               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS

                                                No. PD-1802-09


                                ERIC DESHON SORRELLS, Appellant

                                                         v.

                                          THE STATE OF TEXAS


                                       On Discretionary Review of
                                        Case No. 13-07-00633-CR
                                   of the Thirteenth Court of Appeals,
                                              Travis County


       WOMACK, J., delivered the opinion of the unanimous Court.


       A Travis County jury convicted the appellant, Eric Deshon Sorrells, of aggravated

robbery. On appeal, the Thirteenth Court of Appeals1 found that the evidence was insufficient to

support a conviction of aggravated robbery, and reformed the judgment to reflect conviction of

the lesser-included offense of assault by threat. We granted the State’s petition for discretionary

review on three grounds: (1) whether the Court of Appeals properly reviewed the sufficiency of

the evidence; (2) whether the Court of Appeals properly applied the law of parties; and (3) in the



       1
           The appeal was transferred from the Third to the Thirteenth Court of Appeals.
                                                                                            Sorrells - 2

alternative, whether the Court of Appeals properly reformed the judgment. We hold that the

Court of Appeals erred in its review of the sufficiency of the evidence. We therefore need not

address the State’s second and third grounds. We will reverse the Court’s decision and remand

for consideration of the appellant’s remaining claims.

                                          I. Background

       The following factual background is abridged from the facts described by the Court of

Appeals. In the early morning hours of January 30, 2005, Frances Reynolds waited on a curb

outside an Austin nightclub for her boyfriend, Nathaniel Rice, to retrieve her car from a nearby

parking lot. Reynolds testified that she leaned against a Mercedes SUV parked on the street. The

appellant emerged from the club wearing a black and gray sweater and a black leather jacket. He

told Reynolds to “get the f*** off the car” because she was damaging it. With gun in hand, the

appellant struck Reynolds across the side of her head, and the two began scuffling. Shortly

thereafter, Rice arrived. As Rice approached, the appellant turned, pulled back the slide of the

gun, and said, “[D]o you have a problem with me, too?” Rice punched the appellant, and the two

started fighting. A man wearing a blue “flannel-type” jacket then ran up to Rice and punched

him. Rice fell to the ground and Reynolds went for help. When she returned, the altercation had

ended. Rice told her that his jewelry had been stolen.

       Rice testified that after retrieving Reynolds’s car, he drove to the front of the club and

saw three men standing near Reynolds. Rice saw Reynolds scuffling with the appellant. As Rice

approached, the appellant pulled out a gun and “cocked it at [Rice].” Rice pushed the gun out of

the way and swung at the appellant. The appellant struck back, hitting Rice with the gun. At that

moment, a man wearing a flannel jacket punched Rice in the head. Rice was knocked to the
                                                                                           Sorrells - 3

ground and was “jumped” by multiple people. At some point the beating ceased and the

assailants dispersed. Rice then became aware that he was no longer wearing his lion medallion

necklace, which he valued at approximately $1,000. When the police arrived moments later, Rice

told them that his jewelry had been stolen.

       Kevin Fritz, a friend of Reynolds and Rice, testified that he accompanied Rice to the

parking lot to retrieve Reynolds’s car. As they drove to the front of the club, Fritz saw Reynolds

arguing with the appellant. Fritz followed as Rice approached the appellant. Upon noticing Rice,

the appellant turned and pointed a gun at Rice. Rice took a swing at the appellant, and then

another man came up behind Rice and hit him in the head. A third man joined the fight; he and

the second man “jumped” Rice. Fritz then saw the appellant point the gun at Rice. Fritz ran up

and pushed the appellant. The men then turned their attention from Rice and began fighting with

Fritz. Someone hit Fritz with a gun; after being dazed and stumbling for a few seconds, Fritz

looked up and saw the three men running into the club. At some point during the altercation,

Fritz noticed Rice’s lion medallion necklace on the ground.

       Officer Charles Riley testified that he was stationed nearby when he was dispatched to the

incident. Riley arrived on the scene within twenty or thirty seconds of the dispatch and saw

several people in front of the club; everyone was being loud and yelling that “someone had taken

something” and “someone had a gun.” Riley learned that the gunman, a male wearing a black

leather jacket, had gone inside the club. Riley ran into the alley behind the club and saw three

people walking away from him down the alley. One of the three, Rachel Hardeman, turned and

looked at Riley. Then she removed her hand from her jacket pocket and deposited an object into

the side of a recycling receptacle. After the three were detained, Riley searched the receptacle and
                                                                                                          Sorrells - 4

found a gun. Riley also noticed that the black leather jacket Hardeman was wearing was too big

for her. Inside a pocket of the jacket, Riley found the lion medallion necklace. Both of the other

detainees were male. One, who would become appellant’s co-defendant at trial, wore a blue

denim jacket. The other was the appellant, who wore a black and tan sweater but was not wearing

a jacket.

        Reynolds, Rice, and Fritz did not identify Hardeman, but each of them identified the

appellant as the man who had been wearing the black leather jacket.2

        In addition to the facts described by the Court of Appeals, we find the following three

pieces of testimony to be important as well. First, Sergeant Richard Shirley testified that he also

responded to the incident, but he attempted to gain entrance through the front of the club. As he

looked into the club from the front, he saw the appellant wearing a black leather jacket and

moving towards the back. When Shirley finally made it through the club and got to the alley

behind it, he saw that three individuals had been detained. He noticed that Hardeman “did have

what appeared to be the same jacket” that the appellant had been wearing as he moved toward the

back of the club.

        Second, Rice identified the gun recovered by Officer Riley as the weapon pointed at him

by the appellant.

        Third, Officer Brian Lloyd, called as a witness by the co-defendant’s counsel, testified

without objection that Rice told him that the man with the gun and the black leather jacket took

Rice’s necklace:

        [CODEFENDANT’S COUNSEL]: Sir, you had occasion to talk to Nathaniel


        2
            Sorrells v. State, 2009 W L 3766443 at *1-3 (Tex. App. – Corpus Christi November 12, 2009).
                                                                                              Sorrells - 5

       Rice; is that right, sir?

       [LLOYD]: I did.

       [CODEFENDANT’S COUNSEL]: Now, according to the best of your
       recollection, these events had just happened; had they not, sir?

       [LLOYD]: Yes.

       [CODEFENDANT’S COUNSEL]: Now, then, in talking to Nathaniel, Nathaniel
       told you, did he not, sir, that a black man had produced a gun?

       [LLOYD]: Yes.

       [CODEFENDANT’S COUNSEL]: That a black man had struck him with a gun?

       [LLOYD]: Yes.

       [CODEFENDANT’S COUNSEL]: He described that same black man as taking
       his gold necklace?

       [LLOYD]: Yes.

       [CODEFENDANT’S COUNSEL]: He described that black man as wearing a
       black leather jacket?

       [LLOYD]: Yes.

                                           II. Standard of Review

       In Clayton v. State3 we described the standard of review appropriate for addressing the

sufficiency of evidence in cases involving circumstantial evidence and the drawing of inferences

by a jury:

       When we review a court of appeals’s application of the legal sufficiency standard
       set out in Jackson v. Virginia4, the relevant question is whether, after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact


       3
           235 S.W .3d 772 (Tex. Cr. App. 2007).

       4
           443 U.S. 307 (1979).
                                                                                            Sorrells - 6

       could have found the essential elements of the crime beyond a reasonable doubt.
       This standard accounts for the factfinder’s duty to resolve conflicts in the
       testimony, to weigh the evidence, and to draw reasonable inferences from basic
       facts to ultimate facts. Therefore, in analyzing legal sufficiency, we determine
       whether the necessary inferences are reasonable based upon the combined and
       cumulative force of all the evidence when viewed in the light most favorable to
       the verdict. Our review of all of the evidence includes evidence that was properly
       and improperly admitted. When the record supports conflicting inferences, we
       presume that the factfinder resolved the conflicts in favor of the prosecution and
       therefore defer to that determination. Direct and circumstantial evidence are
       treated equally: Circumstantial evidence is as probative as direct evidence in
       establishing the guilt of an actor, and circumstantial evidence alone can be
       sufficient to establish guilt.5

       To prove the essential elements of aggravated robbery in this case, the State had to show

that the appellant committed robbery as defined in Section 29.02 of the Penal Code, and used or

exhibited a deadly weapon.6 Under Section 29.02, the robbery in this case would be proved by

evidence that, in the course of committing theft as defined in Chapter 31 of the Penal Code and

with intent to obtain or maintain control of the property, the appellant intentionally or knowingly

threatened or placed another in fear of imminent bodily injury or death.7 The phrase “in the

course of committing theft” is defined by Section 29.01 of the Penal Code to mean “conduct that

occurs in an attempt to commit, during the commission, or in immediate flight after the attempt

or commission of theft.”8 A person commits theft under Chapter 31 if he unlawfully appropriates

property with intent to deprive the owner of the property.9


       5
           Clayton, 235 S.W .3d, at 778 (internal citations and quotation marks omitted).

       6
           See T EX . P EN . C O D E § 29.03(a)(2).

       7
           See T EX . P EN . C O D E § 29.02(a)(2).

       8
           See T EX . P EN . C O D E § 29.01(1).

       9
           See T EX . P EN . C O D E § 31.03(a).
                                                                                             Sorrells - 7

                                                  III. On Appeal

       The Court of Appeals found that the evidence was insufficient to prove either that the

appellant was the perpetrator of the theft, or that the assault was committed “in the course of

committing theft.”

       With respect to the identity of the thief, the Court of Appeals found that “[b]ased on [the]

circumstantial evidence, the jury could have reasonably inferred that the jacket worn by

Hardeman belonged to [the appellant].”10 Nevertheless, the Court found the evidence insufficient

to prove that the appellant had possession of the necklace:

       At the time of [the appellant’s] arrest, although the necklace was found in a jacket
       that the jury could have inferred belonged to [the appellant], neither the jacket, nor
       the necklace were found on his person; instead, Hardeman was wearing the jacket.
       This evidence is insufficient to show that [the appellant] had personal possession
       of the necklace at any point in time or that he asserted a distinct and personal right
       to it.11

       With respect to the nexus between the assault and the theft, the Court recognized that the

occurrence of a theft immediately after an assault typically supports an inference that the assault

was intended to facilitate the theft.12 However, the Court found that the inference was negated in

the present case because the evidence revealed an alternative motive that could not be rationally

disregarded:

       In the present case, the evidence revealed that [the appellant’s] motive for the
       assault was to get Reynolds away from the silver Mercedes SUV and to keep Rice
       from interfering. In light of the fact that (1) there is no evidence that the appellant
       approached Reynolds in an attempt to appropriate her property; (2) the appellant


       10
            Sorrells, 2009 W L 3766443, at *4.

       11
            Id., at *5.

       12
            Id., at *6 (citing Cooper v. State, 67 S.W .3d 221, 224 (Tex. Cr. App. 2002)).
                                                                                                        Sorrells - 8

       did not approach Rice in an attempt to appropriate his necklace; (3) there is no
       evidence that the appellant was a party to theft; and (4) no words, actions, or
       conduct during the commission of the assault indicate that Rice’s assault was
       committed to facilitate the appropriation of his necklace, a juror could not
       rationally disregard that [the appellant’s] only motive was to move Reynolds from
       the vehicle and keep Rice from interfering.

                                            IV. Identity of the Thief

       In Clayton we stated that an appellate court should determine whether necessary

inferences are reasonable “based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.”13 But in this case, the Court of Appeals

analyzed only the evidence that Hardeman was wearing the appellant’s jacket.

       The Court overlooked at least two other critical pieces of evidence. To begin with, the

gun was also in the appellant’s jacket pocket before being removed and tossed by Hardeman. The

gun was clearly in the appellant’s possession and was used by him in the commission of the

assault. The evidence that the gun was transferred from the appellant’s possession during the

assault to the appellant’s jacket pocket after the assault strengthens the inference that the

necklace got in the appellant’s jacket pocket after also being in the appellant’s possession.

       Furthermore, viewed in the light most favorable to the verdict, Officer Lloyd’s testimony

provides direct evidence of the appellant’s identity as the thief. During cross examination of

Rice, the co-defendant’s counsel asked Rice, “Do you recall telling the police that the man in the

leather jacket had taken your necklaces? Do you recall telling them that?” Rice could not recall

that, so the co-defendant’s counsel called Officer Lloyd to relate, without objection, Rice’s

statement to him that the man with the gun and the black leather jacket had taken his necklace.



       13
            235 S.W .3d, at 778 (quoting Hooper v. State, 214 S.W .3d 9, 16-17 (Tex. Cr. App. 2007)).
                                                                                             Sorrells - 9

During closing argument, the co-defendant’s counsel reminded the jury of this testimony.

       The Court of Appeals erred in failing to consider the combined and cumulative force of

all of the admitted evidence. Viewing the evidence in the light most favorable to the verdict, a

rational juror could have found beyond a reasonable doubt that the appellant committed the theft.

                                  V. Nexus Between Theft and Assault

       In Cooper v. State, relied upon by the Court of Appeals in this case, we held that in a

robbery case the nexus between the assault and the theft is “sufficiently proven if the State proves

that the theft occurred immediately after the assault,”14 and as a general rule, “a theft occurring

immediately after an assault will support an inference that the assault was intended to facilitate

the theft.”15 In Cooper, the evidence showed that the appellant was working on a fence with his

uncle. The appellant struck his uncle from behind without warning and the two men began

struggling on the ground. When his uncle released his grip on the appellant, the appellant stood,

walked to his uncle’s truck, and drove away. The appellant was found in a neighboring town

about an hour later.16 Despite the appellant’s testimony that he was hallucinating and did not

know what he was doing when he took the truck, we found the evidence “sufficient to support an

inference that the assault was committed in the course of the commission of the theft.”17

       Cooper declined to answer comprehensively the question of “whether, and under what

circumstances, evidence of a motive other than theft can negate the natural inference that arises


       14
            67 S.W .3d, at 223.

       15
            Id., at 224.

       16
            Id., at 222.

       17
            Id., at 224.
                                                                                             Sorrells - 10

when a theft immediately follows an assault.”18 Limiting our holding to the facts of the case, in

which the appellant claimed to be experiencing hallucinations, we “simply [held] that the

inference will not be negated by evidence of an alternative motive that the jury could rationally

disregard.”19

        In this case the Court of Appeals seems to have read Cooper to hold the inverse: any

inference that the assault was intended to facilitate the theft was negated because there was

evidence of an alternative motive which the jury could not rationally disregard.20 But we need not

address the Court’s extension of Cooper because the Court erred in concluding that the negation

of such an inference results in insufficient evidence.

        The appellant’s motive in committing the assault – whether “[the appellant’s] assault of

Rice was intended to facilitate the theft”21 – may be probative of the nexus element, but it is not

itself an element of the offense of robbery. The nexus element is that the assault was committed

“in the course of committing theft,” which is defined as “conduct that occurs in an attempt to

commit, during the commission, or in the immediate flight after the attempt or commission of

theft.”22

        The State has always been able to prove robbery by force or threats committed before the

theft or attempted theft. The drafters of our present Penal Code pointed this out in their


        18
             Id.

        19
             Id.

        20
             Sorrells, 2009 W L 3766443, at *6, 2009 Tex. App. LEXIS, at *19-21.

        21
             Id.

        22
             T EX . P EN . C O DE § 29.01(1).
                                                                                                                         Sorrells - 11

comments to the present robbery statute:

         Section 29.02 is broader in scope than the [former] robbery offense … because it
         applies to violence used or threatened ‘in the course of committing theft,’ which is
         defined in Section 29.01 to include not only violent conduct antecedent to a
         completed theft, but also violence accompanying an escape immediately
         subsequent to a completed or attempted theft. … The … use or threat of force in
         escaping … broadens the scope of robbery. Here, too, the conduct is as dangerous
         as force or threats antecedent to the theft.”23

         This case is one of force antecedent to, or during, the theft. Based on Rice’s testimony

that the necklace was missing immediately after the assault, and Fritz’s testimony that he saw the

necklace on the ground during the course of the assault, a rational juror could draw a reasonable

inference that the assault and the theft occurred simultaneously, and thus the assault was

committed during the commission of theft.

         The evidence in this case was thus sufficient to prove both that the appellant committed

theft, and that he committed assault in the course of committing theft. We therefore reverse the

decision of the Court of Appeals and remand the case to that Court for consideration of the

appellant’s remaining claims.


Delivered June 22, 2011.
Publish.




         23
          S TATE B AR C O M M ITTEE O N R EVISIO N   O F TH E   P EN AL C O D E , T EXAS P EN AL C O DE : A P RO PO SED R EVISIO N ,
Committee Comment to Chapter 29 (1970).
