Opinion issued May 16, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-16-00401-CR
                           ———————————
                       JESSY RODRIGUEZ, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 183rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1453117


                                 OPINION

     A jury convicted appellant, Jessy Rodriguez, of the first-degree felony offense

of aggravated robbery and assessed his punishment at thirty-eight years’
confinement plus a $5,000 fine.1 In his sole issue, appellant contends that the State

failed to present sufficient evidence that he committed the offense, either as the

primary actor or under the law of parties.

        We affirm.

                                    Background

        On December 30, 2014, Marissa Alvarez, the complainant, lived with her son

and her parents in an apartment on Keefer Road in Tomball, Texas. Keefer Road

intersects with Highway 249 just north of the intersection of Highway 249 and FM

2920.

        Around 8:00 p.m., Alvarez left her apartment by herself to buy groceries and

started walking to her car. When she left her apartment, she saw two men she had

never seen before: a tall, thin man, and a shorter, “normal-sized” man. She turned a

corner onto a sidewalk and heard the men running. Alvarez turned around and saw

the taller of the two men pointing a gun at her. This man was wearing a bandana,

but Alvarez could see around his eyes and could tell that he was “light-skinned.”

The other man had a slightly darker complexion. In Spanish, the men told her not

to move and to give them her purse. She did so and “took off running back to [her]

apartment,” while the men “took off running in another direction” toward a fence at




1
        See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
                                             2
the southern end of the apartment complex. Alvarez did not see the men get into a

car, and she did not see a third person with them.

      Alvarez ran back to her apartment and told her mother that she had just been

robbed. She and her mother then immediately called 9-1-1. The trial court admitted

a recording of Alvarez’s 9-1-1 call. Approximately five minutes after Alvarez

started speaking with dispatch, another woman called 9-1-1 and reported an incident

outside of a Shipley Do-Nuts shop located on Highway 249, in which three men in

a white Impala attempted to rob a man. Alvarez could hear the other woman report

this incident, and the 9-1-1 recording admitted by the trial court contained both

Alvarez’s call and the call concerning the Shipley incident. Alvarez estimated that,

by car, the Shipley was a minute or two away from her apartment, and she stated

that it was within walking distance.

      Tomball Police Department Officer K. Finney was dispatched to Keefer Road

to meet with Alvarez. While Officer Finney was driving to Alvarez’s apartment, he

received another dispatch directing him to the Shipley on Highway 249, which is

located just south of the intersection of Highway 249 and FM 2920. Dispatch

provided Officer Finney with the description of the vehicle that the men were driving

during the Shipley incident, and, when he arrived at the Shipley, he was informed

that the vehicle had continued south down Highway 249. Officer Finney saw the

vehicle at the drive-through of a Whataburger located less than half a mile south of


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the Shipley on Highway 249. He saw three people inside the car. Officer Finney

confirmed that the license plate number of the vehicle matched the number provided

by dispatch and turned on his emergency lights.

      The vehicle fled the Whataburger and once again continued driving south on

Highway 249. Officer Finney followed the vehicle to the parking lot of McCoy’s

Building Supply, located approximately two-tenths of a mile south of the

Whataburger on Highway 249. Officer Finney saw two men jump out the car and

start running away. One of the men, later identified as Kyle Mutters, ran towards

the front of Molly’s Pub, located next to McCoy’s. The officers placed Mutters in

custody and found bullets in his pocket.

      Officer D. Sparks was also first dispatched to Alvarez’s apartment before

being re-routed to the Shipley Do-Nuts. By the time he arrived at the Shipley,

Officer Finney had found the suspects’ vehicle at Whataburger, and, just as Officer

Sparks reached the Whataburger, he saw the vehicle pull out of the Whataburger and

head south on Highway 249. He saw two people in the car: the driver, whom he

later identified as appellant, and a passenger sitting behind the driver.

      Officer Sparks followed appellant’s car and Officer Finney to McCoy’s. By

the time he arrived at McCoy’s, the doors on appellant’s car were wide open, the car

was still running, and no one was inside. Officer Sparks heard yelling coming from

Molly’s Pub, and he saw officers placing Mutters under arrest. He knew from


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dispatch that there were potentially three people involved, so he decided to search

the area for the other two suspects. During this search, Officer Sparks received

information that one of the suspects, later identified as John Garcia, had gone back

to the Whataburger and was waiting for someone to pick him up. Officer Sparks,

along with other officers, placed Garcia under arrest.

      Corporal B. Patin was also originally dispatched to Alvarez’s apartment, and

he joined the pursuit of the Impala at the Whataburger. Corporal Patin and his canine

partner searched the area around McCoy’s, but when his canine did not make an alert

he placed the canine in his patrol unit and conducted a manual search. During this

search, an officer called out that he had found someone in a dumpster alongside

Molly’s Pub, and Corporal Patin ran over to assist in placing this individual, whom

he identified in court as appellant, in custody. Officer Sparks testified that the man

found in the dumpster was the man he had seen driving the Impala.

      Janet Barcelona, an evidence technician with the Tomball Police Department,

processed appellant’s Impala. Appellant’s wallet, containing his driver’s license,

was recovered from the driver’s seat of the vehicle. Alvarez’s driver’s license was

found on the driver’s floorboard, and her purse was found on the front passenger’s

side floorboard. Barcelona recovered three .40 caliber bullets located in the Impala’s

ashtray and another bullet located on the back passenger’s side floorboard.




                                          5
       Detective A. Chambers requested that another officer test all three suspects

for gunshot residue when they returned to police headquarters. He acknowledged

that, before the test, appellant’s hands had not been bagged, appellant had been

transported to headquarters in the back of a police car, and Chambers was not

wearing gloves when he removed appellant’s handcuffs before the test.

       Kristina May, a forensic chemist with the Harris County Institute of Forensic

Sciences, analyzed the results of the gunshot residue tests. May testified that Mutters

had a positive result for gunshot residue on the back of his right hand and Garcia had

an “inconclusive” result on his right palm. Appellant had a positive result on the

back of his left hand and an inconclusive result on the back of his right hand.

Officers never recovered the weapon used to threaten Alvarez. The record contains

no indication that Alvarez ever identified Mutters or Garcia as the men who robbed

her.

       The jury charge authorized the jury to convict appellant either as a primary

actor or under the law of parties if it found beyond a reasonable doubt that appellant,

with the intent to promote or assist the commission of the offense, solicited,

encouraged, directed, aided, or attempted to aid Mutters or Garcia to commit the

offense of aggravated robbery of Alvarez. Ultimately, the jury found appellant

guilty of aggravated robbery and assessed his punishment at thirty-eight years’

confinement. The jury also imposed a $5,000 fine. This appeal followed.


                                          6
                            Sufficiency of the Evidence

      In his sole issue, appellant contends that the State failed to present sufficient

evidence that he committed the offense of aggravated robbery, either as a primary

actor or under the law of parties.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). The jurors are the exclusive

judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and

credibility of the evidence or substitute our judgment for that of the fact finder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost

complete deference to the jury’s credibility determinations. See Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(“When the record supports conflicting inferences, we presume that the factfinder




                                           7
resolved the conflicts in favor of the prosecution and therefore defer to that

determination.”).

      Circumstantial evidence is as probative as direct evidence in establishing

guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells

v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d

at 778). “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). Juries are permitted to draw multiple reasonable inferences “as long as

each inference is supported by the evidence presented at trial.” Id. at 15. Juries are

not permitted “to come to conclusions based on mere speculation or factually

unsupported inferences or presumptions.” Id. An inference “is a conclusion reached

by considering other facts and deducing a logical consequence from them,” while

speculation “is mere theorizing or guessing about the possible meaning of facts and

evidence presented.” Id. at 16.

B.    Aggravated Robbery as a Primary Actor

      To establish that appellant committed the offense of aggravated robbery as a

primary actor, the State had to prove that, while in the course of committing theft of

property owned by Marissa Alvarez and with the intent to obtain or maintain control

over the property, appellant intentionally or knowingly threatened or placed Alvarez


                                          8
in fear of imminent bodily injury or death, and appellant used or exhibited a deadly

weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).

      The State presented no evidence at trial that appellant was one of the two men

who accosted Alvarez at her apartment complex, threatened her, and stole her purse.

Alvarez did not identify appellant, either pretrial or in court, as one of the men who

robbed her. Moreover, the State’s theory at trial was that appellant aided Mutters

and Garcia in robbing Alvarez by driving the getaway vehicle. On appeal, the State

focuses solely on arguing that appellant was guilty of aggravated robbery under the

law of parties. We therefore agree with appellant that the State presented no

evidence that appellant committed the offense of aggravated robbery of Alvarez as

a primary actor, and we turn to whether the State presented sufficient evidence that

appellant committed aggravated robbery of Alvarez under the law of parties.

C.    Aggravated Robbery as a Party

      A person is criminally responsible as a party to the offense “if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or both.” Id. § 7.01(a) (West 2011). A person is criminally responsible

for an offense committed by the conduct of another person 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); Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). Thus, to


                                          9
establish that appellant committed the offense of aggravated robbery under the law

of parties, the State had to prove that appellant, with the intent to promote or assist

the commission of the offense, i.e., the robbery of Alvarez, solicited, encouraged,

directed, aided, or attempted to aid Mutters or Garcia to commit the offense.

       To determine whether a person is a party to an offense, we may look to events

“before, during, and after the commission of the offense.” Gross, 380 S.W.3d at 186

(quoting Wygal v. State, 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)). We may

rely on circumstantial evidence to prove status as a party, but “[t]here must be

sufficient evidence of an understanding and common design to commit the offense.”

Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). Each fact

need not point directly to the guilt of the defendant as long as the cumulative effect

of the facts is sufficient to support the conviction under the law of parties. Id. Mere

presence at the scene of a crime, or even flight from the scene, without more, is

insufficient to support a conviction as a party to the offense. Id. “To establish guilt

under the law of parties, the evidence must show that, at the time of the offense, the

parties were acting together, each contributing some part towards the execution of

their common purpose.” Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston

[1st Dist.] 2013, pet. ref’d).

       To establish a defendant’s liability as a party, the State must prove that, in

addition to the illegal conduct by the primary actor, the defendant “harbored the


                                          10
specific intent to promote or assist the commission of the offense.” Barnes v. State,

62 S.W.3d 288, 296 (Tex. App.—Austin 2001, pet. ref’d). The defendant must know

that he was assisting in the commission of the offense. Id. The agreement to commit

the offense, if any, “must be before or contemporaneous with the criminal event.”

Id.; see Hoang v. State, 263 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (stating same but noting that “in determining whether one has participated

in an offense, the court may examine the events occurring before, during and after

the commission of the offense”). “While an agreement of the parties to act together

in a common design seldom can be proved by direct evidence, reliance may be had

on the actions of the parties, showing by either direct or circumstantial evidence, an

understanding and common design to do a certain act.” Barnes, 62 S.W.3d at 297.

      Courts have repeatedly upheld convictions under the law of parties when the

evidence establishes that the defendant participated in the commission of the offense

by driving the getaway vehicle. See Williams v. State, 473 S.W.3d 319, 325–27

(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Hooper v. State, 255 S.W.3d

262, 266 (Tex. App.—Waco 2008, pet. ref’d); Webber v. State, 757 S.W.2d 51, 55

(Tex. App.—Houston [14th Dist.] 1988, pet. ref’d); see also Thompson v. State, 697

S.W.2d 413, 417 (Tex. Crim. App. 1985) (“This Court has sustained convictions

where the evidence established that the defendant participated in the commission of

the offense by driving the get-away vehicle”), overruled on other grounds by Ex


                                         11
parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998); Gerzin v. State, 447 S.W.2d

925, 926 (Tex. Crim. App. 1969) (“This Court has held where evidence shows

participation in a robbery by driving the get-away car the evidence was sufficient to

show guilt.”).

      Alvarez testified that two men robbed her at her apartment complex, and it is

undisputed that neither of these men was appellant. After the men threatened

Alvarez with a gun and stole her purse, she testified that they ran south towards a

fence at the back of the property and that she ran back to her apartment. She testified

that she did not see the men get into a car, and she did not see a third man with them.

There were no other eyewitnesses to the robbery of Alvarez.

      Alvarez ran back to her apartment, and she and her mother immediately called

9-1-1. Approximately five minutes after Alvarez called 9-1-1, another woman called

9-1-1 to report an attempted robbery at a Shipley Do-Nuts located on Highway 249,

within walking distance of Alvarez’s apartment. This woman reported that three

men in a white Impala attempted to rob a man outside of the Shipley, and she was

able to provide a description and license plate number of the car. This description

and the license plate matched appellant’s vehicle.

      The police officers who had been dispatched to Alvarez’s apartment were

rerouted to the Shipley Do-Nuts, where they learned that the Impala had continued

driving south down Highway 249. Officers spotted the car at a Whataburger located


                                          12
nearby, and one officer later identified appellant as the man driving the Impala.

After officers turned on their emergency lights, the pursuit of the Impala continued

south on Highway 249 to McCoy’s Building Supply—located less than a mile from

Alvarez’s apartment—where the three men abandoned the Impala.                Officers

ultimately arrested Kyle Mutters near the Molly’s Pub located next to McCoy’s,

John Garcia at the Whataburger, and appellant in a dumpster alongside Molly’s Pub.

See Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of

flight evinces a consciousness of guilt.”). Officers discovered appellant’s wallet and

identification in the driver’s seat of the Impala, Alvarez’s purse in the front

passenger floorboard, and Alvarez’s driver’s license in the driver’s floorboard.

Officers also discovered four .40 caliber bullets in the Impala, although they did not

recover a gun. Both Mutters and appellant tested positive for gunshot residue on the

backs of their right and left hands, respectively.

      Although Alvarez testified that she did not see appellant and she did not see

the robbers get into a car, the State presented strong circumstantial evidence that

appellant was working with Mutters and Garcia on the night of the robbery as the

getaway driver. Based on the extremely short time-span of events, in which

appellant and his car were implicated in a second robbery within minutes of the

robbery of Alvarez, a jury could reasonably infer from the evidence that appellant

was waiting in his vehicle out of sight of Alvarez’s apartment complex for Mutters


                                          13
and Garcia to commit the robbery and that appellant then drove Mutters and Garcia

to the nearby Shipley Do-Nuts to commit another robbery. See Hooper, 255 S.W.3d

at 266 (“[W]e find that Hooper’s driving the getaway car when he was pulled over

by [Officer] Shewmake—approximately thirty minutes after the [charged]

robbery—is circumstantial evidence or allows an inference that Hooper was driving

the getaway car at the scene of the robbery.”). Appellant was thus witnessed within

the company of Mutters and Garcia while they were in immediate flight from the

robbery of Alvarez. Moreover, appellant fled in his vehicle when officers activated

their emergency lights, and he, along with Mutters and Garcia, abandoned the

vehicle—which contained Alvarez’s purse—and hid in a nearby dumpster to avoid

capture.

      Viewing the evidence in the light most favorable to the verdict, as we must

when reviewing the sufficiency of the evidence, a reasonable jury could have

concluded beyond a reasonable doubt that appellant, with the intent to promote or

assist the commission of the robbery of Alvarez, aided Mutters and Garcia to commit

the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2); Gross, 380 S.W.3d at 186.

We hold that the State presented sufficient evidence that appellant was criminally

responsible for the robbery of Alvarez under the law of parties.

      We overrule appellant’s sole issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




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