Reversed and Acquitted and Majority and Dissenting Opinions filed September 29,
2011.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00461-CR

                             JIMMIE GROSS, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 183rd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1085393



                            MAJORITY OPINION

      Appellant Jimmie Gross appeals his conviction for murder under the law of
parties. Because the evidence is insufficient to support appellant’s conviction for murder
under law of parties, we reverse the conviction and render judgment of acquittal.
                                               BACKGROUND1

        On September 4, 2006, the complainant, Corkney Lee, was shot and killed by
appellant’s brother-in-law John Jones. Appellant, who was charged with murder of Lee,
testified at Jones’s murder trial.            Jones was convicted of the murder of Lee.
Subsequently, at appellant’s trial for murder, the State read into the record the transcript
of appellant’s testimony from Jones’s murder trial.

        According to appellant’s testimony, he and Jones were in a white Dodge Ram
truck in the right hand lane at a stoplight. The female passenger of a vehicle in the left
lane signaled for appellant to roll down his window. Lee, who was driving, asked
appellant, ―Do you know me?‖ Appellant responded, ―No, I don’t.‖ Lee asked appellant,
―Well, why are you watching me?‖ Appellant responded, ―I’m not.‖ This exchange
continued until Lee asked appellant to pull into a gas station. Appellant complied.

        Once at the gas station, appellant and Lee resumed their ―verbal altercation‖ and
exited their vehicles. Less than a minute later, Jones got out of the truck. Appellant
testified that he did not know that Jones had gotten out of truck until Lee started running
toward the store. At that moment, appellant looked back to see Jones raising a 12-gauge
shotgun to his chest and pointing it in his and Lee’s direction. Appellant yelled, ―No,
no,‖ and ran back to the truck.




        1
          The background recited here derives from appellant’s testimony from Jones’s trial that was read
to the jury in this case. Though the jury might have disregarded some or all of this account, there is no
other account of the crime. Other than appellant, no eye witnesses testified. One investigating officer
interviewed witnesses and his complete testimony, which is consistent with appellant’s account, is as
follows: ―We learned that [the crime] appeared to be involving some sort of altercation between two
vehicles where the victim and his girlfriend were involved in an altercation with two other males in
another car, a white Dodge Ram pickup. The altercation moved from the roadway into the convenience
store area where the crime actually occurred where the individuals got out of the car and exchanged
words again, specifically the driver of the white Dodge Ram and the victim in this case, Corkney Lee.
When they did so, the passenger in the pickup truck got out of the car and fired one time striking and
killing our victim.‖
                                                   2
       Appellant testified that he had been carrying the shotgun, which he claimed
belonged to someone else, on the backseat of his truck for six to twelve months; the
shotgun was unloaded but had ammunition stored in its ―stock.‖

       Appellant heard the shotgun, but claims he did not see Jones fire it or know that
anyone had been shot. Appellant panicked, and he and Jones left the scene in appellant’s
truck. Appellant dropped off Jones, with the shotgun, at Jones’s grandmother’s house.
Appellant drove back to the gas station where he saw eight or nine police cars and
someone lying in the door of the store. When appellant found out that someone had been
killed, he became ―scared‖ and ―panicked‖ and left gas station. Lee died of multiple
gunshot pellet wounds to the back.

       Appellant called a friend who was an officer with the Houston Police Department
the next morning. On that friend’s advice, appellant contacted an attorney who had
previously represented him in a misdemeanor case.                     That attorney testified that he
advised appellant not to ―answer any questions without me being present.‖2

       One of the HPD investigators testified that a break in the case came from a Crime
Stoppers’ tip, giving the police appellant’s name. The police learned that appellant had
recently purchased a white Dodge Ram pickup truck. When contacted by the police for
information two days after the murder, appellant said that he was not involved.
Subsequently, a confidential informant told a police detective he had heard appellant
admit to his involvement in the case. On September 18, 2006, two weeks after the
murder, the police arrested appellant.                    When questioned, appellant denied his
involvement in the murder and did not mention Jones’s name. Appellant was identified
by witnesses in a ―mock lineup‖ in the city jail and charged with murder. The jury found
appellant guilty of murder under ―law of parties.‖ The trial court ordered a presentence
investigation report and recessed the case for punishment. At the end of punishment
hearing, the trial court sentenced appellant to ten years’ confinement.

       2
           The attorney was no longer representing appellant on the murder charge at the time of trial.
                                                      3
                                SUFFICIENCY OF THE EVIDENCE

       In his first issue, appellant contends that the evidence is legally and factually
insufficient to sustain his conviction for murder under the law of parties. The Texas
Court of Criminal Appeals held that the Jackson v. Virginia, 443 U.S. 307 (1979), legal
sufficiency standard is the only standard to evaluate the sufficiency of the evidence in a
criminal case. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality
opinion); id. at 926 (Cochran, J., concurring). Accordingly, we review the sufficiency of
the evidence in this case under a rigorous and proper application of the Jackson v.
Virginia sufficiency standard. Brooks, 323 S.W.3d at 906 (plurality opinion).

       When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational fact finder 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); see also Jackson, 443 U.S. at 319. The jury is the exclusive
judge of the credibility of witnesses and the weight to be given to the evidence. See
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the
jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw
all reasonable inferences from the evidence in favor of the verdict. Id. This standard
applies to both circumstantial and direct evidence. Id.

       A person commits the offense of murder if he ―intentionally or knowingly causes
the death of an individual.‖ TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). 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 both.
TEX. PENAL CODE ANN. § 7.01 (West 2011). 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 or she solicits, encourages, directs, aids, or attempts to aid



                                             4
the other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2) (West
2011).

         Because appellant is not the principal actor, the State must prove conduct
constituting an offense, plus an act committed by appellant with intent to promote or
assist such conduct. See Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). In
determining whether the accused participated as a party, 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. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on
reh’g); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Because an
agreement between the parties to act together in a common design can seldom be proven
by words, the State often must rely on the actions of the parties showing an understanding
and common design to commit the offense. Brooks v. State, 580 S.W.2d 825, 832 (Tex.
Crim. App. 1979). Circumstantial evidence may be used to prove the defendant is a party
to an offense. Cordova, 698 S.W.2d at 111; Wygal v. State, 555 S.W.2d 465, 469 (Tex.
Crim. App. 1977). Any agreement to accomplish a common purpose must have been
made before or contemporaneously with the criminal event. Cordova, 698 S.W.2d at
111; Beier, 687 S.W.2d at 3–4; Urtado v. State, 605 S.W.2d 907, 911 (Tex. Crim. App.
1980).

         The State argues evidence that appellant assisted Jones in fleeing from the scene
by serving as the getaway driver and disposing of the murder weapon, and by refusing to
come forward and denying his involvement is sufficient to support his conviction for
murder under law of parties.3 However, all of the acts by appellant upon which the State

         3
          The dissent argues an alternate theory of sufficiency of the evidence, characterizing appellant
and his brother-in-law as ―a pair of hotheads with a gun‖ acting as cohorts ―from start to finish.‖ This
rendition of facts is colorful but derives from nothing in the record beyond (1) appellant’s presence at the
scene, and (2) his verbal altercation with the complainant. If, as the dissent urges, appellant’s presence
and verbal altercation with the complainant amount to an appropriate inference that appellant provided a
distraction to facilitate the murder, presence will always be sufficient to convict under the law of parties.
The mere fact that a jury is willing to indulge an inference does not make it an appropriate inference;
                                                     5
relies occurred after Jones shot Lee. ―Acts done after the [offense] was completed [do]
not make [the accused] a party to the offense.‖ Morrison v. State, 608 S.W.2d 233, 235
(Tex. Crim. App. 1980).

       While appellant was present when Jones shot Lee and fled from the gas station
immediately thereafter, such facts are not sufficient without more to sustain his
conviction for murder under law of parties. See Thompson v. State, 697 S.W.2d 413, 417
(Tex. Crim. App. 1985) (―[M]ere presence of a person at the scene of the crime, either
before, during, or after the commission of the offense, or even flight from the scene,
without more, is insufficient to sustain a conviction of one as a party to the offense.‖);
Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (same). Only when
combined with other incriminating evidence may such facts be sufficient to sustain a
conviction. Thompson, 697 S.W.2d at 417; Valdez, 623 S.W.2d at 321. Here, there are
no other facts making such evidence sufficient to support appellant’s conviction.

       The State argues that appellant’s driving the getaway car and helping Jones
dispose of the weapon are sufficient to support his conviction. While the undisputed
evidence shows that appellant drove Jones away from the scene of the offense and that
Jones took the shotgun with him when appellant dropped him off at his grandmother’s
house, this is not sufficient to support a murder conviction. Standing alone, proof that an
accused assisted the primary actor in making his getaway is insufficient, even though the
accused’s conduct may constitute the independent offense of hindering apprehension or
prosecution. Scott v. State, 946 S.W.2d 166, 168 (Tex. App.—Austin 1997, pet. ref’d);
see also Urtado, 605 S.W.2d at 912 (explaining that former Penal Code provision that an
accessory was a party to a crime has been eliminated and is now the separate and distinct
crime of hindering apprehension or prosecution).


otherwise, appellate review of legal sufficiency would become unnecessary. Under the undisputed facts
in this case appellant committed other, lesser, uncharged offenses. Appellate courts cannot stretch
beyond an appropriate treatment of evidence to affirm a conviction where no reasonable jury could
convict of the crime actually charged.
                                                 6
       The State relies on a Court of Criminal Appeals opinion and an opinion from this
court in support of its getaway-driver theory. See Thompson, 697 S.W.2d at 417; Webber
v. State, 757 S.W.2d 51 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). However,
the State’s reliance on Thompson and Webber are misplaced as the evidence in both cases
included incriminating facts that went to the respective defendants’ conduct before the
offenses as well as after the offenses.

       In Thompson, the defendant was found guilty of aggravated robbery as a party to
the offense that was committed by Jerry Wayne Fears. See 697 S.W.2d at 414. The
evidence also showed that, prior to the robbery, the defendant had parked the car she was
driving that day in front of the complainant’s place of business for an unreasonable length
of time, that she was near the complainant’s place of business after the robbery, and that,
not too long after the robbery, the defendant, while accompanied by Fears, was arrested
for speeding. Id. at 417. There was conflicting testimony concerning the finding of the
pistol used by Fears in the robbery, and the jury was free to believe that the defendant led
the police to that pistol. Id. As to evidence that the defendant had $200 on her when she
was arrested, the jury was also free to believe or disbelieve that the money came from the
robbery. Id. Holding that those circumstances were sufficient to warrant any rational
trier-of-fact’s finding the defendant guilty as a party to the offense committed by Fears,
the court explained that it had incriminating facts that went to the defendant’s conduct
both before and after the commission of the offense. Id.

       In Webber, the appellant was found guilty as a party to offense of aggravated
robbery. 757 S.W.2d at 52. A witness identified the defendant as driving the car that
dropped off the robber near a service station before the robbery, parking the car in a dark
spot on the street, and inching the car forward without lights, and the witness saw the
robber jump into the car after the robbery. Id. at 55.




                                             7
      Similarly, Hoang v. State4and Hernandez v. State,5 both relied upon by the dissent,
are distinguishable. In Hoang, the evidence showed that the defendant, who was driving
and intoxicated, fired his Glock firearm into the air as his car entered the Southwest
Freeway. 263 S.W.3d at 23. Anthony, a passenger in the defendant’s car who was also
intoxicated, became angry at the slow driver in front of the defendant’s car and asked the
defendant for the gun and to ―pull up.‖ Id. The defendant then handed Anthony the gun
and drove his car parallel to the slow driver’s car, while Anthony unloaded nine rounds
into the complainant’s car, killing the complainant. Id. The court held that this evidence
established that the defendant assisted Anthony by giving him the loaded firearm and
driving his car parallel to, close to, and about the same speed as the complainant’s car,
enabling Anthony to be in a position to shoot the complainant accurately and repeatedly.
Id.

      In Hernandez, the defendant was convicted of capital murder as a party. 171
S.W.3d at 351. By the defendant’s own admission, he and Pena planned to rob the
complainant by confronting the complainant, subduing him, and taking his guns. Id. at
355. The defendant testified that part of the plan was to have Pena and the complainant
smoke crack cocaine before wrestling the complainant down and tying him up. Id. On
those facts, the jury was entitled to find that the defendant should have anticipated that
one of the many parts of his plan—whether it be smoking crack cocaine, subduing the
complainant, or stealing the complainant’s guns—could result in the complainant being
shot with one of his own guns. Id.

      The dissent also relies on Guevara v. State for the proposition that appellant’s
failure to notify the police of his involvement supports an inference that he was
attempting to mislead investigators about his role. See 297 S.W.3d 350 (Tex. App.—San
Antonio 2009, pet ref’d). However, in that case, there was ample evidence that the

      4
          See 263 S.W.3d 18 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
      5
          See 171 S.W.3d 347 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
                                                   8
defendant and the primary actor, Minnie Salinas, planned the murder of the defendant’s
wife. The defendant was having an affair with Salinas, who issued an ultimatum to the
defendant shortly before victim was killed. Id. at 354. The jury could infer that the
defendant lied to the police about his relationship with Salinas to distance himself from
her and mislead police about his role in planning the murder. Id. at 359. Shortly before
the murder, the defendant took Salinas to a shooting range where they both fired a nine
millimeter gun—the same type of gun used to kill the victim. Id. Also, the defendant
had researched on the internet how to make a silencer; no one at the victim’s apartment
complex heard a gunshot. Id. at 360. An alibi witness thought it was strange that the
defendant asked him to play golf, on the morning of the murder, on a regulation golf
course when the witness was an amateur golfer. Id. Although three bullets were fired at
the crime scene, only one casing was found there—two shell casings matching one casing
that was left behind were found in the defendant’s vehicle. Id. at 359–60. Thus, the
court held that that jury could have inferred that the defendant and Salinas were acting
together to murder the victim. Id. at 359.

       Simply because actions or events occurring after the event are relevant to show
pre-existing intent does not mean those actions or events may form the basis for
solicitation, encouragement, direction, aid, or an attempt to aid. See Morrison, 608
S.W.2d at 235 (―Acts done after the [offense] was completed [do] not make [the accused]
a party to the offense.‖). Post-offense conduct alone cannot form the basis for aiding or
encouraging the completed offense. See Brooks, 580 S.W.2d at 831 (―[T]he evidence
must show that at the time of the commission of the offense the parties were acting
together, each doing some part of the execution of the common purpose.‖) (emphasis
supplied). The ―acting together‖ need not rise to the level of agreement. Bragg v. State,
73 Tex. Crim. 340, 166 S.W. 162, 163 (1914). However, the parties must be acting
together to accomplish their common purpose. Wygal, 555 S.W.2d at 469; Christensen v.
State, 240 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2007, pet ref’d) (op. on reh’g).
Thus, for a defendant to be considered a party to an offense, he must commit some
                                             9
culpable act before or during the commission of the offense. Morrison, 608 S.W.2d at
235; see also Cordova, 698 S.W.2d at 111 (explaining that any agreement to accomplish
a common purpose must have been made before or contemporaneously with the criminal
event).

          Even indulging the inferences that Jones (1) was involved in the altercation while
the parties were still in their vehicles, and (2) knew that appellant kept a shotgun in his
truck, as the jury was entitled to do, these inferences do not support a prior or
contemporaneous plan to shoot Lee once the altercation moved to the gas station. Any
conclusion to the contrary is based on mere speculation. See Hooper v. State, 214
S.W.3d 9, 16 (Tex. Crim. App. 2007) (―Speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented.            A conclusion reached by
speculation may not be completely unreasonable, but it is not sufficiently based on facts
or evidence to support a finding beyond a reasonable doubt. . . . [Juries] are not permitted
to draw conclusions based on speculation.‖). Moreover, evidence that a person simply
handed the deadly weapon to the attacker does not in and of itself show intent to commit
murder; intent can only be inferred from handing the attacker the deadly weapon if other
circumstances warrant. Hoang, 263 S.W.3d at 22; Navarro v. State, 776 S.W.2d 710,
714 (Tex. App.—Corpus Christi 1989, pet. ref’d). Here, no other circumstances exist
that would warrant an inference of intent.

          There is no evidence—direct or circumstantial—of Jones and appellant’s ―acting
together‖ pre-murder. There is no evidence that appellant assisted Jones before Jones
loaded the shotgun, got out of truck, aimed the shotgun at Lee, and pulled the trigger.
Viewing the evidence in the light most favorable to the jury’s verdict, no rational trier of
fact could have found appellant guilty as a party to Lee’s murder beyond a reasonable
doubt. Thus, the evidence is insufficient to support appellant’s conviction. We sustain
appellant’s first issue.



                                              10
        Having sustained appellant’s first issue, we reverse and render a judgment of
acquittal.6




                                         /s/             Sharon McCally
                                                         Justice



Panel consists of Justices Frost, Jamison, and McCally (Frost, J. dissenting).
Publish — TEX. R. APP. P. 47.2(b).




        6
          In light of our disposition, we need not address appellant’s remaining issue claiming ineffective
assistance of counsel.
                                                    11
