Reversed and Rendered and Opinion filed March 6, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-01222-CR
                                 NO. 14-11-00006-CR
                                 NO. 14-11-00007-CR


                           BILLY JOE WYATT, Appellant

                                           V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 12th District Court
                              Grimes County, Texas
                           Trial Court Cause No. 16,602


                                      OPINION

      Appellant Billy Joe Wyatt was convicted of three counts of aggravated robbery.
The trial court sentenced appellant to twenty-two years’ confinement for each count and
ordered the sentences to run concurrently. Appellant urges on appeal that the evidence
was insufficient to support his conviction based on a theory of party liability, in part,
because the record contains no evidence showing that appellant knew or should have
known a firearm would be used. We reverse appellant’s conviction on all three counts
and render a judgment of acquittal.
                                        BACKGROUND

       La Nell Szymczak, an Assistant Vice President of the First National Bank of
Anderson, left work on her lunch break at approximately 1:00 p.m. on August 24, 2009,
to travel west on Highway 90 toward Navasota, Texas. As she approached Navasota, she
noticed a white, four-door ―98 Olds‖ parked within ―pretty close proximity‖ to ―a black
gentleman with a vest on walking kind of back and forth in that ditch area‖ near the
Citizens State Bank along Highway 90. She testified: ―I thought, well, maybe he’s
picking up trash. It just caught my eye because usually if you’re picking up trash[,]
there’s more than one person that’s usually on the highway doing that.‖ A video taken
from the security camera of Citizens State Bank showed a man in a yellow-green vest
walking back and forth along Highway 90 between 1:10 and 1:20 p.m. just before a
white, four-door vehicle passed by. Szymczak did not see the man along Highway 90
when she traveled back to the First National Bank of Anderson around 2:00 p.m.1

       In Anderson, video clips taken from the security cameras at Clint’s Supermarket, a
gas station near the First National Bank of Anderson, showed a white, four-door
Oldsmobile following a black Ford Expedition SUV into the gas station at 2:33 p.m.
Appellant exited the white, four-door Oldsmobile, entered the store, and bought two large
canned drinks. Appellant returned to the vehicles, disappeared alongside the driver’s side
of the black Ford Expedition SUV for a moment, and then pumped gas into the white,
four-door Oldsmobile before getting back inside.           The white, four-door Oldsmobile
followed the black Ford Expedition SUV out of the gas station at 2:39 p.m. The vehicles
drove east on Farm-To-Market Road 1774, which connects with Highway 90 to continue
east where Highway 90 veers north in Anderson.

       Timmus Fagan testified that some time after lunch, he had just passed Clint’s
Supermarket and the First National Bank of Anderson traveling east on Farm-To-Market
Road 1774 when he noticed a ―junkie dude‖ about a hundred feet east of the bank

       1
         A landscape company was working in front of Citizens State Bank for a few hours that day
beginning around lunchtime to repair a cistern.

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wearing dirty-looking, long-sleeved clothes, a hat, and ―either a scarf or something
wrapped around him or something. I just seen green or whatever he had on . . . . It was
like a jacket or — it was just some, a big jacket or something like that.‖ The man ―threw
his hand‖ at Fagan to wave and continued walking west toward the bank. Then, Fagan
passed a black male behind the wheel of a white vehicle ―like a Cadillac‖ or ―some type
of General Motors car‖ that was backing out of a residential driveway on or near Farm-
To-Market Road 1774. Fagan continued driving and did not see which direction the
white vehicle went.2

       Surveillance tapes from the First National Bank of Anderson showed a black male
walking into the bank at 2:51 p.m. wearing a yellow-green reflector vest over a dark-
colored, long-sleeved shirt and carrying a black trash bag. The man approached the teller
counter, brandished a gun, and took money from bank tellers Dawn Polansky Wilson,
Rachel Wells, and Shellie Coronado. He exited the bank with the bag.3

       Two of the tellers included ―bait money‖—cash bills with pre-recorded serial
numbers—in the money they handed to the robber. The robber dropped approximately
half of the stolen money in the parking lot outside the bank, but absconded with a total of
$8,086, including one set of bait money.

       Kathy Burzynski testified that she was traveling east on Farm-To-Market Road
1774 when she noticed ―a guy standing on the corner behind the bank, and he had on a
shiny vest like the highway department wears.‖ She testified: ―And I said, hum, where is
everybody else and I looked around and there wasn’t nobody there but him.‖ She stated
that the man’s vest was ―kind of greenish-looking, orange-looking vest that — you know,
real bright‖ and that he had a black trash bag tucked into the back of his pants. Just
moments later, her husband called to alert her that the bank had just been robbed, and she
decided to ―take a left and go check it out.‖ She passed a white, four-door car driven by a

       2
         The record is unclear as to whether Fagan’s observations took place just before or after the
robbery committed at approximately 2:51 p.m.
       3
           It is undisputed that appellant is not the man seen robbing the bank.

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black male headed toward Farm-To-Market Road 1774. She thereafter continued on her
way home.

       Terry Licce, a loan officer and security officer for the First National Bank of
Anderson, was taking a scheduled day off at a friend’s residence off of Farm-To-Market
Road 2819, which connects with Farm-To-Market Road 1774 to continue east where
Farm-To-Market Road 1774 turns south just east of Anderson. Sometime after 1:30 p.m.,
Licce noticed that a black SUV was parked on the dirt road between her friend’s
residence and Farm-To-Market Road 2819. Licce could not tell whether the black SUV
was occupied. Some time later, a white, four-door Oldsmobile pulled up to the black
Ford SUV for a short period of time, driver’s side to driver’s side. Licce could not see
what took place between the two vehicles. Then, the white, four-door Oldsmobile turned
around and pulled onto Farm-To-Market Road 2819 heading east toward Richards,
Texas, and the black Ford SUV followed. Licce testified that a black male was driving
the white, four-door Oldsmobile, and she noticed a ―yellowy-greenish‖ piece of fabric
hanging out of the rear driver’s side door. ―Just a matter of minutes‖ after the vehicles
departed, she was notified by an acquaintance who had been listening to a police scanner
that the bank had just been robbed. When she arrived at the bank and reviewed the
surveillance tapes, she discovered that the fabric she had seen hanging out of the white,
four-door Oldsmobile matched the vest worn by the robber.

       Approximately an hour and a half after the robbery, appellant was stopped by
police while driving a white, four-door Oldsmobile northeast of Richards in Huntsville,
Texas. Appellant was carrying $4,086 in cash on his person—including the missing set
of bait money. He voluntarily accompanied police to the Huntsville Police Department,
where he was interviewed by police. Appellant initially told police that he received the
cash from an acquaintance to whom appellant had sold a vehicle. After the acquaintance
denied appellant’s version of the facts, appellant recanted his story and instead told police
that he received the money from a man named Christopher Tolbert in exchange for thirty



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pounds of marijuana.4         Appellant directed police to Tolbert’s residence alongside
Highway 90 between Anderson and Navasota, which is a few hundred yards away from
where Szymczak saw a man in a vest walking back and forth near a parked ―98 Olds.‖ A
black Ford Expedition SUV was parked in the driveway. Tolbert subsequently was
identified as the man in the yellow-green reflector vest who had robbed the First National
Bank of Anderson. Tolbert was convicted of three separate counts of aggravated robbery
pertaining to each of the three tellers, and sentenced to confinement for sixty years.

       Appellant also was indicted for three counts of aggravated robbery. The State
argued at trial that appellant was guilty based on a theory of party liability. The jury
found appellant guilty of all three counts.               The jury assessed a punishment of
confinement for twenty-two years for each count, and the trial court ordered the sentences
to run concurrently. Appellant argues in two issues on appeal that the evidence was
insufficient (1) to support his conviction based on a theory of party liability generally; or
(2) to show that a firearm was used by the principal actor in committing the crime, or
that appellant knew or should have known that a firearm would be used.

                                             ANALYSIS

       Appellant argues in his second issue on appeal that the record contains no
evidence that he was guilty based on party liability for the aggravating element of the
offense. Because this issue is dispositive of his appeal, we address it first.

       When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Palomo v. State, 352 S.W.3d 87, 90
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (citing Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010), and Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
       4
         Bryan Dismukes of the Texas Department of Public Safety Narcotics Service testified that thirty
pounds of marijuana in the Houston area probably would cost between approximately $11,250 or $15,000
for low-quality marijuana and $120,000 for high-quality marijuana. He also testified that the prices
would be higher around Anderson than in the Houston area.

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The jury is the exclusive judge of the credibility of witnesses and the weight to be given
to the evidence. Id. (citing Isassi, 330 S.W.3d at 638). Further, we defer to the jury’s
responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw all
reasonable inferences from the evidence in favor of the verdict. Id. This standard applies
to both circumstantial and direct evidence. Id.

       A person commits robbery if, ―in the course of committing theft . . . and with
intent to obtain or maintain control of the property,‖ he ―intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.‖ TEX. PENAL
CODE ANN. § 29.02(a)(2) (West 2011). A person commits aggravated robbery if he
commits robbery and ―uses or exhibits a deadly weapon.‖ Id. § 29.03(a)(2) (West 2011).
A firearm, which was alleged to have been used in the indictment, is a deadly weapon per
se. Id. § 1.07 (a)(17)(A) (West 2011).

       ―A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.‖ Id. § 7.01(a) (West 2011). A person is criminally responsible
for an offense committed by the conduct of another if ―acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense.‖ Id. § 7.02(a)(2) (West 2011).

       A conviction for an aggravated offense must be supported by evidence that the
defendant committed, or was criminally responsible for committing, the aggravating
element. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986). In
Stephens, a woman was abducted, taken to the bedroom of an apartment, threatened with
physical harm, and raped. Id. at 338. Although there was evidence that the appellant
rented the apartment where the rape occurred, was present in the apartment when the
complainant was raped, and had sex with the complainant after she had been in the
apartment for a while, there was no evidence that the appellant was in the room when the
complainant was actually threatened, or that he even knew such a threat had been made.
Id. at 339–40. The jury was charged only on the offense of aggravated rape, and the

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aggravating element was a threat of serious bodily injury or death. Id. The Court of
Criminal Appeals upheld the reversal of appellant’s conviction, which had been based on
a theory of party liability, because there was no evidence that he was aware that the
complainant had been threatened. Id. at 341–42.

       With respect to party liability for the use or exhibition of a deadly weapon as an
element of aggravated robbery, this court previously has interpreted Stephens ―to mean
that there must be direct or circumstantial evidence that appellant not only participated in
the robbery before, while, or after a [deadly weapon] was displayed, but did so while
being aware that the [deadly weapon] would be, was being, or had been, used or
exhibited during the offense.‖     Anderson v. State, No. 14-00-00810-CR, 2001 WL
1426676, at *1 (Tex. App.—Houston [14th Dist.] Nov. 15, 2001, pet. ref’d) (not
designated for publication); accord Kanneh v. State, No. 14-00-00031-CR, 2001 WL
931629, at *2 (Tex. App.—Houston [14th Dist.] Aug. 16, 2001, pet. ref’d) (not
designated for publication). Otherwise, ―the evidence necessary to convict him as a party
to aggravated robbery would be no different than that to convict him as a party to
(ordinary) robbery, i.e., mere participation in the robbery.‖ Kanneh, 2001 WL 931629, at
*2 n.5. We adopt that same interpretation again today.

       We agree with appellant that even if the jury believed that appellant participated in
the robbery by serving as Tolbert’s getaway driver and sharing in the proceeds of the
robbery, the record contains no evidence that appellant ever was aware that the firearm
―would be, was being, or had been used or exhibited during the offense.‖ The State
presented no evidence that Tolbert exhibited or otherwise made appellant aware of the
firearm at any time before or after Tolbert brandished the weapon while acting alone
inside the bank. Numerous courts have concluded that the lack of such evidence prevents
the State from proving that the appellant was criminally responsible for the aggravating
element, and therefore will not support a conviction for aggravated robbery based on a
theory of party liability. See, e.g., Rodriguez v. State, 129 S.W.3d 551, 563–64 (Tex.
App.—Houston [1st Dist.] 2003, pet ref’d) (op. on reh’g) (reversing judgment of

                                             7
conviction for aggravated robbery based on theory of party liability and rendering
judgment of acquittal because record contained no evidence that appellant saw, could
have seen, or otherwise knew about deadly weapon used by primary actor during robbery
while appellant waited in getaway van outside); Wooden v. State, 101 S.W.3d 542, 547–
48 (Tex. App.—Fort Worth 2003, pet. ref’d) (reversing judgment of conviction for
aggravated robbery based on theory of party liability and rendering judgment of acquittal
because record contained no evidence that appellant knew passenger in backseat behind
appellant had a firearm or that appellant aided or encouraged passenger to threaten victim
next to the vehicle with firearm); see also Gray v. State, No. 02-08-164-CR, 2009 WL
1905322, at *4–5 (Tex. App.—Fort Worth July 2, 2009, pet ref’d) (mem. op., not
designated for publication) (sustaining appellant’s issue challenging felony murder
conviction based on theory of party liability for underlying aggravated robbery charge,
despite fact that appellant showed his father’s guns to primary actor before agreeing to
rob two individuals by beating them, because appellant did not see primary actor with
appellant’s father’s gun until after the primary actor shot the individuals while appellant
was downstairs; sustaining felony murder conviction based on lesser-included offense of
robbery as underlying felony); Kanneh, 2001 WL 931629, at *2–3 (sustaining appellant’s
issue challenging conviction for aggravated robbery based on theory of party liability
because ―there is no direct or circumstantial evidence suggesting that appellant was ever
aware of the knife and the evidence is, at best, ambiguous whether it was ever even
visible to him‖ during joint-commission of robbery; reforming judgment to reflect lesser-
included offense of robbery because appellant requested instruction on such lesser-
included offense); Nigo v. State, No. 05-95-01205-CR, 1997 WL 457471, at *5–6 (Tex.
App.—Dallas Aug. 11, 1997, no pet.) (not designated for publication) (erroneous
judgment for capital murder could not be reformed to reflect lesser-included offense of
aggravated robbery based on theory of party liability because record contained no
evidence that appellant knew primary actor carried weapon to rob house while appellant
stood outside; judgment could be reformed to reflect conviction for lesser-included
offense of robbery based on theory of party liability); cf. Torres v. State, 233 S.W.3d 26,

                                            8
30–31 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (reforming judgment to delete
deadly weapon finding related to offense of possession with intent to deliver based on
theory of party liability; appellant never mentioned weapons, did not own apartment in
which weapons were discovered, and never was in proximity of weapons or ammunition).

       The State relies on three cases to argue that evidence showing a defendant merely
served as a getaway driver is sufficient to support an aggravated robbery conviction
without evidence that the getaway driver knew that a deadly weapon would be, was
being, or had been used or exhibited during the offense: Johnson v. State, 6 S.W.3d 709
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d), Webber v. State, 757 S.W.2d 51 (Tex.
App.—Houston [14th Dist.] 1988, pet. ref’d), and Thompson v. State, 697 S.W.2d 413
(Tex. Crim. App. 1985), superseded by statute on other grounds as stated in Cook v.
State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995).

       The First Court of Appeals upheld an aggravated robbery conviction in Johnson
based on evidence that the getaway driver attempted to outrun an officer while
transporting a passenger who had ―a gun strapped to his chest that matched the
description of the firearm used in the robberies.‖      See Johnson, 6 S.W.3d at 713.
Contrary to the State’s assertion, the Johnson court never states that the firearm was
concealed ―within the robber’s shirt‖ and therefore was not seen by the getaway driver.
Id. In Webber, the evidence showed that before speeding away, the getaway driver
waited for the robber as the robber ran toward the car with a knife in-hand and as the
victim was ―screaming he had been robbed.‖ See Webber, 757 S.W.2d at 54–55. And in
Thompson, the evidence showed that the getaway driver was outside the victim’s place of
business shortly before and after the robber fired his weapon, and the getaway driver was
the individual who led the police to the firearm used in the robbery. See Thompson, 697
S.W.2d at 417. None of these cases necessarily reflect a complete absence of evidence
related to the appellant’s knowledge of the deadly weapon. Additionally, we note that
Johnson and Thompson were decided before Stephens, and neither Webber nor Thompson
involved the specific issue regarding party liability for the aggravating element presented

                                            9
by appellant in this case.

       The State argues that ―there is a plethora of evidence for a rational trier of fact
based on the circumstantial evidence and the reasonable inferences therefrom to find
[a]ppellant was criminally responsible for . . . Tolbert’s use or exhibition of a firearm
during the offense.‖ However, the State cites only to evidence showing appellant’s
participation in the robbery generally. Such evidence is insufficient to show appellant
knew that a deadly weapon ―would be, was being, or had been, used or exhibited during
the offense.‖ See Anderson, 2001 WL 1426676, at *1; Kanneh, 2001 WL 931629, at *2–
3; see also Stephens, 717 S.W.2d at 340–41. ―Although it would intuitively seem likely‖
that appellant knew of or saw Tolbert’s gun before or after the robbery, ―without at least
circumstantial evidence to support it, such a conclusion cannot properly be based on
speculation or assumption.‖ See Kanneh, 2001 WL 931629, at *3.

       Because we sustain appellant’s second issue on this ground, we need not address
his remaining arguments on appeal.

                                      CONCLUSION

       Because appellant’s conviction for aggravated robbery based on a theory of party
liability is not supported by the evidence, and because neither party requested or received
an instruction on any lesser-included offenses, we reverse the judgment of conviction and
render a judgment of acquittal.


                                          /s/    Sharon McCally
                                                 Justice


Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Publish — TEX. R. APP. P. 47.2(b).




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