Opinion filed October 30, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-13-00317-CR
                                     __________

                     ANDREW FERGUSON, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR22183


                      MEMORANDUM OPINION
      The jury found Andrew Ferguson guilty of the offenses of aggravated robbery
and engaging in organized criminal activity. The jury assessed punishment at
confinement for twenty-seven years for each offense, to be served concurrently. The
trial court sentenced Appellant accordingly. Appellant challenges his conviction in
three issues. We affirm.
                               I. The Charged Offense
      The grand jury indicted Appellant for aggravated robbery and engaging in
organized criminal activity. In the indictment, the grand jury alleged that Appellant
intended to obtain control of property without the effective consent of the owner and,
at the same time, intentionally or knowingly placed Winston Camp in fear of
imminent bodily injury or death. The grand jury also alleged that Appellant, with
the intent to participate in the profits of a combination, committed aggravated
robbery. TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2014). Section 29.02(a)
of the Texas Penal Code defines robbery as follows: “A person commits an offense
if, in the course of committing theft . . . and with intent to obtain or maintain control
of the property, he . . . intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death.” Id. § 29.02(a)(2) (West 2011). The offense
becomes aggravated if the person “uses or exhibits a deadly weapon.” Id.
§ 29.03(a)(2). To prove that Appellant committed the offense of engaging in
organized criminal activity, the State must have shown that Appellant (1) intended
to participate in the profits of a combination and (2) committed aggravated robbery.
Id. § 71.02(a)(1).
                                 II. Evidence at Trial
      Winston Camp was an employee at the 7-Eleven convenience store on Coggin
Avenue in Brownwood when, late one October night, three hooded and masked
individuals entered the store armed with what appeared to be real guns. One
individual, who wore a black hoodie, entered the store while Camp placed soft drinks
in the display refrigerators at the back of the store. That individual, who was later
identified at Javonte James, demanded that Camp go to the front of the store and
give him money and Newport cigarettes. Camp testified that the first individual had
what Camp thought was a dark, nine-millimeter handgun. The second robber, who
wore a white or gray hoodie, had a long-barreled revolver in his hand. The second
                                           2
individual, who was more than six feet tall and was the tallest of the three robbers,
came around the counter and took the money from Camp as Camp removed it from
the cash register.1 Camp feared for his life when the second robber came around the
counter because Camp thought that he would be shot. The third individual, who
wore a black hoodie and distinctive white and black shoes, went to the back of the
store and took several cans of “Four Lokos” alcoholic energy drinks from the display
refrigerators. The third robber, who was later identified as Trevor Norman, had
appeared in the store earlier in the evening, wearing the same clothes and distinctive
shoes, without his face being covered and had looked up at an in-store camera. Camp
said that the first robber was stern when he talked and that all three robbers appeared
calm.
          Danny Hutchins, a police officer with the Brownwood Municipal Police
Department, testified that he was two blocks away from the convenience store when
he received a call from dispatch about a robbery. Officer Hutchins searched the
immediate area but did not see anyone, so he went to the convenience store and
interviewed Camp. Officer Hutchins indicated that, as he spoke to Camp in the
parking lot of the store, two women approached. One of the women was Jennifer
Morse. The women said that they saw three men run down the alley coming from
the convenience store and that they crossed the street in front of their car.2
Officer Hutchins pointed out that the description of the three men given by the
women matched the description of men that often spent time in the front yard of a
house three blocks from the convenience store.                               The house described was
Appellant’s mother’s house. Officer Hutchins indicated that Mitch Slaymaker,

          1
           Camp testified that he is six feet, two inches tall and that the second robber was a little shorter than
he was.
          2
          Morse recalled that the men were black, but her friend, Sarah Martinez, testified that she could not
recall the men’s ethnicity. Martinez remembered that they wore black hoodies.


                                                         3
another officer with the Brownwood Municipal Police Department, detained James
and Appellant and had them in the back of his patrol car. In-car cameras recorded
James and Appellant. Officer Hutchins also stated that, while James and Appellant
were in Officer Slaymaker’s patrol car, either James or Appellant stuffed a package
of Newport cigarettes into their mouth and tried to eat the package.3
        Officer Hutchins went to the residence where Appellant and his mother, Kathy
Ferguson, lived and interviewed Kathy. When he showed her a picture from the
convenience store’s security camera of the individual who entered the store before
the robbery and looked at the security camera, who was later identified as the third
robber, she remarked that it was Appellant’s friend, Trevor Norman. Officers
searched James’s house and recovered several hoodies, distinctive white and black
shoes, maroon sweatpants, three BB pellet guns,4 one or two Four Lokos drinks, and
a box of Newport cigarettes. Mona Ellington, who was at James’s house, testified
that James tried to hide the cigarettes, guns, and Four Lokos. Josha Chamblee
corroborated Ellington’s testimony.
        While Officer Hutchins was at James’s house, he saw Norman.
Officer Hutchins also saw Appellant at Kathy’s house. Officer Hutchins said that
Appellant claimed that he knew nothing about the robbery, that he spent the evening
with James at Coggin Park, and that he went to James’s house to play video games.
He said that he was heading to his girlfriend’s house after that.5 Appellant’s


        3
            Officer Slaymaker reported that James was the one who tried to eat the Newport cigarette package.
        4
       Officer Hutchins explained that, if someone had been shot in the eye with a pellet from one of the
BB guns, it could cause serious bodily injury.
        5
          James pleaded guilty to aggravated robbery and engaging in organized criminal activity. He was
sentenced to confinement for five years. James said that he committed the robbery with Norman. Norman
also pleaded guilty to aggravated robbery and engaging in organized criminal activity. He testified that he
had agreed with James to commit the crime; Norman received a sentence of confinement for eight years.
At trial, both James and Norman claimed that they could not recall identity of the third robber.


                                                       4
girlfriend, Deveney Mann, testified that Appellant was with her but that he left later
in the evening to play video games with James. She also said that Appellant had
returned later with money and told her not to tell the police about the money, but she
did not think that he was involved in the robbery or that the money was from the
robbery.
        Joe Aaron Taylor, another officer with the Brownwood Municipal Police
Department, interviewed Mann and testified that she became upset and cried when
questioned about her knowledge of the robbery and about whether Appellant was
involved in the robbery. Mann consented to a search of her apartment, where
Officer Taylor found money in the top and bottom of the closet and money on the
bed.6 Mann told Officer Taylor that Appellant had joked about robbing a bank.
Officer Taylor also spoke to Appellant, who denied any involvement in the robbery,
but Officer Taylor did not think Appellant was being honest.
        Officer Slayton responded to the dispatch about the robbery and arrived at the
convenience store and spoke to Camp. Camp remarked that the second robber was
approximately six feet, one inch. Officer Slayton spoke to Appellant at Appellant’s
house after the robbery. Appellant told Officer Slayton that he had a fight with his
girlfriend and left his house. Appellant claimed that he went to Coggin Park, met
James there, and then went to James’s house to play video games and that they spent
the rest of the evening together. Officer Slayton asked to search Appellant’s room,
which had a hasp and key padlock on the door. Appellant consented to the search.
Appellant said that the money found at Deveney’s apartment was from a yard job he
did for one of his friends.
        Officer Slayton also assisted with the search of James’s house. The BB guns
recovered in the search appeared to be the same BB guns used in the robbery.

        6
         The money found totaled $233 with $190 found in the bottom of the closet, a $10 bill found on
the bed, and $33 found rolled up in the top of the closet.

                                                   5
Officer Slayton also recovered photographs from the SD card on Appellant’s cell
phone that depicted Appellant holding a gun that resembled, or was similar to, the
gun used in the robbery. According to Officer Slayton, when asked about the long-
barreled revolver BB gun, Appellant said that he had shot it, as had others, and would
not be surprised if his fingerprints were found on the gun.7                     Officer Slayton
interviewed James, who told him that the robbers got about ninety dollars in the
robbery and that each participant got thirty dollars. James and Norman both
admitted to Officer Slayton that they were two of the robbers. Appellant denied that
he was involved in the robbery. According to Officer Slayton, Norman, James, and
Appellant were friends and knew each other.
      Officer Slaymaker testified that he interviewed Mann at Appellant’s house
after the robbery and that Appellant and James appeared out of the shadows and
were running toward him. Both said they had just come from Coggin Park, which
was a fair distance away, but neither James nor Appellant appeared winded. Both
Appellant and James identified themselves and, when asked, showed
Officer Slaymaker what they had in their pockets: James had thirty dollars and two
packages of Newport cigarettes, while Appellant had thirty one dollars and an MP3
player. Officer Slaymaker asked both Appellant and James to ride with him to the
convenience store; they agreed to go with him. Camp was not able to say whether
James and Appellant were the robbers. Officer Slaymaker, after a review of the
evidence, was comfortable with Appellant being charged.
      Appellant testified on his own behalf and denied any involvement in the
robbery. Appellant watched a movie with Mann from approximately 9:00 p.m. until
he left around 11:15 or 11:30 p.m. He admitted that he joked to Mann that “this is a
recession, need to rob a bank.” Appellant said that he left and walked to his mother’s


      7
       No fingerprint evidence was collected from the BB guns, and no forensic analysis was done.

                                                 6
house, then to Coggin Park where he met James, and then they went to James’s house
to play video games; the house belonged to James’s brother, Donte, who was at the
house when they arrived. Appellant said he walked fast and James “speed-walked”
to keep up with him. Appellant claimed that James left his brother’s house around
12:15 a.m. because he had to do something. After James returned, Appellant and
James went to Kathy’s house. Appellant said they ran toward Mann, who was in the
front yard speaking to Officer Slaymaker, to try to scare her. Appellant denied that
he had ever touched the long-barreled revolver BB gun that was found at James’s
house; he said that the gun, in the photographs of him, belonged to his uncle, Smiley,
and that he had touched his uncle’s gun. Kathy said that the gun that Appellant had
in the photographs belonged to his uncle. Appellant admitted that he told Mann not
to tell the police about the money because he was afraid Chamblee or Kathy would
ask for money.
                           III. Discussion and Analysis
      Appellant asserts that the State committed a total of ten errors during voir dire
and the guilt/innocence phase of trial that amounted to prosecutorial misconduct. In
his second issue, Appellant asserts that State’s Exhibit Nos. 36 and 37 should not
have been admitted into evidence. Appellant also complains, as part of his second
issue, that the State withheld exculpatory evidence. Appellant asserts in his third
issue that the evidence was insufficient to convict him of aggravated robbery and
engaging in organized criminal activity. We will address Appellant’s sufficiency
issue first and then address his remaining two issues.
      A. Issue Three: Sufficiency of the Evidence
      We examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it,
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v.
                                          7
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight
and credibility of the evidence, and a reviewing court may not reevaluate the weight
and credibility of the evidence so as to substitute its own judgment for that of the
factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The
reviewing court must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
      Appellant testified that he was not involved in the robbery, but that he was
friends with James. Appellant claimed that either Donte or Chamblee was the other
robber, but James and Norman confessed to the robbery. At trial, although James
and Norman could not recall the other robber, neither James nor Norman testified
that Appellant was not the other robber. And just after the robbery, Appellant told
police officers that he had been with James the entire evening once they met at
Coggin Park. Appellant claimed that he and James went to Donte’s house and that
James left at 12:15 a.m. and returned twenty minutes later.
      Law enforcement investigated the robbery. After several individuals were
interviewed, including Kathy, Camp, Mann, Chamblee, James, Norman, and
Appellant, Officer Taylor and Officer Slaymaker concluded that Appellant was the
second robber, the one in the white or gray hoodie. Appellant argued that the gun in
the photographs and the BB gun used in the robbery were different and that he had
touched the former but not the latter. However, during his interviews with police,
he said that he had shot the long-barreled revolver BB gun. Appellant provided a
time line for his whereabouts from 9:00 p.m. forward, but the jury, as the arbiter of
the facts, was free to disbelieve him and believe the police officers and other
witnesses. Given these facts and others previously outlined, as well as a review of
the record, we hold that a rational jury could have found beyond a reasonable doubt
                                          8
that Appellant committed aggravated robbery and engaged in organized criminal
activity when he participated in the armed robbery of the convenience store with
James and Norman. We overrule Appellant’s third issue.
      B. Issue Two: Admission of Evidence
      In the “ISSUES PRESENTED” portion of Appellant’s brief, he sets out his
Issue No. Two: “THE INTERVIEW VIDEO OF APPELLANT’S CO-
DEFENDANTS SHOULD HAVE NOT BEEN ADMITTED INTO EVIDENCE.”
In the main body of his brief, Appellant states that his Issue No. Two is: “THE
STATE WITHHELD POTENTIALLY EXCULPATORY EVIDENCE.” Appellant
argues that the State failed to disclose the fact that the gun used in the robbery was
not the same gun as shown in the photographs found on the SD card taken from his
cell phone; he does not argue that the trial court erred when it admitted certain videos
of his codefendants. Nevertheless, we will discuss both complaints as though they
had been presented properly.
      We review the admission or exclusion of evidence under an abuse of
discretion standard, and we will reverse the trial court’s decision only if the trial
court acted arbitrarily, unreasonably, or without reference to any guiding rules or
principles. See Montgomery v. State, 810 S.W.2d 372, 390–92 (Tex. Crim. App.
1991) (op. on reh’g). We will uphold the trial court’s ruling if it is within the zone
of reasonable disagreement. Id. at 391.
      Appellant complains that the trial court erroneously admitted videos, State’s
Exhibit Nos. 36 and 37. But Appellant never objected to the admission of the
exhibits. To preserve a complaint for appellate review, a defendant must timely
object to the trial court. See TEX. R. APP. P. 33.1; Evans v. State, No. 11-09-00341-
CR, 2011 WL 5994429, at *6 (Tex. App.—Eastland Nov. 30, 2011, pet. ref’d) (mem.
op., not designated for publication); Hajjar v. State, 176 S.W.3d 554, 559 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Rhoades v. State, 934 S.W.2d
                                           9
113, 120 (Tex. Crim. App. 1996)). Appellant has waived this argument on appeal.
TEX. R. APP. P. 33.1.
      Although not outlined as an issue in the beginning of his brief, Appellant
asserts later in his brief that the State never told him that the gun in the photographs
found on the SD card of his cell phone was not the long-barreled revolver BB gun
that was used in the robbery. Appellant asserts that the State committed a Brady8
violation when the State did not turn over to Appellant the photographs recovered
from the SD card found inside his cell phone. Brady requires that the State turn over
exculpatory information. Brady, 373 U.S. at 87; Wyatt v. State, 23 S.W.3d 18, 27
(Tex. Crim. App. 2000). Appellant testified at trial, as did his mother, that the gun
in the photographs was not the same gun that was used in the robbery. Appellant
objected to the photographs at trial based on the lack of a proper foundation or
predicate and on Rule 404 of the Texas Rules of Evidence. TEX. R. EVID. 404.
Appellant did not allege a Brady violation at trial. Appellant must satisfy three
requirements to establish a Brady violation: (1) the State suppressed evidence; (2)
the suppressed evidence is favorable to the defendant; and (3) the suppressed
evidence is material. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).
Information that is not exculpatory is not covered by Brady. Id.
      Appellant’s counsel acknowledged, in writing, that the Brown County District
Attorney’s office had an “open file” policy and that a defense attorney could make
an appointment to review the prosecutor’s file, including exhibits. This generally
satisfies the duty to disclose exculpatory evidence. Id. at 407. In order to preserve
an alleged Brady violation, a defendant must object and make the trial court aware
of the complaint as soon as the objection becomes apparent. See Pena v. State, 353
S.W.3d 797, 808 (Tex. Crim. App. 2011). Appellant made no Brady objection at


      8
       Brady v. Maryland, 373 U.S. 83 (1963).

                                                10
trial and has waived this issue. Even if he had preserved error, the photographs, of
Appellant with a gun and on Appellant’s SD card in his cell phone, of which
Appellant was aware, did not contain exculpatory evidence. See Havard v. State,
800 S.W.2d 195, 204 (Tex. Crim. App. 1989). Appellant’s second issue is overruled.
      C. Issue One: Alleged Prosecutorial Misconduct
      Appellant alleged that two actions by the State during voir dire and another
eight actions by the State during the guilt/innocence phase of trial amounted to
prosecutorial misconduct. Appellant objected to some, based on evidentiary rules,
but he never made an objection at trial on the basis of prosecutorial misconduct,
never requested an instruction, and never moved for a mistrial. In order to preserve
error in cases of prosecutorial misconduct, the defendant must (1) make a timely and
specific objection, (2) request an instruction that the jury disregard the matter
improperly placed before the jury, and (3) move for a mistrial. Hajjar, 176 S.W.3d
at 566. In addition, a party fails to preserve error when the contention urged on
appeal does not comport with the specific complaint made in the trial court. See
Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Rothstein v. State,
267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). As a
result, Appellant has waived any argument on appeal of prosecutorial misconduct.
We overrule Appellant’s first issue.
                                   IV. Conclusion
      We hold that the evidence was sufficient to convict Appellant of aggravated
robbery and engaging in organized criminal activity. Appellant waived his argument
that the trial court abused its discretion by admitting State’s Exhibit Nos. 36 and 37
into evidence because Appellant never objected to the admission of the exhibits.
Appellant also waived his complaint about the photographs from his cell phone, but
even if he had preserved error, the photographs from his cell phone did not contain
exculpatory evidence. Finally, Appellant waived his argument of prosecutorial
                                         11
misconduct because he never made that objection or claim at trial. We overrule all
of Appellant’s issues.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.



                                               MIKE WILLSON
                                               JUSTICE


October 30, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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