Victor T. Stevens v. State

• Court: Court of Appeals of Texas
• Decided: October 27, 2011
• Docket: 02-10-00139-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00139-CR NO. 02-10-00140-CR NO. 02-10-00141-CR

VICTOR T. STEVENS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

I. INTRODUCTION

Appellant Victor T. Stevens appeals his convictions for fraudulent use or

possession of five or more but less than ten items of identifying information,

fraudulent use or possession of ten or more but less than fifty items of identifying

information, two counts of aggravated robbery with a deadly weapon, and theft of

a vehicle valued at $20,000 or more but less than $100,000. In three points, 1 See Tex. R. App. P. 47.4. Stevens argues that the trial court erred by not submitting an accomplice-witness

instruction in the jury charge for the aggravated robbery offenses, that legally

insufficient evidence exists to sustain his convictions, and that the trial court

erred by allowing testimony about Stevens‘s alleged gang activity. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

At around 2:00 or 3:00 a.m., three men entered a house rented to three

Texas Christian University students and robbed the people inside at gunpoint.

Ryan Ross and Albert Rayle were spending the night at the house in addition to

the three tenants. One of the robbers put a pistol to the back of Ross‘s head and

forced his face down on the couch. Another robber pointed a gun at Rayle and

led him upstairs to the bedrooms. The robbers kept asking the students where

―the stash‖ was. Forrest Goodall, one of the tenants of the house, opened the

door to his room and saw a man holding a sawed-off shotgun to the back of

Rayle‘s head. The robbers rummaged through Goodall‘s room, asking ―Where‘s

the stash? Where‘s the stash?‖ The three robbers tied up the students and left

in Goodall‘s Ford truck with credit cards and other items from the home.

A few days after the robbery, a Fort Worth police officer saw the stolen

Ford truck at a motel in Fort Worth. A person at the motel told the police that the

truck was related to room 135 of the motel. Police knocked on the door to room

135, and Monica Reyes answered. She was in the room with her sleeping

children. Reyes initially denied knowing anything about the truck, but when

police later returned, she told them that Stevens had given her a ride in the truck

2 to get food for her children; she had assumed Stevens owned the truck. She

informed the police that her husband was Arturo Gonzalez, a friend of Stevens.

Police obtained Reyes‘s consent to search the room and found a black Nike bag

under the bed. The bag contained IDs and credit cards belonging to the TCU

students, as well as clothing that Reyes had seen Stevens wearing earlier that

day. She told police that she did not know the bag was there. Reyes was initially

charged with possession of the stolen credit cards, but the district attorney‘s

office did not take the case; she was never a suspect in the robbery. Police

found fingerprints belonging to Stevens on the stolen Ford truck and on a

checkbook box that was inside the black Nike bag.

Goodall ultimately identified Stevens from a police photo spread as the

robber who had held the sawed-off shotgun during the robbery. Goodall was

unable to identify the other two robbers.

In three cause numbers, Stevens was charged with fraudulent use or

possession of five or more but less than ten items of identifying information,

fraudulent use or possession of ten or more but less than fifty items of identifying

information, two counts of organized criminal activity—aggravated robbery, two

counts of aggravated robbery with a deadly weapon, and theft of a vehicle

valuing $20,000 or more but less than $100,000. The jury acquitted Stevens of

both counts of organized criminal activity; convicted him of the remaining counts;

and assessed his punishment at thirty-five years‘ imprisonment for both robbery

convictions, fifteen years‘ imprisonment for the theft conviction and for each

3 fraudulent-use-or-possession conviction, and a $1,500 fine for each conviction.

The trial court ordered that the sentences run concurrently.

III. ACCOMPLICE-WITNESS INSTRUCTION

In his first point, Stevens argues that the trial court erred by refusing to

include his requested accomplice-witness jury instruction in the charges for the

aggravated robbery offenses. He argues that he was entitled to the instruction

because Reyes was in possession of the bag containing stolen items and

because she had received a ride in the stolen truck.2 The State argues that the

trial court did not err by refusing to include an accomplice-witness instruction

because no evidence showed that Reyes was a party to the aggravated robbery

offenses.

Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State,

287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine

whether error occurred. If it did, we must then evaluate whether sufficient harm

resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.

Under the accomplice-witness rule, a conviction cannot be secured upon

an accomplice‘s testimony unless corroborated by other evidence tending to

connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14

(West 2005); Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.), cert.

2 Stevens argues that police saw Reyes in the stolen truck, but this is not supported by the record. Reyes told police, and testified at trial, that Stevens gave her a ride in the truck.

4 denied, 552 U.S. 1028 (2007). An accomplice witness is a person who

participates in the offense before, during, or after its commission with the

requisite mental state and who testifies against another. Smith v. State, 332

S.W.3d 425, 439 (Tex. Crim. App. 2011); see Tex. Penal Code Ann. § 7.02(a)

(West 2011) (the law of parties); Tex. Code Crim. Proc. Ann. art. 38.14 (the

accomplice-witness rule). An accomplice must have engaged in an affirmative

act that promotes the commission of the offense that the accused committed.

Smith, 332 S.W.3d at 439. A person is not an accomplice if the person knew

about the offense and failed to disclose it or helped the accused conceal it or if

the person was merely present at the crime scene. Id. And complicity with an

accused in the commission of another offense apart from the charged offense

does not make that witness an accomplice witness. Druery, 225 S.W.3d at 498.

A witness may be an accomplice either as a matter of law or as a matter of

fact, and the evidence in each case determines what jury instruction, if any,

should be given. Id.; Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App.

2006), cert. denied, 549 U.S. 1287 (2007). If the evidence is clear that the

witness is an accomplice as a matter of law, that is, the witness has been, or

could have been, indicted for the same or lesser-included offense, then the trial

court must instruct the jury on the law of accomplice-witness testimony. Cooke,

201 S.W.3d at 747–48. If there is conflicting evidence about whether a witness is

an accomplice, the court should submit the question to the jury inquiring whether

the jury finds that the witness is an accomplice as a matter of fact. Id. at 748. If

5 there is no evidence that a witness is an accomplice, the trial court is not

obligated to provide an accomplice-witness instruction. Id.

In this case, the evidence shows that three men participated in the

robbery; no evidence suggests that a woman went to the house or was with the

robbers on the night of the robbery. Several days after the robbery, Reyes

received a ride from Stevens in the stolen truck, but she assumed that the truck

belonged to him. Although a bag containing the students‘ stolen IDs and credit

cards was found under a bed in the motel room rented to Reyes, she told police

that she did not know it was there. Even if evidence existed that Reyes knew the

truck was stolen or knew the bag was under the bed, no evidence shows that,

acting with the required culpable mental state, she actively participated in the

robbery before, during, or after its commission or that she acted in a manner to

promote the robbery. See, e.g., Druery, 225 S.W.3d at 500 (―[M]erely assisting

after the fact in the disposal of a body does not transform a witness into an

accomplice witness in a prosecution for murder.‖) (citing Paredes v. State, 129

S.W.3d 530, 536 (Tex. Crim. App. 2004)); Roden v. State, 338 S.W.3d 626, 630

(Tex. App.—Fort Worth 2011, pet. ref‘d) (holding that accomplice-witness

instruction not required when evidence showed that witness dragged one robber

away from house and was inside appellant‘s house with stolen property but also

showed that witness did not enter burglarized house and steal property).

Consequently, we hold that the trial court did not err by refusing to include an

accomplice-witness instruction in the jury charges for the aggravated robbery

6 offenses. We overrule Stevens‘s first point.

IV. LEGAL SUFFICIENCY

In his second point, Stevens argues that legally insufficient evidence exists

to support his five convictions for fraudulent use or possession of five or more but

less than ten items of identifying information, fraudulent use or possession of ten

or more but less than fifty items of identifying information, two counts of

aggravated robbery with a deadly weapon, and theft of a vehicle valued at

$20,000 or more but less than $100,000. The State‘s sole response is that

Stevens‘s point is inadequately briefed.

In order to present issues to this court for review, an appellant‘s brief must

contain clear and concise arguments for the contentions made, with appropriate

citations to authorities and to the record. Tex. R. App. P. 38.1(i). If a party does

not refer the appellate court to the pages in the record where the error allegedly

occurred, the appellate court may properly overrule the point as inadequately

briefed. Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App.) (stating that the

court ―has no obligation to construct and compose appellant‘s issues, facts, and

arguments ‗with appropriate citations to authorities and to the record‘‖), cert.

denied, 129 S. Ct. 625 (2008).

In his brief, Stevens provides the applicable standard of review and

argues, without citation to the record, that the State ―did not meet its burden of

proof, proof beyond a reasonable doubt, in that it failed to prove that [Stevens]

committed the offense[s] as is set out in the indictments.‖ Stevens does not set

7 forth the elements of the offenses for the five convictions that he challenges for

legal sufficiency, and he does not provide any argument, record references, or

substantive analysis as to how the evidence is insufficient to support any of the

elements of those offenses. Given these circumstances, given that there are five

convictions for four different offenses that involve different elements, given that

the State relies only on inadequate briefing in its response without analyzing the

evidence as to any of the five convictions, and given the large record, we are

constrained to agree with the State that Stevens‘s legal sufficiency challenge to

these five convictions is inadequate. We conclude that his inadequate briefing

presents nothing for review, and we overrule his second point. See Tex. R. App.

P. 38.1(i); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.) (holding that

merely stating standard of review for determining sufficiency of evidence

constitutes inadequate briefing and presents nothing for appellate review), cert.

denied, 522 U.S. 844 (1997).

V. EVIDENCE OF GANG MEMBERSHIP

In his third point, Stevens argues that the trial court erred by allowing

testimony of his alleged gang membership. Although he does not specifically

point to the testimony forming the basis of his complaints and does not explain

how the testimony was inadmissible, he provides a record citation corresponding

to the testimony of Tarrant County Sheriff‘s Deputy Richard Almendarez. The

State argues that Stevens waived his complaint and that, alternatively, any error

was harmless.

8 Deputy Almendarez testified that he received, by email, a photograph of

graffiti that Stevens had drawn on the wall of his jail cell. Deputy Almendarez

testified that he decided to interview Stevens because the graffiti appeared to be

gang-related. When the State asked Deputy Almendarez about his training and

experience ―with regard to spotting the signs of gang activity,‖ defense counsel

objected that the deputy had not been qualified as a gang expert. The trial court

overruled the objection, stating that it ―would like to hear about his qualifications.‖

Deputy Almendarez explained that he has been responsible for ―gang

intelligence‖ within the Tarrant County jail since 1996, that he takes a training

class in gang activity at least once a year, and that he has testified in the area of

gang tattoos and gang affiliation on ―[m]any‖ occasions. Deputy Almendarez

then testified that Stevens had denied any gang affiliation during his interview

and that it is important to know when inmates are affiliated with a gang ―to

maintain the safety and security of the jail facility.‖

A party may challenge expert testimony on at least three specific grounds:

(1) qualification, (2) reliability, and (3) relevance. See Vela v. State, 209 S.W.3d

128, 131 (Tex. Crim. App. 2006). The three requirements raise distinct questions

and issues, and an objection based on one of these requirements does not

preserve error as to another. Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref‘d) (holding that an objection based on

the expert‘s qualifications did not preserve the reliability issue), cert. denied, 129

S. Ct. 1325 (2009); see Tex. R. App. P. 33.1(a).

9 Here, even assuming that Stevens‘s complaint on appeal is adequately

briefed,3 his complaint does not comport with his objection at trial. At trial,

Stevens objected to Deputy Almendarez‘s qualifications as a gang expert, but on

appeal, Stevens appears to complain that the deputy‘s testimony was not

relevant—―the testimony did not assist the trier of fact.‖ Accordingly, Stevens‘s

third point was not preserved. See Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009) (―Whether a party‘s particular complaint is preserved depends

on whether the complaint on appeal comports with the complaint made at trial.‖);

Turner, 252 S.W.3d at 584 n.5. We overrule Stevens‘s third point.

VI. CONCLUSION

Having overruled Stevens‘s three points, we affirm the trial court‘s

judgment.

PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 27, 2011

3 Other than generally asserting that the trial court erred by allowing testimony of his alleged gang membership, Stevens‘s brief contains only the law applicable to expert witness qualifications and a conclusory statement that ―[t]here was no evidence that this alleged robbery was gang related and the testimony did not assist the trier of fact.‖