AFFIRMED as MODIFIED and Opinion Filed June 5, 2019
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-18-00473-CR No. 05-18-00474-CR
RICKEY LECARDO MCGEE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F16-34511-H; F16-34499-H
MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges Ricky Lecardo McGee appeals his aggravated robbery convictions.1 A jury convicted
appellant and sentenced him to sixty years’ confinement in each case. In four issues, appellant
argues the evidence is legally insufficient to support his aggravated robbery convictions, and the
judgment in each case should be reformed to show he pleaded not true to the enhancement
allegations. As reformed, we affirm the trial court’s judgments.
1 In its notice of extraneous offenses, the State gave appellant notice that evidence of the following crimes, wrongs, or acts might be used: three charges of evading arrest, two charges of retaliation, one assault charge, two charges of unlawful possession of a firearm by a felon, and one charge of assault family violence enhanced. In November 2016, appellant was indicted on two charges of aggravated robbery
committed against Ryan Roberts and Robert Freeman. Each indictment was enhanced by a 2010
aggravated assault conviction and a 1997 retaliation conviction.
At trial in November 2017, Ryan Roberts testified that, at about 7:30 p.m. on September
26, 2016, he and a co-worker, Robert Freeman, were at their workplace in Irving. Roberts’
employer provides twenty-four-hour on-call services and leases and maintains dish washing
machines for restaurants. Roberts and Freeman were in a company van in the parking lot. While
the two were talking in the van, a blue Infiniti drove by. Freeman had just test-driven a similar
car, so he pointed it out. A little later, the Infiniti came back into the parking lot and stopped.
Roberts assumed the driver was stopping to ask for directions, and he started walking toward the
Infiniti. Appellant got out of the car “kind of oddly,” and Roberts saw appellant had a gun. When
he saw the gun, Roberts was “afraid” that appellant “was going to use it.” Appellant “kept coming
up,” and he said “I will . . . kill you.” Appellant demanded the men’s wallets, and Freeman took
out his wallet and handed it over. Roberts asked if he could keep his driver’s license, and appellant
said “Yes.” However, before Roberts could get his driver’s license out, appellant grabbed the
wallet and left. Roberts’ social security card, driver’s license, credit cards, and a debit card were
still in his wallet. Freeman noted appellant’s license plate number, and Roberts called 911.
Freeman testified appellant drove up in a blue Infiniti and “came out with a gun in his
hand.” Freeman “knew [he] was getting robbed.” When asked whether he was “in fear of your
life or getting hurt,” Freeman answered, “That was the first time I’ve ever actually had a gun
pointed in my face, so, yes, ma’am.” The gun was “big.” Appellant made Freeman and Roberts
give him their wallets. Freeman’s wallet contained credit cards and “personal stuff.” As appellant
drove away, Freeman saw appellant’s license plate from “maybe 20 feet away” and “immediately
started memorizing the numbers.” On September 28, 2016, Freeman identified appellant in a
–2– photographic lineup. A warrant was issued for appellant’s arrest, and a loaded gun was found in
the center console of appellant’s car when he was arrested. A jury convicted appellant, and these
appeals followed.
In his first and second issues, appellant argues the evidence is legally insufficient to support
his aggravated robbery conviction. Specifically, appellant argues the evidence does not show he
placed either Roberts or Freeman in fear of imminent bodily injury or death because Roberts
testified he was afraid when he saw the gun but did not say that he was in fear of imminent bodily
injury or death, and Freeman “did not think [appellant] would shoot them.”
We review a challenge to the sufficiency of the evidence on a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
Under this standard, the relevant question is whether, after viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011).
This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When analyzing
legal sufficiency, 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. Id. When the record supports conflicting inferences, we presume that the factfinder
resolved conflicts in favor of the verdict and defer to that determination. Id. Direct and
circumstantial evidence are treated equally: circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Id.
–3– A person commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of property, he intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011). The offense
becomes aggravated robbery if the person “uses or exhibits a deadly weapon.” Id. § 29.03(a)(2).
The indictments in these cases alleged appellant “did then and there intentionally and knowingly,
while in the course of committing theft of property and with intent to obtain or maintain control of
said property, threaten and place [Roberts and Freeman] in fear of imminent bodily injury and
death, and [appellant] used and exhibited a deadly weapon, to-wit: A FIREARM.”
Here, appellant got out of his car, and Roberts saw appellant had a gun. Appellant
approached Roberts and Freeman and said “I will . . . kill you.” When he saw the gun, Roberts
was “afraid” that appellant “was going to use it.” When asked whether he was “in fear of your life
or getting hurt,” Freeman answered, “That was the first time I’ve ever actually had a gun pointed
in my face, so, yes, ma’am.” We conclude, after viewing the evidence in the light most favorable
to the verdict, any rational trier of fact could have found appellant placed both Roberts and
Freeman in fear of imminent bodily injury or death beyond a reasonable doubt. Clayton, 235
S.W.3d at 778. There is no requirement that a victim of aggravated robbery use the exact phrase
“I was in fear of imminent bodily injury or death” when expressing fear. Boston v. State, 373
S.W.3d 832, 839 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013). We
overrule appellant’s first and second issues.
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AFFIRMED as MODIFIED and Opinion Filed June 5, 2019
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-18-00473-CR No. 05-18-00474-CR
RICKEY LECARDO MCGEE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F16-34511-H; F16-34499-H
MEMORANDUM OPINION Before Justices Bridges, Brown, and Nowell Opinion by Justice Bridges Ricky Lecardo McGee appeals his aggravated robbery convictions.1 A jury convicted
appellant and sentenced him to sixty years’ confinement in each case. In four issues, appellant
argues the evidence is legally insufficient to support his aggravated robbery convictions, and the
judgment in each case should be reformed to show he pleaded not true to the enhancement
allegations. As reformed, we affirm the trial court’s judgments.
1 In its notice of extraneous offenses, the State gave appellant notice that evidence of the following crimes, wrongs, or acts might be used: three charges of evading arrest, two charges of retaliation, one assault charge, two charges of unlawful possession of a firearm by a felon, and one charge of assault family violence enhanced. In November 2016, appellant was indicted on two charges of aggravated robbery
committed against Ryan Roberts and Robert Freeman. Each indictment was enhanced by a 2010
aggravated assault conviction and a 1997 retaliation conviction.
At trial in November 2017, Ryan Roberts testified that, at about 7:30 p.m. on September
26, 2016, he and a co-worker, Robert Freeman, were at their workplace in Irving. Roberts’
employer provides twenty-four-hour on-call services and leases and maintains dish washing
machines for restaurants. Roberts and Freeman were in a company van in the parking lot. While
the two were talking in the van, a blue Infiniti drove by. Freeman had just test-driven a similar
car, so he pointed it out. A little later, the Infiniti came back into the parking lot and stopped.
Roberts assumed the driver was stopping to ask for directions, and he started walking toward the
Infiniti. Appellant got out of the car “kind of oddly,” and Roberts saw appellant had a gun. When
he saw the gun, Roberts was “afraid” that appellant “was going to use it.” Appellant “kept coming
up,” and he said “I will . . . kill you.” Appellant demanded the men’s wallets, and Freeman took
out his wallet and handed it over. Roberts asked if he could keep his driver’s license, and appellant
said “Yes.” However, before Roberts could get his driver’s license out, appellant grabbed the
wallet and left. Roberts’ social security card, driver’s license, credit cards, and a debit card were
still in his wallet. Freeman noted appellant’s license plate number, and Roberts called 911.
Freeman testified appellant drove up in a blue Infiniti and “came out with a gun in his
hand.” Freeman “knew [he] was getting robbed.” When asked whether he was “in fear of your
life or getting hurt,” Freeman answered, “That was the first time I’ve ever actually had a gun
pointed in my face, so, yes, ma’am.” The gun was “big.” Appellant made Freeman and Roberts
give him their wallets. Freeman’s wallet contained credit cards and “personal stuff.” As appellant
drove away, Freeman saw appellant’s license plate from “maybe 20 feet away” and “immediately
started memorizing the numbers.” On September 28, 2016, Freeman identified appellant in a
–2– photographic lineup. A warrant was issued for appellant’s arrest, and a loaded gun was found in
the center console of appellant’s car when he was arrested. A jury convicted appellant, and these
appeals followed.
In his first and second issues, appellant argues the evidence is legally insufficient to support
his aggravated robbery conviction. Specifically, appellant argues the evidence does not show he
placed either Roberts or Freeman in fear of imminent bodily injury or death because Roberts
testified he was afraid when he saw the gun but did not say that he was in fear of imminent bodily
injury or death, and Freeman “did not think [appellant] would shoot them.”
We review a challenge to the sufficiency of the evidence on a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
Under this standard, the relevant question is whether, after viewing the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011).
This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. When analyzing
legal sufficiency, 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. Id. When the record supports conflicting inferences, we presume that the factfinder
resolved conflicts in favor of the verdict and defer to that determination. Id. Direct and
circumstantial evidence are treated equally: circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Id.
–3– A person commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of property, he intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011). The offense
becomes aggravated robbery if the person “uses or exhibits a deadly weapon.” Id. § 29.03(a)(2).
The indictments in these cases alleged appellant “did then and there intentionally and knowingly,
while in the course of committing theft of property and with intent to obtain or maintain control of
said property, threaten and place [Roberts and Freeman] in fear of imminent bodily injury and
death, and [appellant] used and exhibited a deadly weapon, to-wit: A FIREARM.”
Here, appellant got out of his car, and Roberts saw appellant had a gun. Appellant
approached Roberts and Freeman and said “I will . . . kill you.” When he saw the gun, Roberts
was “afraid” that appellant “was going to use it.” When asked whether he was “in fear of your life
or getting hurt,” Freeman answered, “That was the first time I’ve ever actually had a gun pointed
in my face, so, yes, ma’am.” We conclude, after viewing the evidence in the light most favorable
to the verdict, any rational trier of fact could have found appellant placed both Roberts and
Freeman in fear of imminent bodily injury or death beyond a reasonable doubt. Clayton, 235
S.W.3d at 778. There is no requirement that a victim of aggravated robbery use the exact phrase
“I was in fear of imminent bodily injury or death” when expressing fear. Boston v. State, 373
S.W.3d 832, 839 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013). We
overrule appellant’s first and second issues.
In his third and fourth issues, appellant argues the judgment in each case should be
modified to reflect that he pleaded “not true” to the enhancement allegations. The State agrees
that the judgments are incorrect and should be modified. This Court has the power to modify a
judgment to make the record speak the truth when we have the necessary information to do so.
TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.
–4– ref’d); Barnes v. State, No. 05-16-01184-CR, 2017 WL 5897746, at *6 (Tex. App.—Dallas Nov.
29, 2017, no pet.) (mem. op., not designated for publication).
Each judgment in this case states appellant pleaded “true” to the enhancement allegations.
The record reflects that appellant pleaded “not true” to the enhancement allegations. We sustain
appellant’s third and fourth issues. We modify the judgment in each case to reflect that appellant
pleaded “not true” to the enhancement allegations in each case.
As modified, we affirm the trial court’s judgments.
/David L. Bridges/ DAVID L. BRIDGES JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
180473F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICKEY LECARDO MCGEE, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-18-00473-CR V. Trial Court Cause No. F16-34511-H. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Brown and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: following the heading "Plea to 1st Enhancement Paragraph," "TRUE" is deleted, and "NOT TRUE" is substituted; following the heading "Plea to 2nd Enhancement/Habitual Paragraph," "TRUE" is deleted, and "NOT TRUE" is substituted. As REFORMED, the judgment is AFFIRMED.
Judgment entered June 5, 2019
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RICKEY LECARDO MCGEE, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-18-00474-CR V. Trial Court Cause No. F16-34499-H. Opinion delivered by Justice Bridges. THE STATE OF TEXAS, Appellee Justices Brown and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: following the heading "Plea to 1st Enhancement Paragraph," "TRUE" is deleted, and "NOT TRUE" is substituted; following the heading "Plea to 2nd Enhancement/Habitual Paragraph," "TRUE" is deleted, and "NOT TRUE" is substituted. As REFORMED, the judgment is AFFIRMED.
–7–