                                  NO. 12-17-00407-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 DEMETRIUS WHEELER,                               §      APPEAL FROM THE 349TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Demetrius Wheeler appeals his conviction for aggravated robbery with a deadly weapon.
In three issues, Appellant challenges the sufficiency of the evidence to support his conviction and
the denial of his motion for a directed verdict. We affirm.


                                           BACKGROUND
       On December 17, 2015, Kristi Rich was working as a teller at Lovelady State Bank (the
Bank) when she saw a car pull up to the Bank and three men exited the vehicle. She saw one of
the men carrying a gun. She ducked down behind the counter, in an attempt to leave, when one of
the men jumped over the counter and began striking her with his gun and attempting to drag her
to the vault. The man dropped Rich when he observed another employee, Dawn Coward, on the
phone. The man pulled the phone out of Coward’s hand, placed the gun in her face, and demanded
money. The man hit Coward on the head with the butt of the gun and pulled her to the teller
counter. Coward complied with the man’s request and began putting money in the bag from the
register drawers. When Coward told him that she did not have access to the vault, the man jumped
back over the counter and left the Bank.
       The Bank’s vice president, David Whittlesey, was threatened at gunpoint and forced to lie
on the ground during the robbery. When the men fled, Whittlesey ran outside and saw the men
leave in a dark, four-door vehicle. He got into his own vehicle and attempted to pursue the men
but was unable to locate the vehicle he saw leave the Bank. However, he saw a small red vehicle
pull out from a side road and begin to drive slowly. Whittlesey opined that the men switched
vehicles and were now in the red vehicle. He relayed all of this information to the 911 operator
from his cell phone.
       The red vehicle eventually stopped, and the men fled from the vehicle. One man was
apprehended by law enforcement when he became tangled in a fence. That man was interviewed,
and evidence was collected from the scene. Following an investigation, Appellant was arrested
and charged by indictment with aggravated robbery. Appellant pleaded “not guilty” and the matter
proceeded to a jury trial.
       The State argued Appellant was not one of the men who physically robbed the bank, but
he was involved in the planning and getaway of the robbery. Following the conclusion of evidence,
Appellant moved for a directed verdict, which the trial court denied. The jury found Appellant
“guilty.” After a punishment hearing in which Appellant pleaded “true” to the indictment’s
enhancement allegation, the trial court sentenced Appellant to forty-five years imprisonment. This
appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first and second issues, Appellant contends the evidence is legally insufficient to
support his conviction. Specifically, he argues that the evidence does not prove that he participated
in the aggravated robbery or that he used or exhibited a deadly weapon. In his third issue,
Appellant argues the trial court erred in denying his motion for directed verdict.
Standard of Review
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2786–87, 61 L. Ed.
2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See



                                                 2
id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the light most favorable to the
verdict. Id. A successful legal sufficiency challenge will result in rendition of an acquittal by the
reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed.
2d 652 (1982). This familiar 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. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the factfinder’s resolution of conflicting evidence unless the resolution is not rational.
See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
       The sufficiency of the evidence is measured against the elements of the offense as defined
by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
       A challenge to the trial court’s ruling on a motion for directed verdict is in actuality a
challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799
S.W.2d 683, 686 (Tex. Crim. App. 1990). As a result, we will address Appellant’s first, second,
and third issues together.




                                                  3
Applicable Law
       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 or knowingly threatens or
places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(2)
(West 2011). The offense is aggravated if the person committing the robbery uses or exhibits a
deadly weapon. Id. § 29.03(a)(2) (West 2011). A “deadly weapon” constitutes (1) a firearm or
anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily
injury; or (2) anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury. Id. § 1.07(a)(17) (West Supp. 2018).
       A person is responsible for the criminal conduct of another person 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). When a party is not
a “primary actor,” the State must prove conduct constituting an offense plus an act by the defendant
done with the intent to promote or assist such conduct. Williams v. State, No. 05-14-00790-CR,
2016 WL 355115, at *6 (Tex. App.—Dallas Jan 28, 2016, no pet.) (mem. op., not designated for
publication) (citing Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985)). The jury may
consider “events occurring before, during and after the commission of the offense, and may rely
on actions of the defendant which show an understanding and common design to do the prohibited
act.” Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996); see also Williams, 2016
WL 355115, at *6. “Since an agreement between parties to act together in a common design can
seldom be proved by words, the State often must rely on the actions of the parties, shown by direct
or circumstantial evidence, to establish an understanding or common design to commit the
offense.” Williams, 2016 WL 355115, at *6 (quoting Miller v. State, 83 S.W.3d 308, 314 (Tex.
App.—Austin 2002, pet. ref’d)). Circumstantial evidence may suffice to show the defendant is a
party to the offense. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); Ransom, 920
S.W.2d at 302; Miller, 83 S.W.3d at 314.              Evidence is sufficient to convict under
the law of parties where the defendant is physically present at the commission of the offense and
encourages its commission by words or other agreement. Ransom, 920 S.W.2d at 302. Mere
presence of an accused at the scene of an offense is not alone sufficient to support a conviction
under penal code Section 7.02(a)(2); “however, it is a circumstance tending to prove guilt which,
combined with other facts, may suffice to show that the accused was a participant.” Williams,



                                                 4
2016 WL 355115, at *6 (quoting Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel
Op.] 1981) (op. on reh’g)). “[W]hile flight alone will not support a guilty verdict, evidence of flight
from the scene of a crime is a circumstance from which an inference of guilt may be drawn.” Id.
(quoting Valdez, 623 S.W.2d at 321).
        “With respect to party liability for the use or exhibition of a deadly weapon as an element
of aggravated robbery, there must be evidence that the defendant not only participated in the
robbery before, while, or after a deadly weapon was displayed, but did so while being aware that
the deadly weapon would be, was being, or had been used or exhibited during the offense.” Id. at
*7 (quoting Boston v. State, 373 S.W.3d 832, 839 n.7 (Tex. App.—Austin 2012), aff’d, 410
S.W.3d 321 (Tex. Crim. App. 2013)). Our sufficiency review is not limited to evidence that the
defendant knew in advance the deadly weapon would be used or exhibited during the robbery. Id.
Rather, “the pertinent question is whether there is evidence [the defendant] not only participated
in the robbery before, while, or after a deadly weapon was displayed, but did so while being aware
that the deadly weapon would be, was being, or had been used or exhibited during the offense.”
Id.
Analysis
        Appellant does not dispute that a robbery occurred at Lovelady State Bank on December
17, 2015. Rather, he argues that the evidence does not prove that he participated in the robbery.
He further argues that the evidence is insufficient to show that a firearm was used or exhibited
during the course of the robbery, which is a necessary element of an aggravated robbery, because
the word “gun” is broader than the word “firearm.”1
        Steven Jeter, a sergeant with the Texas Rangers, testified that he was called to assist in the
investigation of the bank robbery in Lovelady. When he received the phone call, local law
enforcement was in pursuit of the suspects. Ranger Jeter responded to a location in which a suspect
had been apprehended after fleeing the vehicle. When he arrived, Ranger Jeter first looked at the
red car before proceeding to where the individual had been captured. In the red vehicle, Jeter
observed a large paper clip, a couple of rubber bands, and a $250 money band. Because Jeter
worked for ten years at a bank, he testified that he understood that banks do a lot of their work
with big paper clips and rubber bands. Jeter then spoke with the captured suspect; however, he


        1
          Appellant does not challenge the sufficiency of the evidence to show his awareness that a deadly weapon
would be, was being, or had been used or exhibited during the offense.


                                                       5
testified that his primary responsibility during the investigation was working the crime scene.
While searching for evidence, Jeter collected a duffle bag full of masks, gloves, and guns that he
believed were used in the robbery. This included a .40 caliber handgun and a 9-millimeter
handgun. Jeter testified that both guns were loaded to near capacity with a round in the chamber.
Jeter testified that he obtained DNA evidence from all of the suspects, including Appellant.
However, Ranger Jeter was unable to obtain any usable fingerprints from the vehicle or the items
contained within it.
       Jessica Ehmann, a forensic scientist with the Texas Department of Public Safety crime
laboratory, testified that Appellant’s DNA was found on a washrag from the right rear floorboard
of the vehicle and the water bottle from the vehicle’s center console.
       Nelson Huffman, a deputy with the Trinity County Sheriff’s Department, responded to the
pursuit of the suspects following the bank robbery. After he received the call to respond, he learned
that the suspects changed cars. Approximately five miles outside of Trinity, the suspects got into
a red car. Deputy Huffman then pulled behind a red car to confirm the suspects matched the
description given to him. Once the occupants of the vehicle noticed him, they accelerated, and
Deputy Huffman pursued them. While Deputy Huffman was following them, the suspects stopped
the car and began running down the street. Three suspects ran through a field. One of the suspects,
Allus Hubbard, became caught in a fence and was apprehended.
       Andreia Castle, Appellant’s girlfriend at the time of the robbery, testified that she owned a
red Dodge Dart and frequently allowed Appellant to drive it. Castle further testified that Appellant
asked to use her car the morning of the robbery. She did not get her car back that day. Appellant
told her “he was sorry, he didn’t mean for it to happen that way.” Appellant also asked Castle to
report her car as stolen. Castle testified that she reported her car as stolen and that she lied when
she filed that report. Appellant never told her that her vehicle had been involved in a bank robbery;
however, he apologized because her car had been in a situation. Castle testified that she learned
what happened from Appellant’s cousin.
       Hubbard testified that he was involved in the aggravated robbery of Lovelady State Bank
on December 17, 2015. According to Hubbard, his cousin, Alonso Irving, asked him to go to
Lovelady that morning. Hubbard believed they were going to “go get some marijuana from
somebody.” Irving took Hubbard to Trinity, Texas, where they met three men. This is when
Hubbard learned they were going to rob a bank. Appellant was one of those men and was driving



                                                 6
a red Dodge Dart. A man named Ryan Scott got into the car with Hubbard and Irving, and the
three men drove to Lovelady State Bank. Hubbard further testified that he carried a gun with him,
a “chrome Smith and Wesson.” He also testified that both Irving and Scott used guns during the
robbery, but he did not know the types of guns they used. However, he was able to identify the
guns in the exhibit photographs at trial. Hubbard explained that when the three men left the bank,
they were followed. As a result, they pulled over to the side of the road where the red Dodge Dart
was waiting for them. While in the red car, Appellant told them that he believed they were going
to get pulled over. Appellant stopped the car and the men fled. Hubbard took the black bag from
the car with him when he fled and dropped it in the field. While running, Hubbard’s kidney
“failed” and he was caught by law enforcement.
       Based on the foregoing evidence, the jury could reasonably conclude that the three men
who entered Lovelady State Bank exhibited firearms during the course of the robbery. See TEX.
PENAL CODE ANN. § 1.07(a)(17)(A). Two firearms, a .40 caliber handgun and a 9-millimeter
handgun, were found by law enforcement at the scene where Hubbard was apprehended.
Furthermore, Hubbard testified that he, Scott, and Irving all had firearms in their possession at the
time of the robbery. Photographs of the firearms, along with the firearms themselves, were entered
into evidence for the jury’s review.
       The jury could have also reasonably concluded that Appellant’s actions showed an
understanding and common design to commit the offense of aggravated robbery. See Ransom,
920 S.W.2d at 302; see also Williams, 2016 WL 355115, at *6. Hubbard testified that he met
Appellant when he went to Trinity with his cousin and learned the men were going to rob a bank.
Hubbard further identified Appellant as the man who drove the red car in which the men fled from
law enforcement. Appellant, however, argues that Hubbard’s testimony is insufficient on its own
to support a conviction under Article 38.14 of the Texas Code of Criminal Procedure.
       Article 38.14 provides that a conviction cannot be had upon the testimony of an accomplice
unless it is corroborated with other evidence tending to connect the defendant with the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In the present case, Castle testified that
Appellant used her car the day of the robbery, repeatedly apologized to her about her car being
involved in a “situation,” and instructed her to report the vehicle as stolen. See Cary v. State, 507
S.W.3d 750, 758 (Tex. Crim. App. 2016) (jury entitled to infer intent from accused’s actions
before, during, and after the offense); see also Cueva v. State, 339 S.W.3d 839, 881-82 (Tex.



                                                 7
App.—Corpus Christi 2011, pet. ref’d) (any conduct by someone “accused of a crime subsequent
to its commission, which indicates a consciousness of guilt may be received as a circumstance
tending to prove that he committed the act with which he is charged”). In addition, Appellant’s
DNA was found on both a water bottle, which was located in the vehicle’s center console, and
washrag found in the red car. The jury could further infer guilt from evidence that all passengers
of the red vehicle fled on foot when pursued by law enforcement officers. See Clayton, 235
S.W.3d at 778 (jury’s duty includes drawing reasonable inferences from basic facts to ultimate
facts); see also Williams, 2016 WL 355115, at *6. Accordingly, Appellant’s conviction does not
stand on Hubbard’s testimony alone and the evidence is sufficient to show that Appellant, with
intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided,
or attempted to aid the other men to commit the offense of aggravated robbery. See TEX. PENAL
CODE ANN. § 7.02(a)(2).
         Thus, viewing the evidence in the light most favorable to the verdict, we conclude that a
rational jury could have found, beyond a reasonable doubt, that Appellant assisted in the
commission of the aggravated robbery. And, the trial court properly denied Appellant’s motion
for directed verdict. See id. §§ 7.02(a)(2); 29.03(a)(2); see also Brooks, 323 S.W.3d at 912. We
overrule Appellant’s three issues.


                                                   DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.


                                                                 JAMES T. WORTHEN
                                                                    Chief Justice
Opinion delivered November 14, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        NOVEMBER 14, 2018


                                         NO. 12-17-00407-CR


                                     DEMETRIUS WHEELER,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 16CR-042)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
