                                   NO. 07-09-0038-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   APRIL 23, 2010
                          ______________________________

                                    PAUL D. TIMMS,

                                                               Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-417,789; HON. BRAD UNDERWOOD, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Paul D. Timms was convicted of aggravated robbery under the law of parties and

sentenced to life imprisonment. He challenges the conviction by contending, through

six issues, that 1) the evidence was legally and factually insufficient to show that a theft

was committed, 2) the evidence was legally and factually insufficient to show that the

theft committed was a felony, and 3) he was denied the right to compulsory process
when the trial court refused to compel a co-conspirator to testify.       We affirm the

judgment.

        Background

        Appellant and his wife Tammy used and sold methamphetamine. One of their

sources for the drug was Tommy Yugovich. Apparently, Yugovich supplied narcotics to

others as well, and it was through one of these third party transactions that he received

a counterfeit $20 bill. The bill eventually came into the possession of appellant who

attempted to negotiate it. This resulted in his arrest. Believing that Yugovich helped

create the predicament, appellant sought to have Yugovich pay half of the attorney’s

fees he would incur in defending himself. Yugovich refused. That refusal, however,

did not assuage appellant’s desire to foist some of the economic burden onto Yugovich.

        While in jail, appellant engaged in phone conversations with various people,

including his wife Tammy and Donnie Green. From these conversations arose a plan

through which funds or drugs would be extracted from Yugovich. Those participating in

the effort would be Green, Tammy, and Jerry Don Castle (Castle), and it unfolded on

March 25, 2007.

        Yugovich arranged to meet Tammy at Castle’s home to sell her drugs. Before

doing so, he stopped to buy the narcotics that he intended to sell. Then, he proceeded

to the house with his girlfriend, Michelle Pierce (Michelle).    When the two arrived,

Castle phoned Tammy, who appeared shortly thereafter. Upon entering the house,

Tammy sat next to Yugovich while Castle invited Michelle into an adjoining room to play

pool.   After Castle and Michelle exited, Tammy excused herself and went to the



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bathroom. Yugovich was alone weighing or dividing the drugs he intended to sell when

Green broke through a door with a metal t-post in hand. The t-post was used to strike

Yugovich twice in the head.       As he was being assaulted, Yugovich cried out.       In

response, Michelle returned to the room wherein Yugovich was located. Seeing what

was happening, she attempted to hit Green with a pool cue. Yet, that did not stop him

for he brought the t-post down upon her head. As Yugovich and Michelle were now on

the floor, Green began “asking where is it, where is the shit?” Michelle replied, “you

have it already” after noticing that he held the bag containing the drugs. Green then

saw money on the floor, stooped, picked the sum up, and left. Once Green had gone,

Tammy exited the bathroom and also left. Apparently, she did so in a hurry since she

forgot to take her pocketbook.

       Whether Green actually arrived at Castle’s house with Tammy is unknown, as is

whether she left with him.       Nonetheless, the two were seen together earlier that

evening. So too did they phone each other within minutes after the assault and engage

in a joint telephone conversation with appellant the next day.        During this latter

conversation, they referred to the “home invasion” (i.e. the label ascribed by the media

to the incident), and appellant could be heard telling Tammy that she “. . . had no

reason, nothing to do with that now. All right.” Then, appellant uttered “[a]ll right. So

that’s taken care of” to which Tammy says, “[a]s far as I know.” Green too can be

heard reassuring appellant about it being “taken care of.”      When Green eventually

mentioned that “[t]hey got a pretty good description of that guy on the news,” appellant

cautioned that “they just need to chill out now.”



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      The beating resulted in Yugovich suffering a skull fracture and permanent brain

damage.    Michelle’s injuries were severe but less so.        She needed only fourteen

stitches to close the wound on her head.

      Appellant was tried by a jury. It returned a verdict of guilty upon the charge of

aggravated robbery. The trial court accepted the verdict and sentenced him to life.

      Issues 2 & 4 - Evidence of Responsibility

      We initially address appellant’s issues two and four. Therein, he challenges the

legal and factual sufficiency of the evidence to support his conviction as a party and to

show that the value of the property taken by Green equaled or exceeded the value

needed for the theft to be a felony. We overrule the issues.

      The applicable standards of review are found in Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex.

Crim. App. 2006). We refer the parties to those cases and their progeny.

      There are several ways in which one may be held criminally responsible for an

offense of another. Two such ways are either 1) by soliciting, encouraging, directing,

aiding, or attempting to aid the other person to commit the offense while acting with

intent to promote or assist the commission of the offense or 2) by a co-conspirator

committing a separate felony offense in furtherance of the unlawful purpose of the

conspiracy which separate offense should have been anticipated as a result of the

carrying out of the conspiracy. TEX. PENAL CODE ANN. §7.02(a)(2) & (b) (Vernon 2003).

Each mode was included in the jury charge here. And to prove those elements, the

State not only tendered the evidence we mentioned under “Background” but also



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various recordings of telephone conversations.        The latter were between appellant,

Tammy, and Green and involved 1) appellant saying “that’s all he needed to hear” in

response to Tammy disclosing that Yugovich would not help pay for appellant’s

attorney, 2) appellant telling Tammy that he wanted to speak with Green, 3) appellant

informing Tammy that he “was going [to] send [Green] in” after Tammy stole the dope

from Yugovich, 4) Tammy saying “[a]ll right . . . send him over there,” 5) Green uttering

that the “deal with old boy, that it’s a done deal,” 6) appellant asking Green “[w]hat are

you going to come up with” and Green answered, “[e]very bit of it . . . . I’m taking all of

it,” 7) appellant telling Green to let the “old boy” believe “that Tammy has got the cash

money” to “tell him she’s got $800 or whatever, plus whatever she owes him . . .,” 8)

Green replying “’[a]ll right . . . . we can do it that way then,” 9) appellant directing Green

to “let me talk to Tammy again so I can make her understand that,” 10) appellant

commenting that he did not want the episode to occur at his house, and 11) appellant

recommending “that it . . . be done at [Castle’s] house” instead since Castle had “been

wanting to do the same thing to Tommy as what [appellant] wants to have done.” This

totality of evidence enabled one to rationally conclude beyond reasonable doubt that

appellant was a party because he planned the entire event, drugs were to be taken from

Yugovich as part of the plan, and the planned events actually transpired. That the

participants used indefinite phrases such as “old boy” or that appellant was never heard

expressly directing anyone to hit or rob Yugovich matters little. Guilt can be founded

upon circumstantial evidence and rational deductions from such evidence. Gardner v.

State, No. AP-75,582, 2009 Tex. Crim. App. LEXIS 1441 at *12 (Tex. Crim. App. October



                                              5
21, 2009).     More importantly, a jury’s verdict is not rendered factually deficient or

manifestly unjust simply because it may be founded upon circumstantial evidence and

deductions therefrom.

         Nor does it matter that the State purportedly neglected to prove the value of the

property taken.     Indeed, authority dictates that it need not prove a completed theft

when attempting to prove robbery. Demouchette v. State, 731 S.W.2d 75, 78 (Tex.

Crim. App. 1986); accord Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.--Fort

Worth 2003, pet. ref’d) (stating that robbery can be established without proof that

property was actually stolen). All that is necessary is to show a theft was attempted.

Wooden v. State, 101 S.W.3d at 546. This, in turn, means that it did not matter whether

the drugs taken by Green had a value equal to or exceeding that needed for the theft to

be deemed a felony. In other words, if there was no need to establish that anything

was taken, then there was no need to show that the items not taken had a particular

value.

         So, none of the contentions underlying the two issues we address have merit.

Consequently, we again say that the verdict enjoys the support of both legally and

factually sufficient evidence.

          Issues 1 & 3 – Evidence of Theft

         In his first and third issues, appellant attacks the legal and factual sufficiency of

the evidence to show that a theft occurred. We overrule the issues.

          According to appellant, the prosecution failed to establish that the property

taken by Green belonged to either Michelle or Yugovich or that the money Green



                                               6
retrieved from the floor exceeded the value of the drugs. Yet, as indicated above, there

was no need to prove that an actual, completed theft occurred. Thus, who owned the

drugs that were taken (which the evidence rather clearly showed were Yugovich’s) and

whether their value exceeded the sum of money Tammy brought is immaterial.

       Issue Five – Compel Testimony

       Next, appellant argues that the trial court erred in refusing to compel Green to

testify, and in so refusing, it also denied him his right to compulsory process. We

overrule the issue.

       No one questions the fact that Green committed acts for which he could be

criminally prosecuted. Furthermore, the record establishes that he invoked his Fifth

Amendment right insulating him from self-incrimination per the advice of his legal

counsel. Since that particular right trumps a defendant’s Sixth Amendment right to

compulsory process, Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986);

Boler v. State, 177 S.W.3d 366, 370-71 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d),

and a trial court need not make any inquiry into the validity of one’s reliance upon the

Fifth Amendment when invoked per the advice of counsel, Boler v. State, 177 S.W.3d at

371, the trial court at bar did not err as suggested by appellant.




       Issue Six – Improper Charge

       Via his last issue, appellant contends that the verdict was legally and factually

insufficient because the charge allowed the jury to convict on an “invalid” basis. This



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contention implicates the methods by which one can be held liable for the crimes of

another. The supposed invalidity at issue concerned the second method discussed in

issues two and four above, i.e. liability for the acts of a co-conspirator. According to

appellant, the trial court was prohibited from submitting that method since the evidence

failed to show that the value of property stolen equaled or exceeded that needed for the

crime to be a felony. We overrule the issue.

       As previously discussed, one can prove robbery without establishing that a

completed theft occurred.     Demouchette v. State, supra.       So, the State was not

obligated to prove the value of the object stolen. This, in turn, meant that the jury could

legitimately find that Green committed robbery even if no one illustrated how much the

drugs were worth. So, we have no choice but to reject this means of attacking the legal

and factual sufficiency of the evidence.

       Having overruled each issue, we affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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