Brandon Scott Powell v. State

• Court: Court of Appeals of Texas
• Decided: December 5, 2018
• Docket: 09-17-00147-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00147-CR ____________________

BRANDON SCOTT POWELL, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 14-08-09186-CR ________________________________________________________ _____________

MEMORANDUM OPINION

Brandon Scott Powell appeals from his conviction for committing aggravated

robbery, a crime that occurred in June 2013. See Tex. Penal Code Ann. § 29.03(a)(2)

(West 2011). Powell was convicted of the charge following a trial before a jury in

March 2017. Thereafter, Powell filed a brief, in which he argues his conviction

should be overturned for two reasons: (1) during the guilt-innocence phase of the

trial, the trial court erred by allowing the jury to consider testimony that the assistant

manager of the store where the robbery occurred is now fearful and has lost her sense

1 of security due to the robbery; and (2) the evidence is insufficient to support his

conviction.

We conclude that even if the trial court should have excluded the assistant

manager’s testimony about the after-effects of the robbery on her life, the trial

court’s error was harmless given all the evidence admitted in Powell’s trial. We also

conclude the evidence authorized the jury to convict Powell of committing

aggravated robbery. For these reasons, we affirm the trial court’s judgment.

Background

S.M. 1 was working as an assistant manager at a jewelry store in Montgomery

County, Texas, in June 2013. One evening, around 7:00 p.m., several individuals

wearing white painter’s suits, with their faces covered by painter’s masks, entered

the store. Jose Villarreal, who later confessed to having masterminded the robbery,

was one of the six men who were involved in robbing the store. Villarreal is seen in

a videorecording of the June 2013 robbery waving a handgun.

After entering the store, Villarreal told everyone in the store to lie down on

the floor. According to S.M., while she was lying on the floor, she heard glass

1 To protect the victim’s identity, we identify her by using her initials. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2 breaking. She could tell that someone was hitting the cases with an object like “a

hatchet[.]” Cameras in the store recorded the robbery as it occurred. The trial court

admitted a videorecording of the robbery into evidence during Powell’s trial.

The group involved in the robbery left through the store’s emergency exit,

where they entered the back parking lot. A Montgomery County crime scene

investigator, who came to the store the evening the robbery occurred, testified that

she found a white painter’s mask, items used to display rings, and a pickaxe on the

path the group took after leaving the store. The police sent various items that they

recovered during their investigation to a lab so they could be tested for the presence

of DNA.

The detective in charge of investigating the robbery, Chad May, began

investigating the robbery on the day it occurred. During Powell’s trial, May testified

that an employee of the company that owned the store told him that Jose Villarreal

was a suspect in another robbery of one of the other company’s stores. Two days

later, police in Houston arrested Villarreal and found him with jewels taken during

the June 2013 robbery. Shortly thereafter, May interviewed Villarreal in Houston,

where Villarreal confessed to his role in the robbery. Villarreal told May the names

of all the individuals, except Powell, who were involved in the June 2013 robbery

3 during his interview. Villarreal also told Detective May where the police could find

the disguises and tools the group used to rob the store.

Forensic scientists with a laboratory in Virginia tested six items associated

with the June 2013 robbery that the police sent the lab. According to one of the

forensic scientists that testified in Powell’s trial, a partial DNA profile extracted

from a white painter’s mask, which police found near the store, matched a DNA

profile that she extracted from a swab that police obtained from Powell. According

to the forensic scientist, the profiles on these two items “matched one another, and

Mr. Powell could not be excluded as a source of the DNA profile” on the painter’s

mask that police recovered near the jewelry store. During her testimony, the forensic

scientist explained that the chance that the DNA from Powell’s swab and the

painter’s mask might randomly match each other is one in 14 million for Caucasians,

one in 18 million for African-Americans, and one in 8.3 million for Hispanics. 2

During the trial, Villarreal testified that he planned the robbery and recruited

Powell, his former brother-in-law, to smash the display cases and then grab as much

jewelry as possible after entering the store. Villarreal testified that he was the only

person carrying a gun during the robbery. He also admitted that he had a lengthy

criminal record and that he had received a life sentence for his role in the robbery.

2 These ratios were for males who live in the United States. 4 On cross-examination, Villarreal admitted that initially, he lied to investigators about

some of the aspects of the June 2013 robbery and about his role in the robbery of

another of the company’s stores. Villarreal admitted that he was not completely

truthful with Detective May because he failed to give him Powell’s name the first

time he spoke to Detective May. When Powell’s attorney asked whether the mask

found near the crime scene could have come from one of Villarreal’s construction

jobs that Powell worked, Villarreal testified that he could not recall whether Powell

had worked for him or if the workers on his construction jobs had worn painter’s

masks and protective gear.

Powell called two witnesses in his defense, Markitta Benson, his girlfriend

and the mother of his child, and his uncle, James Powell. Benson testified: “As of

right now I would say [Powell] was with me on [the evening of June 17.]” Benson’s

testimony was based on her recollection about when the hospital discharged her after

she had Powell’s child, who was born on June 6, 2013, and on her recollection about

how long Powell stayed in her house after she got out of the hospital. Benson

testified that at one time, Villarreal employed Powell for a job that involved working

construction. On cross-examination, Benson agreed that she never told the police or

anyone with the District Attorney’s office that Powell was with her when the robbery

occurred. Additionally, Benson rejected the suggestion that Powell could have

5 participated in the robbery without her knowing it because she estimated that the

store where the robbery occurred is approximately 160 miles from her home. In

response to one of the prosecutor’s questions, Benson agreed that other than her

testimony, she had no other evidence to prove that Powell was with her when the

robbery occurred.

James Powell testified that Powell had once worked for Villarreal, but he

never explained when Powell worked for Villarreal in relationship to the June 2013

robbery. James agreed, however, that he never saw Powell while he was working on

any of Villarreal’s construction jobs, and that he just knew that Powell did that kind

of work. According to James, Villarreal is not a truthful person. James also

explained that he did not have any actual knowledge about where Powell was on the

day the June 2013 robbery occurred, but he understood that Powell was with Benson

on the day of the robbery because Benson was having a baby.

Analysis

In issue one, Powell argues the trial court abused its discretion by overruling

Powell’s objection to the relevance of a question posed by the prosecutor to the

jewelry store’s assistant manager about the impact of the robbery on her life. In

response to the prosecutor’s question, the assistant manager testified: “Well, I’m a

lot more aware of my surroundings. I’m constantly looking over my shoulder.

6 Having keys to a jewelry store, I’m afraid somebody might follow me home because

they know I have a key. It’s affected me in a lot of ways. I’ve lost my sense of

security.”

Before we address the arguments Powell makes to support his first issue, we

note the standard of review that applies to rulings admitting evidence. A trial court’s

decision to admit a witness’s testimony is reviewed using an abuse-of-discretion

standard. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). On

appeal, an appellate court will not disturb the trial court’s ruling admitting evidence

if the court’s ruling falls within the zone of reasonable disagreement. Id. And even

if a trial court errs by failing to sustain an objection to a witness’s testimony, the

verdict in the case will not be reversed unless admitting the testimony affected the

defendant’s substantial rights. Tex. R. App. P. 44.2(b). The Court of Criminal

Appeals has explained that a “substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict.” King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328

U.S. 750 (1946)).

Generally, evidence about the impact that a crime has had upon a victim’s life

is not material to proving the elements the State is required to prove to show that a

crime occurred. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990);

7 see also Stavinoha v. State, 808 S.W.2d 76, 78 (Tex. Crim. App. 1991). As a result,

trial courts generally exclude this type of evidence in criminal trials. Id. In his brief,

Powell argues that the general rule applies in his case. He suggests the evidence

about the after-effect of the robbery on the assistant manager’s life is not probative

on whether he robbed the jewelry store. In response, the State argues that because it

charged Powell with aggravated robbery, it needed to prove that the individuals3

who committed the robbery took actions that made the assistant manager fear she

would suffer an imminent bodily injury or death.

We need not decide whether the assistant manager’s testimony about the after-

effect of the robbery on her life was admissible to resolve Powell’s first issue. Even

if that evidence was not relevant to proving that an aggravated robbery occurred, as

Powell argues, admitting the testimony did not injure or influence the jury’s verdict

that Powell committed an aggravated robbery. See Tex. R. App. P. 44.4(2)(b). In

Powell’s case, Powell never disputed the evidence established that the assistant

manager feared injury or death. In the trial, the assistant manager testified that she

feared she would be shot, that she might die, and that other employees and customers

in the store could be injured. In closing argument, Powell never suggested to the jury

3 The charge the trial court gave the jury in Powell’s case included instructions on the law of parties and conspiracy. 8 that it should disregard the assistant manager’s testimony. The evidence that a gun

was displayed during the robbery was also undisputed. The videorecording of the

robbery, which was admitted into evidence during Powell’s trial, shows how the

robbers used handheld pickaxes to smash several glass counters holding jewelry. In

final argument, Powell’s attorney focused on Powell’s alibi that Powell was at his

girlfriend’s house when the robbery occurred. Additionally, he argued that the

remaining evidence connecting Powell to the robbery was not sufficiently reliable

to prove that Powell was among the individuals who robbed the store. He did not

argue that the State failed to prove that an aggravated robbery is the type of robbery

that occurred.

In conclusion, the record from Powell’s trial contains overwhelming evidence

showing that the assistant manager, during the robbery, feared that she could be

injured or killed. Even if the trial court erred by admitting the testimony about the

after-effects of the robbery on the assistant manager’s day-to-day life, we conclude

the error did not substantially affect the jury’s decision convicting Powell of

aggravated robbery. We overrule Powell’s first issue.

In issue two, Powell argues the State’s evidence identifying him as one of the

men who robbed the store was insufficient to allow the jury to conclude that he

participated in robbing the store. For example, Powell argues that the DNA

9 testimony in his case does not corroborate Villarreal’s testimony that Powell was

present when the robbery occurred. See Tex. Code Crim. Proc. Ann. art. 38.14 (West

2005) (providing that an accomplice witness’s testimony must be corroborated by

other evidence “tending to connect the defendant with the offense committed”). But

the State was not required to exclude every conceivable alternative that might

explain why a DNA profile matching Powell’s was on the painter’s mask. See

Merritt v. State, 368 S.W.3d 516, 525 (Tex. 2012). And the standard of review that

applies to Powell’s appeal requires that we determine “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Johnson

v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

In reviewing the evidence, we are not allowed to “engage in a ‘divide and

conquer’ strategy but must consider the cumulative force of all the evidence.”

Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) (citing Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017)). Moreover, juries may draw

reasonable inferences from the facts if each inference is supported by the evidence

that is admitted during the trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim.

App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper, 214 S.W.3d 9, 16-

10 17 (Tex. Crim. App. 2007). We are required to presume that the factfinder resolved

any conflicts in the evidence in favor of the verdict that the jury reached. Merritt,

368 S.W.3d at 525. In a jury trial, the jury acts as the exclusive judge of the facts,

the credibility of the witnesses, and the weight that should be given to the testimony

admitted into evidence in the trial. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.

App. 2010). In reviewing the direct evidence and circumstantial evidence, each may

be equally probative of the defendant’s guilt, and circumstantial evidence alone may

allow an appellate court to uphold a defendant’s conviction when the cumulative

force of the evidence allowed the jury to reasonably infer that the defendant

committed the crime. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015);

Hooper, 214 S.W.3d at 13.

In cases like Powell’s, where an accomplice witness testifies, the statutory

requirements in article 38.14 of the Texas Code of Criminal Procedure impose a

standard that does not otherwise apply under the legal sufficiency standards in

Jackson. See Taylor v. State, 10 S.W.3d 673, 684 (Tex. Crim. App. 2000); Tex. Code

Crim. Proc. Ann. art. 38.14. The Court of Criminal Appeals has explained that “[t]he

accomplice witness rule is a statutorily imposed sufficiency review and is not

derived from federal or state constitutional principles that define the legal and factual

11 sufficiency standards.” Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App.

1999).

In part, Powell suggests that the jury did not properly weigh Benson’s

testimony in finding him guilty because her testimony provided him with an alibi.

But the jury rejected Powell’s theory that he was at Benson’s house when the store

was robbed, and the State did not have the burden to exclude every conceivable

alternative to Powell’s guilt. See Merritt, 368 S.W.3d at 525 (citing Turro v. State,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (explaining that “the evidence is not

rendered insufficient simply because appellant presented a different version of the

events”)). Determining if Benson gave credible testimony is a decision the jury made

based on its assessment of Benson’s credibility. See Temple v. State, 390 S.W.3d

341, 363 (Tex. Crim. App. 2013) (noting that “[t]he jury was able to assess the

credibility and demeanor of the witnesses who testified at trial”). We conclude that

based on the evidence before the jury, the jury could have reasonably found that

Powell participated in robbing the store.

Powell also suggests that we must exclude Villarreal’s testimony in evaluating

whether sufficient evidence supports Powell’s conviction. See Tex. Code Crim.

Proc. Ann. art. 38.14. According to Powell, his DNA could have been on the mask

due to a DNA transfer that occurred when he worked a construction job for

12 Villarreal. However, none of the witnesses testified about when, before the robbery,

Powell worked for Villarreal. And none of the witnesses testified they saw Powell

working on one of Villarreal’s jobs wearing a painter’s mask. The fact that Powell

presented the jury with an alternative to explain why his DNA might have been

transferred to the mask is an alternative hypothesis that the State did not have the

burden to disprove. See Merritt, 368 S.W.3d at 525.

Here, the record shows that Powell’s conviction is supported by more than

Villarreal’s testimony. The DNA testimony links Powell to a location the jury could

have considered as implicating him in the crime. Additionally, testimony other than

Villarreal’s shows Powell and Villarreal knew each other, another circumstance the

jury could have considered to conclude that Powell was one of the men who robbed

the store.

Finally, Powell suggests the DNA profile the forensic scientists extracted

from the painter’s mask fails to sufficiently connect him to the robbery because the

profile was not a complete profile of his DNA. Even though the forensic scientists

extracted a partial profile, one of the forensic scientists testified to statistics based

on the partial profile that allowed the jury to conclude that it is highly likely that

Powell’s DNA was on the painter’s mask found in the vicinity of the store.

13 In assessing whether the DNA evidence tends to connect Powell to the

robbery, we note that “[i]t is not necessary that the corroborating evidence directly

connect the defendant to the crime or that it be sufficient by itself to establish guilt;

it need only tend to connect the defendant to the offense.” Cathey, 992 S.W.2d at

462. Based on our review of all the evidence before the jury in Powell’s case, we

conclude the combined weight of the non-accomplice evidence tends to connect

Powell to the robbery that occurred at the store. We hold the corroborating evidence

required by Article 38.14 was satisfied based on the evidence before the jury in

Powell’s trial. See id. We overrule Powell’s second issue.

For the reasons explained above, we affirm the trial court’s judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on June 27, 2018 Opinion Delivered December 5, 2018 Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.