COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-164-CR
JAMES GLEN GRAY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In seven points, Appellant James Glen Gray appeals his convictions for
two counts of felony murder. The judgments of the trial court are modified to
reflect that the conviction for count one is robbery and the conviction for count
two is robbery. As modified, the judgments are affirmed as to the convictions.
1
… See Tex. R. App. P. 47.4.
The portion of the judgments assessing punishment is reversed, and the cause
is remanded for a new trial as to punishment only.
II. Factual and Procedural History
Detective Mark Malcom of the Mansfield police department testified that
in March 2003, Steven Ashford gave the police a written statement in which
he confessed to the murders of Kevin Ogdie and Kelly Chance. When asked if
anyone else had been involved, Ashford implicated two other individuals—Gray
and Gray’s brother, Michael. Upon further questioning, Ashford told Detective
Malcom that he had used a .22 caliber pistol to commit the murders and that
the gun could be found in the master bedroom of Gray’s parent’s house
(“Gray’s house”). After obtaining a search warrant, Detective Malcom searched
Gray’s house and found the gun in the exact location that had been described
by Ashford. Detective Malcom also found in the house a fire safe that met the
general description of a “secure chest” belonging to Kevin and Kelly, a pair of
black slip-on shoes that matched Ashford’s description of the shoes he had
worn during the commission of the offense, and a knife believed to have been
used in the commission of the offense.
During the investigation, the police obtained two written statements from
Gray. In his first statement, Gray indicated that he had gone with Ashford to
someone’s apartment to pick up “some dope” and that Ashford had told him
2
to wait downstairs. While waiting downstairs, Gray claimed that he had heard
gunfire and that, after the gunfire had stopped, Ashford had yelled at him to
come up to the apartment. Upon entering the apartment, Gray said that he had
seen a man and a woman who had been shot. Gray stated that Ashford had
told him that he had shot the man and woman because they owed him money
and had stolen from him.
In a subsequent statement, Gray expanded upon the details of what had
happened leading up to, and immediately after, the shootings:
I met Stephen Ashford at an a[c]quaintance of mine’s house. I was
installing cable at his house and [Ashford] was there. We started
talking and realized that we had met a few years back when he
was a doorman at a bar. We were messing around on the
computer and started talking about computers. I asked him if he
could clean up my hard drives on my computers. He said he could
and asked if I would bring them over the next day. I brought the
computers over the next day [and] he told me one of them wasn’t
worth fixing and the other he could. We were hanging out and had
done some speed, and I asked if he could come over to my house
and look at my tower at the house and install some programs. We
went to my house and did some work on [the] computer and did
some more speed. At the house we started talking about his
military career and shooting guns. My family has always been into
hunting and fishing so I showed him a few of our guns and we
talked about going to the range and shooting some skeet. We ran
out of speed and he said he had a guy that owed him and we could
get it from him, and if he wouldn’t give it to him he would beat him
up and take it. He had some walkie-talkies and said that if
anything went wrong he would hit the button on the walkie-talkie.
We went over to the apartment. My brother Mike drove and
stayed in the car. I stayed downstairs while [Ashford] went
upstairs. He was upstairs for a minute or two, then I heard gunfire.
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I looked around and didn’t know [whether] it came from the
apartment he was in or somebody else’s. He opened the door and
told me to come in. When I [went] in I saw a woman on the couch
and a man on the ground. [Ashford] was standing in the living
room next to the hallway—he was carrying my dad’s .22 caliber
pistol. He told me to put a radio in the bag [and] a CD player and
then he kicked open a hall doorway and went into a bedroom. He
came out with a small shoebox sized safe and put it in the bag. He
told me to grab the bag and go. At that time I was about to throw
up [and] I didn’t want to argue with a man with a gun so I grabbed
the bag and went downstairs and walked to the car. Right before
we got to the gate he radioed Mike and told him not to go
anywhere. When we got back, [Ashford] got in [the] front [and] I
got in [the] back. I told my brother to get us home. . . . Mike
asked what the easiest way was to get home, so [Ashford] told
him how to get home. When we got home I told Mike what [had]
happened so if anything happened to me he could report it.
[Ashford] stayed with us another day and we took him home the
next day. The next day after, I took his clothing and a bag with a
radio he had left at our house. I am sorry for not coming forward
earlier but I was afraid for myself and my family if I said anything.
I am also sorry for ever getting involved with [Ashford].
The State charged Gray with two counts of felony murder—count one
and count two—based on the theory that Gray, under the law of parties, had
shot Kelly and Kevin in the course of committing aggravated robbery. The
State also charged Gray with two counts of aggravated robbery with a deadly
weapon—count three and count four. The State, however, eventually waived
counts three and four and requested that they be placed under counts one and
two as lesser included offenses; robbery was also included as a lesser included
offense. At the close of evidence, a jury found Gray guilty of two counts of
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felony murder. In a separate trial on punishment, the trial court sentenced Gray
to fifteen years’ confinement for each count, to run concurrently. This appeal
followed.
III. Sufficiency of the Evidence
In his fourth through seventh points, Gray challenges the legal and factual
sufficiency of the evidence to support his convictions for felony murder.
Specifically, Gray asserts that the evidence is legally and factually insufficient
because there was no evidence that he intended to commit an act clearly
dangerous to human life, nor was there evidence that he had knowledge of
Ashford’s taking a gun to commit the offense. We agree.
The jury charge in this case authorized the jury to convict Gray on count
one and count two of felony murder either as a principal or as a party. See
Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). Because the evidence is
insufficient to support Gray’s convictions as a principal,2 we address whether
the evidence is sufficient to support his convictions under the law of parties.
2
… The undisputed evidence presented at trial showed that Ashford had
been the one to shoot Kevin and Kelly, and that Gray had not been in the room
when the shootings occurred.
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A. Standards of Review
When reviewing the legal sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution in order to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play
to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778.
When a court of appeals concludes that evidence is legally insufficient to
support a conviction, it may reform the judgment to reflect conviction of a
lesser included offense if the evidence is sufficient to support conviction of the
lesser included offense and either the jury was charged on the lesser included
offense or one of the parties asked for but was denied such an instruction.
Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
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S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
B. Applicable Law
A person commits felony murder if, in the course of and in furtherance of
the commission or attempted commission of a felony, he commits or attempts
to commit an act clearly dangerous to human life that causes the death of an
individual.3 See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). A person
commits the felony offense of aggravated robbery if, in the course of
committing a theft, he intentionally or knowingly places another in fear of
imminent bodily injury or death and uses or displays a deadly weapon. See id.
3
… As previously stated, the State alleged that the felony underlying
Gray’s felony murder charges was aggravated robbery.
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§§ 29.02–.03 (Vernon 2003). A person commits theft if he unlawfully
appropriates property with intent to deprive the owner of property;
appropriation of property is unlawful if it is without the owner’s effective
consent. See id. § 31.03(a), (b)(1) (Vernon 2003 & Vernon Supp. 2008).
Under the law of parties, “a person is criminally responsible as a party to
an offense if the offense is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both.” See id. § 7.01(a)
(Vernon 2003); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App.
2005). A person is criminally responsible for the offense of another, and thus
can be convicted as a party, if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts
to aid the other person committing the offense. Tex. Penal Code Ann. §
7.02(a)(2). Though mere presence does not automatically make one a party to
a crime, it is a circumstance tending to prove party status and, when
considered with other facts, may be sufficient to prove that the defendant was
a participant. Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel
Op.] 1982). In determining whether the defendant acted as a party, we review
events occurring before, during, and after the offense and may rely on actions
of the defendant that show an understanding and common design to commit
the offense. King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000).
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C. Discussion
In order to convict Gray as a party to felony murder based on the
underlying felony of aggravated robbery, the State had to prove that Gray was
criminally responsible for Ashford’s use or exhibition of a deadly weapon during
the offense. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App.
1986) (stating that, in order to convict defendant as a party to aggravated
offense, State must prove that defendant was criminally responsible for
aggravating element); Wooden v. State, 101 S.W.3d 542, 547–48 (Tex.
App.—Fort Worth 2003, pet. ref’d). In other words, the State had to prove
that Gray acted with intent to promote or assist Ashford in committing
aggravated robbery, that is, that he solicited, encouraged, directed, aided, or
attempted to aid Ashford in placing Kevin and Kelly in fear of imminent bodily
injury or death and in using or displaying a deadly weapon. See Tex. Penal
Code Ann. § 7.02(a)(2).
Gray’s written statements were the only evidence presented at trial
pertaining to Gray’s involvement in what had occurred before, during, and after
the commission of the offenses.4 From the evidence, we know that, on the day
4
… The evidence not previously described above included testimony from
(1) Jesse Press, a maintenance worker at Kevin and Kelly’s apartment, who
testified as to what he saw when he found Kevin and Kelly’s bodies two days
after the shootings; (2) Constance Patton, a medical examiner, who testified
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the offenses occurred, Gray showed Ashford his father’s guns; that Gray went
with Ashford to Kevin and Kelly’s apartment to get more drugs, knowing that
Ashford might beat Kevin and Kelly up and take the drugs without their
consent; that Gray was downstairs when the shootings occurred; and that Gray
saw Ashford with Gray’s father’s gun after the shootings had occurred.
There is no evidence, however, as to the timing of Gray’s showing
Ashford the guns and their conversation about beating Kevin and Kelly up and
taking the drugs. There is no evidence to suggest that Gray encouraged or
directed Ashford to take or use a gun against Kevin and Kelly in order to get the
drugs. There is no evidence that Gray gave Ashford one of the guns or that he
had seen Ashford take one of the guns. Nor is there evidence that Gray, at any
time before or during the commission of the aggravating element, became
aware of Ashford having or using a gun.
Based on the evidence in the record, the jury could have reasonably
inferred that Gray, by going with Ashford to Kevin and Kelly’s apartment, had
agreed to be a party to beating Kevin and Kelly up and taking the drugs without
about items seized from Gray’s house and Ashford’s car, including the knife
found in Gray’s home which did not have any blood on it; (3) Frank Schiller, a
forensic consultant, who testified about the drugs found in Kevin and Kelly’s
apartment; and (4) Marc Krouse, a medical examiner, who testified as to the
wounds sustained by Kevin and Kelly.
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their consent. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)
(defining inference as a conclusion reached by considering other facts and
deducing a logical consequence from them). It was not reasonable, however,
for the jury to infer that because Gray had shown his father’s guns to Ashford,
that Gray knew Ashford had taken one of the guns with him to Kevin and
Kelly’s apartment, or that Gray intended to encourage or direct Ashford in using
the gun during the confrontation with Kevin and Kelly. See id. (defining
speculation as mere theorizing or guessing about the possible meaning of facts
and evidence presented).
Further, the facts of this case are distinguishable from prior cases in
which courts of appeals have held that the evidence is legally sufficient when
a party to aggravated robbery learns of a deadly weapon during the commission
of the offense and yet continues to participate in the offense. See Escobar v.
State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi 2000, pet. ref’d)
(holding that evidence was legally sufficient to support aggravated robbery
conviction under law of parties because defendant got into get-away vehicle
with stolen items while other party pointed a firearm at victim); Anderson v.
State, No. 14-00-00810-CR, 2001 WL 1426676, at *2 (Tex. App.—Houston
[14th Dist.] Nov. 15, 2001, pet. ref’d) (not designated for publication)
(concluding evidence was legally sufficient to support defendant’s conviction
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for aggravated robbery as a party when defendant continued to participate in
the offense after seeing co-defendant pull out a gun and point it at
complainant’s face).
Here, the record reflects that not only did Gray lack knowledge as to the
presence of the gun before the shootings but also that he did not learn about
the gun until after the shootings had occurred. We conclude, therefore, that
there is legally insufficient evidence to show that Gray and Ashford were acting
together, each contributing some part toward the execution of placing Kevin
and Kelly in fear of imminent bodily injury or death and in using or displaying a
deadly weapon. See Wooden, 101 S.W.3d at 548 (stating that there was no
evidence in the record that the appellant knew there was a gun in the car or
that he aided or encouraged a co-defendant to threaten the victim with a gun);
Scott v. State, 946 S.W.2d 166, 168 (Tex. App.—Austin 1997, pet. ref’d)
(holding that the evidence did not suggest that defendant, who drove
companions to a location where, without his knowledge, they committed
aggravated robbery, had prior knowledge of his passengers’ intent or that the
defendant knowingly assisted his passengers in the offense).
Therefore, because it was unreasonable for the jury to infer that Gray had
knowledge of the gun, and because the evidence reflects that Gray did not
become aware of the gun until after the aggravating element had occurred, we
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hold that the evidence is legally insufficient to prove that Gray was criminally
responsible for Ashford using or displaying a deadly weapon during the
commission of robbery and, therefore, is legally insufficient to support Gray’s
convictions for felony murder. Accordingly, Gray’s fourth and sixth points are
sustained—we need not address Gray’s remaining points of error. 5 See Tex. R.
App. 47.1.
Having determined that the evidence is legally insufficient to support the
jury’s verdicts for the offense of felony murder, and having impliedly determined
that the evidence is legally insufficient to support convictions for the lesser
included offense of aggravated robbery, we now consider whether the evidence
5
… In two of Gray’s remaining points, he argues that the evidence is
factually insufficient to support convictions for aggravated robbery, however,
because we have concluded that the evidence is legally insufficient, we need
not address Gray’s arguments pertaining to factual sufficiency. See Tex. R.
App. 47.1. In Gray’s remaining three points, he asserts that the trial court
erred by excluding statements that he had made to his father regarding the
offense. Gray claims that the information in the excluded statements negates
an element of the offense, namely that Gray acted with the intent to promote
the commission of an aggravated robbery. Gray concedes there was sufficient
evidence for robbery. As we have already concluded, based on the evidence
presented at trial, the evidence is legally insufficient to support Gray’s
convictions for aggravated robbery, we need not address Gray’s three remaining
points. Furthermore, essentially the same information in the excluded
statements came in through Gray’s written statements. Therefore, any error
from the trial court by refusing to admit the statements is harmless. See Mayes
v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (concluding that any error
in admitting evidence is cured where the same evidence comes in elsewhere
without objection).
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is sufficient to support convictions for the lesser included offense of robbery.
See Collier, 999 S.W.2d at 782.
A person commits the offense of robbery if, in the course of committing
theft and with intent to obtain or maintain control of the property, he
intentionally, knowingly, or recklessly causes bodily injury to another or
intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death. Tex. Penal Code Ann. 29.02(a).
Gray’s second written statement established that he went with Ashford
to Kevin and Kelly’s apartment knowing that Ashford might beat up Kevin and
Kelly and take the drugs without their consent. A reasonable juror could
conclude that, under the law of parties, Gray acted with intent to promote or
assist Ashford in committing robbery, that is, that Gray entered an agreement
in which robbery was contemplated, that Gray went with Ashford to the
location of the offense, and that Gray acted with the intent to promote or assist
the robbery by acting as the lookout. See Tex. Penal Code Ann. § 7.02(a)(2).
Considering the evidence under the standards of review set forth above, we
hold that it is legally and factually sufficient to support convictions for robbery.
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IV. Conclusion
Having held that the evidence is legally insufficient to convict Gray of two
counts of felony murder but sufficient to convict him of two counts of robbery,
we modify the trial court’s judgment on count one to delete the conviction of
murder and to instead reflect a conviction of the lesser included offense of
robbery, we likewise modify the trial court’s judgment on count two to delete
the conviction of murder and to instead reflect a conviction of the lesser
included offense of robbery, and we affirm the judgments as to the convictions
as modified. We also reverse the trial court’s judgments on punishment and
remand the case to the trial court for a new trial on punishment only. See Tex.
R. App. P. 43.2(c), (d).
BOB MCCOY
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
CAYCE, C.J. dissents without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2009
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