                            NUMBER 13-11-00160-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

BRYANT DWAN RILEY,                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                  Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
   Before Chief Justice Valdez, and Justices Benavides, and Perkes
              Memorandum Opinion by Justice Perkes
      Appellant, Bryant Dwan Riley, appeals his capital murder conviction. See TEX.

PENAL CODE ANN. § 19.03(a)(2) (West 2011). A jury found appellant guilty of the offense

of capital murder, and the trial court, by two separate judgments, sentenced appellant to

life imprisonment in the Texas Department of Criminal Justice, Institutional Division,

without parole. By issues one, two, five, and six, appellant challenges the legal and
factual sufficiency of the evidence to show that he was a “party” or “conspirator” to the

commission of a murder during the course of aggravated robbery. By issues three, four,

seven, and eight, appellant challenges the legal and factual sufficiency of the evidence to

show he was a “party” or “conspirator” to the commission of a murder during the course of

burglary of a habitation. We affirm in part; and we reverse and vacate in part.

                                              I. BACKGROUND1

        George Frederick Sweeney (“Sweeney”), John Rogers Jr. (Rogers Jr.), 2 and

appellant were traveling “in caravan form” at the time of a traffic stop in Jackson County,

Texas. Sweeney was stopped because the trailer he was hauling did not have a license

plate. Rogers Jr. and appellant also initially stopped, but appellant subsequently drove

away. During a consensual search of Sweeney and Rogers Jr.’s vehicles, the police

officers found an assortment of “necklaces, rings, watches, a lot of ladies jewelry, a lot of

gold,” blank checks, a driver’s license for a woman who died a few years prior, and fur

coats. Rogers Jr. gave the police officers a driver’s license that actually belonged to his

father, John Francis Rogers (“Rogers Sr.”). Rogers Jr. told the police officers that he

was taking the car that he was driving, a Mercedes-Benz, to a car dealership in Houston

to “get fixed” and that the car on the trailer, a Lexus, “broke-down” on the way. After the

police officers found a .22-caliber Derringer handgun in the trunk of the Lexus, they

arrested Rogers Jr. because he was a felon in possession of a firearm. After later

        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        2
            John William Rogers is the son of the deceased, John Francis Rogers. Although their names
are different, they are referred to as “Junior” and “Senior” in the reporter’s record and parties’ briefs. For
clarity, we retain these designations on appeal.

                                                      2
learning that Rogers Sr. had been shot in the back of the head, the police officers also

arrested Sweeney and appellant.

       Investigator Gary Smejkal of Jackson County found it odd that Rogers Jr. would

have women’s jewelry and a deceased woman’s driver’s license and believed that

“maybe this jewelry in the trunk of the car belonged to either the female and/or John

Rogers, Sr. [Rogers Jr.’s father] and . . . wanted to verify that Rogers, Jr. either did or did

not have permission to have that—that jewelry.” Investigator Smejkal called Police Chief

Ruben De Leon of Donna, Texas, to check “the house for this deceased female and also

for John Rogers, Sr.”

       Police Chief De Leon knew where Rogers Sr. resided. Upon arriving, he noted

the house looked vacant. He then contacted Rogers Sr.’s nephew, Guadalupe Castillo

III, who was a Pharr police officer. Castillo told him that Rogers Sr. usually stayed at

another house and agreed to meet him there. When they arrived, they saw the glass

door by the kitchen had been shattered, glass was on the ground, and the door was open

“maybe three inches.”      They found Rogers Sr. lying face down in the living room.

Rogers Sr. had been shot in the back of the head.             Police Chief De Leon, upon

confirming Rogers Sr. was dead, contacted the Hidalgo County Sheriff’s Office because

the crime occurred “outside . . . the geographical area of the city limit boundaries.”

       Vic De Leon, an investigator with the homicide division of the Hidalgo County

Sheriff’s Department, was the lead investigator into Rogers Sr.’s death. During his

investigation, he discovered that Rogers Sr. was shot twice: once in the left thigh and




                                              3
once in the back of the head.3 He also discovered that a large safe in the hallway of

Rogers Sr.’s home was open and empty. Crime scene specialists searched the vehicles

that Sweeney and Rogers Jr. were driving. In addition to finding the various items the

police officers observed in the vehicles’ trunks during the traffic stop, the crime scene

specialists found three firearms in the side panels of the trunk of the Mercedes-Benz.

Inside the blue Hyundai, which appellant drove some on the night of the murder, the

police officers found a box of cartridges in the side panel of one of the doors.

       Investigator De Leon interviewed appellant and obtained a written statement

recounting appellant’s version of the events. Appellant stated that he agreed to help

Rogers Jr. get some of Rogers Jr.’s property from McAllen, Texas.                       According to

appellant, before they left for McAllen, Rogers Jr. and Sweeney “were discussing how

they were going to go down there and make the entrance.” Rogers Jr. “pulled out some

maps that had pictures of the canal, two gates, and two buildings.” In this regard,

appellant stated:

       While driving to McAllen, Texas [Rogers Jr.] and I were discussing about
       the money, how much we were going to get paid, and what roll [sic] each
       one of us was going to take. My role was to drive; [Rogers Jr.’s] and
       [Sweeney’s] roll [sic] was to go inside the house. [Rogers Jr.] and
       [Sweeney] were going [t]o go get [Rogers Jr.’s] stuff. [Rogers Jr.] told us
       that he was going to the safe because he had some stuff he had to get out of
       there. [Rogers Jr.] said that he was going to have to go in there with the
       man or he was going to have to hurt somebody. [Rogers Jr.] and
       [Sweeney] were talking about punching him.

       Appellant asserted that he was not involved in the actual murder; rather, his role

was to wait at a nearby cemetery until Rogers Jr. called for him. When he later arrived at


       3
          Doctor Norma Jean Farley, a forensic pathologist, testified the gunshot wound to the head was
the cause of death.
                                                   4
the house, he saw broken glass and realized that “something went further than it should

have.” Nevertheless, after seeing Rogers Sr. dead, appellant helped Rogers Jr. and

Sweeney take various items and vehicles from the house.

       Investigator De Leon testified, “I believe he [appellant] wasn’t being completely

forthcoming with all the information, but that’s what he provided, so that’s what I wrote

down.” He later stated more emphatically, “[f]rom the interview . . . I believe [] that he

was lying to me.”

       Darling Rogers Junkin is Rogers Sr.’s daughter and Roger Jr.’s sister.          She

testified that only Rogers Sr. and she knew the combination to the safe. Inside the safe,

Rogers Sr. kept several things that belonged to his deceased wife; she passed away a

few years before this incident. Rogers Sr. also kept everything just as his wife had left it

when she died. Junkin stated that Rogers Sr. had purchased the Mercedes-Benz for her

and that Rogers Jr. was not allowed to visit Rogers Sr. because “every time he came,

something was missing.” According to Junkin, “[D]addy had told [Rogers Jr.] he was no

longer going to help him, no longer going to bail him out, no longer going to get him out of

trouble. He was cut out of the will and he was to get nothing.”

       Crime-scene specialists recovered two nine millimeter Luger cartridge casings

from the crime scene; one was found sitting on an entertainment center shelf and the

other was found on top of a picture frame hanging in the hallway where the safe was

located. Richard Hitchcox, a forensic firearm and tool mark examiner with the Texas

Department of Public Safety Crime Lab, after examining a total of seven guns and the two

casings that had been seized, concluded that “[t]he two 9 millimeter Luger caliber


                                             5
cartridge cases . . . were fired from the same firearm.” Hitchcox testified that none of the

firearms that he analyzed shot the two casings.

       The jury found appellant guilty of two counts of capital murder:                         count

one—murder during the commission or attempted commission of a robbery; and count

two—murder during the commission or attempted commission of a burglary of a

habitation. The trial court thereafter entered two judgments—one for each count—and

ordered that the sentences run concurrently.

                II. SUFFICIENCY OF THE EVIDENCE—CAPITAL MURDER / ROBBERY

       By issues one, two, five, and six, appellant challenges the legal and factual

sufficiency of the evidence to show he was a “party” or “conspirator” to the commission of

a murder during the course of aggravated robbery.                  The Texas Court of Criminal

Appeals, however, in Brooks v. State, requires us to review all “factual sufficiency”

challenges under the Jackson v. Virginia sufficiency standard. 323 S.W.3d 893, 894

(Tex. Crim. App. 2010) (plurality op.); see Caminorreal v. State, 374 S.W.3d 479, 482

(Tex. App.—Corpus Christi 2012, no pet.).4 Therefore, we will solely proceed with a

legal sufficiency of the evidence analysis.

A.     Standard of Review

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.


       4
          Appellant challenged the Brooks holding on appeal, arguing it violates the Texas Constitution
and Texas statutes. Appellant, however, abandoned this argument during oral argument.
                                                  6
App. 2012) (quoting Jackson, 443 U.S. at 319) (emphasis in original); see Brooks, 323

S.W.3d at 898–99. The fact-finder is the exclusive judge of the credibility of witnesses

and of the weight to be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d

699, 707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the

fact-finder’s exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000)). We must resolve any inconsistencies in the testimony in favor of the

verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a 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. Id.

B.     Applicable Law

       A person commits murder if he intentionally or knowingly causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A person commits capital

murder if the murder is committed in the course of committing or attempting to commit one

of the statutorily-enumerated offenses, including robbery. See id. § 19.03(a)(2). A

person commits robbery if, in the course of committing theft and with the intent to obtain or

maintain control of the property, he intentionally, knowingly, or recklessly causes bodily


                                              7
injury to another or intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.      See id. § 29.02(a)(1)–(2). Theft is the unlawful

appropriation of property with the intent to deprive the owner of the property. See id.

§ 31.03.   Appropriation of property is unlawful if it is without the owner’s effective

consent. Id. § 31.03(b)(1).

       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 by both. Id. § 7.01(a). 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). If, in an attempt to carry out a

“conspiracy” to commit one felony, another felony is committed by one of the

conspirators, all conspirators are guilty of the felony actually committed, though having no

intent to commit it, if the offense was committed in furtherance of the unlawful purpose

and was one that should have been anticipated as a result of the carrying out of the

conspiracy. Id. § 7.02(b).

       Proof of a culpable mental state invariably depends on circumstantial evidence.

See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Martin v. State,

246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.] 2007, no pet.); De Leon v. State,

No. 13-09-00606-CR, 2011 WL 3847180, at *4 (Tex. App.—Corpus Christi Aug. 30, 2011,

no pet.) (mem. op., not designated for publication). “A jury can infer knowledge from all

the circumstances, including the acts, conduct, and remarks of the accused and the


                                             8
surrounding circumstances.” De Leon, 2011 WL 3847180 at *4 (citing Dillon v. State,

574 S.W.2d 92, 94 (Tex. Crim. App. 1978)).

       The State is not required to present direct evidence to establish guilt.         See

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). “Circumstantial evidence

is as probative as direct evidence in establishing the guilt of the actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007); see Guevara, 152 S.W.3d at 49. Circumstantial evidence can

also prove party status. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012)

(citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996)). The law does not

require that each fact “point directly and independently to the guilt of the appellant, as

long as the cumulative effect of all the incriminating facts is sufficient to support the

conviction.” Hooper, 214 S.W.3d at 13; see Guevara, 152 S.W.3d at 49. This is also

true regarding whether the evidence is sufficient to support a conviction under the law of

parties. See Gross, 380 S.W.3d at 186.

       “To determine whether an individual is a party to an offense, the reviewing court

may look to ‘events before, during, and after the commission of the offense.’” Gross, 380

S.W.3d at 186 (quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)).

There must be sufficient evidence of an understanding and common design to commit

and offense. Id. (citing Guevara, 152 S.W.3d at 49). “[M]ere presence of a person at

the scene of a crime, or even flight from the scene, without more, is insufficient to support

a conviction as a party to the offense.” Id. (citing Thompson v. State, 697 S.W.2d 413,

417 (Tex. Crim. App. 1985)).


                                             9
C.     Discussion and Analysis

       Appellant contends that the evidence is insufficient to support a conviction for

murder committed in the course of a robbery. We disagree.

       Appellant admitted in his statement that he, Sweeney, and Rogers Jr. planned to

get some property, or as appellant stated, “get paid,” by going inside a house and

retrieving items from a safe while “hurt[ing] someone.”           Appellant described his

involvement in the scheme as satisfying a role. Appellant’s “role” was to serve as a

driver while Sweeney and Rogers Jr. had the role of “go[ing] inside the house.” Looking

to the surrounding circumstances, the evidence showed that appellant, Sweeney, and

Rogers Jr. planned how to “make the entrance” while reviewing maps and photographs;

that appellant traveled from Houston to McAllen with the purpose of getting property

through the use of force; that the planned use of force was to punch Rogers Sr.; that

appellant’s “role” was to wait in a cemetery near the house until Rogers Jr. called him; and

that appellant, even after seeing the body of the deceased, helped take several items

from Rogers Sr.’s residence, including an assortment of “necklaces, rings, watches, a lot

of ladies jewelry, a lot of gold,” blank checks, a driver’s license for a woman who died a

few years prior, fur coats, and two vehicles.

       Although there is additional incriminating evidence, appellant’s statement, alone,

is sufficient evidence for the jury to find appellant guilty as a conspirator to the robbery.

See TEX. PENAL CODE ANN. §§ 7.02 (a), (b); 29.02(a)(2) (West 2011). In turn, appellant

is guilty of the felony actually committed—murder—if the murder was committed in

furtherance of the robbery and should have been anticipated as a result of carrying out


                                             10
the conspiracy. See id. § 7.02(b). That the murder was committed in furtherance of the

robbery is evident. Rogers Sr. was killed, and his safe, to which there was evidence that

only he and his daughter knew the combination, was open and emptied.                Whether

appellant should have anticipated the murder is a question of fact for the jury. See Davis

v. State, 276 S.W.3d 491, 497 (Tex. App.—Waco 2008, pet. ref’d) (applying deferential

sufficiency of the evidence review to the issue of anticipation).

        In appellant’s statement, appellant characterizes his involvement as an attempt to

help Rogers Jr. retrieve his own property and not to take the property of Rogers Sr.

Investigator De Leon testified that he thought appellant, in making his statement, withheld

information and lied to him. In this regard, the trial court included in the jury charge an

instruction regarding mistake of fact, charging the jury to find appellant “not guilty” if it

found “that he acted under the mistake of face [sic] that the property sought to be

recovered belonged to John William Rogers; that John William Rogers had a right to said

property; that no robbery or burglary was to take place . . . .” We defer to the jury as the

exclusive judge on the credibility of Investigator De Leon’s testimony and the weight of

the other evidence. See Anderson, 322 S.W.3d at 405. The jury found appellant guilty,

and we view the evidence in the light most favorable to the verdict. See Johnson, 364

S.W.3d at 293–94.

       We hold that a rational trier of fact could find the essential elements for robbery,

conspiracy to commit robbery, and murder beyond a reasonable doubt. See TEX. PENAL

CODE ANN. §§ 7.02 (a), (b); 29.02(a)(2) (West 2011). Alternatively, we hold that there

was sufficient evidence for the jury to find appellant responsible as a “party” to an offense.


                                             11
See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).             Appellant’s participation in

planning the crime, performing his “role,” stealing the property, and fleeing the scene,

support a finding of criminal responsibility for the conduct of another participant in the

offense. We overrule appellant’s issues one, two, five, and six.

                                    III. DOUBLE JEOPARDY

       Section 19.03 of the Texas Penal Code lists several ways to commit the offense of

capital murder. See TEX. PENAL CODE ANN. § 19.03 (West 2011). By two separate

judgments, appellant was convicted and sentenced on two separate counts: (1) murder

in the course of robbery; and (2) murder in the course of burglary of a habitation. The life

sentences are to run concurrently. Both counts arise from the same conduct. Although

appellant did not raise a double-jeopardy issue on appeal, we have jurisdiction to

consider it sua sponte when it is apparent from the face of the record. Bigon v. State,

252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (citing Gonzalez v. State, 8 S.W.3d 640, 643

(Tex. Crim. App. 2000)).

       Convicting appellant on two counts that arise from the same conduct exceeds the

allowable unit of prosecution for capital murder under Texas Penal Code section 19.03.

See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011); Saenz v. State, 166 S.W.3d 270,

274 (Tex. Crim. App. 2005) (holding the “Double Jeopardy Clause of the Fifth

Amendment was violated when the State charged appellant with three separate counts of

capital murder . . . because the charges rely on the same three murders for each

charge.”); see also Ramirez v. State, No. AP-75167, 2007 WL 4375936, at *5 (Tex. Crim.

App. Dec. 12, 2007) (not designated for publication) (citing Sanabria v. United States, 437


                                            12
U.S. 54 (1978)) (holding that multiple convictions under section 19.03 for the same

conduct exceeds the allowable unit of prosecution). “When a defendant is subjected to

multiple punishments for the same offense, the remedy is to affirm the most serious

offense and vacate the other convictions.” Meine v. State, 356 S.W.3d 605, 610 (Tex.

App.—Corpus Christi 2011, pet. ref’d) (citing Ex parte Cavazos, 203 S.W.3d 333, 337

(Tex. Crim. App. 2006); Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997)).

        The “most serious offense” means the offense with the greatest sentence. See

Meine, 356 S.W.3d at 610 (citing Bigon, 252 S.W.3d at 373; Ex parte Cavazos, 203

S.W.3d at 338)). Inasmuch as both counts carry a life-time sentence, we hold that count

two will be vacated: murder during the commission of a burglary of a habitation.5

                                             IV. CONCLUSION

        We affirm the trial court’s judgment for capital murder based on robbery. We

reverse the trial court’s judgment for capital murder based on burglary of a habitation on

the grounds of double jeopardy, and vacate the judgment involving that count.



                                                            GREGORY T. PERKES
                                                            Justice

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

Delivered and filed the
7th day of March, 2013.




        5
           Appellant’s issues three, four, seven and eight challenge the sufficiency of the evidence
regarding burglary of a habitation. Given our disposition, it is unnecessary for us to address appellant’s
remaining issues involving burglary of a habitation. TEX. R. APP. P. 47.1, 47.4.
                                                   13
