                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-164-CR


JAMES GLEN GRAY                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In seven points, Appellant James Glen Gray appeals his convictions for

two counts of felony murder. The judgments of the trial court are modified to

reflect that the conviction for count one is robbery and the conviction for count

two is robbery. As modified, the judgments are affirmed as to the convictions.




      1
          … See Tex. R. App. P. 47.4.
The portion of the judgments assessing punishment is reversed, and the cause

is remanded for a new trial as to punishment only.

                      II. Factual and Procedural History

      Detective Mark Malcom of the Mansfield police department testified that

in March 2003, Steven Ashford gave the police a written statement in which

he confessed to the murders of Kevin Ogdie and Kelly Chance. When asked if

anyone else had been involved, Ashford implicated two other individuals—Gray

and Gray’s brother, Michael. Upon further questioning, Ashford told Detective

Malcom that he had used a .22 caliber pistol to commit the murders and that

the gun could be found in the master bedroom of Gray’s parent’s house

(“Gray’s house”). After obtaining a search warrant, Detective Malcom searched

Gray’s house and found the gun in the exact location that had been described

by Ashford. Detective Malcom also found in the house a fire safe that met the

general description of a “secure chest” belonging to Kevin and Kelly, a pair of

black slip-on shoes that matched Ashford’s description of the shoes he had

worn during the commission of the offense, and a knife believed to have been

used in the commission of the offense.

      During the investigation, the police obtained two written statements from

Gray. In his first statement, Gray indicated that he had gone with Ashford to

someone’s apartment to pick up “some dope” and that Ashford had told him

                                      2
to wait downstairs. While waiting downstairs, Gray claimed that he had heard

gunfire and that, after the gunfire had stopped, Ashford had yelled at him to

come up to the apartment. Upon entering the apartment, Gray said that he had

seen a man and a woman who had been shot. Gray stated that Ashford had

told him that he had shot the man and woman because they owed him money

and had stolen from him.

     In a subsequent statement, Gray expanded upon the details of what had

happened leading up to, and immediately after, the shootings:

     I met Stephen Ashford at an a[c]quaintance of mine’s house. I was
     installing cable at his house and [Ashford] was there. We started
     talking and realized that we had met a few years back when he
     was a doorman at a bar. We were messing around on the
     computer and started talking about computers. I asked him if he
     could clean up my hard drives on my computers. He said he could
     and asked if I would bring them over the next day. I brought the
     computers over the next day [and] he told me one of them wasn’t
     worth fixing and the other he could. We were hanging out and had
     done some speed, and I asked if he could come over to my house
     and look at my tower at the house and install some programs. We
     went to my house and did some work on [the] computer and did
     some more speed. At the house we started talking about his
     military career and shooting guns. My family has always been into
     hunting and fishing so I showed him a few of our guns and we
     talked about going to the range and shooting some skeet. We ran
     out of speed and he said he had a guy that owed him and we could
     get it from him, and if he wouldn’t give it to him he would beat him
     up and take it. He had some walkie-talkies and said that if
     anything went wrong he would hit the button on the walkie-talkie.
     We went over to the apartment. My brother Mike drove and
     stayed in the car. I stayed downstairs while [Ashford] went
     upstairs. He was upstairs for a minute or two, then I heard gunfire.

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      I looked around and didn’t know [whether] it came from the
      apartment he was in or somebody else’s. He opened the door and
      told me to come in. When I [went] in I saw a woman on the couch
      and a man on the ground. [Ashford] was standing in the living
      room next to the hallway—he was carrying my dad’s .22 caliber
      pistol. He told me to put a radio in the bag [and] a CD player and
      then he kicked open a hall doorway and went into a bedroom. He
      came out with a small shoebox sized safe and put it in the bag. He
      told me to grab the bag and go. At that time I was about to throw
      up [and] I didn’t want to argue with a man with a gun so I grabbed
      the bag and went downstairs and walked to the car. Right before
      we got to the gate he radioed Mike and told him not to go
      anywhere. When we got back, [Ashford] got in [the] front [and] I
      got in [the] back. I told my brother to get us home. . . . Mike
      asked what the easiest way was to get home, so [Ashford] told
      him how to get home. When we got home I told Mike what [had]
      happened so if anything happened to me he could report it.
      [Ashford] stayed with us another day and we took him home the
      next day. The next day after, I took his clothing and a bag with a
      radio he had left at our house. I am sorry for not coming forward
      earlier but I was afraid for myself and my family if I said anything.
      I am also sorry for ever getting involved with [Ashford].

      The State charged Gray with two counts of felony murder—count one

and count two—based on the theory that Gray, under the law of parties, had

shot Kelly and Kevin in the course of committing aggravated robbery. The

State also charged Gray with two counts of aggravated robbery with a deadly

weapon—count three and count four. The State, however, eventually waived

counts three and four and requested that they be placed under counts one and

two as lesser included offenses; robbery was also included as a lesser included

offense. At the close of evidence, a jury found Gray guilty of two counts of



                                       4
felony murder. In a separate trial on punishment, the trial court sentenced Gray

to fifteen years’ confinement for each count, to run concurrently. This appeal

followed.

                        III. Sufficiency of the Evidence

      In his fourth through seventh points, Gray challenges the legal and factual

sufficiency of the evidence to support his convictions for felony murder.

Specifically, Gray asserts that the evidence is legally and factually insufficient

because there was no evidence that he intended to commit an act clearly

dangerous to human life, nor was there evidence that he had knowledge of

Ashford’s taking a gun to commit the offense. We agree.

      The jury charge in this case authorized the jury to convict Gray on count

one and count two of felony murder either as a principal or as a party. See

Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). Because the evidence is

insufficient to support Gray’s convictions as a principal,2 we address whether

the evidence is sufficient to support his convictions under the law of parties.




      2
      … The undisputed evidence presented at trial showed that Ashford had
been the one to shoot Kevin and Kelly, and that Gray had not been in the room
when the shootings occurred.

                                        5
A. Standards of Review

      When reviewing the legal sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution in order to determine whether 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, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play

to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778.

      When a court of appeals concludes that evidence is legally insufficient to

support a conviction, it may reform the judgment to reflect conviction of a

lesser included offense if the evidence is sufficient to support conviction of the

lesser included offense and either the jury was charged on the lesser included

offense or one of the parties asked for but was denied such an instruction.

Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

                                         6
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

B. Applicable Law

      A person commits felony murder if, in the course of and in furtherance of

the commission or attempted commission of a felony, he commits or attempts

to commit an act clearly dangerous to human life that causes the death of an

individual.3 See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). A person

commits the felony offense of aggravated robbery if, in the course of

committing a theft, he intentionally or knowingly places another in fear of

imminent bodily injury or death and uses or displays a deadly weapon. See id.



      3
      … As previously stated, the State alleged that the felony underlying
Gray’s felony murder charges was aggravated robbery.

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§§ 29.02–.03 (Vernon 2003).         A person commits theft if he unlawfully

appropriates property with intent to deprive the owner of property;

appropriation of property is unlawful if it is without the owner’s effective

consent. See id. § 31.03(a), (b)(1) (Vernon 2003 & Vernon Supp. 2008).

      Under the law of parties, “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.” See id. § 7.01(a)

(Vernon 2003); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App.

2005). A person is criminally responsible for the offense of another, and thus

can be convicted as a party, 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 committing the offense.       Tex. Penal Code Ann. §

7.02(a)(2). Though mere presence does not automatically make one a party to

a crime, it is a circumstance tending to prove party status and, when

considered with other facts, may be sufficient to prove that the defendant was

a participant. Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel

Op.] 1982). In determining whether the defendant acted as a party, we review

events occurring before, during, and after the offense and may rely on actions

of the defendant that show an understanding and common design to commit

the offense. King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000).

                                       8
C. Discussion

      In order to convict Gray as a party to felony murder based on the

underlying felony of aggravated robbery, the State had to prove that Gray was

criminally responsible for Ashford’s use or exhibition of a deadly weapon during

the offense. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App.

1986) (stating that, in order to convict defendant as a party to aggravated

offense, State must prove that defendant was criminally responsible for

aggravating element); Wooden v. State, 101 S.W.3d 542, 547–48 (Tex.

App.—Fort Worth 2003, pet. ref’d). In other words, the State had to prove

that Gray acted with intent to promote or assist Ashford in committing

aggravated robbery, that is, that he solicited, encouraged, directed, aided, or

attempted to aid Ashford in placing Kevin and Kelly in fear of imminent bodily

injury or death and in using or displaying a deadly weapon. See Tex. Penal

Code Ann. § 7.02(a)(2).

      Gray’s written statements were the only evidence presented at trial

pertaining to Gray’s involvement in what had occurred before, during, and after

the commission of the offenses.4 From the evidence, we know that, on the day



      4
        … The evidence not previously described above included testimony from
(1) Jesse Press, a maintenance worker at Kevin and Kelly’s apartment, who
testified as to what he saw when he found Kevin and Kelly’s bodies two days
after the shootings; (2) Constance Patton, a medical examiner, who testified

                                       9
the offenses occurred, Gray showed Ashford his father’s guns; that Gray went

with Ashford to Kevin and Kelly’s apartment to get more drugs, knowing that

Ashford might beat Kevin and Kelly up and take the drugs without their

consent; that Gray was downstairs when the shootings occurred; and that Gray

saw Ashford with Gray’s father’s gun after the shootings had occurred.

      There is no evidence, however, as to the timing of Gray’s showing

Ashford the guns and their conversation about beating Kevin and Kelly up and

taking the drugs. There is no evidence to suggest that Gray encouraged or

directed Ashford to take or use a gun against Kevin and Kelly in order to get the

drugs. There is no evidence that Gray gave Ashford one of the guns or that he

had seen Ashford take one of the guns. Nor is there evidence that Gray, at any

time before or during the commission of the aggravating element, became

aware of Ashford having or using a gun.

      Based on the evidence in the record, the jury could have reasonably

inferred that Gray, by going with Ashford to Kevin and Kelly’s apartment, had

agreed to be a party to beating Kevin and Kelly up and taking the drugs without




about items seized from Gray’s house and Ashford’s car, including the knife
found in Gray’s home which did not have any blood on it; (3) Frank Schiller, a
forensic consultant, who testified about the drugs found in Kevin and Kelly’s
apartment; and (4) Marc Krouse, a medical examiner, who testified as to the
wounds sustained by Kevin and Kelly.

                                       10
their consent. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)

(defining inference as a conclusion reached by considering other facts and

deducing a logical consequence from them). It was not reasonable, however,

for the jury to infer that because Gray had shown his father’s guns to Ashford,

that Gray knew Ashford had taken one of the guns with him to Kevin and

Kelly’s apartment, or that Gray intended to encourage or direct Ashford in using

the gun during the confrontation with Kevin and Kelly.        See id. (defining

speculation as mere theorizing or guessing about the possible meaning of facts

and evidence presented).

      Further, the facts of this case are distinguishable from prior cases in

which courts of appeals have held that the evidence is legally sufficient when

a party to aggravated robbery learns of a deadly weapon during the commission

of the offense and yet continues to participate in the offense. See Escobar v.

State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi 2000, pet. ref’d)

(holding that evidence was legally sufficient to support aggravated robbery

conviction under law of parties because defendant got into get-away vehicle

with stolen items while other party pointed a firearm at victim); Anderson v.

State, No. 14-00-00810-CR, 2001 WL 1426676, at *2 (Tex. App.—Houston

[14th Dist.] Nov. 15, 2001, pet. ref’d) (not designated for publication)

(concluding evidence was legally sufficient to support defendant’s conviction

                                      11
for aggravated robbery as a party when defendant continued to participate in

the offense after seeing co-defendant pull out a gun and point it at

complainant’s face).

      Here, the record reflects that not only did Gray lack knowledge as to the

presence of the gun before the shootings but also that he did not learn about

the gun until after the shootings had occurred. We conclude, therefore, that

there is legally insufficient evidence to show that Gray and Ashford were acting

together, each contributing some part toward the execution of placing Kevin

and Kelly in fear of imminent bodily injury or death and in using or displaying a

deadly weapon. See Wooden, 101 S.W.3d at 548 (stating that there was no

evidence in the record that the appellant knew there was a gun in the car or

that he aided or encouraged a co-defendant to threaten the victim with a gun);

Scott v. State, 946 S.W.2d 166, 168 (Tex. App.—Austin 1997, pet. ref’d)

(holding that the evidence did not suggest that defendant, who drove

companions to a location where, without his knowledge, they committed

aggravated robbery, had prior knowledge of his passengers’ intent or that the

defendant knowingly assisted his passengers in the offense).

      Therefore, because it was unreasonable for the jury to infer that Gray had

knowledge of the gun, and because the evidence reflects that Gray did not

become aware of the gun until after the aggravating element had occurred, we

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hold that the evidence is legally insufficient to prove that Gray was criminally

responsible for Ashford using or displaying a deadly weapon during the

commission of robbery and, therefore, is legally insufficient to support Gray’s

convictions for felony murder. Accordingly, Gray’s fourth and sixth points are

sustained—we need not address Gray’s remaining points of error. 5 See Tex. R.

App. 47.1.

      Having determined that the evidence is legally insufficient to support the

jury’s verdicts for the offense of felony murder, and having impliedly determined

that the evidence is legally insufficient to support convictions for the lesser

included offense of aggravated robbery, we now consider whether the evidence



      5
        … In two of Gray’s remaining points, he argues that the evidence is
factually insufficient to support convictions for aggravated robbery, however,
because we have concluded that the evidence is legally insufficient, we need
not address Gray’s arguments pertaining to factual sufficiency. See Tex. R.
App. 47.1. In Gray’s remaining three points, he asserts that the trial court
erred by excluding statements that he had made to his father regarding the
offense. Gray claims that the information in the excluded statements negates
an element of the offense, namely that Gray acted with the intent to promote
the commission of an aggravated robbery. Gray concedes there was sufficient
evidence for robbery. As we have already concluded, based on the evidence
presented at trial, the evidence is legally insufficient to support Gray’s
convictions for aggravated robbery, we need not address Gray’s three remaining
points.    Furthermore, essentially the same information in the excluded
statements came in through Gray’s written statements. Therefore, any error
from the trial court by refusing to admit the statements is harmless. See Mayes
v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (concluding that any error
in admitting evidence is cured where the same evidence comes in elsewhere
without objection).

                                       13
is sufficient to support convictions for the lesser included offense of robbery.

See Collier, 999 S.W.2d at 782.

      A person commits the offense of robbery if, in the course of committing

theft and with 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).

      Gray’s second written statement established that he went with Ashford

to Kevin and Kelly’s apartment knowing that Ashford might beat up Kevin and

Kelly and take the drugs without their consent.         A reasonable juror could

conclude that, under the law of parties, Gray acted with intent to promote or

assist Ashford in committing robbery, that is, that Gray entered an agreement

in which robbery was contemplated, that Gray went with Ashford to the

location of the offense, and that Gray acted with the intent to promote or assist

the robbery by acting as the lookout. See Tex. Penal Code Ann. § 7.02(a)(2).

Considering the evidence under the standards of review set forth above, we

hold that it is legally and factually sufficient to support convictions for robbery.




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                                IV. Conclusion

      Having held that the evidence is legally insufficient to convict Gray of two

counts of felony murder but sufficient to convict him of two counts of robbery,

we modify the trial court’s judgment on count one to delete the conviction of

murder and to instead reflect a conviction of the lesser included offense of

robbery, we likewise modify the trial court’s judgment on count two to delete

the conviction of murder and to instead reflect a conviction of the lesser

included offense of robbery, and we affirm the judgments as to the convictions

as modified. We also reverse the trial court’s judgments on punishment and

remand the case to the trial court for a new trial on punishment only. See Tex.

R. App. P. 43.2(c), (d).




                                            BOB MCCOY
                                            JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.

CAYCE, C.J. dissents without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 2, 2009




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