt which, combined with other facts, may suffice to show that the

accused was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979).

Further, while flight alone will not support a guilty verdict, evidence of flight from the

scene of a crime is a circumstance from which an inference of guilt may be drawn. Id.




Mahan v. State                                                                        Page 9
       The jury heard evidence that Bobby assisted Christopher in arriving at the scene,

fleeing the scene, and disposing of the weapon. The testimony showed that Bobby’s

demeanor was calm and that she did not appear surprised by the offenses.             In a

circumstantial evidence case, it is unnecessary for every fact to point directly and

independently to the guilt of the accused; rather, it is enough if the finding of guilt is

warranted by the cumulative force of all the incriminating evidence. Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993). Viewing all of the evidence in the light

most favorable to the verdict, we find that a rational trier of fact could have found that

Bobby acted with intent to promote or assist the commission of the offenses and aided

Christopher in committing the offenses of burglary of a habitation, aggravated assault,

and tampering with physical evidence. We overrule Bobby’s first issue on appeal in

each of the six cause numbers.

       In Cause No. 10-12-00031-CR, Bobby brings a second issue in which she argues

that the trial court erred in denying her requested jury instruction. For the offense of

tampering with physical evidence, Bobby requested that the jury be instructed on the

defensive theory of duress. It is an affirmative defense to prosecution that the actor

engaged in the proscribed conduct because he was compelled to do so by threat of

imminent death or serious bodily injury to himself or another. TEX. PENAL CODE ANN. §

8.05 (a) (West 2011).

       The affirmative defense of duress is, on its face, a confession-and-avoidance or

"justification" type of defense.      Rodriguez v. State, 368 S.W.3d 821,824 (Tex.

App.─Houston [14th Dist.] 2012, no pet).        The confession-and-avoidance doctrine

Mahan v. State                                                                     Page 10
requires the defendant to first admit that she "engaged in the proscribed conduct" by

admitting to all elements of the underlying offense, then claim that her commission of

the offense is justified because of other facts. Id.   A defendant's failure to testify,

stipulate, or otherwise proffer defensive evidence admitting that she "engaged in the

proscribed conduct" prevents the defendant from benefitting from the defense of

duress. Rodriguez v. State, 368 S.W.3d at 825. Because Mahan did not admit that she

engaged in the offense of tampering with physical evidence, she was not entitled to an

instruction on duress. We overrule her second issue in Cause No. 10-12-00031-CR.

       We affirm the trial court’s judgments.



                                         AL SCOGGINS
                                         Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
Do not publish
[CR25]




Mahan v. State                                                                   Page 11
