                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00278-CR

NORRIS WAYNE SMITH,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-2407-C2


                          MEMORANDUM OPINION


      In five issues, appellant, Norris Wayne Smith, challenges his conviction for

aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011). Because we

conclude that the evidence supporting appellant’s conviction is sufficient and that the

trial court did not abuse its discretion by admitting evidence of other extraneous acts,

we affirm.
                                     I.     BACKGROUND

        This case involves a robbery that resulted in one person, Jerry Crowder Jr.,

getting shot. The facts surrounding the incident are hotly disputed. In any event, the

record reflects that appellant was charged by indictment with aggravated robbery. Also

included in the indictment was an enhancement allegation pertaining to appellant’s

prior felony conviction for unlawful possession of a firearm by a felon. Later, the State

filed a notice of intent to enhance the punishment range, referencing appellant’s prior

felony conviction for possession with intent to deliver a controlled substance, cocaine.

        At the conclusion of the evidence, the jury found appellant guilty of the charged

offense.    Appellant pleaded “true” to the enhancement allegations, and the jury

assessed punishment at sixty years’ imprisonment in the Institutional Division of the

Texas Department of Criminal Justice. This appeal followed.

                                    II.    THE INDICTMENT

        In his second issue, appellant argues that the evidence is insufficient to prove

that appellant committed an offense against Jerry Crowder. Specifically, appellant

complains that the indictment contains a material variance regarding a non-statutory

allegation describing an “allowable unit of prosecution” because the State failed to

include the suffix “Jr.” when referencing Crowder in the indictment.

        Article 21.07 of the Texas Code of Criminal Procedure provides the following, in

pertinent part: “In alleging the name of the defendant, or of any other person necessary

to be stated in the indictment, it shall be sufficient to state one or more of the initials of

the given name and the surname.” TEX. CODE CRIM. PROC. ANN. art. 21.07 (West 2009).

Smith v. State                                                                          Page 2
Moreover, it is well-established that the suffixes “Jr.” or “Sr.” do not form a part of a

legal name and may be rejected as surplusage. See Cherry v. State, 447 S.W.2d 154, 156-

57 (Tex. Crim. App. 1969); Hardin v. State, 88 Tex. Crim. 495, 497-98, 227 S.W. 676, 677-78

(1920); Peters v. State, 69 Tex. Crim. 403, 405, 154 S.W. 563, 564 (1913); Smith v. State, 734

S.W.2d 694, 699 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d)1; see also Polston v. State,

Nos. 03-10-00379-CR, 03-10-00421-CR, 2011 Tex. App. LEXIS 6126, at *21 (Tex. App.—

Austin, Aug. 5, 2011, pet. ref’d) (mem. op., not designated for publication).

Furthermore, the Court of Criminal Appeals has stated that: “The suffix ‘Jr.’ does not

form a part of a name. Its addition or omission is immaterial in criminal proceedings.” Smith

v. State, 435 S.W.2d 526, 527 (Tex. Crim. App. 1969) (emphasis added).

        Based on the foregoing, we cannot conclude that the failure of the indictment to

include the suffix “Jr.” to Crowder’s name results in a fatal variance between the




        1The facts in the Smith case are particularly noteworthy. See 734 S.W.2d 694, 698 (Tex. App—
Houston [1st Dist.] 1987, pet. ref’d). In its opinion, the Smith court characterized Smith’s fourth issue as
follows:

        In his fourth point of error, appellant contends that the evidence was insufficient to
        convict him of kidnapping. Specifically, he argues that the indictment alleged that he
        kidnapped “Mack C. Sims” while at trial the State produced evidence that he kidnapped
        “Mack Clifton Sims, Sr.” He asserts that this variance is significant, especially in light of
        the fact that there were two persons named Mack C. Sims. He further argues that the
        “failure of the indictment to include the senior appellation renders the variance between
        the pleadings and proof fatal to the conviction.”

Id. The facts surrounding the indictment in the instant case are strikingly similar to those in the Smith
case. See id. Ultimately, the Smith court, like we have done here, concluded that there is no variance
between the indictment and the proof because the suffixes “Jr.” and “Sr.” are not part of a person’s legal
name and may be rejected as surplusage. See id. at 698-99.


Smith v. State                                                                                          Page 3
pleadings and the proof.2 See TEX. CODE CRIM. PROC. ANN. art. 21.07; Cherry, 447 S.W.2d

at 156-57; Hardin, 227 S.W. at 677-78; Peters, 154 S.W. at 564; see also Smith, 734 S.W.2d at

699. As such, we overrule appellant’s second issue.

                               III.    EXTRANEOUS-OFFENSE EVIDENCE

        In his third, fourth, and fifth issues, appellant contends that the trial court abused

its discretion by admitting extraneous-offense evidence regarding appellant’s alleged

conduct as a pimp, appellant’s alleged assault of Delores Brooks, and appellant’s

alleged intent to commit a different robbery.

A.      Standard of Review

        We review the trial court’s admission of extraneous-offense evidence for an

abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If

the trial court’s ruling is within the zone of reasonable disagreement, there is no abuse

of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s

        2 Additionally, because appellant did not dispute the identity of the victim in this case by means
of challenging the indictment in the trial court, we are not persuaded by appellant’s reliance on Byrd v.
State, wherein the Court of Criminal Appeals noted the following:

        Although the name of the owner is not a substantive element of theft, the State is required
        to prove, beyond a reasonable doubt, that the person (or entity) alleged in the indictment
        as the owner is the same person (or entity)—regardless of the name—as shown by the
        evidence. For example, in the Fuller case, the indictment alleged injury to an elderly
        person, namely “Olen B. Fuller.” The State proved that the defendant injured “Buddy
        Fuller” or “Mr. Fuller.” But there was no dispute at trial that the person who was injured
        was the very same person as was alleged in the indictment, despite whatever
        discrepancies might exist in the “real” and “alleged” names. Suppose the elderly man in
        that case had testified that his real name was Quincy Magoo, but everyone called him
        Olen M. Fuller. That is a variance, but it may well be immaterial if the record shows that
        the person—whether known as Mr. Magoo or Mr. Fuller—is the same person as alleged
        in the indictment. However, if the evidence shows that the defendant actually injured
        Mr. Magoo, who is not the same person as Mr. Fuller, the evidence is insufficient under
        Malik, Gollihar, and Fuller. In sum, it’s the identity of the person, not his formal name,
        that controls and guides the sufficiency of the evidence review.

336 S.W.3d 242, 252-53 (Tex. Crim. App. 2011) (emphasis in original).

Smith v. State                                                                                        Page 4
ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that:     (1) an extraneous transaction is relevant to a material, non-

propensity issue; and (2) the probative value of that evidence is not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. De La Paz, 279 S.W.3d at 344.

B.      Appellant’s Alleged Conduct as a Pimp

        During direct examination, the following exchange occurred:

        [The State]:        Delores, at some point in time did your relationship
                            with the Defendant change from a friendship into a
                            different type of relationship?

        [Defense counsel]: Your Honor, I’m going to object to any further
                           testimony along these lines under relevance and Rule
                           403.

        THE COURT:          Overruled.

        [The State]:        Go ahead and answer. Did your relationship change?

        [Delores]:          Yes, ma’am.

Delores testified that, despite the fact that appellant is married, she initially had a

“girlfriend-boyfriend” relationship with appellant that she believed was a dating

relationship.    Later, Delores testified without objection that her relationship with

appellant changed to “a business type relationship.” Specifically, Delores noted that

she prostituted for appellant and that appellant was her pimp.

        “A timely and specific objection is required to preserve error for appeal.” Luna v.

State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). “An

objection is timely if it is made as soon as the ground for the objection becomes

Smith v. State                                                                       Page 5
apparent, i.e., as soon as the defense knows or should know that an error has occurred.”

Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (citing Neal v.

State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). “If a party fails to object until after

an objectionable question has been asked and answered, and he can show no legitimate

reason to justify the delay, his objection is untimely and error is waived.” Id. (citing

Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (en banc)). There are,

however, the following two exceptions to the proposition of law that a party must

object each time he thinks inadmissible evidence is being offered: (1) when the party

has secured a running objection on the issue he deems objectionable; or (2) when the

defense counsel lodges a valid objection to all the testimony he deems objectionable on

a given subject outside of the presence of the jury. Ethington v. State, 819 S.W.2d 854,

858-59 (Tex. Crim. App. 1991).

        Furthermore, “‘[a]n error [if any] in the admission of evidence is cured when the

same evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 188, 193

(Tex. Crim. App. 2004) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.

1998)); see Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“In addition, a

party must object each time the inadmissible evidence is offered or obtain a running

objection.”). Finally, appellate arguments must correspond with the objection made at

trial. Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007).

        A review of the record reveals that appellant did not object each time the State

elicited testimony about Delores prostituting for appellant or when Delores testified

that appellant was her pimp. See Lane, 151 S.W.3d at 193; see also Valle, 109 S.W.3d at

Smith v. State                                                                       Page 6
509. Furthermore, appellant did not request a running objection when he made his

initial objection.   In addition, when making his initial objection, appellant did not

specifically object to questions about appellant being Delores’s pimp. See Ethington, 819

S.W.2d at 858-59. In fact, it was not until several questions later did appellant request a

running objection, and this running objection pertained to questions about how

appellant advertised Delores’s prostitution services on the internet. Therefore, based on

the foregoing, we conclude that appellant did not properly preserve this issue for

appeal. We overrule appellant’s third issue. See TEX. R. APP. P. 33.1(a)(1)(A); see also

Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d at 512.

C.      Appellant’s Alleged Assault of Delores

        Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the defendant in order to

show he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the

common-law principle that a defendant should be tried only for the offense for which

he is charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29,

32 n.3 (Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim.

App. 2008) (explaining that a defendant is generally to be tried only for the offense

charged, not for any other crimes).

        Extraneous-offense evidence, however, may be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)

is not exhaustive.    See Prible, 175 S.W.3d at 731.    For example, extraneous-offense

Smith v. State                                                                       Page 7
evidence may be admissible to demonstrate conduct by a defendant that indicates a

consciousness of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990,

no pet.); see also Urtado v. State, 605 S.W.2d 907 915 (Tex. Crim. App. 1980) (“Flight is

evidence of guilt.”). This consciousness-of-guilt evidence may include evidence of a

person’s conduct (such as “flight” or destruction of evidence) that occurs subsequent to

the commission of a crime. See Torres, 794 S.W.2d at 598-600. Such evidence is relevant

to prove that the person committed the act with which he is charged. Id. An extraneous

offense may also be admissible to show identity when identity is at issue in the case, or

when the defense cross examines witnesses or alleges that someone else committed the

crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933

S.W.2d 504, 519 (Tex. Crim. App. 1996). “Whether extraneous[-]offense evidence has

relevance apart from character conformity, as required by Rule 404(b), is a question for

the trial court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial

court’s Rule 404(b) ruling admitting evidence is generally within the zone of reasonable

disagreement “if there is evidence supporting that an extraneous transaction is relevant

to a material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011).

        During direct examination, the prosecutor asked why Delores was afraid of

appellant. In particular, the prosecutor questioned Delores about when she ended up in

the hospital in Dallas. Prior to telling the jury about the incident, appellant objected

under Rule 403 and on relevance grounds.         The trial court overruled appellant’s

objection, and Delores testified that appellant beat her up because she was tired of

Smith v. State                                                                     Page 8
running and was ready to tell the police the truth about what had happened with

Crowder.3 As a result of the altercation with appellant, Delores stated that she was

admitted to a hospital in Dallas.

        After reviewing the record, we agree with the State’s contention that this

evidence was admissible as consciousness-of-guilt evidence.                  Delores testified that

appellant beat her up because she wanted to tell the police what happened during the

incident with Crowder.          Essentially, Delores suggested that, by beating her up,

appellant tried to silence her and prevent her from telling police about the incident

involving Crowder.

        The Court of Criminal Appeals has held that an attempt to tamper with or bribe

a witness constitutes evidence of “consciousness of guilt” on the part of the defendant.

See Gonzalez v. State, 117 S.W.3d 831, 842 (Tex. Crim. App. 2003); Wilson v. State, 7

S.W.3d 136, 141 (Tex. Crim. App. 1999); Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim.

App. 1996) (op. on reh’g) (“We have held that criminal acts that are designed to reduce

the likelihood of prosecution, conviction, or incarceration for the offense on trial are

admissible under Rule 404(b) as showing ‘consciousness of guilt.’”). Based on the

foregoing case law, we conclude that the complained-of testimony in this issue was

relevant as consciousness-of-guilt evidence. See TEX. R. EVID. 404(b); Rodriguez v. State,

577 S.W.2d 491, 493 (Tex. Crim. App. 1979) (“In the instant case, appellant stood

accused of murder. He confronted one of the State’s key witnesses, who was also the



        3 The record reflects that after the alleged robbery of Crowder, appellant, Bernard Mathis, and
Delores fled to Dallas.

Smith v. State                                                                                  Page 9
brother of the deceased, outside a bar at night. He told that witness to drop the charges

against him. These are hardly the actions of an innocent accused. This evidence is

every bit as probative of guilt, as would be flight by the accused. The evidence was

properly admitted.”); Maddox v. State, 163 Tex. Crim. 5, 7, 288 S.W.2d 780, 782 (1956)

(stating that, in a rape case, “[p]roof that appellant carried the child away from the

scene and choked her and threw her in the water was admissible as showing an effort

on his part to suppress and destroy evidence against him”); see also Gonzalez, 117 S.W.3d

at 842; Wilson, 7 S.W.3d at 141; Ransom, 920 S.W.2d at 299.

        Appellant also argues that the evidence was unfairly prejudicial under Texas

Rule of Evidence 403. We disagree.

        Evidence, though relevant, can nonetheless be excluded when its probative value

is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403.

Once a trial court determines that extraneous-offense evidence is admissible under Rule

404(b), the trial court must, on proper objection by the opponent of the evidence, weigh

the probative value of the evidence against its potential for unfair prejudice.

Montgomery v. State, 810 S.W.2d 377, 389 (Tex. Crim. App. 1990); see TEX. R. EVID. 403.

Rule 403 favors admissibility of relevant evidence, and the presumption is that

generally, relevant evidence will be more probative than unfairly prejudicial.

Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the

opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d

263, 266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest



Smith v. State                                                                    Page 10
decision on an improper basis, commonly, though not necessarily, an emotional one.’”

Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).

        Although not limited to the following enumerated factors, courts should balance

the following factors under a Rule 403 analysis: (1) the probative value of the evidence;

(2) the potential of the evidence to impress the jury in some irrational, yet indelible,

way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the

evidence. Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted the

proper balancing test if it overrules a 403 objection, regardless of whether it conducted

the test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).

        As we previously discussed, the evidence of appellant’s assault of Delores in

response to Delores telling appellant that she was tired of running and was going to tell

the police what had happened to Crowder was probative because it indicated

appellant’s consciousness of guilt. It is not likely that the complained-of evidence had

an irrational effect on the jury, especially considering appellant was charged with a

much more heinous crime of aggravated robbery, which resulted in Crowder being

shot.   Appellant concedes that the complained-of evidence took very little time to

develop. And though appellant argues that the “State had no need for this evidence,”

we, once again, point out that this evidence indicates appellant’s consciousness of guilt.

A number of our sister courts have stated that consciousness-of-guilt evidence is one of

the strongest kinds of evidence of guilt. See Hyde v. State, 846 S.W.2d 503, 505 (Tex.

App.—Corpus Christi 1993, pet. ref’d) (“A ‘consciousness of guilt’ is perhaps one of the

strongest kinds of evidence of guilt. It is consequently a well[-]accepted principle that

Smith v. State                                                                      Page 11
any conduct on the part of a person 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.” (internal citation omitted));

Torres, 794 S.W.2d at 598 (same); see also Shuff v. State, No. 01-12-00034-CR, 2013 Tex.

App. LEXIS 5469, at *8 (Tex. App.—Houston [1st Dist.] May 2, 2013, pet. ref’d) (mem.

op., not designated for publication) (same); Gutierrez v. State, No. 04-09-00674-CR, 2010

Tex. App. LEXIS 7203, at *9 (Tex. App.—San Antonio Sept. 1, 2010, pet. ref’d) (mem. op.,

not designated for publication) (same); Banuelos v. State, No. 11-08-00004-CR, 2009 Tex.

App. LEXIS 2288, at **9-10 (Tex. App.—Eastland Apr. 2, 2009, no pet.) (mem. op,. not

designated for publication) (same); Dennis v. State, No. 2-02-098-CR, 2003 Tex. App.

LEXIS 4413, at **7-8 (Tex. App.—Fort Worth May 22, 2003, pet. ref’d) (mem. op., not

designated for publication) (same).

        After considering the Rule 403 factors, we conclude that the trial court did not

abuse its discretion in determining that the challenged evidence is relevant and that the

probative value of the challenged evidence was not substantially outweighed by the

danger of unfair prejudice. See TEX. R. EVID. 403, 404(b); see also De La Paz, 279 S.W.3d at

343-44; Prible, 175 S.W.3d at 731. We overrule appellant’s fourth issue.

D.      Appellant’s Alleged Intent to Commit a Different Robbery

        Appellant also complains about the trial court permitting Delores to testify that

appellant and his co-defendant, Bernard Mathis, planned to rob Delores’s uncle,

LaMont. Specifically, Delores stated that, prior to picking up Crowder, appellant had

expressed an intent to rob someone. Delores recalled that appellant and Mathis wanted

Smith v. State                                                                       Page 12
to rob LaMont, Delores’s uncle who has money and whom Delores refers to as a “sugar

daddy.” Prior to this testimony, appellant objected under Rule 403 and on relevance

grounds.

        As a general rule, specific acts of misconduct may not be introduced to impeach a

party or a witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988).

However, otherwise inadmissible extraneous-offense evidence may be admissible if a

party “opens the door.” See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).

When a party produces evidence tending to create a false impression of his law-abiding

behavior, he opens the door for the opposing party to introduce extraneous-offense

evidence to correct or rebut the false impression. See id. (citing Daggett v. State, 187

S.W.3d 444, 452 (Tex. Crim. App. 2005)); see also Hernandez v. State, 351 S.W.3d 156, 160

(Tex. App.—Texarkana 2011, pet. ref’d).

        On cross-examination, defense counsel asked Delores whether appellant

attempted to rob a person Delores met in a motel room while Delores was working as a

prostitute for appellant. Delores responded in the negative. In any event, this question

supported appellant’s defensive theory. In other words, appellant suggested that he

could not have robbed Crowder or anyone else because he did not rob the person

Delores met in a motel room. Thus, defense counsel’s question gave the jury a false

impression that appellant had never considered robbing anyone; that the incident

involving Crowder was isolated and unrelated to appellant; and addressed appellant’s

law-abiding behavior with respect to robberies. We believe that this question opened

the door to questions about appellant’s prior planning and scheme to rob LaMont. See

Smith v. State                                                                    Page 13
Hayden, 296 S.W.3d at 554; Daggett, 187 S.W.3d at 452; see also Hernandez, 351 S.W.3d at

160. And because appellant’s evidence presented a picture that he is not the type of

person to commit the charged offense, we conclude that the prosecution was allowed to

impeach Delores’s testimony by cross-examining her concerning similar extraneous

offenses involving appellant. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App.

2002) (“When a witness presents a picture that the defendant is not the type of person to

commit the charged offense, the prosecution may impeach that witness’ testimony by

cross-examining the witness concerning similar extraneous offenses.”). Accordingly,

we find no error in the admission of this testimony. See Hayden, 296 S.W.3d at 554;

Daggett, 187 S.W.3d at 452; Hernandez, 351 S.W.3d at 160; see also De La Paz, 279 S.W.3d at

343-44; Prible, 175 S.W.3d at 731. We overrule appellant’s fourth issue.

                                IV.     THE STATE’S WITNESSES

        In his first issue, appellant asserts that the evidence is insufficient to support his

conviction because the State’s witnesses are not worthy of belief, especially when

compared to the corroborated testimony of appellant’s alibi witness.

A.      Standard of Review

        “The standard for determining whether the evidence is 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.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979)) (emphasis in original); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim.

Smith v. State                                                                         Page 14
App. 2010) (plurality op.). The factfinder is the exclusive judge of credibility of the

witnesses and of the weight to be given to their testimony. Brooks, 323 S.W.3d at 899;

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in

the evidence is within the factfinder’s exclusive province. Wyatt v. State, 23 S.W.3d 18,

30 (Tex. Crim. App. 2000). We resolve any inconsistencies in the testimony in favor of

the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We do not engage

in a second evaluation of the weight and credibility of the evidence, but only ensure the

jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.

1993); see Harris v. State, 164 S.W.3d 775, 784 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d).

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

defined by the hypothetically-correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (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.

          The elements of aggravated robbery are:     (1) a person; (2) in the course of

committing theft; (3) with intent to obtain or maintain control of property; (4)

intentionally or knowingly; (5) threatens another with, or places another in fear or; (6)

imminent bodily injury or death; and (7) uses or exhibits; (8) a deadly weapon. See TEX.

PENAL CODE ANN. §§ 29.02-.03 (West 2011); see also Ramos v. State, No. 01-12-00957-CR,

Smith v. State                                                                      Page 15
2014 Tex. App. LEXIS 113, at *36 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no pet.)

(mem. op., not designated for publication).

B.      Discussion

        At trial, both Crowder and Delores admitted that they had lied to police

numerous times about the events leading up to and including the incident. Crowder, in

particular, explained that he had lied to police because he was afraid he would get in

trouble for procuring the services of Delores, a prostitute. Delores, on the other hand,

admitted to initially lying to police because she “didn’t trust nobody [sic].” And though

they were together for several hours prior to the robbery, Crowder and Delores gave

differing accounts about the events leading up to the robbery. Nevertheless, both

Crowder and Delores identified appellant as a participant in the robbery that resulted in

Crowder’s money being taken and Crowder being shot.4

        Later, appellant called Franshelle Childs to testify. In her testimony, Childs

noted that she and appellant spent the night together in a Motel 6 in the Waco area and

that she did not observe appellant leave the premises until the next morning.                      In

support of Childs’s testimony, appellant produced a motel receipt indicating that

Childs had rented a room at the Motel 6 on the night in question. Appellant asserts that

this testimony conclusively proves that he did not commit the charged offense.




        4Specifically, Crowder and Delores testified that appellant and Mathis entered Delores’s
apartment just prior to Delores and Crowder having sex. When appellant and Mathis attempted to take
Crowder’s money and clothing, Crowder and appellant began fighting. Delores testified that Mathis shot
Crowder because Crowder was winning the fight with appellant.

Smith v. State                                                                                Page 16
        In fact, using the following hypothetical outlined in Brooks, appellant argues that

no rational juror could have disregarded the testimony provided by his alibi witness,

Childs, which conflicts with the testimony provided by Crowder and Delores:

        The store clerk at trial identifies A as the robber. A properly authenticated
        surveillance videotape of the event clearly shows that B committed the
        robbery. But, the jury convicts A. It was within the jury’s prerogative to
        believe the convenience store clerk and disregard the video. But based on
        all the evidence the jury’s finding of guilt is not a rational finding.

323 S.W.3d at 907 (emphasis in original).

        We disagree with appellant’s assertion that Childs’s testimony is akin to the

properly authenticated surveillance videotape referenced in Brooks.              On cross-

examination, Childs, an individual with numerous criminal convictions, admitted that

she took several Tylenol PM pills “with some Crown Royal, of course” on the night she

allegedly stayed with appellant at the Motel 6. Childs also acknowledged that the

combination of the medicine and alcohol made her go to sleep, though she recounted

that she and appellant had sex at some point in time that evening. Thereafter, Childs

noted that appellant went outside the motel room to make a phone call; however, she

could not remember how long appellant stayed outside because she was drifting in and

out of sleep. Based on our review of the record, we cannot say that Childs’s testimony

is anywhere near as conclusive as a surveillance videotape may be. Accordingly, we are

not persuaded by appellant’s reliance on the Brooks hypothetical.

        Ultimately, this case hinged upon a determination of the credibility and

demeanor of the testifying witnesses by the jury. With its verdict, the jury clearly

believed the accounts provided by Crowder and Delores and disbelieved Childs’s

Smith v. State                                                                          Page 17
assertion that appellant was with her the entire night when the robbery transpired.

And despite numerous conflicts in the evidence, we emphasize that the reconciliation of

such conflicts is within the factfinder’s exclusive province. Wyatt, 23 S.W.3d at 30.

Moreover, we resolve any inconsistencies in the testimony in favor of the verdict.

Curry, 30 S.W.3d at 406. And despite appellant’s invitation, we will not second guess

the jury’s evaluation of the weight and credibility of the evidence. See Muniz, 851

S.W.2d at 246; see also Harris, 164 S.W.3d at 784.

        Therefore, viewing the evidence in the light most favorable to the verdict, we

conclude that a rational factfinder could have determined that appellant was a

participant in the charged offense. See TEX. PENAL CODE ANN. §§ 29.02-.03; see also

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 364 S.W.3d at 293-94. Accordingly, we

hold that the record contains sufficient evidence to support appellant’s conviction for

aggravated robbery. See TEX. PENAL CODE ANN. §§ 29.02-.03; see also Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Johnson, 364 S.W.3d at 293-94. We overrule appellant’s first issue.

                                      V.     CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                     AL SCOGGINS
                                                     Justice




Smith v. State                                                                       Page 18
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
Do not publish
[CRPM]




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