No. 01-09-01019-CR
Opinion issued April 28, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Case No. 1163128.
Panel consists of Justices JENNINGS, HIGLEY, and BROWN.
HARVEY BROWN, Justice.
A jury found Kevin D. Chaney guilty of capital murder. The trial court assessed punishment at life imprisonment. On appeal, Chaney contends the State presented factually insufficient evidence to convict him of capital murder under the theory that he was criminally responsible for the conduct of another as either a party to the murder under Texas Penal Code section 7.02(a)(2) or a co-conspirator under section 7.02(b). We affirm.
See TEX. PENAL. CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West 2003 Supp. 2010).
Background
In June 2006, two men robbed a convenience store owned by Thi Nguyen and his wife Dung. On the morning of the robbery, Thi was stacking beer in the back of the store and Dung was in the front of the store at the cash register while their 11 year-old son watched TV nearby. Thi regularly carried a gun while working in the store. Two men came into the store wearing stockings as masks. The first man, later identified as Charles Jones, wore a wig and holding a gun went to confront Thi at the back of the store. The second man, Chaney, pushed Dung to the ground behind the register and demanded money. The Nguyen's son ran across the street to get help from a nearby mechanic's shop. Jones shot Thi in the chest and then put the gun to Dung's head and demanded money. The men drove away from the store in a white car having stolen money from the register and a bank deposit bag, lottery tickets, and several packets of cigarettes. One of the mechanics from across the street saw the robbers drive away and followed the white car at a distance. He saw them park at an abandoned house and run away on foot, leaving the car. Thi died at the scene. Law enforcement officers arrived and investigated the scenes at the convenience store and the abandoned car. Detective Alan Brown found a variety of objects in the grass trailing away from the car including a baseball hat, 2 stockings, five latex gloves, a polo sweatshirt, a black wig, a black t-shirt, a pair of stained cargo pants, and a workman's style button-up shirt. Law enforcement officers showed several of these items to a television crew reporting at the scene. Carolyn Mims, the grandmother of Chaney's former girlfriend Kendra Bonner, saw the TV report, recognized the cargo pants and wig as belonging to Bonner, and called the police. Detective Brown interviewed Bonner and her family members, who said they were familiar with the items and had seen Chaney with a lot of cash around the time of the murder, even though he was unemployed. Detective Brown interviewed Chaney while he was in prison for an unrelated crime. After informing him of his rights and that he was a suspect in a capital murder investigation, Detective Brown recorded Chaney's statement denying any involvement in the crime. Detective Brown then stopped the recorder and told Chaney that DNA evidence linked him to the scene and Bonner had told law enforcement that he was involved. After again reading Chaney his rights, Detective Brown recorded a second statement in which Chaney admitted to being present at the robbery, knew Jones stopped to get money from the store, and watched Jones "suit up" in a wig and a hooded sweatshirt. Chaney stated that he put on gloves so that he would not leave fingerprints and stayed at the front of the store while Jones went to the back. Chaney stated he heard a gunshot and was trying to calm Dung when she gave him the bank bag. He told Detective Brown that Jones told him Thi had shot himself while trying to pull a gun on Jones. Chaney denied seeing Jones go into the store with a gun. The State indicted Chaney for capital murder. At trial, the State called Dung, her son, and the mechanic to testify as eyewitnesses to the robbery. Dung testified Jones had a gun clearly visible as he entered the store. She stated that the gunshots startled her, but Chaney did not appear startled at the sound. She also testified that Chaney's behavior did not change and that Chaney continued to demand money from her after the gun shots and when Jones put the gun to her head. The State called several law enforcement officers to detail their investigation. The State also presented DNA experts who testified that Chaney's DNA matched samples from one of the stockings and a glove found by the car. One expert stated that the possibility of the DNA on the glove belonging to someone other than Chaney was one in 16 million. They also testified that Jones's DNA appeared on the cargo pants and the work shirt which were also stained with Thi's blood. Finally, the medical examiner testified that Jones used "extra lethal" ammunition designed to break apart on impact. Chaney testified in his own defense and stated that he lied in his second statement to Detective Brown admitting his involvement in the crime. He testified that Detective Brown promised he would not be prosecuted for capital murder if he gave evidence implicating Jones. He also testified that law enforcement interviewed him an additional time before January 2008 in which he again denied any involvement in the crime. The trial court submitted a charge instructing the jury on capital murder and a lesser-included offense of aggravated robbery. The court instructed the jury that to find Chaney guilty of capital murder they must find beyond a reasonable doubt that he shot Thi, was a party to the offense, or acted as a co-conspirator. The jury found Chaney guilty of capital murder and the trial court assessed punishment at life in prison. Chaney timely appealed. Sufficiency of the Evidence
In two issues, Chaney argues the State presented insufficient evidence to find him guilty of capital murder as a party to the offense or as a co-conspirator. A. Standard of Review
When evaluating the sufficiency of the evidence, we 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 offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Williams v. State, 301 S.W.3d 675, 684 (Tex. Crim. App. 2009). The standard of review articulated in Jackson v. Virginia applies to both legal and factual sufficiency challenges to the elements of a criminal offense. See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010); see also Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn from the evidence in making our determination. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We do not resolve any conflicts of fact, weigh any evidence, or evaluate the credibility of any witnesses, as these are the functions of the trier of fact. See Williams, 301 S.W.3d at 684. B. Capital Murder and Law of Parties
A person commits capital murder by intentionally or knowingly causing the death of an individual and intentionally commits the murder in the course of committing or attempting to commit robbery or aggravated robbery. See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2); Ervin v. State, 333 S.W.3d 187, 200 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). The penal code defines robbery as in the course of committing theft and with the intent to obtain or maintain control of the property, a defendant knowingly or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See TEX. PENAL CODE ANN. § 29.02(a) (West 2003); Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Aggravated robbery is robbery with the use or exhibition of a deadly weapon and a firearm constitutes a deadly weapon. See TEX. PENAL CODE ANN. §§ 1.07(17), 29.02, 29.03 (West 2003 Supp. 2010); Ervin, 333 S.W.3d at 200. The trial court instructed the jury on three separate theories for capital murder culpability — a primary actor, a party to the offense, or a co-conspirator to the offense. In his second issue, Chaney argues the evidence is insufficient to support his conviction under the co-conspiracy theory. Under the law of parties, the jury could have found appellant guilty of capital murder if it concluded that the murder was committed in an attempt to carry out a conspiracy to commit aggravated robbery with a deadly weapon, and, it was committed in furtherance of the unlawful purpose and should have been anticipated as a result of the carrying out of the conspiracy regardless of whether the defendant intended to commit the murder. See TEX. PENAL CODE ANN. § 7.02(b) (West 2003)); Ervin, 333 S.W.3d at 201; Love v. State, 199 S.W.3d 447, 452 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). The court may look to events occurring before, during, and after the commission of the offense as evidence of criminal responsibility under the law of parties. Ervin, 333 S.W.3d at 201 (holding that evidence sufficient to convict defendant for capital murder as co-conspirator when defendant knew of the plan to commit robbery, knew accomplices had guns, watched them put on masks and hooded sweatshirts, and returned to pick them up after hearing gun shots). Chaney asserts that he could not have anticipated that Jones would kill Thi in the course of the robbery. "Evidence that a defendant knew his co-conspirators might use guns in the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the course of the robbery." Love, 199 S.W.3d at 453. Also, a defendant's continued participation in the offense is evidence of culpability as a co-conspirator for capital murder. See Trenor v. State, No. 01-09-00191-CR, 2010 WL 5186836, at *8-9 (Tex. App.-Houston [1st Dist.] Dec. 23, 2010, no pet.) mem. op., not designated for publication) (holding defendant culpable as co-conspirator for continuing to participate in child abuse, failing to seek medical attention for child, and assisting in hiding evidence of child's murder); Ervin, 333 S.W.3d at 201-02. The jury heard direct and circumstantial evidence indicating Chaney fully participated in the robbery. In his second recorded statement, Chaney told Detective Brown that he knew Jones stopped at the store to get money and he saw Jones "suit up" in a wig and hooded sweatshirt. Chaney admitted that he put on gloves to avoid leaving fingerprints. Witnesses stated that Chaney wore a mask during the robbery and Dung testified that Chaney repeatedly demanded money from her. Based on this evidence showing Chaney's knowledge and preparation for the robbery, a reasonable jury could conclude that Chaney had an understanding and common design in committing the offense with Jones. See Ervin, 333 S.W.3d at 201-02. The jury also heard circumstantial evidence indicating Chaney knew Jones would use a gun in furtherance of the robbery. Chaney denied in his recorded statement that he knew Jones carried a gun, but Dung testified that the gun was clearly visible as Jones entered the store. She testified that Chaney did not appear startled by the gun shots and continued to demand money after the shots. She also stated that his behavior did not change when Jones put the gun to her head and that he again continued to demand money while standing beside her and Jones. Chaney asserts that his trial testimony contradicts his second recorded statement and also relies on certain facts that he claims show he did not anticipate the murder. For example, he asserts no evidence indicates he knew Jones used "extra lethal" ammunition, that he knew Thi carried a gun, or he knew Jones to have a reputation for violence. He also asserts that they wore masks indicating an intention to leave witnesses alive after the robbery. The jury, however, determines the weight and credibility to give the testimony and evidence at trial. Williams, 301 S.W.3d at 684. Chaney's trial testimony alone would not be sufficient to render evidence of intent insufficient. See Trenor, 2010 WL 5186836, at *10 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)). A reasonable jury relying on Chaney's second recorded statement and Dung's testimony of the obvious use of the gun could have concluded that Chaney knew that Jones carried a gun and should have anticipated that it could be used in the course of the robbery. See Ervin, 333 S.W.3d at 202; see also Love, 199 S.W.3d at 453. The jury also could have concluded that Chaney continued to participate in the robbery after the gun shots and after Jones put the gun to Dung's head. See Trenor, 2010 WL 5186836, at *8-9; see also Ervin, 333 S.W.3d at 201 (stating defendant acted as co-conspirator by returning to pick-up accomplices after hearing gun shots). Viewing the evidence in the light most favorable to the jury verdict, we conclude that a rational fact finder could have found, beyond a reasonable doubt, all the essential elements of the capital murder under a co-conspiracy theory, including the anticipation element Chaney specifically challenges. See Trenor, 2010 WL 5186836, at *10. We overrule Chaney's second issue. Conclusion
When the trial court's charge authorizes the jury to convict on more than one theory, the guilty verdict will be upheld if the evidence is sufficient on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Having found the evidence to be sufficient to support Chaney's conviction under one theory of capital murder culpability, we need not address the remaining two theories. See Trenor, 2010 WL 5186836, at *8. We affirm the judgment of the trial court.