                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00026-CR
        ______________________________


           CRYSTAL HEATH, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 25944




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION

           Shortly after a Hunt County robbery at gunpoint at which $500.00 was taken from Icle

Mapps, Crystal Heath admitted to police that she had cash given to her by Antwan Davis, later

shown to have been the individual who actually committed the robbery. Five hundred twenty

dollars in cash was recovered from Heath‘s bra. From Heath‘s conviction of aggravated robbery

with a deadly weapon 1 and her sentence of eleven years‘ imprisonment, Heath complains of

insufficient evidence—as to her party status and as to her connection to the weapon—to support

her conviction. She also asserts ineffective assistance of counsel. We affirm because (1) the

evidence sufficiently shows Heath was a party to the robbery, (2) the evidence need not have

shown that Heath wielded or knew about the weapon, and (3) ineffective assistance of counsel

does not appear.

(1)        The Evidence Sufficiently Shows Heath Was a Party to the Robbery

           In the direct aftermath of the robbery, Mapps followed Davis‘ car while calling the police.

Shortly thereafter, Greenville Police Officer Randy Gray detained the vehicle Mapps reported

having followed and matching the description given by Mapps.

           Driving the detained car was Bryana Bankston, sitting in the front passenger seat was

Heath, and sitting in the back seat was Davis, who matched Mapps‘ description of the robber.

Bankston informed Gray that, during the pursuit by Mapps, Davis had opened the door.

Thereafter, police discovered a BB pistol, with its orange muzzle ―flag‖ removed, along the course
1
    See TEX. PENAL CODE ANN. §§ 29.02, 29.03 (West 2011).

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the pursuit had taken. Heath initially refused to speak to the police. After being informed that

she would be searched at the jail, Heath informed the officers that Davis had given her cash, which

she had placed in her bra. The police recovered the cash from Heath‘s bra. At trial, Heath

admitted she was in the vehicle and admitted the money was found in her bra.

         Mapps reported that the perpetrator had sprayed him with pepper spray at the time of the

robbery. The police discovered a bottle of pepper spray in the Bankston vehicle.

         Heath denied involvement in the robbery. According to Heath, she had asked Bankston

for a ride to the grocery store. Davis, who was fifteen at the time of the offense, had been ―staying

with‖ Heath and had asked to come along. According to Heath, Davis claimed that, to pay

Heath‘s bills, Davis would get some money from his father, who lived at the Charlet Apartments.

At Davis‘ instructions, the trio parked in front of the apartment complex. When Davis returned,

Heath testified he was out of breath and told them ―you can leave.‖ Heath testified she did not

think it unusual for Davis to be out of breath. According to Heath, she did not find out about the

robbery until their car was stopped by the police. Heath denied encouraging Davis to commit the

robbery and denied ever seeing the BB pistol. Heath admitted she had a chance to return the

money.

         The evidence at trial established that Davis used or exhibited a BB pistol and that a BB

pistol is capable of causing serious bodily injury.




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       In evaluating the legal sufficiency of the charged offense, we review all the evidence in the

light most favorable to the trial court‘s judgment to determine whether any rational jury could have

found the essential elements of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref‘d). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

       Evidentiary sufficiency should be measured against a ―hypothetically correct‖ jury charge.

See Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). Malik controls ―even in the absence of alleged jury charge error.‖

Gollihar, 46 S.W.3d at 255.

       A ―hypothetically correct‖ jury charge is ―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.‖ Malik, 953 S.W.2d at 240. The ―hypothetically correct‖ jury charge



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cannot completely rewrite the indictment, but such a charge need not ―track exactly all of the

allegations in the indictment.‖ Gollihar, 46 S.W.3d at 253. If the essential elements of the

offense are modified by the indictment, the modification must be included. Id. at 254. The

hypothetically correct charge, however, ―need not incorporate allegations that give rise to

immaterial variances.‖ Id. at 256.

       The ―‗law‘ as ‗authorized by the indictment‘ must be the statutory elements‖ of the offense

charged ―as modified by the charging instrument.‖ Curry v. State, 30 S.W.3d 394, 404 (Tex.

Crim. App. 2000). The hypothetically correct jury charge must include both (1) allegations that

form an integral part of an essential element of the offense, including allegations that are

statutorily alternative manner and means, and (2) material variances. Clinton v. State, 327

S.W.3d 366, 368–69 (Tex. App.—Texarkana 2010, pet. granted); see Gollihar, 46 S.W.3d at 256.

When determining whether a variance is material, we must consider two questions: ―1) whether

the indictment, as written, informed the defendant of the charge against him or her sufficiently to

allow such defendant to prepare an adequate defense at trial, and 2) whether prosecution under the

deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for

the same crime.‖ Mantooth v. State, 269 S.W.3d 68, 76 (Tex. App.—Texarkana 2008, no pet.).

       A person is criminally responsible as a party to an offense 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.‖ TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). ―A



                                                  5
defendant may not be held accountable as a party without some indication that they knew they

were assisting in the commission of an offense.‖ Edwards v. State, 956 S.W.2d 687, 691 (Tex.

App.—Texarkana 1997, no pet.). More than mere presence of the defendant is required to

establish participation in a criminal offense.       Stroman v. State, 69 S.W.3d 325, 329 (Tex.

App.—Texarkana 2002, pet. ref‘d). Further, a defendant may be liable as a party even if the

defendant is not present at the scene of the crime. See Otto v. State, 95 S.W.3d 282, 284 (Tex.

Crim. App. 2003) (finding party liability under Section 7.02(a)(2) even though defendant not

present at scene of crime). The jury may consider events that occurred before, during, and after

the offense that demonstrate an understanding and common design. Ransom v. State, 920 S.W.2d

288, 302 (Tex. Crim. App. 1996) (op. on reh‘g). The agreement to act together in a common

design can be proven by circumstantial evidence. Id. ―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.‖ Cunningham v. State, 982 S.W.2d 513, 520 (Tex. App.—San Antonio

1998, pet. ref‘d).

        The State introduced sufficient evidence that Heath was a party under Section 7.02(a)(2) of

the Texas Penal Code. Among the connections were the identity of the Bankston car, the

presence of pepper spray, the cash, the secretive location from which the cash was recovered, the

recovered weapon, and Heath‘s behavior with police.




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       The record contains sufficient circumstantial evidence for the jury to conclude an

understanding and common design existed. Gray testified the route the car took after leaving the

crime scene was not consistent with Heath‘s story. The discovery of the money hidden in Heath‘s

bra is an unusual circumstance from which the jury could reasonably conclude Heath knew about

the robbery.     A jury can disbelieve a witness, even when that witness‘ testimony is

uncontradicted. Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref‘d). As the trier of fact, the jury is the sole judge of the credibility of the witnesses and is

free to believe or disbelieve all, part, or none of any witness‘ testimony. Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986). Based on the circumstantial evidence, a rational jury

could have disbelieved Heath‘s testimony and concluded a common design existed.                    The

evidence is sufficient to support Heath‘s conviction, based on the law of parties, for aggravated

robbery.

(2)    The Evidence Need Not Have Shown that Heath Wielded or Knew About the Weapon

       As part of her argument, Heath argues that the State was bound by its allegation that Heath

personally used or exhibited a deadly weapon. The indictment alleged:

       [HEATH] INDIVIDUALLY AND ACTING TOGETHER WITH BRYANA
       BANKSTON AND ANTWAN DAVIS AS PARTIES TO THE OFFENSE, DID
       INTENTIONALLY OR KNOWINGLY, WHILE IN THE COURSE OF
       COMMITTING THEFT OF PROPERTY AND WITH INTENT TO OBTAIN OR
       PERMANENTLY MAINTAIN CONTROL OF SAID PROPERTY THREATEN
       OR PLACE ICLE MAPPS IN FEAR OF IMMINENT BODILY INJURY OR
       DEATH, AND THE DEFENDANT USED OR EXHIBITED A DEADLY
       WEAPON, TO-WIT: A BB PISTOL


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Heath argues that the hypothetically correct jury charge would contain the State‘s allegation that

she wielded the weapon herself. Because the evidence established that the person who used or

exhibited the deadly weapon was Davis, Heath argues the evidence is insufficient. The State

argues that the hypothetically correct jury charge would include an instruction of the law of parties

and that the evidence is sufficient based on the law of parties. Should the hypothetically correct

jury charge permit the application of the law of parties, Heath alternatively argues the evidence is

insufficient because Heath did not know a deadly weapon had been used or exhibited.

       Under the hypothetically correct jury charge, the State was not required to establish that

Heath personally used or exhibited a deadly weapon. The law is well established that an

indictment is not required to allege that the defendant acted as a party to the commission of the

charged offense. See, e.g., Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002). ―When

there is evidence that the defendant is guilty as a party, a trial court may charge the jury on the law

of parties even if the indictment charges the defendant as a principal.‖ Miles v. State, 259 S.W.3d

240, 244 (Tex. App.—Texarkana 2008, pet. ref‘d). One of the stated justifications for the

hypothetically correct jury charge was that ―some important issues relating to sufficiency -- e.g.

the law of parties and the law of transferred intent -- are not contained in the indictment.‖ Malik,

953 S.W.2d at 239. Since Malik, the Texas Court of Criminal Appeals has reaffirmed that the

hypothetically correct jury charge permits the jury to find the defendant guilty under the

alternative theories of party liability. See Vega v. State, 267 S.W.3d 912, 915–16 (Tex. Crim.


                                                  8
App. 2008); see also Hayes v. State, 265 S.W.3d 673, 681 (Tex. App.—Houston [1st Dist.] 2008,

pet. ref‘d).

        While the indictment alleges party liability concerning the elements of robbery and then

alleges personal liability concerning the use or exhibition of a deadly weapon, we are not

convinced, in the absence of a material variance, that the State is obligated to prove Heath

personally used or exhibited the deadly weapon. As stated above, the State is not obligated to

plead the law of parties. Unless Heath demonstrates that the variance is material, there is no

reason not to follow the same rule when the State pleads party liability in part of the indictment,

but not in all of the indictment. Such a hypertechnical requirement would be contrary to the

purpose of the hypothetically correct jury charge. Heath does not claim that the State‘s allegation

resulted in a material variance. Thus, the hypothetically correct jury charge would include

criminal responsibility based on the law of parties. The State was not obligated to prove Heath

personally used or exhibited a deadly weapon.

        In the alternative, Heath contends the State failed to prove Heath knew a deadly weapon

had been used or exhibited and that, therefore, the offense proven was simple robbery, not

aggravated robbery. Heath does not provide any authority for the proposition that the State, in

addition to proving Heath was a party to aggravated robbery, must also prove—as part of the

elements of the offense—that Heath knew a deadly weapon was used or exhibited.                 The

knowledge element urged by Heath appears to come from Article 42.12, Section 3g, of the Texas



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Code of Criminal Procedure, under which a special deadly-weapon finding under Section 3g can

affect eligibility for judge-ordered community supervision. We know of no requirement that

knowledge of the deadly weapon be proven as part of the State‘s burden to prove, as an element of

the offense of aggravated robbery, the use or exhibition of a deadly weapon. See TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2010).

       We, thus, overrule Heath‘s multifarious point of error attacking the sufficiency of the

evidence.

(3)    Ineffective Assistance of Counsel Does Not Appear

       Heath also contends that she received ineffective assistance of counsel because her

attorney asked a question that led to her impeachment with extraneous offenses. On direct

examination, Heath admitted she had been on community supervision at the time of the robbery for

―[f]ailing to I.D.‖ On redirect examination, Heath‘s trial counsel asked, ―[O]ther than this have

you ever been in trouble,‖ and Heath responded, ―No, sir.‖ On re-cross examination, the State

impeached Heath with other prior offenses.          On second redirect, Heath testified she

misunderstood her counsel‘s question. Heath contends her trial counsel‘s error constituted

deficient performance and a reasonable probability of a different result exists because the case

hinged on Heath‘s credibility.

       We evaluate the effectiveness of counsel under the standard enunciated in Strickland v.

Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim.



                                               10
App. 1986).    To prevail on her claim, Heath must show (1) her appointed trial counsel‘s

performance fell below an objective standard of reasonableness, and (2) a reasonable probability

exists that, but for trial counsel‘s errors, the result would have been different. See Strickland, 466

U.S. at 687–88. ―A reasonable probability is a probability sufficient to undermine confidence in

the outcome.‖ Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). ―It is well-settled that

any claim of ineffective assistance must be firmly founded in the record.‖ Flowers v. State, 133

S.W.3d 853, 857 (Tex. App.—Beaumont 2004, no pet.); see Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999).

       We are unwilling to conclude the performance of Heath‘s trial counsel was deficient. The

review of defense counsel‘s representation is highly deferential and presumes that counsel‘s

actions fell within a wide range of reasonable professional assistance.‖ Mallett, 65 S.W.3d at 63.

As argued by the State, ―Trial counsel could not know that Appellant would lie in her answer,

thereby opening the door for the State to cross examine her on misdemeanor priors.‖ Further, trial

counsel‘s reasons for the question do not appear in the record. ―If counsel‘s reasons for his

conduct do not appear in the record and there is at least the possibility that the conduct could have

been legitimate trial strategy, we will defer to counsel‘s decisions and deny relief on an ineffective

assistance claim on direct appeal.‖ Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002).

       A criminal defendant has a right to a fair trial, not a perfect one. ―[A]n appellate court

should be especially hesitant to declare counsel ineffective based upon a single alleged



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miscalculation during what amounts to otherwise satisfactory representation, especially when the

record provides no discernible explanation of the motivation behind counsel‘s actions.‖

Thompson, 9 S.W.3d at 814; Williamson v. State, 104 S.W.3d 115, 120 (Tex. App.—Texarkana

2003, pet. ref‘d). Trial counsel‘s performance did not fall below an objective standard of

reasonableness. The record does not establish Heath received ineffective assistance of counsel.

       For the reasons stated, we affirm the trial court‘s judgment.




                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:       August 1, 2011
Date Decided:         September 15, 2011

Do Not Publish




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