Reversed and Judgment of Acquittal Rendered and Majority and Dissenting
Opinions filed September 29, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-00461-CR

                              JIMMIE GROSS, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 183rd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1085393



                           DISSENTING OPINION

      Corkney Lee is dead because of a pair hotheads with a gun. Appellant and his
cohort acted together from start to finish. Together, they got into a truck where a shotgun
and ammunition lay within easy reach. Together, the twosome traveled the roadway,
spewing heated words at the occupants of another vehicle until the ugly exchange
escalated to a showdown. Together, the impetuous pair, gun in tow, went to face their
roadway nemesis in a nearby parking lot, where the pull of a trigger would forever
silence him. And, together, the cohorts sped away from the scene and fled to a relative‘s
house, where one took the gun and the other the truck, and both worked to conceal the
terrible deed.

       Together, the twosome transformed a random roadway encounter into to a deadly
confrontation. Appellant was the driver, not the shooter, but under Texas law the jury
found him guilty just the same because he acted with the intent to promote or assist the
shooter in the commission of the murder by soliciting, encouraging, directing, aiding, or
attempting to aid him in the commission of that offense.                  The twelve jurors who
evaluated the evidence were convinced of appellant‘s guilt beyond a reasonable doubt.
But, today the majority finds the evidence insufficient to support the murder conviction
and renders a judgment of acquittal.

       How could the majority look at the same evidence and come to such a different
conclusion?       The explanation is simple:       the jury evaluated all permissible proof—
evidence and reasonable inferences from the evidence—but the majority focuses only on
isolated pieces of evidence without considering the context or the full picture. In the
process, the majority insists on higher proof than the law demands. Ultimately, the
majority concludes, ―There is no evidence—direct or circumstantial—of [the shooter]
and appellant‘s ‗acting together‘ pre-murder.‖1 An evaluation of all the proof under
applicable law leads to the opposite conclusion. The evidence is sufficient to support the
conviction under the law of the parties.

                            FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was traveling home from a night club with his brother-in-law of eight
years, John Jones, who was his frequent companion. According to evidence at trial,2 they
were in a white Dodge Ram truck with appellant at the wheel and Jones in the passenger

       1
           See ante at p. 10.
       2
         Jones was convicted of Lee‘s murder. Jones also was convicted of murder of another person
completely unrelated to the charged offense. Appellant testified at both of Jones‘s trials. Appellant‘s
testimony at Jones‘s trials was read into evidence at trial in the case under review.
                                                  2
seat. Appellant kept a shotgun behind the headrests of the backseat of the truck with
ammunition nearby.

       While appellant and Jones were stopped at a traffic signal, the complainant
Corkney Lee pulled his vehicle up beside them. The drivers began to engage in heated
talk. The encounter soon escalated to the point that both drivers pulled into the parking
lot of a nearby service station and convenience store. The stage was set for a face-off.
Appellant exited his truck, leaving Jones with the shotgun. Lee also exited his vehicle.
Appellant and Lee continued the escalating verbal exchange. Appellant claimed to have
been two to three steps away from the Lee‘s vehicle—close enough to touch it. For about
a minute, appellant stood face to face with Lee, exchanging heated words. Then a
shotgun blast rang out.

       Appellant claimed that before the shooting, he saw Lee turn to run away and then
turned to see Jones aiming the shotgun in Lee‘s direction. Appellant testified that he did
not see Jones fire the weapon but that he heard the sound of the shotgun blast. Appellant
claimed to have said, ―No, no,‖ and turned to run to his truck. Even though appellant was
standing right there and even though Lee suffered multiple wounds from the blast,
appellant claimed he did not know that anyone had been hit.

       After the shooting, appellant and Jones immediately fled the scene in the truck,
with appellant at the wheel and Jones in the passenger seat. Appellant drove Jones to a
relative‘s home. Jones got out of the truck and took the shotgun with him.

       Five minutes later, appellant returned to the scene of the shooting. He claimed
that was when he learned that Lee had been shot and killed.             Eight to nine law
enforcement vehicles had arrived and one officer on the scene described seeing the dead
body of 26-year-old Lee laying in the open doorway of the convenience store. Another
officer testified that by the time he arrived, a large crowd had gathered at the scene. This
officer interviewed several witnesses as part of the investigation. Appellant, watching
from afar, left the scene without speaking with any of the law enforcement officers.
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       The autopsy report reflects that Lee sustained multiple shotgun pellet wounds
primarily in his back with a few on the back of his head and on one of his arms. Post-
mortem x-rays of Lee's head revealed six shotgun pellets in the scalp tissue. The bulk of
the shotgun blast entered Lee‘s back; wounds are spread over an eleven-inch zone. The
medical examiner determined that the cause of Lee‘s death was the multiple wounds to
the back.

       Investigating officers testified that they identified appellant as a suspect following
a tip. According to the investigators, when appellant was questioned by authorities, he
repeatedly denied any involvement in the offense. Ultimately, appellant was charged
with Lee‘s murder and the case proceeded to trial.

       The trial court included instructions in the jury charge indicating that appellant
could be convicted as a party to the charged offense. The jury found appellant guilty as
charged. The trial court ordered a pre-sentence investigation report and recessed the
case. Following a punishment hearing, the trial court sentenced appellant to ten years‘
confinement.

                                 SUFFICIENCY OF THE EVIDENCE

       In appellant‘s first issue, he asserts the evidence is legally and factually
insufficient to support his conviction under the law of parties.

       In evaluating a party‘s challenge to the sufficiency of the evidence, this court must
view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29
S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a
court, believe the State‘s evidence or believe that appellant‘s evidence outweighs the
State‘s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The
verdict may not be overturned unless it is irrational or unsupported by proof beyond a
reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The
trier of fact ―is the sole judge of the credibility of the witnesses and of the strength of the
evidence.‖ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of
                                          4
fact may choose to believe or disbelieve any portion of the witnesses‘ testimony. Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting
evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.
Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt,
we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

       A majority of the judges of the Texas Court of Criminal Appeals has determined
that ―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, 895 (Tex. Crim. App. 2010) (plurality op.);
323 S.W.3d 893, 912–14 (Cochran, J., concurring.) (same conclusion as plurality). The
Brooks plurality opinion indicates that appellate courts should apply the Jackson v.
Virginia standard in a ―rigorous and proper‖ manner. See id. at 906, 912 (plurality op.).
Presumably, by ―rigorous‖ the plurality meant ―scrupulously accurate: EXACT,
PRECISE.‖ WEBSTER‘S THIRD NEW INT‘L DICTIONARY 1957 (1993 ed.). Though the
five justices in Brooks emphasized the importance of a scrupulous, accurate, and proper
application of the Jackson v. Virginia standard, they did not purport to change the
Jackson v. Virginia standard or the manner in which courts should apply it. See Brooks,
323 S.W.3d at 894–912; id. 323 S.W.3d at 912–26. Thus, the Brooks decision did not
change the law regarding the Jackson v. Virginia standard and its application. In post-
Brooks opinions the Court of Criminal Appeals has cited and applied prior precedent
regarding the Jackson v. Virginia standard; the high court has not mentioned a rigorous
application but has echoed the traditional language when describing the standard. See
York v. State, 342 S.W.3d 528, 544 & n.93 (Tex. Crim. App. 2011); Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011); Gear v. State, 340 S.W.3d 743, 746–47 (Tex.
Crim. App. 2011); Blackman v. State, No. PD-0109-10, —S.W.3d—,—, 2011 WL


                                            5
1376732, at *6 (Tex. Crim. App. Apr. 13, 2011). Therefore, this court must review the
evidence under the Jackson v. Virginia standard as articulated above.

       A person commits the offense of murder if that person intentionally or knowingly
causes the death of another or if that person intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of another. See
TEX. PENAL CODE ANN. § 19.02(b) (West 2011). There is no dispute that Jones was the
principal actor in the commission of Lee‘s murder.

       Under the law of parties, the State may enlarge an accused‘s criminal
responsibility to include acts in which he may not be the principal actor. See TEX. PENAL
CODE ANN. § 7.01(a) (West 2011); Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App.
1996). When, as in this case, an accused is not the principal actor, the State must prove
conduct constituting an offense plus an act committed by the defendant with intent to
promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985).
Under the law of parties, a person is criminally responsible for an offense committed by
another if, acting with the intent to promote or assist the commission of the offense, that
person 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).

       To prove that an accused acted as a party to an offense, the State was required to
show that appellant acted with the intent to promote or assist Jones in the commission of
Lee‘s murder by soliciting, encouraging, directing, aiding, or attempting to aid Jones in
commission of that offense. See Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App.
1988); TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011).              In determining whether
appellant participated as a party, this court may look to events occurring before, during,
and after the commission of the offense to show an understanding and common design to
commit a prohibited act. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App.
1996) (op. on reh‘g). Evidence is sufficient to sustain a conviction under the law of
parties if it shows that the accused was physically present at the commission of the

                                             6
offense and encouraged commission of the offense by either words or other agreement.
See Ransom, 920 S.W.2d at 302; Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App.
1978); Hoang, 263 S.W.3d at 22. Because an agreement between parties seldom can be
proven through words, the State may rely upon the actions of the parties, shown by direct
or circumstantial evidence, to establish an understanding or common design to commit an
offense. See Ransom, 920 S.W.2d at 302; Hoang v. State, 263 S.W.3d 18, 22 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref‘d).

      Mere presence at the scene of the offense does not establish guilt as a party to the
offense. Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982). But presence at
the scene is a circumstance tending to prove guilt, which, when combined with other
facts, may suffice to show that the accused was a participant. See Beardsley v. State, 738
S.W.2d 681, 685 (Tex. Crim. App. 1987); Valdez v. State, 623 S.W.2d 317, 321 (Tex.
Crim. App. 1979). In this case appellant not only was present when Lee was shot but
appellant was engaging him while Jones readied the shotgun and fired.

      Moreover, appellant took the lead in the heated exchange that culminated in the
parking lot showdown. Appellant transported both the shooter and the shotgun to and
from the murder scene. Appellant then deposited the shooter and the shotgun at a
relative‘s home, and appellant did not reveal the location of either to law enforcement at
the scene or in the various interviews that followed.      Throughout the investigation
appellant concealed his involvement.

      Investigators testified that witnesses reported seeing a white Dodge Ram truck at
the scene. According to the trial testimony of one investigating officer who spoke with
three unnamed witnesses, investigators learned that an altercation between the occupants
of two vehicles had broken out. The conflict involved, on one side, Lee and his girlfriend
in one vehicle, and on the other side, appellant and Jones in appellant‘s truck. Appellant
does not dispute that he drove the truck, that he participated in the heated roadway
exchange, and that he was present at the scene when Lee was shot. Nor does appellant

                                              7
dispute that the encounter with Lee escalated after the two drivers stopped their vehicles
at the service station. The record reflects that the firearm Jones used was one that
appellant kept behind the headrests in the backseat of his truck ―for protection.‖ The gun,
which had been in the truck for at least six months, was not concealed but on top of the
seat behind the window. According to appellant, he presumed that Jones knew about the
firearm and had seen it in the back of the truck given that the two brothers-in-law spent
time together.

       Given the evidence that the altercation involved the occupants of both vehicles,
the jury reasonably could have inferred that appellant and Jones were acting together as
they both participated in the roadway encounter and as their heated exchange with Lee
intensified to the point that the drivers of the vehicles pulled into the service station for a
confrontation. The jury was entitled to believe that appellant worked with and assisted
Jones by engaging Lee in the verbal altercation, by driving Jones and the firearm to the
service station with the intention of facing off with Lee, and by exiting the truck and
engaging Lee while Jones remained in the truck readying the shotgun.

       The evidence shows the two brothers-in-law were acting in tandem with the
common purpose of confronting the roadway stranger whose heated words they did not
welcome. There is no suggestion from the record evidence that either Jones or appellant
sought to avoid the conflict; the evidence shows that appellant, instead of driving away
from a confrontation, drove straight toward one. All of the ingredients for a deadly
encounter were present: a heated exchange, a refusal to walk away, escalating tensions, a
shotgun within easy reach, and a driver (appellant) willing to bring them all together for a
showdown.

       The jury reasonably could have inferred from the evidence that (1) appellant
exited the truck to draw Lee‘s attention while providing an accessible firearm and
ammunition to Jones, (2) appellant, by getting out of the truck, walking within touching
distance of Lee‘s vehicle and drawing Lee‘s attention, enabled Jones to be in a position to

                                              8
shoot Lee, and (3) appellant effected a speedy getaway, transporting Jones and the gun to
a location where the two cohorts could separate and get rid of the murder weapon. See
Hoang, 263 S.W.3d at 23–24 (concluding that evidence was sufficient to support murder
conviction as a party when the accused provided a loaded weapon to the shooter and
maneuvered his vehicle in a way to facilitate the shooter‘s ability to hit the complainant‘s
vehicle).

       According to the record, after appellant heard the gun fire, he immediately
returned to his truck and fled with Jones. A defendant can be convicted as a party if the
evidence establishes that he participated in the commission of the offense by driving the
getaway vehicle. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985); see
also Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (recognizing that
factfinder may draw inference of guilt from the circumstance of flight, serving as
additional piece of incriminating circumstantial evidence supporting conviction).
Appellant claims to be an ―unknowing and unwitting‖ getaway driver; he claimed at trial
that he did not know Lee had been fatally shot. Standing alone, proof that an accused
assisted the principal actor in making a getaway is insufficient to sustain a conviction
under the law of parties, even though the accused‘s conduct may constitute an
independent offense of hindering apprehension or prosecution. Valdez, 623 S.W.2d at
321. But the evidence in the record supports a far greater role than merely transporting
the shooter and murder weapon from the scene. The evidence shows appellant‘s knowing
and active participation before, during, and after the deadly confrontation.

       According to appellant‘s testimony, as read into evidence, he already had engaged
Lee in a verbal altercation that led both drivers to pull into the service station to continue
the heated exchange. Appellant knew he was well-equipped for a deadly confrontation.
Appellant carried a firearm and ammunition in clear view in his truck and presumed that
Jones, his frequent companion, was aware of the firearm. Appellant knew that Jones was
aiming the shotgun in Lee‘s direction in the minutes following the heated verbal

                                              9
altercation. According to appellant‘s testimony, the nature of the particular twelve-
gauge, pump-action shotgun required Jones to take time to load the ammunition and
pump the firearm before actually firing it. Thus, the loading, pumping, pointing, aiming,
and shooting process was not instantaneous. Although appellant claimed that he did not
see Jones loading the gun or firing the actual shot from the gun, appellant acknowledged
that he heard the sound of the gun fire and was in the presence of both the shooter and the
victim when the shot was fired.

       The jury was free to disbelieve appellant‘s claim that he did not know Lee had
been shot or fatally shot. See Sharp, 707 S.W.2d at 614 (providing that a jury, in
assessing witnesses‘ credibility and demeanor, may reject an accused‘s exculpatory
explanation); Guevara v. State, 297 S.W.3d 350, 358 (Tex. App.—San Antonio 2009,
pet. ref‘d). Likewise, the jury was free to disbelieve appellant‘s statements that he was an
―unknowing and unwitting‖ getaway driver and to conclude that appellant lied about not
seeing or knowing of the murder out of a consciousness of guilt. Indeed, the jury
reasonably could have concluded that appellant was like one who douses combustibles
with gasoline, strikes a match, and then cries that he is the unknowing and unwitting
victim of the fire.

       The jury could infer from the evidence that following the heated roadway
encounter, appellant pursued Lee‘s vehicle to the service station with the intent of
confronting him, that appellant brought an accessible firearm and ammunition to the
scene of the altercation, that appellant and Jones communicated about the unfolding
events en route to the showdown, that appellant continued to engage Lee in the heated
exchange while Jones loaded, pumped, aimed, and fired the gun, and that appellant then
drove his brother-in-law and the murder weapon away from the scene. See Hoang, 263
S.W.3d at 23–24; Hernandez, 171 S.W.3d at 355 (providing that the jury could have
found that an accused should have anticipated the complainant being shot based on any
one part of a plan to confront the complainant); Banda v. State, 758 S.W.2d 902, 904

                                            10
(Tex. App.—Corpus Christi 1988, no writ) (noting that speedy getaway suggests
conviction as a party, even though other evidence in case did not support conviction).
Notably, appellant not only transported Jones from the murder scene but also secreted
him to their relative‘s house. Appellant also allowed Jones to take appellant‘s shotgun
with him as he exited the vehicle at the relative‘s house following the shooting. A jury
reasonably could have inferred that appellant assisted Jones in fleeing the scene and in
helping him dispose of the firearm that was used to kill Lee. See Hoang, 263 S.W.3d at
23 (concluding evidence was sufficient to support conviction as a party when an accused
drove the alleged shooter from the scene and tried to cover up the crime); see also
Guevara, 297 S.W.3d at 359 (involving a murder weapon that was never recovered).
Likewise, the jury reasonably could have disbelieved appellant‘s account that he was
unaware that anyone had been shot. Even under appellant's account, when he returned to
the scene and learned of Lee‘s death, appellant did not notify authorities of his
knowledge of or association with the offense. In the many times appellant spoke with
investigators following the shooting, he repeatedly denied any involvement. Failing to
notify authorities of a crime is not enough to sustain a conviction. See Clayton, 235
S.W.3d at 780. But, based on appellant‘s repeated failure to notify authorities of his
involvement, a rational jury reasonably could have believed that appellant was not being
truthful with authorities and concealed his knowledge about the offense as a way to
mislead investigators about his role in the offense and to avoid apprehension and cover
up his guilt. See Guevara, 297 S.W.3d at 359 (concluding evidence was sufficient to
support conviction of murder as a party, in part, by the defendant‘s continued denial even
after confronted by authorities); see also Clayton, 235 S.W.3d at 780–81 (considering, as
part of sufficiency review, that defendant‘s failure to inform authorities of offense was
related to incongruity in defendant‘s account of events and the fact that he fled the scene).
As noted, the record supports a firm conclusion that appellant knowingly served as a
―getaway driver‖ who helped the principal actor (Jones) flee the scene and dispose of the
murder weapon, thus, supporting appellant‘s conviction as a party to the murder. See

                                             11
Thompson, 697 S.W.2d at 417 (holding evidence was sufficient to support conviction
based in part of the accused‘s role in driving the getaway vehicle); Guevara, 297 S.W.3d
at 359 (concluding evidence was sufficient even though weapon was never recovered and
the accused continued to deny involvement even after being confronted by authorities).

       The Texas Legislature has determined that one who acts with the intent to promote
or assist the commission of the offense and encourages, directs, aids, or attempts to aid
another to commit the offense, cannot escape the consequences of his actions as a party.
See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). In viewing the evidence in the
light most favorable to the jury‘s verdict, a rational trier of fact could have found
appellant guilty as a party to Lee‘s murder beyond a reasonable doubt. Therefore, the
evidence is sufficient to support appellant‘s conviction.

                                          CONCLUSION

       Sufficient evidence supports the jury‘s determination that appellant is just as guilty
of murdering Lee as if appellant had pulled the trigger himself. The jury held appellant
accountable for his role in the murder; the majority does not. Instead of reversing
appellant‘s conviction, this court should overrule appellant‘s sufficiency challenge and
address appellant‘s other issues. Because it does not, I respectfully dissent.




                                          /s/     Kem Thompson Frost
                                                  Justice



Panel consists of Justices Frost, Jamison, and McCally. (McCally, J., majority).
Publish — TEX. R. APP. P. 47.2(b).



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