Anthony Harbour v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 26, 2021
• Docket: 09-20-00096-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00096-CR NO. 09-20-00097-CR NO. 09-20-00098-CR __________________

ANTHONY HARBOUR, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause Nos. CR33946, CR33947, CR33948 __________________________________________________________________

MEMORANDUM OPINION

A jury convicted appellant Anthony Harbour of three charges of aggravated

robbery and assessed punishment at thirty-six years of confinement in each case,

with the sentences to run concurrently. In two issues, Harbour challenges the legal

sufficiency of the evidence and asserts that the trial court abused its discretion by

allowing the State to present evidence of extraneous offenses during the punishment

phase. We affirm the trial court’s judgment.

1 THE EVIDENCE

Emma Broussard testified that she resides on a county road in Dayton, Texas,

and she was in a travel trailer on the property because her home was being built by

Joe.1 Broussard explained that on the date in question, her dogs began to bark and

growl, and she saw “the suspect running, getting out of the car and running around

to the millworker.” According to Broussard, the suspect was pointing a gun at one

of the millworkers, David, and yelling at David to give him an envelope. Broussard

testified that Joe was also present, and she saw the suspect point a gun at Joe.

Broussard explained that she called 911 and tried to describe what was happening.

Broussard testified that she saw David give the envelope to the suspect. According

to Broussard, the man with the gun was wearing dark denim pants, a plaid shirt, a

handkerchief on his face, sunglasses, and a cap, and she estimated that he was

approximately five feet seven inches tall and appeared to be stocky.

David testified that he was doing some carpentry work for Joe at a residence

in the Kenefick area on April 23, 2018. David explained that he had gone to the bank

to cash a check before going to the job site. David testified that the check was for

$7000, and he deposited $5000 and asked for $2000 in cash. According to David,

1 To protect the privacy of the victims, we refer to them using the fictitious names Joe, John, and David. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 the bank gave him $2000 in $100 bills in a white envelope. David explained that one

of his workers, John, was with him when he went to the bank. According to David,

when he got out of his van at the job site, he felt something hit his head, and when

he turned around, he realized that someone was holding a gun on his forehead and

yelling at David to give him the white envelope.

When asked what he recalled about the gunman, David testified that the

gunman’s “mouth was covered from the nose down, and he was a colored person.”

David explained that he felt threatened, and his coworkers told him his face and lips

turned white. David testified that he gave the envelope, which contained $2000 in

cash, and his cellphone to the gunman. According to David, the gunman also pointed

the weapon at John and Joe, and John gave the gunman his wallet. David explained

that after the robbery, he and the other victims found his cellphone and John’s wallet

between the house and where the police stopped the suspects’ vehicle approximately

four blocks away. David testified that Joe called 911.

John testified that he accompanied David to the bank to deposit a check and

get cash, and he saw that David had the money in an envelope. According to John,

when he and David reached the job site, a car entered with them, and someone got

out of the car and “went straight to [David].” John testified that the person had a

black and purple gun in his hand and was pointing the gun at David, and the gunman

forced David to get the envelope from the van. John explained that he gave the

3 gunman his wallet, which contained over $400, because he saw the gunman pointing

a gun at both David and John. According to John, the gunman was wearing gloves

and had a handkerchief on his face. John explained that the gunman got into the

passenger side of the car after the robbery, and the driver did not get out of the

vehicle. John testified that he saw the numbers “4623” on the car’s license plate.

Joe testified that on April 23, 2018, he was working as the contractor building

a home for Broussard and her husband. According to Joe, he saw David’s van enter

the jobsite, and someone jumped next to the door with a gun. Joe explained that the

gunman was African-American, and he knew that no African-American

subcontractors were working at the site. Joe testified that he heard the gunman saying

“Give me the money. Give me the money.” According to Joe, the robber was

pointing a gun at David, and David gave the robber his wallet. Joe then offered the

robber money from his own wallet. Joe testified that the robber instructed him to put

his hands up and continued to ask for money. According to Joe, the robber asked

David for the white envelope.

Joe explained that the robber had both David and John kneeling on the ground,

and the robber was pointing a gun at David’s forehead. According to Joe, the robber

began counting down, and Joe told David to give the robber the envelope because

they might get shot. Joe testified that he was “frightened to death.” Joe explained

that when the robber got the envelope, the robber jumped into the passenger side of

4 the car, and the car “immediately took off.” Joe then called 911, and when he went

to the scene of the traffic stop, he identified the car as the one that had been on the

Broussards’ property.

Mayela Pruneda testified that on April 23, 2018, she reported to the Houston

Police Department that a black and purple firearm had been stolen from the trunk of

her car. Pruneda testified that she knows Harbour, but she did not give the firearm

to Harbour.

Deputy John Tucker of the Liberty County Sheriff’s Office testified that on

April 23, 2018, he responded to a call about an aggravated robbery. Based upon the

information in the 911 call, Tucker located a blue Kia, which he believed to be the

suspect’s vehicle. As Tucker approached the vehicle, it came to an abrupt stop, and

Tucker explained that he almost struck the vehicle. Tucker testified that he initiated

a felony takedown, and the driver got out of the vehicle as soon as the driver saw

Tucker getting out. A second suspect remained in the vehicle, and Tucker informed

dispatch of his location and waited for backup. The driver remained on the ground,

and Tucker instructed the passenger to keep his hands on the dashboard. Tucker

explained that he was the first law enforcement officer to encounter the occupants

of the vehicle. Tucker identified Harbour in court as the passenger. According to

Tucker, the license plate of the vehicle was HDV4623.

5 Tucker instructed Harbour to get out of the vehicle, and he arrested Harbour

and the driver. Tucker and other officers searched the vehicle and took photographs,

and the photographs of the vehicle and its contents were admitted into evidence.

Investigating officers found gloves, beanies, and cell phones inside the vehicle.

Tucker explained that his vehicle is equipped with a video system that recorded the

traffic stop, and a copy of the recording was admitted into evidence. Tucker testified

that all the evidence from the scene was brought to him for processing. According

to Tucker, officers knew a weapon was involved in the offense, so their “first priority

was to try to locate that weapon[.]” Tucker testified that he was unable to locate the

firearm. The victims came to the scene of the traffic stop, but Tucker explained that

he could not communicate with them due to a language barrier.

Sergeant Paul Young testified that he responded to an aggravated robbery call

on the date in question, and his car was equipped with a video camera that recorded

his response to the call. A copy of the video was admitted into evidence. Young

explained that he eventually left the scene to check the immediate area for weapons,

and he testified that constables in the area found a weapon approximately fifty feet

from where the stop was made. Photographs of the firearm and its approximate

location when it was found were admitted into evidence. The photographs show that

the firearm the constables recovered was black and purple. According to Young, the

6 weapon was loaded and ready to fire, and there were skid marks on the weapon “as

if [it had] been thrown.”

Patrol deputy George Daniels of the Liberty County Sheriff’s Office testified

that he was dispatched to the Kenefick area on April 23, 2018, and he went to the

scene of the traffic stop by Tucker. After ensuring that Tucker had the scene under

control and discussing the case with Tucker, Daniels “went to the county road where

the alleged crime started[]” and photographed the scene. Daniels explained that the

scene was quite muddy, and he photographed footprints and tire tracks. Daniels then

returned to the scene of the traffic stop and examined Harbour’s shoes, and he

explained that Harbour’s shoes were muddy and looked “[v]ery similar to the

photographs[.]” Daniels testified that he also examined the driver’s shoes, and the

driver’s shoes were not muddy and did not match the footprint photographs from the

scene. Daniels explained that he had examined the bottom of the shoes of everyone

else who was at the crime scene, and he determined that none of those shoes could

have made the footprints.

ISSUE TWO

In issue two, Harbour challenges the sufficiency of the evidence supporting

his convictions. If sustained, issue two would result in rendition of a judgment of

acquittal; therefore, we address it first. See Price v. State, 502 S.W.3d 278, 281 (Tex.

App.—Houston [14th Dist.] 2016, no pet.); see also Tex. R. App. P. 47.1. In

7 evaluating the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational factfinder could

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

v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007). The jury is the ultimate authority on the credibility of witnesses and the

weight to be given to their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.

Crim. App. [Panel Op.] 1981). A reviewing court must give full deference to the

jury’s responsibility to fairly resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must

presume that the jury resolved such facts in favor of the verdict and defer to that

resolution. Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). In addition, we determine whether the necessary inferences

are reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778.

Section 29.03 of the Texas Penal Code provides, in pertinent part, that a

person commits the first-degree felony offense of aggravated robbery if he commits

robbery as defined in section 29.02 and uses or exhibits a deadly weapon. Tex. Penal

Code Ann. § 29.03(a)(2), (b). Section 29.02 of the Texas Penal Code provides that

8 a person commits the offense of robbery if, while committing theft, and with intent

to obtain control of the property, he intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death. Id. § 29.02(a)(2).

Viewing the evidence in the light most favorable to the verdict and deferring

to the jury’s authority regarding the credibility of witnesses and the weight to give

their testimony, we conclude that a reasonable factfinder could have found, beyond

a reasonable doubt, that Harbour was guilty of the aggravated robberies of John,

David, and Joe. See Tex. Penal Code Ann. § 29.03; Brooks, 323 S.W.3d at 902 n.19;

Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d at

343. Accordingly, the evidence was legally sufficient, and we overrule issue two.

ISSUE ONE

In issue one, Harbour asserts that the trial court abused its discretion by

allowing the State to present evidence of extraneous offenses during the punishment

phase. Harbour contends that the State failed to prove beyond a reasonable doubt

that he committed the alleged extraneous offenses, and he argues that the harmful

consequences of admitting the extraneous offense evidence outweighed its probative

value under Rule 403 of the Texas Rules of Evidence. Harbour also asserts that the

trial court’s admission of the extraneous offense evidence was not harmless.

The record shows that at the beginning of the punishment phase, the State

offered into evidence exhibits 102 through 111, all of which constituted

9 documentary evidence of Harbour’s previous felony offenses, including

unauthorized use of a vehicle, felon in possession of a weapon, and aggravated

robbery with a deadly weapon. The proffered exhibits also pertained to Harbour’s

juvenile offenses. When the State offered the exhibits into evidence, the trial judge

told defense counsel that he was not required to stipulate as to authenticity,

authentication, or identity. Defense counsel stated, “I have no objection, Judge.” The

trial judge then asked defense counsel, “[D]oes your client stipulate that he is in fact

one and the same person as identified in each of those judgments?” Defense counsel

responded, “Yes, sir[,]” and the trial judge admitted the exhibits into evidence.

Tim 2 testified that on July 8, 2006, he was robbed by a juvenile at gunpoint.

According to Tim, the juvenile demanded that Tim give him his wallet, and Tim

complied. Tim explained that he was unable to identify the robber, but the robber

was caught and prosecuted. The prosecutor stated, “You seem almost emotional. Am

I misreading that?” Tim responded, “No, you’re not.” Tim testified, “I don’t want

him to hurt anybody, especially if he’s pointing guns at people[,] . . . [b]ut I’m also

not excited about the prospect of helping put somebody in jail for a long time.” The

prosecutor stated, “You’re just here to talk about what happened to you. Do you

understand that?” In addition, the prosecutor told Tim that he did not intend to ask

2 We identify the victim of Harbour’s juvenile offense by using a fictitious name. 10 Tim for a recommendation about Harbour, and he instructed Tim that the decision

“is up to the jury about what to do with Mr. Harbour.” Tim also testified that he was

notified after the robbery that the weapon Harbour displayed was a BB gun. Defense

counsel did not object to any of Tim’s testimony. The trial court’s punishment charge

to the jury included the following instruction:

You are further instructed that if there is any evidence before you in this case regarding the Defendant’s committing an alleged offense or bad acts other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offense or bad acts and even then you may only consider the same in determining the proper punishment for the Defendant in this case.

To preserve a complaint for appellate review, the record must demonstrate

that the appellant made his particular complaint known to the trial court by a timely

request, objection, or motion, and that the trial court ruled on the request, objection,

or motion. Tex. R. App. P. 33.1(a); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim.

App. 1984). The record reflects that Harbour did not file any motions, and defense

counsel did not object to the admission of the documentary evidence regarding

Harbour’s prior offenses or to any of Tim’s testimony. We conclude that Harbour

failed to preserve issue one for appellate review. See Tex. R. App. P. 33.1(a); Ross,

678 S.W.2d at 493. Accordingly, we overrule issue one. Having overruled both of

Harbour’s issues, we affirm the trial court’s judgment of conviction in each case.

11 AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on April 12, 2021 Opinion Delivered May 26, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.