Opinion issued November 13, 2018




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-17-00659-CR
                           ———————————
                      KOMBILA ESSONGUE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1518925


                         MEMORANDUM OPINION

      A jury convicted appellant, Kombila Essongue, of the first-degree felony

offense of aggravated robbery.1 Pursuant to an agreement between appellant and the


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
State, the trial court assessed appellant’s punishment at twenty-five years’

confinement. In two issues, appellant contends that the State failed to present

sufficient evidence to establish (1) his identity as a perpetrator of the robbery and

(2) his criminal responsibility for the offense under the law of parties.

      We affirm.

                                    Background

      In the summer of 2016, Qiong Liu worked at a real estate office across the

street from the Chinese Community Center in southwest Houston, near the

Chinatown district and the West Sam Houston Tollway. On July 25, 2016, Liu drove

her black Lexus SUV to the community center’s parking lot and spent her lunch

break in her vehicle, eating lunch and playing games on her cell phone. Liu kept the

driver’s side door slightly open to allow a breeze to circulate through the car.

      While Liu was sitting in her car, three men approached the Lexus. The first

man opened the driver’s side door all the way and demanded that Liu get out of the

vehicle. Liu noticed a second man, who said nothing but pointed a gun in her

direction. Liu realized that she was “in trouble,” and she got out of the vehicle. When

she was outside of the Lexus, she noticed a third man, later identified as appellant,

who climbed into the backseat of her car. Liu tried to plead with appellant, asking

him to “stop the car,” but he merely smiled at her as he got into the backseat. Liu




                                           2
testified that she and appellant made eye contact, and she estimated that their

interaction lasted approximately thirty seconds.

      The three men drove away in Liu’s car, and Liu briefly ran after her car. The

trial court admitted a surveillance video from the Chinese Community Center that

depicted Liu’s car driving away and Liu chasing after the car. The three men inside

of her car could not be seen on the surveillance video. Liu ran into the Chinese

Community Center and called 9-1-1. On the 9-1-1 call, Liu mentioned seeing a

woman driving a car, and at trial she testified that, when she got out of her car at

gunpoint, she saw a woman sitting in a vehicle nearby, and this woman quickly

followed behind the men when they drove away in Liu’s car.

      Houston Police Department (HPD) Officer K. Canales testified that he works

in a gang unit based on the west side of Houston. Officer Canales’s unit had received

several reports in late July 2016 that a stolen vehicle, later identified as Liu’s Lexus,

was involved in committing several offenses in the general area of the Chinatown

district and the West Sam Houston Tollway. The unit, which was composed of a

mixture of plainclothes officers and officers in uniform driving marked patrol cars,

went to the area on August 1, 2016, one week after Liu’s vehicle was stolen, to

search for the vehicle. Officer Canales was in plainclothes and an unmarked vehicle

when he saw a black Lexus SUV that matched the description of the target vehicle

in an apartment complex. One of the other plainclothes officers notified Officer


                                           3
Canales that three men got into the car, and Canales started following the Lexus as

it left the apartment complex. The Lexus had a paper license tag, which appeared

suspicious,2 and when Officer Canales witnessed the driver of the Lexus roll through

a stop sign, Canales requested that one of the uniformed officers in his unit make a

traffic stop of the Lexus.

      Officer J. Baker was one of the uniformed officers involved in the search for

the stolen Lexus, and he and his partner responded to Officer Canales’s request to

conduct a traffic stop of the Lexus. Officer Canales continued to observe the Lexus,

and he testified that the Lexus did not stop when Officer Baker turned on his

emergency lights. The driver of the Lexus pulled into an apartment complex on

Corporate Drive, but instead of stopping, the driver pulled back onto the road and

quickly drove away before turning into another apartment complex along Corporate

Drive. After they turned into the second apartment complex, three men jumped out

of the Lexus, which continued to roll until it crashed into a fence, and fled the area

on foot. Officer Canales apprehended one of the men along Corporate Drive, and

Officer Baker followed another man through the apartment complex until another

officer apprehended that man near a large fence. Officers secured and photographed



2
      Officer Canales testified that, with stolen cars, it is a common practice for the
      perpetrators to take the actual license plate off of the vehicle and replace it with a
      paper tag so that, if the vehicle is stopped and an officer checks the number on the
      paper tag, the vehicle will not immediately register as stolen.
                                            4
the Lexus, which included taking a picture of the paper tag attached in place of the

license plate and a picture of a pistol that was discovered inside the backseat console.

      While the foot chase was occurring, Officer Baker was able to broadcast a

physical description of the driver of the Lexus. He gave a general description

concerning clothing and stature, but the primary identifying feature of the driver was

his dreadlocks, which was a different hairstyle from the other two men who had fled

the Lexus. Officer J. Sicola heard the broadcast and help set up a perimeter a few

blocks away along the West Sam Houston Tollway. Officer Sicola observed a man

matching the description contained in the broadcast walking along the frontage road

of the West Sam Houston Tollway. He took this man into custody and drove him

back to the apartment complex where the Lexus had crashed. Officer Baker

identified the man apprehended by Officer Sicola as the driver of the Lexus. This

man was later identified as appellant. Officer Baker identified appellant in court as

the driver of the Lexus, and he noted that, at the time of trial, appellant no longer

had the distinctive dreadlocks that he had had at the time of his arrest.

      Liu identified the Lexus that the officers recovered as her vehicle.3 The trial

court admitted a picture of the interior of the vehicle that displayed a gun resting on

the backseat console, and Liu testified that this gun looked similar to the gun pointed


3
      In one of the photographs of Liu’s car admitted into evidence, a paper tag can be
      seen covering the license plate. When the State asked Liu about this tag, she testified
      that she did not put that tag on her vehicle.
                                             5
at her during the robbery. Liu also testified that, after her vehicle was recovered, she

viewed three photo-arrays with a detective. The third photo-array contained

appellant’s picture, and Liu circled that picture and identified appellant as the person

who climbed into the backseat of her car. Liu stated that she recognized him because

of his “big eyes” and boney facial structure. Liu did not positively identify appellant

in court, although she stated that appellant looked “very similar” and that his “[f]ace

[looked] like it changed a little bit.” On cross-examination, Liu testified that she told

the detective showing her the photo-arrays that she was “80 percent” certain about

her identification.

      Officer T. Fontenot, with the HPD Robbery Division, was assigned to this

case after the recovery of the Lexus and the arrest of appellant. Officer Fontenot

testified that it was not unusual for someone to steal a car and then still have that car

in their possession a week later. He also testified that he interviewed Liu and showed

her three photo-arrays. Liu did not identify anyone in the first two photo-arrays. Liu

identified appellant’s photograph in the third photo-array, and she told Officer

Fontenot that the person she identified had participated in the robbery by climbing

into the backseat of the Lexus and smiling at her as the car drove away. She also told

Officer Fontenot that she was 80 percent certain about her identification. Officer

Fontenot, like Officer Baker, testified that appellant’s appearance had changed




                                           6
during the time between his arrest and the time of trial. Specifically, appellant had

cut off his dreadlocks.

       Officer Fontenot also testified that he spoke with appellant and appellant

offered an alibi; namely, that he had been at work at Mr. Clean Car Wash on

Richmond Avenue, north of the Westpark Tollway and west of the West Sam

Houston Tollway, at the time Liu was robbed. Officer Fontenot reviewed

documentation from the car wash that included both a handwritten and a computer-

generated timecard for appellant. The timecards reflected that, on July 25, 2016,

appellant clocked in to work at either 1:22 or 1:23 p.m. 4 Officer Fontenot testified

that, based on the surveillance video from the Chinese Community Center, the

robbery of Liu occurred at 1:03 p.m. He testified that several routes could be taken

from the Chinese Community Center where Liu was robbed to the Mr. Clean Car

Wash where appellant worked, and that the longest route was projected to take

fourteen minutes. He therefore concluded that it was reasonable for appellant to have

been involved in the robbery at 1:03 p.m. and still be able to clock in to work at 1:23

p.m.

       Officer Fontenot also reviewed a surveillance video from the car wash. The

surveillance video depicted a female employee of the car wash working as a cashier


4
       The handwritten timecard, completed by appellant, stated a clock-in time of 1:22
       p.m., whereas the computer-generated timecard, completed when the car wash’s
       cashier clocked appellant in, stated a clock-in time of 1:23 p.m.
                                           7
and James Le, the owner and manager of the car wash, also standing behind the cash

register. The video showed appellant walk into the room and clock in with the cashier

at 1:22 p.m. Officer Fontenot spoke with Le, who confirmed that appellant had not

been at work on July 25 prior to 1:22 p.m. Based on Liu’s identification, the chase

and subsequent recovery of the Lexus, and the information received from the car

wash, Officer Fontenot concluded that appellant was a party to the robbery of Liu.

      Le testified that the car wash workers were independent contractors who were

not required to work all of the hours that they were scheduled to work. He stated that

because the car wash business was unpredictable, primarily due to the weather, his

workers would arrive at the car wash and clock in when cars arrived, and they could

clock out whenever they liked.5 He described the clock-in process, testifying that the

cashier would clock the worker in on the computer and tell the worker the time, and

the worker would handwrite his name and clock-in time on a chart kept by the cash

register. For the worker to be paid, the computer-generated clock-in time and the

handwritten clock-in time would have to match, with allowances made for slight

discrepancies. Le testified that it was not unusual for his workers to clock in for an




5
      The State introduced a schedule from the car wash reflecting that appellant was
      scheduled to work on Mondays—which included July 25, 2016, the date of the
      robbery of Liu—from 9:00 a.m. to 6:00 p.m. Le testified that, despite the schedule,
      appellant would not have been required to arrive at work precisely at 9:00 a.m., and
      he would not have been required to stay at work until 6:00 p.m.
                                           8
hour or two in the morning, take a lengthy break, and clock back in during the

afternoon.

      Le testified that, on July 25, appellant was scheduled to work as a “prep”

worker, which is an important position that helps control the flow of cars. Le recalled

that the car wash was short-handed on that particular day, and he asked the cashier

where his prep workers were. Right at that time, appellant walked in from the

parking lot to clock in, and when Le asked appellant why he was late, appellant

responded, “I [had] something to do.” Le testified that he saw appellant being

dropped off at the car wash. He also testified that he had not seen appellant at the car

wash earlier that day, and he specifically stated that he looked in the workers’ break

room to find a prep worker but could not find anyone, which is when he decided to

speak to the cashier. Le testified that July 25, 2016, was a sunny day, and thus

weather would not have prevented his workers from arriving at work.

      Appellant called Adam Garcia, a former manager at the Mr. Clean Car Wash,

to testify on his behalf. Garcia testified that appellant typically arrived at work early,

around 8:00 or 8:30 a.m., and that sometimes he would be at work for awhile without

getting paid because the workers could not clock in until a car had arrived to be

washed. He testified that appellant arrived at work around 8:45 or 9:00 a.m. on July

25, 2016. On cross-examination, Garcia testified that a computer was not used to

clock workers in during July 2016, and workers would only handwrite their times


                                            9
on a chart. He testified that the computer-generated timesheet for appellant that had

been entered into evidence was fake. Garcia also testified that, as a manager, he

would typically retrieve workers from the break room when cars arrived at the car

wash, and he stated that appellant was in the break room prior to his clocking in on

July 25, 2016.

      Appellant’s stepfather, Pedro Ekumu, also testified on his behalf. Ekumu

testified that he lived in an apartment with his wife, appellant, and appellant’s sister,

and that, on July 25, 2016, appellant left the apartment around 8:00 a.m. to go to

work. On that morning, appellant told his parents that he did not have money for

transportation, so appellant and his mother went to a local store to make change so

appellant would have money for bus fare. On cross-examination, Ekumu testified

that his wife returned to the apartment after going to the store with appellant, and

she told Ekumu that she had left appellant at a bus stop.

      The jury charge authorized the jury to convict appellant as both a primary

actor and under the law of parties. The jury found appellant guilty of the offense of

aggravated robbery. Pursuant to an agreement between appellant and the State, the

trial court assessed appellant’s punishment at twenty-five years’ confinement. This

appeal followed.




                                           10
                            Sufficiency of the Evidence

      In his first issue, appellant contends that the State failed to present sufficient

evidence establishing his identity as one of the men who robbed Liu. In his second

issue, he contends that the State failed to present sufficient evidence that he was

criminally responsible for the offense under the law of parties.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

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

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v.

State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive

judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility,

may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.

1986); Rivera v. State, 507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d).

      We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st


                                          11
Dist.] 2016, no pet.). We give great deference to the jury’s credibility

determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We

resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446,

448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting inferences,

we presume that the factfinder resolved the conflicts in favor of the verdict, and we

defer to that determination.”). Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be sufficient to

establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013)

(quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “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.

B.    Identity

      The State must prove identity—that the accused is the person who committed

the charged offense—beyond a reasonable doubt. Wiggins v. State, 255 S.W.3d 766,

771 (Tex. App.—Texarkana 2008, no pet.); Smith v. State, 56 S.W.3d 739, 744 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d). The State may prove identity by

“either direct or circumstantial evidence, coupled with all reasonable inferences

from that evidence.” Gardner, 306 S.W.3d at 285; Smith, 56 S.W.3d at 744.


                                          12
Although a direct in-court identification of the defendant is the “preferred

procedure” for establishing identity, it is not the only means by which the State can

prove the identity of the accused. Wiggins, 255 S.W.3d at 771; see Greene v. State,

124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (stating that

eyewitness identification is not necessary to establish identity). If there is no in-court

identification of the defendant as the perpetrator of the offense, “[t]he sufficiency of

the evidence is then determined from the cumulative effect of all the evidence; each

fact in isolation need not establish the guilt of the accused.” Wiggins, 255 S.W.3d at

771; Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.)

(stating that even if no eyewitness can identify defendant as perpetrator, if other

evidence shows defendant is perpetrator, failure of complainant to make positive in-

court identification does not make verdict improper). The absence of an in-court

identification “is merely a factor for the jury to consider in assessing the weight and

credibility of the witnesses’ testimony.” Wiggins, 255 S.W.3d at 771.

      Here, Liu testified that on July 25, 2016, she was eating lunch and playing

games on her cell phone while sitting in her Lexus SUV parked in the parking lot of

the Chinese Community Center when three men walked up to her car. The first man

opened the driver’s side door all the way and demanded that Liu get out of the

vehicle; the second man said nothing but pointed a gun at Liu; and the third man also

said nothing but made sustained eye contact with Liu and smiled at her as he ignored


                                           13
her pleas and climbed in the backset of the Lexus. At trial, Liu did not give a positive

in-court identification of appellant as the third man involved in the robbery; instead,

she testified that he looked “very similar” and that it appeared as though his face had

“changed a little bit.” The State elicited testimony that after police had recovered

Liu’s vehicle and arrested appellant, who had been driving the vehicle, Liu viewed

three photo-arrays and identified appellant’s picture in the third photo-array. She

told Officer Fontenot, and testified at trial, that at the time of viewing the photo-

array, she was 80 percent certain that the person she identified was the man involved

in the robbery who climbed in the backseat of her Lexus. She stated that she

recognized this man due to his boney facial structure.

      On appeal, appellant argues that Liu’s equivocal identification of him as one

of the robbers was not sufficient to support the jury’s guilty verdict. Appellant cites

several cases from our sister courts for the proposition that an uncertain in-court

identification of the accused, without more, has been held insufficient to uphold a

conviction and that corroborating evidence is needed in addition to an equivocal

identification to support the verdict. See, e.g., Criff v. State, 438 S.W.3d 134, 137–

38 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Prihoda v. State, 352 S.W.3d

796, 803 (Tex. App.—San Antonio 2011, pet. ref’d); Redwine v. State, 305 S.W.3d

360, 366 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Here, however, there




                                          14
is corroborating evidence, aside from Liu’s identification, tying appellant to the

charged offense.

      Liu identified appellant’s picture in a photo-array with “80 percent” certainty

that he was the man who participated in the robbery by making eye contact with her

and smiling at her as he climbed into the backset of her Lexus. Although Liu did not

positively identify appellant in court as one of the perpetrators, she did testify that

he looked “very similar” and that it appeared as though his face had “changed a little

bit.” Two officers—Officer Baker and Officer Fontenot—testified that appellant’s

appearance had changed in between the time of his arrest and the time of trial.

Specifically, appellant had cut off his distinctive dreadlocks.

      The State also presented evidence that, toward the end of July 2016, there had

been several reports of a black Lexus SUV involved in various criminal offenses in

the Chinatown district of southwest Houston, near the Chinese Community Center

where the robbery of Liu had occurred. A particular HPD unit was tasked with

finding this vehicle, and on August 1, 2016, one week after the robbery of Liu,

officers spotted the Lexus in a nearby apartment complex. Officers followed the

Lexus, which had a suspicious looking paper tag affixed to it in place of the license

plate, until the driver committed a traffic violation, and then a marked patrol unit

attempted to conduct a traffic stop. The driver of the Lexus led the officers on a short

chase before its occupants—three black men, who matched the general description


                                          15
of the perpetrators that Liu had provided to officers—jumped out of the vehicle and

fled, leaving the Lexus to crash into the fence of an apartment complex. A foot chase

ensued, and officers eventually apprehended all three of the Lexus’s occupants,

including appellant, who was identified as the driver of the Lexus. Liu identified the

Lexus as her vehicle. When shown a picture of a gun that was recovered from the

backseat console, Liu stated that the gun looked like the one used to threaten her

during the earlier robbery.

      Thus, in addition to Liu’s tentative pretrial identification of appellant as one

of the robbers, the State presented evidence that, one week after the robbery,

appellant was discovered driving Liu’s vehicle, that the vehicle displayed a

“suspicious” paper tag instead of an actual license plate, and that appellant fled from

police, both in the Lexus and on foot. It is “well settled” that a defendant’s

unexplained possession of property recently stolen in a theft or burglary permits an

inference that the defendant is the one who committed the theft or burglary. See

Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State,

185 S.W.3d 904, 905 (Tex. Crim. App. 2006). Moreover, factfinders may

permissibly draw an inference of guilt from the circumstance of flight. See Clayton

v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007); see also Clay v. State, 240

S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight evinces a

consciousness of guilt.”).


                                          16
      Appellant argues that the alibi evidence that he presented is such that no

rational factfinder could find beyond a reasonable doubt that he was involved in the

robbery of Liu. Specifically, he points to Garcia’s testimony that, at the car wash

where Garcia worked with appellant, workers could not clock in until a car arrived

to be washed and thus workers often spent significant amounts of time at the car

wash before they were officially clocked in. Appellant also points to Garcia’s

testimony that, on the day of the robbery, appellant arrived at the car wash around

9:00 a.m. and that, when appellant was seen on the car wash’s surveillance video

clocking in, he was walking from the workers’ break room, not the parking lot.

      The State, however, presented documentation in the form of the handwritten

clock-in chart and the computer-generated time card, as well as the surveillance

video from the car wash, that appellant clocked in at 1:22 p.m. on July 25,

approximately twenty minutes after the robbery of Liu. The State also presented Le’s

testimony that he had not seen appellant at the car wash earlier in the day, that he

had searched the break room for a “prep” worker such as appellant immediately

before walking to the cashier, and that he saw a car drop appellant off at the car

wash. Le saw appellant walk into the car wash from the parking lot, not from the

break room. It was within the province of the jury to assess the credibility of Garcia

and Le and to resolve the conflicts in their respective testimony. See Williams, 235

S.W.3d at 750 (stating that we may not re-evaluate weight and credibility of evidence


                                         17
or substitute our judgment for that of factfinder). When, as here, the record supports

conflicting inferences, we presume that the factfinder resolved the conflict in favor

of the verdict, and we defer to that determination. See Murray, 457 S.W.3d at 448–

49.

      Although Liu’s identification of appellant was equivocal, the State presented

other evidence corroborating appellant’s identity as one of the perpetrators of the

robbery. See Prihoda, 352 S.W.3d at 803 (stating that uncertain in-court

identification does not make verdict improper if there is other corroborating

evidence; in such case, uncertainty of witness is relevant to weight of testimony and

is for jury to consider). We conclude that, when viewing the evidence in the light

most favorable to the verdict, as we must, a rational jury could have found beyond a

reasonable doubt that appellant was one of the men involved in the robbery of Liu.

We hold that the State presented sufficient evidence establishing appellant’s identity

as one of the perpetrators of the robbery.

      We overrule appellant’s first issue.

C.    Law of Parties

      In his second issue, appellant contends that the State failed to present

sufficient evidence that he was criminally responsible as a party to the aggravated

robbery offense. Specifically, appellant argues that the evidence shows that he was




                                             18
merely present at the scene of the robbery and fled with the suspects, not that he had

a plan to commit the offense with the suspects.

      To establish that appellant committed the offense of aggravated robbery, the

State was required to prove that appellant, while in the course of committing theft of

property owned by Liu, and with intent to obtain and maintain control of the

property, intentionally and knowingly threatened and placed Liu in fear of imminent

bodily injury and death while using and exhibiting a deadly weapon, namely, a

firearm. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011); id. § 31.03 (West

Supp. 2017) (setting out elements of theft). The jury charge also authorized the jury

to convict appellant under the law of parties. Under the law of parties, 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) (West 2011).

      To determine whether a person is a party to an offense, we may look to events

occurring before, during, and after the commission of the offense, and we may

consider circumstantial evidence. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim.

App. 2012). “There must be sufficient evidence of an understanding and common

design to commit the offense.” Id. The mere presence of a person at the scene of the

crime, or even flight from the scene, without more, is not sufficient to support a


                                         19
conviction under the law of parties. Id. Evidence is sufficient to convict a defendant

under the law of parties when the defendant is physically present at the commission

of the offense and encourages its commission by acts, words, or other agreement.

Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref’d).

The evidence must show that, at the time of the offense, “the parties were acting

together, each contributing some part towards the execution of their common

purpose.” Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.]

2013, pet. ref’d). Each fact need not point directly to the defendant’s guilt, but the

cumulative effect of the facts must be sufficient to support the conviction under the

law of parties. Gross, 380 S.W.3d at 186.

      Appellant argues that the State produced no evidence that the other robbery

suspects and appellant had an agreement to commit the robbery. Appellant points

out that Liu did not testify that appellant had a weapon or made any verbal threats to

her, and he argues that Liu did not testify that his presence “contributed to her

decision to relinquish her vehicle” because Liu had already gotten out of the Lexus

when she saw appellant climb into the backseat. Appellant argues that the evidence

reflects that he was merely present at the scene of the robbery and fled with the

suspects. He also argues that his possession of the Lexus a week after the robbery

does not demonstrate that he committed a culpable act before or during the robbery




                                         20
because post-offense conduct alone cannot form the basis of a conviction under the

law of parties.

      However, Liu testified that three men approached her Lexus when it was

parked in the Chinese Community Center parking lot. The first man opened the

driver’s side door all the way and ordered her to get out of the Lexus. The second

man said nothing but pointed a gun at Liu, which prompted Liu to get out of her

vehicle. The third man, later identified as appellant, also said nothing and did not

have a gun, but he climbed into the backseat of the Lexus. Liu testified that she

pleaded with appellant in an attempt to regain her vehicle, but appellant merely

smiled at her from the backseat. After she got out of the Lexus, Liu observed another

vehicle, driven by a woman, sitting nearby and then following quickly behind the

Lexus as it drove away. One week later, appellant was discovered driving Liu’s

Lexus, and he fled from police officers both in the car and on foot when the officers

tried to conduct a traffic stop. The Lexus had a fake paper tag attached where the

license plate was supposed to be, and officers recovered a pistol from the backseat

console. Liu testified that the pistol looked similar to the one used during the

robbery.

      The State thus presented evidence that appellant was part of a group of three

men who approached Liu and demanded that she relinquish her vehicle. One of the

men threatened Liu with a gun. When Liu pleaded specifically with appellant,


                                         21
appellant ignored her pleas and smiled at her as the men drove away in her vehicle.

Appellant was then later discovered driving her vehicle. The evidence established

more than appellant’s mere presence at the scene, and it established more than

appellant’s involvement after the robbery had been completed. See Gross, 380

S.W.3d at 186 (“There must be sufficient evidence of an understanding and common

design to commit the offense.”). We conclude that the State presented evidence from

which a jury could rationally infer that appellant, when he approached Liu’s vehicle

with the other two men and climbed into the car while one of the men pointed a gun

at Liu, acted with the intent to promote or assist the commission of the aggravated

robbery and aided the other men in the commission of the robbery. See TEX. PENAL

CODE ANN. § 7.02(a)(2); Nelson, 405 S.W.3d at 123 (stating that, to uphold

conviction under law of parties, there must be some evidence that “the parties were

acting together, each contributing some part towards the execution of their common

purpose”). We therefore hold that the State presented sufficient evidence to support

appellant’s conviction under the law of parties.

      We overrule appellant’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

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




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