Antoine Antonio Brown v. State

Opinion issued April 17, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00607-CR

ANTOINE ANTONIO BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1032992

MEMORANDUM OPINION

A jury found appellant, Antoine Antonio Brown, guilty of aggravated robbery.

After the jury was unable to reach a unanimous verdict as to punishment, the trial

court declared a mistrial. A second jury was chosen and assessed punishment at 29

years' confinement. In two points of error, appellant contends that (1) the trial court

erred by admitting evidence of two extraneous offenses to show intent, and (2) the

evidence is legally and factually insufficient. We affirm.

BACKGROUND

On July 4, 2005, Debra Hillhouse was working the morning shift as a manager

of a Diamond Shamrock gas station. She drove to a Shell gas station to check the gas

prices, and a woman (1) tapped on her window to ask for directions. Hillhouse glanced

up, and a man also approached the front of her vehicle. At this point, Hillhouse

looked around and noticed a white, four-door vehicle with two people inside.

Appellant, dressed as a woman, stepped out the vehicle and made a gesture to the

other two people standing next to Hillhouse's car. Appellant shook his finger at the

two people near Hillhouse's car "like they weren't doing what they were supposed

to be doing." The man near the front of Hillhouse's car told the woman who had

asked directions to "[d]o what you're f------g supposed to be doing." The woman

then pulled out a gun, put it to the side of Hillhouse's head, and told Hillhouse that

if she did not give up all of her things, she would be killed. Hillhouse complied and

gave them her purse, wallet, and watch. After taking Hillhouse's possessions, the

man and the woman told her that she would be killed if she told anyone about this

incident because they now had all of her personal information. The man, the woman,

and appellant got in the white car and drove away.

Later that day, police chased a white, four-door car with four suspects inside.

The suspects ran from their car to hide in a heavily wooded area, but all four suspects,

including appellant, were apprehended. Appellant and one of his accomplices were

dressed as women. Hillhouse's personal property was recovered from the white,

four-door vehicle. Hillhouse correctly identified appellant in a photographic lineup.

In the guilt-innocence stage of the trial, appellant objected to the State offering

evidence of two extraneous aggravated robbery offenses committed by appellant

within the same two-day period as the Hillhouse robbery.

SUFFICIENCY OF THE EVIDENCE

In his second point of error, appellant contends that the evidence was legally

and factually insufficient to prove that (1) he participated in the robbery because he

was merely present at the scene and (2) a firearm was used during the commission of

the robbery.

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Vodochodsky v. State , 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that

the trier of fact is the sole judge of the weight and credibility of the evidence.

Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence to substitute our judgment for that of the fact-finder.

Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). 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).

In a factual sufficiency review, we view all the evidence in a neutral light, both

for and against the finding, and set aside the verdict if the proof of guilt is so

obviously weak as to undermine confidence in the jury's determination, i.e., that the

verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although

legally sufficient, is nevertheless against the great weight and preponderance of the

evidence. Watson v. State , 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We

note that a jury is in the best position to evaluate the credibility of witnesses, and we

are required to afford "due deference" to the jury' determinations. Marshall v. State ,

210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

The Law

A person commits robbery if, in the course of committing theft of property 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 Ann. § 29.02 (a)(2) (Vernon 2003). The indictment alleged that

appellant committed aggravated robbery by exhibiting a deadly weapon, namely a

firearm, in the course of committing a robbery. See Tex. Penal Code Ann. §§

29.03 (a)(2), 1.07(a)(17)(A) (Vernon 2003 and Supp. 2007). Appellant can be

criminally responsible through his own conduct or the conduct of another if he was

"acting with intent to promote or assist the commission of an offense" by soliciting,

encouraging, directing, aiding, or attempting to aid another person to commit the

offense. Tex. Penal Code Ann. §§ 7.01 (a), 7.02(a)(2) (Vernon 2003).

Party to an Offense

Appellant argues that he was merely present at the scene and did not participate

in the robbery. However, the evidence viewed in light most favorable to the verdict

shows that appellant was a party to the crime. Hillhouse testified that she saw

appellant making gestures to his friends that made her feel as if something bad was

about to happen. She also testified that appellant appeared to be acting as a lookout

for the man and woman who approached her car. Additionally, the extraneous

offense evidence shows that appellant had the requisite intent to participate in this

offense. In both extraneous offenses, the victims testified that appellant snatched

their purses, and in all three instances, appellant was identified in a photographic

lineup, along with his accomplices, as parties to the crime. Also, Texas law has long

recognized that evidence of flight or escape may be admissible to reflect the

defendant's guilt if the evidence is relevant to the offense under prosecution. Burks ,

227 S.W.3d at 148. The courts may look to the events before, during, and after the

commission of the crime to determine if the defendant was a party to the offense. See

Goff v. State , 931 S.W.2d 537, 545 (Tex. Crim. App. 1996). Here, appellant evaded

police and hid in the woods when he and his accomplices were tracked down by

police officers based on the description of the car and suspects that the victims gave.

Property belonging to the victims was also found in the vehicle. Based on this

evidence, a rational jury could have concluded that appellant was a participant in this

offense.

Viewing the evidence in a neutral light, we cannot say that the verdict seems

"clearly wrong and manifestly unjust," or is against the great weight and

preponderance of the evidence regarding whether appellant was a party to the offense.

Although appellant testified that he was asleep during the robbery after taking seven

Xanax pills with alcohol, Hillhouse testified that she saw appellant get out of the car,

motion to his accomplices as if he were directing their actions, and act as their

lookout. The jury was entitled to believe Hillhouse and disbelieve appellant. See

State v. Ross , 32 S.W.3d 853, 854 (Tex. Crim. App. 2000).

Accordingly, we hold that the evidence is legally and factually sufficient to

show that appellant was a party to the offense.

Use of a Firearm

Appellant also argues that the evidence was legally and factually insufficient

to establish that a firearm was used because a firearm was never recovered.

Specifically, appellant contends the indictment alleged that the deadly weapon used

was a "firearm," but Hillhouse identified it only as a "gun."

Proof of the use and exhibition of a deadly weapon is an essential element of

the offense of aggravated robbery. Gomez v. State , 685 S.W.2d 333, 336 ( Tex. Crim.

App. 1985). However, when the State alleges that the deadly weapon is a firearm, it

assumes the additional burden of proving that a firearm was used. Id. at 336 .

In Carter v. State , 946 S.W.2d 507, 510 (Tex. App.--Houston [14th Dist.]

1997, pet. ref'd), the State alleged in the indictment that a deadly weapon,

specifically, a firearm, was used in the offense. The victims testified that the

defendant used a "gun," and that he threatened to shoot them if they did not comply

with his demands. Id. at 511 . Additionally, the victims identified a .25 caliber

automatic pistol as being the type of gun that appellant used to threaten them. Id.

Based on this evidence, the court of appeals held that the evidence was legally

sufficient to show that a firearm was used in the commission of the offense. Id.

Similarly, in this case, Hillhouse testified that appellant's accomplice put a

"gun" to her head and threatened to kill her if she did not give them her possessions.

At trial, the prosecutor showed Hillhouse a firearm, which was used for

demonstrative purposes only. Hillhouse testified that the demonstrative weapon

accurately resembled the weapon that was used against her and that there was "no

doubt in [her] mind" that the weapon used against her was a "real weapon." Under

the reasoning of Carter , we hold that the evidence was legally sufficient to show that

the weapon used in the offense against Hillhouse was a firearm.

Viewing the evidence in a neutral light, we cannot say that the verdict seems

"clearly wrong and manifestly unjust," or is against the great weight and

preponderance of the evidence on the firearm issue. Appellant points out that, on

cross-examination, Hillhouse admitted that she was not a "gun expert," and that she

did not know if the gun was real. She only knew that the gun was placed against her

head and that she was in fear for her life. Appellant himself testified that he saw one

of his codefendants throw a black and silver gun out of the car while they were being

chased by police, but that he "couldn't tell" whether the gun was real. There is no

evidence suggesting that the gun was a toy. See Brown v. State , 212 S.W.3d 851, 863

(Tex. App.--Houston [1st Dist.] 2006, pet. ref'd) (holding evidence factually

sufficient to show that firearm was used even though there was conflicting evidence,

and toy gun was later recovered).

The evidence was legally and factually sufficient to show that a deadly weapon,

namely a firearm, was used in the offense.

We overrule point of error two.

EXTRANEOUS OFFENSES

In his first point of error, appellant contends the trial court erred by admitting

evidence of three extraneous offenses. As part of the State's case-in-chief, the

prosecutor sought to admit three extraneous offenses to show appellant's intent to

commit robbery. Specifically, the State introduced evidence of the aggravated

robbery of of Lissette Rosette, the aggravated robbery of Maria Gutierrez, and the

aggravated assault of Christine Maranan. The first aggravated robbery was

committed against Lissette Rosette on July 3, 2005 at 1:30 am at a Wal-Mart parking

lot. The second aggravated robbery was committed against Maria Gutierrez on July

4, 2005 around 1:00 am at a Kroger parking lot. The aggravated assault was

committed against Christine Maranan on July 4, 2005 around 6:15 am at a Wal-Mart. (2)

The Extraneous Offense Testimony

Lissette Rosette testified that she, her mother, her little brother, and her nephew

had been to a Wal-Mart late at night. When they returned to their car, a woman

dressed as a man tapped on the window. Rosette did not roll down the window.

Appellant, who was also dressed as a woman, approached Rosette's mother as she was

getting into the car and asked for directions. When Rosette's mother tried to close the

door, appellant blocked it and then demanded that the women give him their purses.

Another perpetrator--this one a man dressed as a man--approached the car with a

gun. Rosette handed her purse to appellant, but appellant and the man with the gun

kept demanding that Rosette's mother also surrender her purse. Rosette grabbed her

mother's purse and handed it to the man with the gun. Appellant, the man with the

gun, and the other man dressed as a woman then fled in a white, four-door car. Rosette

later identified appellant from a photo array as the man dressed as a woman who had

initially approached her mother and asked for directions.

Maria Guttierez testified that on July 3, 2005, she went to visit some friends

after church and stayed until around midnight. She left with her three children and

two friends of her children. On the way home, Guttierez stopped at a Kroger store to

get some milk and cereal. She and the children returned to her car around 1:00 a.m.

on July 4th. As Guttierez was loading the groceries in her car, a white, four-door car

pulled up and three people got out. Two were men dressed as women. Gutierrez

identified appellant as one of the two men dressed as women. As they approached,

one of them asked for directions. Gutierrez noticed that appellant was swinging a

knife. Another man then placed a gun against Gutierrez's head and demanded her

purse. She indicated that it was on the seat, and appellant reached in and took it. The

white car then moved, and the three people got back in and drove away. Gutierrez

later identified appellant from a photo array as the man dressed as a woman who was

carrying a knife and who took her purse.

Standard of Review

We review a trial court's evidentiary rulings under an abuse of discretion

standard. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Pierre v.

State , 2 S.W.3d 439, 442 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). We

recognize that a trial court must be given wide latitude to admit or exclude evidence.

Theus v. State , 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Pierre , 2 S.W.3d at 442 .

If the trial court's evidentiary ruling is within the zone of reasonable disagreement, we

will not disturb the ruling. Prible v. State , 175 S.W.3d 724, 731 (Tex. Crim. App.

2005); Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Sunbury

v. State , 33 S.W.3d 436, 441 (Tex. App.--Houston [1st Dist] 2000, no pet.).

Conversely, if the trial court's ruling "is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree," then we must reverse for abuse of

discretion. Burks v. State , 227 S.W.3d 138, 147 (Tex. App.--Houston [1st Dist.]

2006, pet. ref'd) (quoting McDonald v. State , 179 S.W.3d 571, 576 (Tex. Crim. App.

2005)).

Rule 404(b)

Evidence of other crimes, wrongs, or acts is not generally admissible to prove

character conformity, but may be admissible for other purposes, such as proof of

motive, opportunity, intent, or absence of mistake or accident. Tex. R. Evid. 404.

Extraneous offense evidence may become admissible to prove intent only if the intent

required for a conviction for the primary offense is a contested issue in the case.

McGee v. State , 725 S.W.2d 362, 364 (Tex. App.--Houston [14th Dist.] 1987, no

pet.).

Appellant argues that, at the point in the trial when the extraneous offense

evidence was admitted, appellant's intent was not yet an issue because he had not yet

testified. Intent can be characterized as a contested issue if (1) the required intent for

the primary offense cannot be inferred from the act itself or (2) the accused presents

evidence to rebut an inference that the required intent existed. Id. It is true that, as

appellant argues, he had not yet testified in such a way as to rebut an inference that the

required intent existed. However, his questioning of Hillhouse clearly raised the

defensive issue of his lack of intent. During cross-examination of Hillhouse, the

following exchange took place:

[Defense counsel]: Now, Ms. Hillhouse

[Hillhouse]: Yes, ma'am.

[Defense counsel]: --you state that you saw Mr. Brown get out of the

car.

[Hillhouse]: Yes, ma'am.

[Defense counsel]: When you saw him get out of the car, you're saying

he stood right there by the door, or where did he go?

[Hillhouse]: He stayed at the door with the door open.

[Defense counsel]: And he didn't say anything to you; is that correct?

[Hillhouse]: No, ma'am. He was -- no, ma'am, he did not.

[Defense counsel]: Could you hear anything he said?

[Hillhouse]: No, ma'am.

[Defense counsel]: Do you know if he could have been motioning for the

other two to come on back to the car?

[Prosecutor]: That would call for speculation, Judge.

[Trial court]: Sustained.

[Defense counsel]: Well, you didn't hear him say anything?

[Hillhouse]: No, ma'am, I did not.

. . . .

[Defense counsel]: Did you see Mr. Brown with any type of weapon?

[Hillhouse]: No, ma'am.

[Defense counsel]: So, its safe to say you don't really know his purpose

for getting out? You did see him get out of the car? He never left the

door?

[Hillhouse]: No, ma'am. I don't know what his purpose was, no, ma'am.

By questioning Hillhouse about appellant's "purpose" in getting out of the car,

appellant was suggesting that he had a "purpose" other than a criminal intent to

participate in a crime. Furthermore, a defendant need not raise his defensive issue in

his case-in-chief before the State is permitted to introduce extraneous offenses under

Rule 404(b). See Powell v. State , 63 S.W.3d 435, 439 (Tex. Crim. App. 2001)

(holding that defensive theory could be raised in opening statements and cross-examination of complainant, thereby permitting State to introduce extraneous offenses

during case-in-chief).

Appellant also argues that the extraneous offensives had no relevance other than

to show character conformity. Appellant claims that the "extraneous offenses were not

so similar to the [charged] robbery that the jury could infer Appellant's intent and

involvement in [this] case." We disagree.

To show intent from extraneous offenses, the courts require only that the facts

of the charged offense and the extraneous offense be substantially similar, not exact.

See Johnson v. State , 932 S.W.2d 296, 302 (Tex. App.--Austin 1996, pet. ref'd)

(citing Robinson v. State , 701 S.W.2d 895, 898 (Tex. Crim. App. 1985). Sufficient

similarity may be shown by proximity in time and place or by a common mode of

committing the offense. Phat Van Bui v. State , 68 S.W.3d 830, 837 (Tex.

App.--Houston [1st Dist.] 2002, no pet.). The Gutierrez and Rosette robberies were

substantially similar to the charged robbery because all of the robberies involved

similar facts: 1) each robbery began with a man dressed as a woman asking for

directions; 2) a man dressed as a man would then approach the car with a gun and

threaten the victims; 3) the getaway car was a white, four-door car; 4) at least two

males dressed as females were involved in each offense; 5) each offense occurred after

midnight in a parking lot in the same general vicinity; and 6) the offenses occurred

within a short period of time.

Therefore, we hold that the trial court did not abuse its discretion in admitting

the extraneous offenses to show appellant's intent pursuant to Rule 404(b).

Rule 403

Appellant also argues that, even if the extraneous offenses are admissible under

Rule 404(b), the evidence should be excluded on Rule 403 grounds because the

probative value is substantially outweighed by the danger of unfair prejudice.

Even if evidence qualifies for admission under rule 404(b), it may still be

excluded under rule 403 if the danger of unfair prejudice substantially outweighs its

probative value. Rogers v. State , 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). In

making this determination, a trial court should consider (1) how probative the

evidence of the extraneous offense is, (2) the potential for the extraneous offense to

impress the jury in some irrational but indelible way, (3) the amount of time the

proponent will need to develop the evidence, and (4) the proponent's need for the

evidence to prove a fact of consequence. Wyatt v. State , 23 S.W.3d 18, 26 (Tex. Crim.

App. 2000). Only a significant disparity between the degree of prejudice of the

evidence and its probative value will tip the balance toward requiring exclusion. Jones

v. State , 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).

Probative Value

The extraneous offense evidence was highly probative on the issue of

appellant's intent and rebutted his defensive theory that he was not serving as a

lookout, but had some other purpose in mind when he got out of the car.

Potential to Impress the Jury in Some Irrational Way

Although extraneous offenses always possess the potential to influence the jury,

any impermissible inference of character conformity can be minimized through a

limiting instruction. Lane v. State , 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). In

this case, the trial court gave a limiting instruction before the evidence of the

extraneous offenses was presented to the jury and in the jury charge.

Amount of Time to Develop the Evidence

The State presented the extraneous offense evidence through the testimony of

several witness, which took some time.

Proponent's Need for the Evidence

Finally, the State needed the extraneous offense evidence to show intent to

commit robbery. Appellant suggested through cross-examination that his actions in

getting out of the car and motioning toward the other perpetrators did not show an

intent to participate in the crime. He also testified during his case-in-chief that he was

passed out in the car during the robbery from drinking alcohol and taking Xanax.

Thus, intent to commit robbery was a contested issue, and the extraneous offense

evidence was necessary to show an intent or scheme to rob victims at gunpoint in

parking lots in the early morning hours. Under these circumstances, any unfair

prejudicial effect does not substantially outweigh the probative value of the extraneous

offense evidence.

The trial court did not abuse its discretion in admitting the extraneous offenses

under rule 403 or 404. We overrule point of error one.

CONCLUSION

We affirm the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

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