Affirmed and Opinion Filed May 29, 2019.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00286-CR

                               TOMMY RAY KING, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1255339-R

                             MEMORANDUM OPINION
                           Before Justices Bridges, Brown, and Nowell
                                   Opinion by Justice Nowell

       A jury convicted Tommy Ray King of aggravated robbery and the trial court assessed

punishment at fifty years in prison. In three issues, appellant complains about the sufficiency of

the evidence identifying him as the perpetrator of the offense, the denial of his request for a jury

instruction regarding his explanation for possession of recently stolen property, and the denial of

his common law right of allocution. We affirm.

                                          BACKGROUND

       The complainant, seventeen-year-old L.K., was walking to a bus stop on her way to school

when she heard heavy breathing behind her. Then a man grabbed her from behind and dragged

her behind a nearby dumpster. Her glasses fell from her face as he did so. L.K. was holding her

iPhone and tried to call 911, but the man slammed her head into the concrete and took her phone.
He continued to beat her as she tried to escape. The man removed her clothes, strangled her, and

stabbed her repeatedly on her chest, neck, and back. L.K. scratched the man’s arms as she drifted

in and out of consciousness. After stabbing her in the back, the man said, “[H]ave a nice life,”

then left with her phone and her tote bag.

       L.K. tried to drag herself from behind the dumpster to get help. An employee from a nearby

store saw her and called 911. Officer Michael Perry responded at 9:05 a.m. and called for an

ambulance. He initially thought L.K. was dead because of the amount of blood on the ground and

the multiple stab wounds on her body. He secured the area, knelt next to her and asked what

happened. He was surprised she was able to respond. She told him, “[H]e grabbed me from Maple,

raped and stabbed me.” L.K. was able to describe the man as an “older white man, 50 to 60, with

a grey beard.”

       Paramedics arrived and took L.K. to the hospital. She received a blood transfusion and a

chest tube for a collapsed lung; she sustained a broken nose and twenty stab wounds during the

attack. Police began searching for the perpetrator. Officer Susan Millard and Rex, her tracking

dog, arrived at 10:23 a.m. and started their search at 10:33 a.m. Rex picked up a scent from the

area near the dumpster and tracked the scent down the street toward a wooded area near a creek.

A police helicopter radioed that a man was in the creek near a bridge ahead of them. Millard saw

a man, later identified as King, matching the suspect’s description washing himself in the creek.

She identified herself and her cover officer took him into custody at 10:58 a.m.

       King’s boots, belt, and personal items inside the boots were found near the creek where he

was washing himself. Inside the boots, Detective Steven Cleary found a folding pocket knife, two

cellphones, including L.K.’s iPhone, and identification for King. After King’s arrest, Detective

Michael Kemp took the iPhone found in King’s boot to L.K. in the hospital. She identified the

phone as hers and unlocked it.

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       Detective Kemp testified that King’s age and general physical appearance matched L.K.’s

description of her attacker, as did his clothing found on or near him at the time of his arrest. Kemp

also testified, however, that L.K. and another witness were unable to select King’s picture from a

photographic lineup. On cross-examination, Kemp confirmed that King made a spontaneous verbal

statement “that it was his lucky day because ‘a cell phone just flew over the edge and almost hit

[him] in the head.” No one had mentioned a smart phone to defendant before he made the

statement.

       DNA testing of a stain on King’s shirt showed two contributors. Both L.K. and King were

included as potential contributors to the sample with a statistical weight of one in thirty-three. The

DNA profile obtained from the blade of the knife was also a mixture of two individuals. The major

contributor matched the DNA profile of L.K. and the minor contributor matched the DNA profile

of King. The statistical analysis for inclusion of L.K. as the major contributor to the sample on

the knife blade was less than one in ten trillion. The statistical analysis for inclusion of King as

the minor contributor to the sample on the knife blade was one in 1.43 billion.

                                            DISCUSSION

   A. Sufficiency

       We review a challenge to the sufficiency of the evidence on a criminal offense for which

the State has the burden of proof under the single sufficiency standard set forth in Jackson v.

Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).

Under this standard, the relevant question is whether, after viewing the evidence in the light most

favorable to the verdict, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011).

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. Id. Therefore, in


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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. Id. When the record supports conflicting inferences, we presume the

factfinder resolved the conflicts in favor of the verdict and therefore defer to that determination.

Id. 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. Id.

        As applicable in this case, a person commits aggravated robbery if the person commits

robbery and uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03(a)(2). A person

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

of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. Id.

§ 29.02(a)(1). A person commits theft if he unlawfully appropriates property with intent to deprive

the owner of property; appropriation of property is unlawful if it is without the owner’s effective

consent. Id. § 31.03(a), (b)(1). “Bodily injury” means physical pain, illness, or any impairment

of physical condition. Id. § 1.07(a)(8). “Deadly weapon” means a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything

that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Id. § 1.07(a)(17).

        The State may prove the defendant’s identity and criminal culpability by either direct or

circumstantial evidence, coupled with all reasonable inferences from that evidence. Ingerson v.

State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2009); Gardner v. State, 306 S.W.3d 274, 285 (Tex.

Crim. App. 2009).

        King contends the evidence is insufficient to identify him as the person who committed the

crime. He argues that his mere presence in the general area where the crime occurred, when

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viewed in conjunction with the evidence that neither L.K. nor the other witness were able to

identify him in photographic lineups and his explanation for having L.K.’s cellphone, renders the

evidence insufficient to prove he was the perpetrator of the offense.

       L.K. gave only a general description of her assailant, but testimony from police and

photographs of King after his arrest show he matched that description. L.K. testified she was able

to scratch her attacker’s arms during the attack and there was evidence King had recent scratches

on his arms when arrested. Detective Kemp testified King’s clothing matched L.K.’s description

of a black t-shirt, pants, and boots. The jury heard evidence that L.K.’s DNA was found on a stain

on King’s shirt and on the blade of the knife found in his boot. King’s DNA was also present on

both items. L.K.’s iPhone was found in his boot. While King gave an explanation for possession

of the iPhone, the jury could reasonably conclude that his possession of the knife and the iPhone

were circumstances connecting him to the aggravated robbery. The juror could also reasonably

conclude that King’s explanation for possession of the iPhone was false or unreasonable based on

the evidence that the person who stabbed her multiple times with a knife also took L.K.’s iPhone.

       We conclude the jury’s necessary inferences are reasonable based on the combined and

cumulative force of all the evidence. Viewing all the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. We overrule appellant’s first issue.

   B. Jury Instruction

       In his second issue, appellant argues the trial court abused its discretion by denying his

request for a jury instruction regarding his explanation for being in possession of recently stolen

property.

       We review the jury charge for error before determining whether any error was harmful.

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). We assess the degree of harm


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based on whether the error was preserved. Id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g).

       The trial court has a duty to instruct the jury on the law applicable to the case. TEX. CODE

CRIM. PROC. ANN. art. 36.14; Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998). This

law requires the trial court to instruct the jury on statutory defenses, affirmative defenses, and

justifications whenever they are raised by the evidence. Walters v. State, 247 S.W.3d 204, 208–

09 (Tex. Crim. App. 2007); see also TEX. PENAL CODE ANN. §§ 2.03–.04.

       However, if a jury-charge instruction “is not derived from the [penal] code, it is not

‘applicable law’” under art. 36.14. Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012)

(quoting Walters, 247 S.W.3d at 214). If a defensive theory is not explicitly listed in the Penal

Code, if it merely negates an element of the offense, rather than independently justifying the

conduct, the trial court should not instruct the jury on the theory. Walters, 247 S.W.3d at 209;

Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998).

       King relies on the evidence that he gave an explanation for his possession of L.K.’s iPhone

to support his request for a jury instruction. Detective Kemp testified that shortly after his arrest,

King volunteered that he was lucky because a “cell phone just flew over the edge and almost hit

[him] in the head.” King requested the following jury instruction:

       [Y]ou are instructed that under the law of applicable [sic] in this case you are
       instructed that the possession of the allegedly stolen property by the defendant at
       the time of his arrest cannot be considered or inferred to be any evidence of his guilt
       unless they find that the State of Texas has proven that his explanation was
       unreasonable and inconsistent with innocence or if reasonable and consistent, then
       disproved by the State.

The trial court denied the request.

       King argues, citing cases predating the current Penal Code, that Texas common law

requires an instruction to the jury when a defendant offers an explanation for his possession of



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recently stolen property when first confronted about his possession.1 More recent authority holds

that a defendant is not entitled to a jury instruction regarding his explanation for his possession of

recently stolen property. See Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986). The

court held that if a defensive theory merely negates an element of the offense, no affirmative charge

must be given. Id. at 81; see also Walters, 247 S.W.3d at 209 (“if the defensive theory is not

explicitly listed in the penal code—if it merely negates an element in the State’s case, rather than

independently justifying or excusing the conduct—the trial judge should not instruct the jury on

it”).

         The instruction requested in this case would serve merely to negate an element of the

offense, and thus appellant was not entitled to the non-statutory defensive instruction he requested.

Accordingly, the trial court did not err by denying his request. We overrule appellant’s second

issue.

    C. Allocution

         In his final issue, appellant argues the trial court violated his common law right to

allocution. Appellant does not dispute that the trial court followed the statutory allocution

procedure in article 42.07. TEX. CODE CRIM. PROC. ANN. art. 42.07. He claims he was denied a

broader common law right to allocution when the trial court pronounced sentence. We conclude

the issue is not preserved for appeal.

         As a prerequisite to presenting a complaint for appellate review, the record must show that

the specific complaint was made to the trial court. See TEX. R. APP. P. 33.1(a). Any right of

allocution must be preserved by making a timely and specific objection in the trial court and




         1
          Callahan v. State, 502 S.W.2d 3, 7 (Tex. Crim. App. 1973); Rodriguez v. State, 119 S.W. 312 (Tex. Crim.
App. 1909); Scott v. State, 36 S.W. 276, 277 (Tex. Crim. App. 1896); Wheeler v. State, 30 S.W. 913 (Tex. Crim. App.
1895); Williamson v. State, 17 S.W. 722 (Tex. Ct. App. 1891); Moreno v. State, 6 S.W. 299 (Tex. Ct. App. 1887);
Windham v. State, 19 Tex. App. 413, 1885 WL 6928 (Tex. Ct. App. 1885).
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obtaining a ruling. McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on

reh’g) (concluding appellant failed to preserve complaint trial court violated his right to “common

law allocution” by failing to object in trial court prior to imposition of sentence).

       Appellant did not object at trial on the ground he was denied a common law right of

allocution and he raises this issue for the first time on appeal. He has failed to preserve error. See

Williams v. State, 05-16-01305-CR, 2018 WL 1373953, at *4 (Tex. App.—Dallas Mar. 19, 2018,

no pet.) (mem. op., not designated for publication). We overrule appellant’s third issue.

                                            CONCLUSION

       Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                                    /Erin A. Nowell/
                                                    ERIN A. NOWELL
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
180286F.U05




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                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 TOMMY RAY KING, Appellant                           On Appeal from the 265th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-18-00286-CR        V.                        Trial Court Cause No. F-1255339-R.
                                                     Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                        Justices Bridges and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 29th day of May, 2019.




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