Scott v. State

701 S.W.2d 692, 1986 Tex. App. LEXIS 11867
CourtCourt of Appeals of Texas
DecidedJanuary 9, 1986
DocketNos. 2-85-067-CR, 2-85-068-CR
StatusPublished
Cited by5 cases

This text of 701 S.W.2d 692 (Scott v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. State, 701 S.W.2d 692, 1986 Tex. App. LEXIS 11867 (Tex. Ct. App. 1986).

Opinions

OPINION

HILL, Justice.

Kenneth Wayne Scott appeals his conviction by a jury of the aggravated robbery of Maurice Charles and Carol Rushing. TEX. PENAL CODE ANN. sec. 29.03 (Vernon 1974). The trial judge sentenced him in each offense to twenty years in the Texas Department of Corrections.

We reverse and remand for a new trial, because the trial court failed to apply the law of parties to the facts of the case in the charge.

To avoid duplication, we will discuss both appeals together, referring to the appeal of Scott’s conviction for the aggravated robbery of Maurice Charles as the Charles case, and the appeal of Scott’s conviction for the aggravated robbery of Carol Rushing as the Rushing case.

Since the decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), a challenge to the sufficiency of the evidence must be considered even though reversal is required on other grounds. See Froyd v. State, 633 S.W.2d 884, 885 (Tex.Crim.App.1982). This is so because a challenge to the sufficiency of the evidence, if sustained, bars a retrial. Graham v. State, 643 S.W.2d 920, 924 (Tex.Crim.App.1981).

In grounds of error numbers two and three in both cases, Scott complains that there is no evidence or insufficient evidence to support the conviction.

In reviewing the sufficiency of the evidence to support a conviction based upon direct evidence, the evidence is viewed in the light most favorable to the jury’s verdict. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on rehearing).

The sufficiency of the evidence is a question of law. The issue on appeal is not a de novo determination of the guilt or innocence of the defendant, regardless of which party’s evidence “outweighs” the other. If the evidence establishes guilt beyond a reasonable doubt, and if a reasonable trier of fact believes that evidence, we [694]*694are not in a position to reverse the judgment on sufficiency of the evidence grounds. See Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, — U.S. -, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984).

A party is criminally responsible for an offense committed by another person if he acts with the intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. Romo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1977) (opinion on rehearing). While mere presence by an individual at the scene of an offense is insufficient to sustain a conviction, it is a circumstance tending to prove guilt, and, taken with other circumstances, may suffice to show that the accused was a participant. Harris v. State, 645 S.W.2d 447, 457-58 (Tex.Crim.App.1983). In making this determination, the jury can examine events before, during and after the commission of the offense, including actions which show an understanding and common design to do a certain act. Id.; Curren v. State, 656 S.W.2d 124, 130 (Tex.App.—San Antonio 1983, no pet.). Scott’s argument, if we are able to understand it, was that he was merely present when the aggravated robbery of both Charles and Rushing occurred, and that he would only be guilty of the lesser included offense of theft of Charles’ checkbook.

Maurice Charles testified that he had a landscaping contract at Dunston’s, a restaurant on Harry Hines Boulevard. He was sitting in his car in the back of the parking lot near an alley with Carol Rushing, waiting for the cycle on the sprinkler to change. He saw three individuals, whom he identified as Dennis J. Poledore, Hosea Lee Jackson, and Kenneth Wayne Scott, the appellant herein, walking up the alley. A few minutes later they returned and approached Charles’ car. Sensing something was amiss, Charles unsheathed a landscaping knife and held it behind him.

The trio continued to approach the car. When Poledore asked Charles about a job, Charles replied that Poledore should check further down Harry Hines. Poledore then pulled out a gun and pointed it at Charles’ stomach and threatened to pull the trigger. He told Charles to put the knife on the car seat between him and Rushing and to empty his pockets. Charles did as he was commanded, placing the knife on the seat and giving the contents of his pockets to Poledore.

Charles further testified that during this time Hosea Lee Jackson went to the other side of the car and demanded Rushing’s pocketbook. Rushing initially refused to let go of her pocketbook, but Jackson threatened her, forcing her to release it. Poledore and Jackson then began to flee.

After his two cohorts began fleeing, Scott walked up to Charles and took Charles’ checkbook from his pocket. Charles still thought that Poledore could and would shoot him so he did not put up any resistance. Scott joined his cohorts in fleeing. As Charles was chasing the trio, Scott threw the checkbook into the air.

Charles’ testimony was substantially corroborated by Carol Rushing. She testified that as the trio approached the car, they talked among themselves, but that she heard no agreement between them to rob her and Charles. She stated that after Charles had laid the knife between them, Jackson picked it up when he came to her side of the car. He demanded her pocketbook and threatened to cut her when she initially refused to release it.

Officer Ira J. McKee of the Dallas Police Department testified that he was inside Loria’s Barbecue at the time of the offense. The restaurant was closed at the time, but he, his partner, one of their friends, and the owner were inside, talking. While inside, he noticed three people milling around a black Cadillac. The three, whom he identified as Poledore, Jackson and Scott, soon attempted to enter Loria’s, but, finding it locked, they headed down the alley toward Dunston’s. Characterizing this behavior as suspicious, he ran a license plate check on the Cadillac. The check revealed that the [695]*695license plates were registered to a Chevrolet, not a Cadillac.

Soon after the officers had completed the license plate check, the trio returned, running up the alley to the Cadillac. Poledore appeared to have a gun in his belt, and Jackson was carrying the knife belonging to Charles and the purse belonging to Rushing.

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Bluebook (online)
701 S.W.2d 692, 1986 Tex. App. LEXIS 11867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-texapp-1986.