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Court of Appeals of Texas, Fifth District, DallasMay 16, 2006
No. 05-05-01521-CR (Tex. App. May. 16, 2006)

No. 05-05-01521-CR

Opinion issued May 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-55133-LN. Affirmed as Modified.



Kendrick LaRobert Tucker was charged with aggravated robbery. He waived a jury; the trial court found him guilty and assessed his punishment, after enhancement, at twenty years' imprisonment. Tucker appeals, arguing the evidence supporting his conviction is both factually and legally insufficient. Tucker also argues the judgment incorrectly states he entered into a plea bargain. We modify the judgment to show there was no plea bargain. In all other respects, we affirm the trial court's judgment.

Sufficiency of the Evidence

In his first and second issues, Tucker challenges the legal and factual sufficiency of the evidence supporting his conviction. The bulk of the evidence in this case came from the testimony of the complaining witness, Jordan Weilage. His testimony describes three encounters on the evening of the robbery. Weilage testified he went to a bank to deposit a check and then crossed the street to get something to eat at a Jack in the Box restaurant. As he approached the restaurant, Tucker approached him and said he needed to get a motel room; he asked Weilage for ten dollars. Weilage gave him five dollars and a handful of quarters, and then entered the restaurant. After some thought, Weilage exited the restaurant and gave Tucker another five dollars, so he could get the motel room he needed. Tucker said, "God bless you." However, Weilage testified that in this initial encounter, he was already afraid that Tucker might rob him. The second encounter occurred across the street from the restaurant, where Weilage was waiting for a bus to take him home. This time Tucker approached Weilage with a friend he called T.J. Tucker told Weilage that T.J. needed some money too. Then, according to Weilage, Tucker told T.J., "[D]on't grab your gun because this man has more money for us." Weilage believed T.J. had a gun and that the two men were trying to rob him; he felt threatened by them. Weilage kicked T.J. twice and tried to run away. One of the men — Weilage thought it was T.J., but he was not sure — kicked him in the back and he fell into the street. There, Weilage was "bumped" in the knees by a passing car, landed on its hood, and rolled off onto the sidewalk. Weilage ran back to the Jack in the Box, told the people there what had happened, and told them to call the police "because two people were trying to rob [him]." The manager called the police. The third encounter occurred while Weilage was at the Jack in the Box, waiting for the police to arrive. T.J. entered the restaurant alone, carrying a knife. Weilage carried a bag on his shoulder that contained a digital camera and other items. T.J. used the knife to cut the strap of Weilage's bag, and he left the restaurant with the bag and its contents. Weilage ran after T.J., but could not catch up with him and returned to the restaurant. Weilage initially testified that when he saw T.J. and the knife he did not think T.J. would hurt him, because he knew God was protecting him. In response to questioning by the court, however, Weilage testified that he knew he could have been cut or stabbed by T.J. Weilage gave the police a description of the two men, including their clothing. Tucker was wearing an orange shirt with a grey stripe. When the police found Tucker, they brought him to Weilage's apartment, and Weilage identified him. Both of the police officers who interviewed Weilage and later arrested Tucker testified at trial. They found Tucker in front of the same Jack in the Box restaurant, wearing the same shirt, two or three hours after the robbery. Officer Aleshia Barton testified Tucker did not have a weapon or any of Weilage's property when he was arrested. Officer Brian Shrier testified that Tucker surrendered and told the police that he did not commit the robbery, T.J. did. Tucker also told Shrier that he lived in apartments close to the Jack in the Box. Finally, Lester Norman, the restaurant shift manager, testified. He had seen the initial encounter between Weilage and Tucker outside the restaurant. Then Weilage returned shortly after eight o'clock to report a robbery; Norman called the police as Weilage asked. As he was calling, he saw Tucker and another man running across the street toward the bus stop. Within two to five minutes, T.J. entered the restaurant with a knife and took Weilage's bag from him. Tucker was not with him; Tucker had run across the street minutes before T.J. arrived. Norman went home at the end of his shift, but he was called back to identify Tucker, whom the police had arrested, as the man who had been talking to Weilage outside the store and who Weilage said had robbed him. Tucker argues there is insufficient evidence to support his conviction for armed robbery because when T.J. approached Weilage with the knife, Tucker was not present in the restaurant. In a legal sufficiency review, we view all of 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 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A defendant is a party and becomes criminally responsible for another's actions if — acting with intent to promote or assist the commission of the offense — the defendant solicited, encouraged, directed, aided, or attempted to aid the other to commit the offense. See Tex. Pen. Code Ann. §§ 7.01(a), 7.02 (a)(2) (Vernon 2003). "In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense." Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986) (citing Beier v. State, 687 S.W.2d 2 (Tex.Crim.App. 1985); Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App. 1981)). Our review of the record shows ample evidence to support Tucker's conviction. Weilage's testimony alone provides evidence of two confrontations with Tucker in quick succession, both of which left Weilage feeling threatened and as if he might be robbed. The second confrontation involved Tucker introducing T.J. to Weilage. Although Tucker was not in the restaurant at the moment T.J. took Weilage's bag and its contents in the third confrontation, Tucker had been seen by the manager minutes beforehand running away from the restaurant. The trial court could reasonably have inferred — given the two men's joint effort to extort money from Weilage at the bus stop earlier that the two had planned this third encounter as well. Then, when Tucker was arrested, he told the police he had not committed the robbery, T.J. had. The remark betrays a familiarity with the circumstances of the crime, and it also supports an inference that Tucker was involved in the final confrontation at a level that would support liability as a party. See Burdine, 719 S.W.2d at 315 (looking at conduct before and after the offense to determine status as party). Looking at this and all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Moreover, viewing this and all the evidence in a neutral light, we conclude the evidence of Tuckers's guilt, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the evidence contrary to the verdict so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We decide Tucker's first and second issues against him.

Reforming Incorrect Judgment

In his third issue, Tucker complains that the trial court's judgment incorrectly states that he entered into a plea bargain. We agree. Accordingly, we sustain Tucker's third issue and modify the judgment to state that "TERMS OF PLEA BARGAIN" were "NONE." As modified, we affirm the judgment of the trial court. See Tex.R.App.P. 43.2(b)