Derek Hisey v. State

• Court: Court of Appeals of Texas
• Decided: February 18, 2021
• Docket: 01-19-00929-CR
• Status: Published

Opinion

Opinion issued February 18, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00929-CR ——————————— DEREK HISEY, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1605013

MEMORANDUM OPINION

A jury convicted appellant, Derek Hisey, of the offense of aggravated

robbery1 and assessed his punishment at confinement for 22 years and a fine of

1 See TEX. PENAL CODE § 29.03(a)(2). $1,500.00. In accordance with the jury’s verdict, the trial court entered an

affirmative finding that appellant used or exhibited a deadly weapon, namely, a

firearm, during the commission of the offense. In his sole issue, appellant challenges

the legal sufficiency of the evidence that he used or exhibited a deadly weapon.

We affirm.

Background

The complainant, Paul Nguyen, testified that, on September 10, 2018, he

responded to a posting on Craigslist offering a used laptop computer for sale. He

contacted the seller, later identified as appellant, by text, and offered $600.00 in cash.

Appellant accepted and the two agreed to meet on September 12, 2018, at a

restaurant on State Highway 6 in Harris County. Appellant represented that his name

was “Dave Rutherford,” described himself as “white, short and [with] dark black

hair,” and stated that he would be driving a white Nissan car.

On September 12, 2018, when the complainant arrived at the restaurant and

went inside, he did not see anyone matching the description that appellant had given.

As the complainant walked back to his car, appellant approached him from behind

and said, “Hey, where [is] the money?” The complainant turned around and asked,

“Who are you?” Appellant, who identified himself as the laptop seller, was holding

a “Black taser” in his right hand. With his left hand, appellant lifted his shirt,

revealing a “light brown” or gold “gun poking out” from his waistband. The

2 complainant, who testified that he was “afraid” he would “get killed,” presented his

$600.00, which appellant grabbed with his left hand. Appellant then got into the

passenger side of a red Ford Focus that was parked two or three spaces away. As

the driver, who was female, drove out of the parking lot, the complainant took out

his cellular phone and captured a photograph of the car and the license plate. The

complainant then called the police. The complainant further testified that he

reported to the investigating officers that appellant had shown a handgun during the

robbery. The trial court admitted into evidence the photograph that the complainant

captured of the car in which appellant left the scene.

Harris County Sheriff’s Office (“HCSO”) Deputy L. Nguyen testified that,

while on patrol on September 12, 2018, he was dispatched to a restaurant on

Highway 6 in Harris County to investigate an aggravated robbery. The complainant

reported that a man had robbed him of $600.00 and then immediately left the

restaurant. The complainant provided a description of the assailant and his car.

Deputy Nguyen viewed the photograph that the complainant had taken of the car,

and he broadcast the description and license number over his radio.

HCSO Sergeant S. Ashmore, who was assigned to investigate the robbery,

testified that, the day after the robbery, he learned that the license plate in the

photograph was registered to appellant. Ashmore compared a file photograph of

appellant with the description that the complainant had given, assembled a

3 photographic lineup, and presented it to the complainant. The complainant viewed

the lineup and positively identified appellant as the man who had robbed him.

After appellant was arrested, Ashmore interviewed him. Ashmore testified

that, during the interview, appellant admitted

that he had set up the victim through Craigslist to purchase a [laptop]. His wife drove him there but he said that his wife had nothing to do with it. She had no idea what he was going to do and then when he saw the complainant he walked up to him and had the stun gun in his hand and demanded his money.[2]

During deliberations, the jury sent out a note, asking: “If the gun was fake

(toy gun), would the charge still be aggravated robbery?” The trial court proposed

the following response, to which each side affirmatively stated that it had no

objection: “Ladies and Gentlemen of the Jury please follow the charge of the Court

and continue your deliberations. The Court cannot answer your question.”

At the close of the guilt-innocence phase of trial, the trial court’s charge

authorized the jury to find appellant guilty of the offense of aggravated robbery if,

in part, it found that he used or exhibited a deadly weapon during the commission of

the offense.3 The jury found appellant guilty of the offense of aggravated robbery.

2 A video of the interview was admitted at trial and played to the jury, but is listed in the record as “Not Reported” and is not filed in the appeal. The record reflects that audio problems with the tape made it difficult or impossible to decipher appellant’s statements. Accordingly, Sergeant Ashmore testified about the dialogue. 3 The trial court also instructed the jury on the lesser-included offense of robbery. 4 During punishment, the State presented evidence that, two days prior to the

instant offense, appellant committed an aggravated robbery in Pearland. The

complainant in the Pearland offense testified that appellant set him up through a

Craigslist posting, offering a used laptop computer for sale. Appellant identified

himself as “Dave Rutherford,” arranged to meet at a grocery store, and represented

that he would be driving a white Nissan. At the grocery store, appellant approached

the complainant and requested to use the complainant’s cellular phone. When the

complainant refused, appellant attempted to force his way into the complainant’s

car. The complainant then drove to another area of the parking lot and went into

the grocery store. As he exited the store, another individual, a black male,

approached the complainant, pointed a “silver gun” at the complainant’s chest and

stole $800.00 from him. Pearland Police Department Deputy M. Gonzalez testified

that the complainant reported that appellant and the gunman left the scene together

in a red car. The trial court admitted into evidence photographs of the gunman inside

the grocery store holding a silver firearm and of the red car.

The jury assessed appellant’s punishment in the instant offense at confinement

for 22 years and a fine of $1,500.00. In accordance with the jury’s verdict, the trial

court entered an affirmative finding that appellant used or exhibited a deadly weapon

during his commission of the offense.

5 Deadly Weapon

In his sole issue, appellant argues that the evidence is legally insufficient to

support the aggravating element of the offense, namely, his use or exhibition of a

deadly weapon during the commission of the offense.

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Nowlin v.

State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); Edwards v. State, 497 S.W.3d

147, 156 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Our role is that of a due

process safeguard, ensuring only the rationality of the trier-of-fact’s finding. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference

to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). The fact finder, as the judge of the facts

and credibility of the witnesses, may choose to believe or not to believe the

witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614

(Tex. Crim. App. 1986). We must resolve any inconsistencies in the evidence in

favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

6 A person commits the offense of robbery if, “in the course of committing

theft . . . and with intent to obtain or maintain control of the property,

he . . . intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death.” TEX. PENAL CODE § 29.02(a)(2). Theft is the unlawful

appropriation of property with intent to deprive the owner of the property. Id.

§ 31.03(a). The offense of robbery is aggravated if, inter alia, the person “uses or

exhibits a deadly weapon” during its commission. Id. § 29.03(a)(2). A firearm is a

deadly weapon. Id. § 1.07(a)(17)(A).

Here, the record shows that appellant admitted that he set up the complainant

through an advertisement on Craigslist, offering to sell a used laptop computer.

Appellant admitted having approached the complainant while holding a taser, or stun

gun, and having demanded the complainant’s money. The complainant testified that

appellant also lifted his shirt with his left hand and revealed a light-brown or gold-

colored firearm “poking out” from his waistband. The complainant testified that he

feared for his life and that appellant took $600.00 from him and left the scene. From

this evidence, the jury could have reasonably concluded that appellant, while in the

course of committing a theft of money, and with the intent to obtain or maintain

control of it, intentionally or knowingly placed the complainant in fear of imminent

bodily injury or death. See id. §§ 29.02(a)(2); 31.03(a). The jury could have also

7 reasonably concluded that appellant used or exhibited a firearm during his

commission of the offense. Id. §§ 1.07(a)(17)(A), 29.03(a)(2).

Appellant argues that the evidence is insufficient that he used or exhibited a

firearm during the commission of the offense because the complainant testified that

he saw only the gold or brown handle of the object in appellant’s waistband.

Appellant asserts that the complainant merely speculated that the object was in fact

a firearm.

The record shows, however, that the complainant testified that he is familiar

with firearms. He discussed having participated in shooting activities at a gun range

and that some of his family members own firearms. He described the color of the

handle with specificity. “Testimony regarding the use of a [firearm] is sufficient to

support a finding of use and exhibition of a deadly weapon.” Gomez v. State, 685

S.W.2d 333, 336 (Tex. Crim. App. 1985) (en banc). That a complainant testifies to

having merely seen a portion of a firearm is likewise sufficient. See id. (holding

complainant’s testimony that he saw “half” of “black colored gun” and that

defendant “covered the other half” was sufficient to support deadly-weapon finding).

“Where a witness has identified a gun as a firearm, the witness’s competence is not

undermined simply because [he] did not see each component of the gun . . . .” Starks

v. State, No. 4-11-00848-CR, 2012 WL 2804856, at *3 (Tex. App.—Houston [14th

Dist.] July 10, 2012, pet. ref’d) (mem. op., not designated for publication) (holding

8 that complainant’s testimony that she “only saw the ‘little handle portion’ of the

gun” and that it “appear[ed] to be a real firearm’” was sufficient); see also Riddick

v. State, 624 S.W.2d 709, 710–11 (Tex. App.—Houston [14th Dist.] 1981, no pet.)

(holding complainant’s testimony that defendant threatened her with “pistol” was

sufficient, notwithstanding that she could only see barrel of firearm). It is within the

province of the jury to determine the credibility of the complainant’s testimony. See

Sharp, 707 S.W.2d at 614.

Appellant asserts that expert testimony is necessary to support an affirmative

finding that a deadly weapon was used in the commission of an offense. However,

corroboration of the complainant’s description of the weapon in the form of expert

testimony is not required. See Gomez, 685 S.W.2d at 336.

Appellant complains that, because the jury sent out a note asking whether the

offense would nevertheless be aggravated if the gun were merely a toy, “the jury

struggled with this issue.” And, “[u]nfortunately, the trial court gave no clarification

to the jury in response to its note specifically addressing this very point.”

When a trial court responds substantively to a question the jury asks during

deliberations, that communication essentially amounts to a supplemental jury

instruction, and the trial court must follow the same rules for impartiality and

neutrality that generally govern jury instructions. Lucio v. State, 353 S.W.3d 873,

875 (Tex. Crim. App. 2011). Generally, the trial court must limit its answer to

9 setting forth the law applicable to the case; it must not express any opinion as to the

weight of the evidence, sum up the testimony, discuss the facts, or use any response

calculated to arouse the sympathy or excite the passions of the jury. Id. (citing TEX.

CODE CRIM. PROC. art. 36.14). However, a communication from the trial court that

merely refers the jury to the original charge does not constitute an additional

instruction. See Earnhart v. State, 582 S.W.2d 444, 450 (Tex. Crim. App. 1979);

see also SantiagoVargas v. State, No. 01-17-00349-CR, 2018 WL 3580929, at *4

(Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op., not designated

for publication). Only if we first find error in a jury instruction do we next consider

whether a defendant was harmed by the error. Taylor v. State, 332 S.W.3d 483, 489

(Tex. Crim. App. 2011) (applying TEX. CODE CRIM. PROC. art. 36.19 and Almanza

v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)).

Here, the record shows that, during its deliberations, the jury sent out a note,

asking: “If the gun was fake (toy gun), would the charge still be aggravated

robbery?” The trial court, in discussing the note with appellant and the State,

proposed the following response: “Ladies and Gentlemen of the Jury please follow

the charge of the Court and continue your deliberations. The Court cannot answer

your question.” Appellant affirmatively stated that he had no objection.

Thus, to the extent that appellant complains about the trial court’s response to

the jury note, the matter is not preserved. See TEX. R. APP. P. 33.1; Green v. State,

10 912 S.W.2d 189, 192 (Tex. Crim. App. 1995) (holding that because defendant did

not object to trial court’s response to jury’s question, he “presented nothing for

review”). In addition, because the record shows that the trial court did not

substantively respond to the jury’s question, no error occurred. See Earnhart, 582

S.W.2d at 450 (communication from trial court that merely refers jury to original

charge does not constitute additional instruction); see, e.g., Linnear v. State, No. 01-

85-00910-CR, 1987 WL 7657, at *4 (Tex. App.—Houston [1st Dist.] Mar. 12, 1987,

no pet.) (not designated for publication).

Further, there is no evidence in the record that appellant used or exhibited a

toy gun. Rather, defense counsel merely speculated through his questioning of the

complainant during cross-examination whether the firearm might have been a toy.

And, the complainant testified that he is familiar with firearms and could discern the

difference between a real firearm and a toy gun.

We hold that the evidence is legally sufficient to support appellant’s

conviction for the offense of aggravated robbery. See Jackson, 443 U.S. at 318–19;

Nowlin, 473 S.W.3d at 317; see also TEX. PENAL CODE § 29.03(a)(2).

We overrule appellant’s sole issue.

11 Conclusion

We affirm the trial court’s judgment.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Rivas-Molloy.

Do not publish. TEX. R. APP. P. 47.2(b).