Thomas Wayne Womack v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 29, 2021
• Docket: 07-19-00399-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00399-CR

THOMAS WAYNE WOMACK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 12,419, Honorable Dan Mike Bird, Presiding

July 29, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

“What goes around, goes around, goes around, comes all the way back around.”1

This is a case about a failed attempt at exacting revenge. Appellant Thomas Wayne

Womack was convicted of aggravated robbery2 and unlawful possession of a firearm by

1 Justin Timberlake, “What Goes Around…Comes Around,” FUTURESEX/LOVESOUNDS, Timbaland. 2006.

2 TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2019). a felon.3 As a consequence, Appellant received a sentence of thirty years’ confinement

in prison on each count. The trial court ordered that the sentences run concurrently.

On appeal, Appellant argues the trial court abused its discretion in refusing to

suppress his recorded statement. He also argues the evidence is insufficient to support

his conviction for aggravated robbery and that the trial court erred in overruling his

objection to a portion of the prosecutor’s rebuttal argument at the guilt-innocence phase

of trial. We overrule all of Appellant’s issues and affirm the judgment.

Background

Mark Gonzales once paid Appellant with counterfeit hundred-dollar bills. Later, on

January 24, 2019, Appellant found Gonzales working as a painting contractor at the

Green Tree Inn in Vernon, Texas. Gonzales was painting in one of the guest room

bathrooms; Appellant entered the guest room and said he was seeking a job. Gonzales

instructed him to report the following morning. In Gonzales’ opinion, Appellant was in a

hurry to leave. As Gonzales walked with Appellant to exit the guest room, Gonzales

noticed his iPad and phone were missing. Gonzales asked Appellant to return the items.

Appellant denied taking them and began to leave on a bicycle; he returned when

Gonzales yelled at him.

Gonzales summoned Daniel Cruz, who was painting next door, for assistance.

Cruz dialed Gonzales’ telephone number; a phone in Appellant’s pocket began to ring.

3 TEX. PENAL CODE ANN § 46.04 (West Supp. 2020).

2 According to Gonzales, Appellant returned the phone to him but claimed not to know how

it ended up in his pocket.

Gonzales and Appellant continued to argue about who had the iPad. As Gonzales

held the handlebars of the bike to prevent Appellant from leaving, he said Appellant

reached into his coat pocket to reveal a handgun. When Gonzales refused to release the

handlebars, Appellant pointed the gun at him. Gonzales answered affirmatively when

asked if he felt threatened. Cruz also testified he saw the exchange and thought Appellant

was going to fire; he described the situation as “pretty scary.” Appellant then jumped off

the bicycle, wrested it from Gonzales, and rode away. Gonzales called 9-1-1.

Appellant was interviewed while in custody the next day.4 According to a recording

taken of the interview between Vernon police detective Mickey Allen and Appellant,

Appellant was first advised of his Miranda rights.5 Appellant indicated he understood his

rights. Allen then asked Appellant about the previous night’s events at the Green Tree

Inn. Initially, Appellant explained he took Gonzales’ phone by accident. A moment later,

however, Appellant changed his story. Appellant described that when he saw the Green

Tree’s room was being refurbished, “I ain’t gonna lie to you; I see an open opportunity. I

was going to go in there and just see, you know, what kind of tools were lying around, shit

like that.” Appellant said he had entered the room and identified Gonzales as the one

who had paid with the counterfeit bills. Appellant then explained, “I told him I’d get him

4 Detective Allen testified Appellant had been taken into custody based on a motion to revoke or

charges unrelated to Gonzales’ allegations.

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 back. Last night I seen the opportunity to get him back. I tried to get his phone. He

caught me. And that was it.”

The jury convicted Appellant of the two charged offenses, assessed punishment,

and the trial court imposed the noted sentences. This appeal followed.

Analysis

First Issue: Suppression of Appellant’s Statement

By his first issue, Appellant argues the trial court abused its discretion by failing to

suppress his recorded statement because prior to making the statement, while in custody,

he was not warned of his right to (1) remain silent and not make any statement and (2)

terminate the interview at any time. The State responds this complaint was not preserved

in the trial court and is therefore forfeited.

At the suppression hearing the following colloquy occurred:

The Court: [addressing Counsel for Appellant], before we take a look at [the interview], your problems with it? [Counsel for Appellant]: Judge, that the compliance with 38.22, section 3, that part of the recording is difficult to hear. I’m not going to say it’s inaudible, but it’s difficult to hear. And under Section 2 of the Miranda Rights do not show a complete and intelligent and uncoerced waiver of rights, that his statements at that time he did not have counsel and could not make an intelligent and knowing waiver of his right to counsel or did not make one.6

6 In his written motion to suppress, Appellant complained that any statements he made were “involuntary . . . coerced . . . enticed”; that he was “deprived of right to counsel” and “did not make an intelligent and knowing waiver of that right”; that his statements were “tainted by the illegal and unlawful detention and arrest”; that his statements “were taken without the safeguards required by and in violation of Article 38.22 of the Code of Criminal Procedure”; that admission of Appellant’s statements violates specified constitutional and statutory provisions; and that portions of the recorded statement were irrelevant and should be excluded under Rule of Evidence 403.

4 Appellant’s objection at the suppression hearing challenged the accuracy of the recording

of his statement, article 38.22, section 3(a)(3),7 and his knowing, intelligent, and voluntary

waiver of the rights provided by article 38.22, section 2(a)(1)-(5), article 38.22, section

2(b).8 On appeal, Appellant makes a different complaint arguing he was not informed of

two rights provided by the article 38.22, section 2(a) warning.9

A motion to suppress is simply a specialized objection to the admissibility of

evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). Proper

preservation of an objection concerning the admission of evidence requires the objection

inform the trial court why, or on what basis, the evidence should be excluded, but

generally need not contain “magic words” or recite a specific statute. Ford v. State, 305

S.W.3d 530, 533 (Tex. Crim. App. 2009); see TEX. R. APP. P. 33.1(a)(1)(A) (error is

preserved when the record shows that a “complaint was made to the trial court by a timely

request, objection, or motion that . . . stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware of

the complaint, unless the specific grounds were apparent from the context[.]). The

7TEX. CODE CRIM. PROC. ANN. art. 38.22, section 3(a)(3) (West 2018) (requiring “the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered[.]”).

8 TEX. CODE CRIM. PROC. ANN. art. 38.22, section 2(b) (providing “the accused, prior to and during

the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.”).

9 TEX. CODE CRIM. PROC. ANN. art. 38.22, section 2(a) (providing “the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time[.]”).

5 objection must be sufficiently clear that opposing counsel and the trial court may address

or correct the claimed deficiency. Ford, 305 S.W.3d at 533. An appellate issue that does

not match the objection made at the suppression hearing or trial presents nothing for

appellate review. Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (concluding

nothing preserved for appellate review where objection at trial was hearsay while issue

on appeal concerned relevance of testimony); Garmon v. State, No. 07-05-00298-CR,

2007 Tex. App. LEXIS 382, at *6 (Tex. App.—Amarillo Jan. 22, 2007, pet. ref’d) (mem.

op., not designated for publication) (finding claim of error not preserved when complaint

in trial court was “consent or not” for warrantless search while on appeal appellant

asserted any consent granted was involuntary). At the commencement of the

suppression hearing the trial court asked appellant what his complaint was. He stated

two reasons for suppression. But those are not the reasons for error he now argues on

appeal. Because Appellant’s objection in the trial court does not comport with his

complaint on appeal, the claim of error is not preserved for appellate review. Appellant’s

first issue is overruled.

Second and Third Issues: Sufficiency of the Evidence—Aggravated Robbery

The indictment alleged Appellant “did then and there while in the course of

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

intentionally and knowingly threaten or place Mark Gonzales in fear of imminent bodily

injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-

wit: a firearm[.]” The application paragraph for aggravated robbery in the guilt-innocence

charge contained the same language.

6 In determining whether the evidence is sufficient to support a conviction, a

reviewing court must consider all of the evidence in the light most favorable to the verdict

and determine whether, based on that evidence and reasonable inferences therefrom, a

rational fact finder could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality

op.). This “familiar standard gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

“Each fact need not point directly and independently to the guilt of the appellant,

as long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). And

if the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326. Further, 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. Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of witnesses and can choose to believe all,

some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991).

Robbery occurs when a person, in the course of committing theft and with the

intent to obtain or maintain control over property intentionally or knowingly threatens or

places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN.

7 § 29.02(a)(2) (West 2019). On the other hand, aggravated robbery occurs if a person

commits an act of robbery as defined in section 29.02 and, among other acts, uses or

exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03(2).

1. Evidence of theft

We reject Appellant’s second issue, viz., that there is insufficient evidence to

support the jury’s finding that Appellant committed theft, which is a necessary element of

robbery and aggravated robbery. Under Texas law, a person commits the offense of theft

if he unlawfully appropriates property with intent to deprive the owner of property. TEX.

PENAL CODE ANN. § 31.03(a) (West 2019). Appropriation of property is unlawful if it is

without the owner’s effective consent. Id. at. § 31.03(b)(1).

Appellant argues his phone and Gonzales’ appeared similar, Gonzales’ phone was

recovered from Appellant before he left, and that the ipad was never recovered. But our

review of the evidence requires us to consider all of the evidence in the light most

favorable to the verdict, not in Appellant’s favor. See Jackson, 443 U.S. at 318-19. Under

the proper scope of review, we note the evidence reveals that Gonzales had placed his

phone atop his ipad on a dresser in the motel’s guest room where he was working. Only

as Appellant began to depart the room, Gonzales noticed both items were missing.

Gonzales’ phone rang in Appellant’s pocket when called. Appellant admitted he saw an

opportunity to take Gonzales’ phone as a way of getting even for Gonzales’ payment with

counterfeit bills. We hold the evidence was sufficient such that the jury could reasonably

have found that Appellant committed theft of Gonzales’ phone and ipad.

8 Appellant’s “appropriation” of Gonzales’ property occurred when he acquired it or

otherwise exercised control over it. TEX. PENAL CODE ANN. § 31.01(4) (West 2019). There

is no minimum time requirement. Because the evidence, when viewed in the light most

favorable to the verdict, permitted the jury to reasonably have found that Appellant

committed theft, we overrule Appellant’s second issue.

2. Evidence of aggravated robbery

Nor do the elements of aggravated robbery require the State to prove Appellant

still retained Gonzales’ property at the time of Appellant’s assault. See White v. State,

671 S.W.2d 40, 41 (Tex. Crim. App. 1984). “[T]he required violence may occur after the

offender has abandoned the theft and is escaping.” Carroll v. State, No. 05-07-01087-

CR, 2009 Tex. App. LEXIS 8123, at *3 (Tex. App.—Dallas Oct. 21, 2009, no pet.) (not

designated for publication). Robbery requires proof of assaultive conduct “in the course

of committing theft” rather than a completed theft. This includes “conduct that occurs in

an attempt to commit, during the commission, or in immediate flight after the attempt or

commission of theft.” TEX. PENAL CODE ANN. § 29.01(1) (West 2019) (emphasis added).

The Fifth Court of Appeals rejected an argument similar to Appellant’s in Carroll.

There, after being stopped for suspected shoplifting in a Kroger supermarket, the

defendant attempted to flee, dropping and breaking a bottle of wine from underneath his

shirt. The store manager pursued the defendant, who thereafter bit the manager’s arm.

The defendant’s conduct in biting the store manager constituted sufficient proof

supporting a robbery conviction notwithstanding his unsuccessful removal of the wine

from the store. Id. See also White, 671 S.W.2d at 41 (upholding conviction for aggravated

9 robbery when evidence showed defendant shot victim during the course of escaping after

thwarted attempted theft to which he was a party).

In the present case, the State possessed the burden to prove Appellant

intentionally and knowingly threatened Gonzales or placed him in fear of imminent bodily

injury or death via the use or exhibition of a deadly weapon. TEX. PENAL CODE ANN.

§ 29.03(a)(2). “The act of pointing a gun at an individual is, by itself, threatening conduct.”

Boston v. State, 373 S.W.3d 832, 840 (Tex. App.—Austin 2012) (citing Fagan v. State,

362 S.W.3d 796, 799 (Tex. App.—Texarkana 2012, pet. denied), aff’d, 410 S.W.3d 321

(Tex. Crim. App. 2013). The evidence showed that, as in Carroll and White, Appellant

committed assaultive conduct in an attempt to flee. When Gonzales impeded Appellant’s

flight by holding his bicycle handlebars, Appellant pointed what looked like a “Glock .9”

pistol at Gonzales. Gonzales answered affirmatively he felt threatened when the pistol

was pointed at him. Cruz testified he thought Appellant was going to fire the weapon; “it

was pretty scary.” When viewed in the light most favorable to the verdict, the jury could

reasonably have found Appellant intentionally and knowingly threatened Gonzales or

placed him in fear of imminent bodily injury or death. Appellant’s second and third issues

are overruled.

Fourth Issue: Claim of Improper Closing Argument by the State

By his fourth issue, Appellant argues that during final rebuttal argument the

prosecutor attempted to impermissibly place on Appellant the burden of introducing a

motel surveillance video to disprove Appellant’s guilt. Evidence indicates that the Green

Tree Inn was equipped with surveillance cameras that recorded some of the events. The

10 parties disagree about the relevance of the footage; neither side presented the video at

trial, but Detective Allen testified about what he saw during his review.

During the defense closing argument, Appellant’s counsel referred to testimony

about the video and argued that the failure of the State to admit the video constitutes

reasonable doubt:

Mickey Allen testified, yeah, there’s surveillance video showing him driving up, getting off, going to the door when all this happened. Everybody’s testimony is it happened right back out there with that bicycle. Where is the surveillance videos?” Who’s got the burden of proof? The charge tells you, the burden of proof rests with the State and what the State is wanting you to do is shift that burden of proof to [Appellant].

* * * But, folks, the surveillance video could have at least been shown. It wasn’t. Why wasn’t it? Because it didn’t show anything, did it? It’s not offered into evidence.

In rebuttal, the prosecutor replied to defense counsel’s rhetorical question and

said, “Those videos were downloaded, provided to me and provided to [defense

counsel.]” Defense counsel objected on the ground that the State was not permitted to

shift the burden to Appellant to produce evidence. After the objection was overruled and

a running objection granted, the prosecutor told the jury that if the video had depicted

anything beneficial for Appellant, defense counsel would have played it for the jury.

We review a trial court’s ruling on an objection of improper jury argument for

abused discretion. Milton v. State, 572 S.W.3d 234, 241 (Tex. Crim. App. 2019). The

purpose of closing argument is to facilitate the jury’s proper analysis of the evidence

presented at trial in order to arrive at a just and reasonable conclusion based solely on

the evidence. Harris v. State, 122 S.W.3d 871, 883 (Tex. App.—Fort Worth 2003, pet.

11 ref’d). Proper jury argument generally falls within one of four areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of

opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564,

570 (Tex. Crim. App. 2008).

Defense counsel invited the State to respond by arguing the absence of video

surveillance evidence showed the State had not carried its burden of proof. The State’s

answer to defense counsel’s argument is proper. See Canales v. State, 98 S.W.3d 690,

695 (Tex. Crim. App. 2003) (responding to opposing counsel’s argument is a permissible

area of jury argument); cf. Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000)

(noting “the prosecutor may comment on the defendant’s failure to produce witnesses

and evidence so long as the remark does not fault the defendant for exercising his right

not to testify.”). Moreover, the prosecutor’s statements about the surveillance video had

little, if any, effect on the jury because testimony previously discussed the footage’s

limited evidentiary benefit to either side. We hold that the trial court did not abuse its

discretion by overruling Appellant’s objection to the State’s argument. Appellant’s fourth

issue is overruled.

Conclusion

Having overruled each of Appellant’s issues, we affirm the judgment of the trial

court.

Lawrence M. Doss Justice

Do not publish.