Affirmed and Memorandum Opinion filed February 19, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00900-CR

                  LAKENDRICK EARL JACOBS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1289471

                 MEMORANDUM                       OPINION


      Following a jury trial, appellant Lakendrick Earl Jacobs was found guilty of
capital murder. The trial court assessed punishment at life imprisonment without
parole. In this appeal, Jacobs contends that the trial judge erred by denying his
request for a jury instruction on the law of independent impulse and that the
evidence was legally insufficient to support a guilty verdict. We affirm.
                                  BACKGROUND

      On November 10, 2010, Jacobs and a group of men decided that they wanted
to rob someone. The group of men drove around until they pulled up to an
intersection located at 6200 Sayers Street, Houston, Texas. The group stopped near
a Nissan Sentra, which was being driven by the complainant, Euland Laster. Jacobs
was carrying a .22 caliber rifle and his friend, Mark Tillman, was holding a
hammer. The men exited their vehicle and Tillman yelled at Laster to give them his
wallet. Laster was a sixty-five-year-old man and used a cane. Because he had
previously suffered a stroke and had endured six hip replacement surgeries, Laster
was unable to move quickly enough when Tillman yelled at him.

      Tillman began striking Laster with the hammer. At trial, the medical
examiner testified that Tillman struck him at least ten times in his head and torso.
Although Jacobs was present, he did not touch Laster and never held the hammer.
The medical examiner testified that Laster died from a combination of blunt force
trauma and blood loss.

      The group took Laster’s wallet, containing his credit cards and cash, and
Tillman stole Laster’s Nissan Sentra. Officer Dan Arnold testified that the next
day, he received a phone call that Laster’s credit card was being used at several gas
stations in the area. Officer Arnold interviewed the evening shift manager at a
nearby gas station, who stated that two customers used the credit card and were
acting suspiciously that night. After reviewing the surveillance video, the manager
identified the customers as Mark Tillman and Cedric Abram, who was later
identified as Jacobs’s brother.

      On November 16, 2010, the police interviewed Timka Carper, a woman who
called the police to discuss the case. Carper stated that on November 11, the day
after Laster was killed, Jacobs came over to her house. Jacobs drove the stolen
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Nissan Sentra to Carper’s house and offered to sell it to her for $800. Carper asked
him where he got the car and Jacobs responded that it was a long story, but that he
would tell her later. Jacobs left Carper’s house in the Nissan Sentra.

      Later that day, Carper was driving to the store with a friend and decided to
stop at Jacobs’s house because he was standing outside in the front yard. Carper
again asked him where he got the car and Jacobs stated that they went out robbing
the night before and stole the car, along with $30 and credit cards. Jacobs told
Carper that he was holding a gun and committed the robbery with Tillman. Jacobs
also said that Tillman beat Laster with a hammer, but he did not know whether
Laster had died. Carper then allowed Jacobs to borrow her cell phone and Jacobs
called several people. Jacobs found out that Laster died and started to panic. Jacobs
went inside his house to pack and came outside carrying the gun he used during the
robbery. Jacobs also admitted to Carper that he abandoned the Nissan Sentra in
Trotter Park earlier that day. The police discovered the vehicle in Trotter Park on
November 12, but could not find the rifle or hammer used in the robbery.

      After speaking to Carper, Tillman, Tillman’s family members, and another
suspect, the police interviewed Jacobs on December 17. Jacobs confessed to the
robbery, but stated that he did not intend for anyone to get hurt and that hitting
Laster was Tillman’s idea. Jacobs also explained that he only held the gun to scare
Laster into cooperating. Jacobs claimed that he did not know Tillman was carrying
a hammer. On December 20, Jacobs was charged by indictment with capital
murder. Jacobs pleaded not guilty. The case proceeded to trial and the jury returned
a guilty verdict on October 10, 2013. The trial court assessed punishment at life
imprisonment without parole.

                               ISSUES AND ANALYSIS

      In two issues on appeal, Jacobs contends that the trial judge erred by
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denying his request for an independent impulse instruction and that the evidence
was legally insufficient to convict him as a party on the charge of capital murder.

      I.     Independent Impulse

      In his first issue, Jacobs asserts that the trial court erred by failing to submit
his requested instruction on independent impulse to the jury.

      The purpose of the jury charge is to inform the jury on the applicable law
and guide the jury in its application of the law to the facts of the case, and the trial
judge is ultimately responsible for the charge’s accuracy. Delgado v. State, 235
S.W.3d 244, 249 (Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann. art.
36.14 (West 2007). In reviewing a jury charge, we first determine whether error
occurred; if error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). The trial judge is required to instruct the jury on
statutory defenses, affirmative defenses, and justifications whenever they are raised
by the evidence and requested by the defendant. Walters v. State, 247 S.W.3d 204,
208−09 (Tex. Crim. App. 2007).

      Jacobs contends that the trial court erred by denying his request for a jury
instruction on independent impulse. Jacobs argues that he was entitled to an
instruction on independent impulse because the evidence established that although
he intended to commit the robbery, he did not intend to commit capital murder
because he did not anticipate that Tillman would kill Laster.

      The theory behind an independent impulse instruction is that, although the
defendant had agreed to participate in some form of offense rising to the level of a
felony, the offense for which he is being prosecuted arose from an independent
impulse. See Mayfield v. State, 716 S.W.2d 509, 515 (Tex. Crim. App. 1986),
overruled by Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001); see


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also Murkledove v. State, 437 S.W.3d 17, 24 (Tex. App.—Fort Worth 2014, pet.
dism’d). The trial court must instruct the jury on properly requested statutory
defenses raised by the evidence. Walters, 247 S.W.3d at 208−09. However, a
defense that is not recognized by the legislature in the relevant statute as a defense
or as an affirmative defense does not warrant a separate instruction. Giesberg v.
State, 984 S.W.2d 245, 248−51 (Tex. Crim. App. 1998). Independent impulse is
not listed as a statutory defense in the Texas Penal Code. Solomon, 49 S.W.3d at
368.

       In Solomon, the Court of Criminal Appeals reasoned that the defendant was
not entitled to an instruction on independent impulse because “there is no
enumerated defense of ‘independent impulse’ in the Penal Code” and that the
defense “would simply negate the conspiracy liability element of the State’s case.”
Id. The court further stated that including an instruction on independent impulse
would be superfluous and an impermissible comment on the weight of the
evidence. Id. (citing Giesberg, 984 S.W.2d at 250). The court held that all that is
required is for the “appropriate portions of the jury charge to track the language of
§ 7.02(b).” Id.

       Here, the charge instructed the jury:

       If, in the attempt to carry out a conspiracy to commit one felony,
       another felony is committed by one of the conspirators, all
       conspirators are guilty of the felony actually committed, though
       having no intent to commit it, if the offense was committed in
       furtherance of the unlawful purpose and was one that should have
       been anticipated as a result of the carrying out of the conspiracy.
The jury charge tracked the language of Texas Penal Code § 7.02(b), as required
by Solomon. Jacobs’s proposed independent impulse instruction would simply
negate the conspiracy liability element of the State’s case. Therefore, the trial court


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did not err by denying Jacobs’s request for an instruction on independent impulse.

       We overrule Jacobs’s first issue regarding independent impulse.

       II.   Legal Sufficiency

       In his second issue, Jacobs contends that the evidence is legally insufficient
to support his conviction as a party to capital murder. Jacobs argues that he cannot
be convicted under the conspiracy theory of the law of parties because the killing
was not done in furtherance of the robbery and because it was an unanticipated
killing.

       In reviewing a sufficiency question, we must view the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex.
Crim. App. 1996). When conducting this review, we do not reevaluate the weight
and credibility of the evidence, but act only to ensure that the jury reached a
rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

       The jury is the exclusive judge of the credibility of witnesses and of the
weight to be given to their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.
Crim. App. 1994). Likewise, reconciliation of conflicts in evidence is within the
exclusive province of the jury. Jones, 944 S.W.2d at 647. When the record
supports conflicting inferences, we presume the trier of fact resolved the conflicts
in favor of the prosecution and therefore defer to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       Because Jacobs was charged under the law of the parties, he could only be
found criminally responsible for the murder if, as the jury was instructed, Laster
was killed in the attempt to carry out the conspiracy to commit robbery, and if such

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murder was in furtherance of it and should have been anticipated by Jacobs. See
Flores v. State, 681 S.W.2d 94, 96 (Tex. App.—Houston [14th Dist.] 1984), aff’d,
690 S.W.2d 281 (Tex. Crim. App. 1985). Jacobs contends that the evidence is
legally insufficient to convict him under the conspiracy theory of the law of the
parties because (1) the murder was not done in furtherance of the conspiracy
because at the time of the killing, the robbery had already been completed, and (2)
the murder could not have been anticipated because it was an “unprovoked and
unanticipated” killing.

      Jacobs first contends that he cannot be convicted under this theory because
the objective of the conspiracy had already been accomplished when Tillman killed
Laster. Jacobs admitted to the police that he conspired with the group of men to
commit the robbery and that he brought a rifle in order to scare Laster into
cooperating with them. The evidence at trial demonstrated that when Laster did not
comply quickly enough, Tillman began striking him with the hammer. The group
stole Laster’s wallet containing his cash and credit cards and Tillman drove off in
his Nissan Sentra. Jacobs attempted to sell the stolen Nissan Sentra the following
day and then abandoned the vehicle upon learning that Laster died.

      In viewing the evidence in the light most favorable to the verdict, a rational
trier of fact could have found beyond a reasonable doubt that the murder was
completed in furtherance of the conspiracy to commit the robbery. Tillman
committed the murder during the commission of the robbery and at the time of the
killing, the robbery had not yet been completed.

      Jacobs further asserts that this was an “unprovoked and unanticipated brutal
assault” by Tillman. Jacobs, Tillman, and the others agreed in advance to drive
around and rob someone. Jacobs brought a rifle in order to intimidate Laster and
Tillman brought a hammer. Although Jacobs alleges that he did not know Tillman

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was carrying a hammer, the jury could have reasonably inferred that Jacobs saw
Tillman with a hammer before the robbery occurred. However, even if Jacobs did
not know Tillman brought a hammer, a killing could have been anticipated because
Jacobs brought a rifle to the robbery.

      Because both Jacobs and Tillman brought deadly weapons to the robbery, a
rational trier of fact could have found that murder should have been anticipated as
a possible result of the robbery. See Fuller v. State, 827 S.W.2d 919, 932, 933 n.14
(Tex. Crim. App. 1992) (holding that murder should have been anticipated because
defendant brought a knife to the burglary and he knew his co-conspirator “usually
would have had a knife in that situation”); Naranjo v. State, 745 S.W.2d 430, 434
(Tex. App.—Houston [14th Dist.] 1988, no pet.) (holding that murder should have
been anticipated because defendant knew his co-conspirators had an ice pick and
pistol); Flores, 681 S.W.2d at 96 (holding that murder should have been
anticipated because the defendant knew his co-conspirator brought a gun to the
burglary).

      We overrule Jacobs’s second issue regarding the legal sufficiency of his
conviction.




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                                   CONCLUSION

      We hold that the trial judge did not err by denying Jacobs’s requested
instruction on independent impulse and that the evidence was legally sufficient to
support his conviction. Accordingly, we affirm the judgment of the trial court.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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