Cortney Woods v. State

MODIFY and AFFIRM; and Opinion Filed July 23, 2019.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00444-CR

CORTNEY WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1676149-Y

MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne

Appellant Cortney Woods was convicted of aggravated robbery and sentenced to thirty

years imprisonment. Appellant raises four issues on appeal: 1) the jury charge was defective

because the trial court failed to describe in that charge the conditions under which the jury could

convict appellant based on the law of parties; 2) the trial court failed to require the jury to find that

appellant used or knew that a co-defendant would use a deadly weapon; 3) the evidence was legally

insufficient to establish that appellant participated as a principal or as a party; and 4) the evidence

was legally insufficient to attribute use and/or exhibition of a deadly weapon to appellant. In a

single cross-point, the State argues that the judgment should be reformed to correct three clerical

errors. We modify the trial court’s judgment in accord with the State’s request and affirm that

judgment as modified.
 Background

On August 2, 2016, Jackson McKinney, a Rowlett high school student and Marisa

Carpenter, his girlfriend at the time, came to Dallas via DART rail. They had dinner with friends,

then spent time walking around downtown Dallas and Deep Ellum until the early morning hours.

Realizing that they had missed the last train to Rowlett, they continued walking around Deep Ellum

looking for establishments that might be open until the next train to Rowlett was available.

Three men, later identified as Royneco “Neco” Harris, Edward,1 and appellant approached

and surrounded the couple. One of the men pointed a gun at McKinney; he said “Say something

and I’ll shoot.” Another one of the men, who was standing next to McKinney, said “Give me

everything you got.” McKinney testified that he “froze” and was afraid he was going to be shot.

Before McKinney could react, he heard angry words behind him where Carpenter was with

the third man. Carpenter took out her pepper spray and sprayed the third man standing next to her.

She also sprayed pepper spray in the direction of the other two robbers. Carpenter testified that she

did so because she felt that “our lives were threatened, and my things were going to get taken away

from me.” The men started screaming and ran off.

McKinney and Carpenter did not know where the robbers had gone. Because the batteries

on their cellphones were either dead or had very little power, they ran to Baylor Hospital, thinking

it would be a safe place. A security guard at the hospital called 911 on their behalf and Dallas

patrol officer Gary Burch responded to the call. Burch interviewed McKinney and Carpenter and

obtained descriptions of the three robbers. Burch then drove the couple back to the offense location

in his patrol car and later dropped them off at a restaurant, Café Brazil, to wait until DART resumed

morning service to Rowlett.

1
Edward was identified only by this name at trial; no surname was given.
–2–
 After accosting the young couple, Harris, Edward and appellant ran to a waiting car driven

by Harris’s girlfriend, Kristian Rios. Rios noticed that both Harris and Edward were carrying guns.

Rios also noticed that Harris had pepper spray in his eyes while appellant had pepper spray on his

neck. Rios drove the men away from the scene.

At Harris’ direction, Rios stopped at a nearby 7-Eleven on Gaston Avenue. The men ran

inside, got a container of milk, and poured milk in Harris’ eyes and on appellant’s neck in an

attempt to alleviate the effects of the pepper spray. Rios followed the men into the store. Rios

acknowledged that by this time she knew they had tried to rob the couple and had been pepper

sprayed in that attempt. The four left the 7-Eleven without paying for the milk over the protests of

the store clerk.

Harris instructed Rios to drive away from the store and then stop around the corner so the

clerk would see the men leaving on foot. Rios complied. Harris, Edward and appellant ran around

the corner of the store and got into her car. The clerk photographed the license plate on Rios’s car

as she drove away.

The police ultimately connected Harris, Edward, appellant and Rios to the robbery by use

of the 7-Eleven surveillance videos, the photograph of Rios’ license plate, and tips from Crime

Stopper’s which named appellant and one of the other men.

Dallas Police Detective Carlos Cardenas interviewed appellant; he “denied everything.”

Appellant did, however, identify himself from a photograph taken by the surveillance equipment

at the 7-Eleven. Notations on that photograph state: “This is me,” “I never said anything to anyone

in the store, and “And I was not wippig [sic] mace off myself.”2 Cardenas testified that, in his

opinion, appellant was not truthful during the interview.

2
The terms “pepper spray” and “mace” were used interchangeably at trial.
–3–
 Jury Charge: Law of Parties

In his first issue, appellant claims that the trial court’s charge to the jury failed to describe

the conditions under which the jury could convict appellant based on the law of parties. He further

claims that he was harmed by the trial court’s failure to require the jury to find that he was “acting

together” with his co-defendants. The State responds that the application paragraph of the jury

charge properly authorized the jury to find appellant guilty of aggravated robbery either as a

principal or as a party. We agree with the State.

The Jury Charge

The jury was charged on the law of parties in the abstract portion of the charge as follows:

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.

A person is criminally responsible for an offense committed by the conduct
of another 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 in the
commission of the offense. Mere presence alone is not sufficient to render one a
party to an offense.

These definitions of criminal responsibility are in accord with definitions of the law of parties

provided by statute. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2).

The application paragraph of the charge applied the law of parties to the facts as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or
about the 2nd day of August, 2016, in Dallas County, Texas, the defendant,
CORTNEY WOODS, acting alone or as a party, as that term has been herein
defined, did then and there intentionally or knowingly, while in the course of
committing theft of property and with intent to obtain or maintain control of said
property, threaten and place Jackson McKinney, hereinafter called complainant, in
fear of imminent bodily injury or death, and the defendant used or exhibited a
deadly weapon, to-wit: a firearm, then you will find the defendant guilty of
aggravated robbery, as charged in the indictment.

Unless you so find and believe from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will find the defendant not
guilty.

–4–
 Appellant did not object to this charge, nor did he request any specific, additional, or

narrowing instructions.

Jury Charge Error

In analyzing a claim of jury charge error, we must first determine if error exists. See

Almanza v. State, 686 S.W.2d 157, 173–74 (Tex. Crim. App. 1985); see also Price v. State, 457

S.W.3d 437, 440 (Tex. Crim. App. 2015). If it does not, our inquiry ends. See Price, 457 S.W.3d

at 440. If, however, we find error in the charge, we next consider whether an objection to the

charge was made and analyze the error for harm. Id.

Where, as here, appellant did not object to the charge, he is entitled to a reversal only if he

suffered egregious harm as a result of the error. Id., see also Ngo v. State, 175 S.W.3d 738, 743-

44 (Tex. Crim. App. 2005); TEX. CODE CRIM. PROC. art. 36.19. “Egregious harm” is the type and

degree of harm that affects the very basis of the case, deprives the defendant of a valuable right,

or “vitally affects a defense theory.” Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).

In making an egregious harm determination, the actual degree of harm must be assessed in light

of the entire jury charge, the state of the evidence (including the contested issues and weight of

probative evidence), the argument of counsel and any other relevant information reflected in the

record of the trial as a whole. Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting

Almanza, 686 S.W.2d at 171).

The Law of Parties

The law of parties authorizes a conviction for the collective conduct of two or more people.

Under the law of parties, the State may enlarge a defendant’s criminal responsibility to include

acts in which he may not be the principal actor. Boston v. State, 373 S.W.3d 832, 837 (Tex. App.—

Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013). As noted above, the trial court

–5–
correctly set out the definition of the law of parties in the jury charge. TEX. PENAL CODE ANN. §§

7.01(a), 7.02(a)(2).

Plata v. State is Distinguishable

Appellant relies on Plata v. State, 926 S.W.2d 300, 302-04 (Tex. Crim. App. 1996),

overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), to support

his claim of jury charge error. In Plata, a prosecution for theft from an armored cash delivery

vehicle, the jury charge which authorized conviction of both the defendant and his codefendant

provided as follows:

Now if you find from the evidence beyond a reasonable doubt that on or
about the 18th day of October, 1991, in Cameron County, Texas, the Defendants,
Eloy Hinojosa and Luis Alberto Plata, did unlawfully approriate [sic] United States
Currency without the effective consent of Felipe Landin, the owner, with intent to
deprive the said owner of said property permanently, and that the value of such
property was then and there twenty thousand dollars ($20,000.00) or more and
under the value of one hundred thousand dollars ($100,000.00), then you will find
the defendants guilty of theft as charged in the indictment.

Unless you so find beyond a reasonable doubt, or if you have a reasonable
doubt thereof, you will acquit the defendants.

Id. at 303. That charge went on to define, in the abstract, the statutory conditions under which a

person may be criminally responsible for another person’s conduct as a party. Id.; see also TEX.

PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2).

The Court of Criminal Appeals held that this charge was erroneous because, while the

definition of the law of parties was correct in the abstract, the application paragraph made no

mention of the law of parties “either directly or by reference . . . for an offense committed by the

conduct of his codefendant.” Plata, 953 S.W.2d at 303-304. As a result, the application paragraph

did not authorize the jury to either convict or acquit defendant Plata as a party to the offense. Id.

That Court further found that defendant Plata was harmed because the evidence was insufficient

to convict him as a principal. Id.

–6–
 Plata is distinguishable from this case. In Plata, the application paragraph did not authorize

conviction of defendant Plata as a party at all. By contrast, in this case the application paragraph

of the court’s charge expressly authorized the jury to convict appellant if it found from the evidence

beyond a reasonable doubt that appellant, “acting alone or as a party as that term has been herein

defined” committed the offense of aggravated robbery. And case law more recent than Plata

clarifies that a general reference to the law of parties in the application paragraph of the jury charge

is sufficient and is not error when the defendant, as appellant in this case, does not object or request

a narrowing of the specific statutory modes of conduct that constitute party liability, i.e., whether

he “solicited, encouraged, directed, aided or attempted to aid” another specified person to commit

the offense. Vasquez v. State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012).

Analysis

The trial court properly defined the law of parties in the abstract portion of the jury charge.

The application paragraph, which followed the abstract definitions in the charge, properly

described the conditions under which the jury could convict appellant of aggravated robbery, i.e.,

acting either as a principal or as a party to the offense as the term party had been defined. The trial

court did not err in failing to further instruct the jury that it must find that appellant was “acting

together” with his codefendants during the commission of the offense in order to convict him as a

party to the offense of aggravated robbery.

We conclude there is no error in the jury charge with respect to the instructions on the law

of parties and appellant’s potential culpability as a party to the offense of aggravated robbery.

Consequently, we need not conduct a harm analysis. We overrule appellant’s first issue.

Jury Charge: Deadly Weapon

In his second issue, appellant claims that the trial court’s charge to the jury failed to require

the jury to find that he used, or knew his codefendants would use, a deadly weapon during the

–7–
commission of the offense. The State responds that the jury charge authorized the jury to find that

appellant, acting alone or as a party, used or exhibited a deadly weapon. We agree with the State.

The indictment charging appellant with the offense of aggravated robbery alleged that

appellant “used and exhibited a deadly weapon, to wit: A FIREARM.” In the jury charge the trial

court defined “deadly weapon” in accord with the definition provided by statute: “a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily

injury; or anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” See TEX. PENAL CODE ANN. § 1.07(a)(17)(A). Because use and/or

exhibition of a firearm was alleged as an element of the offense, in order to convict appellant of

aggravated robbery the jury was required to find that appellant, acting alone or as a party, used or

exhibited a “deadly weapon, to wit: a firearm.” See Young v. State, 428 S.W.3d 172, 178 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (holding that, in order to find the defendant guilty of

aggravated robbery under the law of parties, it was necessary for the jury to find that the defendant

knew that one of his friends was going to use or exhibit a deadly weapon, i.e., a firearm, during

the course of committing the robbery); Rodriguez v. State, 129 S.W.3d 551, 563 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) (supp. op. on reh’g) (same).

There was no dispute at trial that a gun was utilized during the robbery of McKinney and

Carpenter. The evidence showed that appellant, Harris, and Edward exited Rios’ car together after

they saw a young couple walking alone in an empty area of Deep Ellum in the middle of the night.

Rios testified that Harris had “targeted” the couple. Harris, Edward, and appellant approached the

couple and surrounded them. McKinney testified that one of the robbers pointed a gun at him and

said: “Say something and I’ll shoot.” The gun was pointed at his chest. At some point during the

encounter, he felt the gun touching his clothing. Both McKinney and Carpenter testified that the

three men were acting together.

–8–
 After Carpenter dispersed her pepper spray, Harris, Edward, and appellant fled the scene

of the robbery together. When they got back into Rios’ car, Rios noticed that both Harris and

Edward had guns.

The fact that appellant did not personally have a gun does not relieve him of responsibility

as a party for the use and/or exhibition of that weapon. The jury was authorized to convict appellant

of aggravated robbery with a deadly weapon only if it found beyond a reasonable doubt that

appellant acted with intent to promote or assist his cohorts in the commission of the offense by

encouraging, aiding, or attempting to aid him in the aggravated robbery of McKinney and

Carpenter with a deadly weapon. No greater specificity in the charge was required. See Vasquez,

389 S.W.3d at 368. We overrule appellant’s second issue.

Sufficiency of the Evidence: Participation in the Robbery

In his third issue, appellant challenges the sufficiency of the evidence to support his

conviction. Specifically, he argues that the evidence is insufficient because 1) McKinney and

Carpenter could not identify him as one of their robbers; 2) Rios, who was an accomplice witness,

did not specify why she believed appellant actually participated in the robbery; 3) the surveillance

video from the 7-Eleven indicated that appellant was not pepper sprayed in his face which suggests

that he was not one of the active participants; and 4) Carpenter “described the non-active

participant as not even paying attention to her while the robbery transpired.” Appellant further

argues that he was merely present at the robbery and there was insufficient corroboration of the

accomplice witness testimony to convict him as a party to the offense. The State responds that the

evidence is legally sufficient to prove appellant’s active participation in the robbery and to

corroborate the accomplice witness testimony. We agree with the State.

–9–
Standard of Review

A challenge to the sufficiency of the evidence is evaluated under the standards established

in Jackson v. Virginia, 443 U.S. 307, 316 (1979); see also Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010). We review the evidence in the light most favorable to the verdict and

determine whether a rational jury could have found all the elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894–95. This standard of

review for legal sufficiency is the same for both direct and circumstantial evidence. Wise v. State,

364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007); Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001). Indeed, circumstantial

evidence is considered as probative as direct evidence and is sufficient, standing alone, to establish

a defendant’s guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

We defer to the trier of fact’s resolution of any conflicting inferences that are raised in the

evidence and presume that the trier of fact, in this case the jury, resolved such conflicts in favor of

the prosecution. Jackson, 443 U.S. at 318; Brooks, 323 S.W.3d at 894; Sennett v. State, 406 S.W.3d

661, 666 (Tex. App.—Eastland 2013, no pet.). We will uphold the verdict unless a rational

factfinder must have had reasonable doubt with respect to any essential element of the

offense. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. The State need not disprove all

reasonable alternative hypotheses that are inconsistent with appellant’s guilt. Wise, 364 S.W.3d at

903. Rather, we consider only whether the inferences necessary to establish guilt are reasonable

based upon the cumulative force of all the evidence when considered in the light most favorable

to the verdict. Hooper, 214 S.W.3d at 13.

–10–
Aggravated Robbery

A person commits robbery if, in the course of committing theft, 3 and with intent to obtain

or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury

to another or he intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death. TEX. PENAL CODE ANN. § 29.02(a). A person commits aggravated robbery if he

uses or exhibits a deadly weapon during the commission of a robbery. TEX. PENAL CODE ANN. §

29.03(a)(2). A firearm is a deadly weapon per se. TEX. PENAL CODE ANN. § 1.07(a)(17)(A).

Law of Parties

As noted above, 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. TEX. PENAL CODE ANN. § 7.01(a). A person is criminally responsible for an offense

committed by the conduct of another if, acting with the intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense. TEX. PENAL CODE ANN. § 7.02(2).

Mere presence of a person at the scene of a crime either before, during or after the offense,

or even flight from the scene, without more, is insufficient to sustain a conviction as a party to the

offense. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). However, combined with

other incriminating evidence, a defendant’s presence may be sufficient to sustain a conviction. Id.

In reviewing the sufficiency of the evidence under the law of parties, we consider “events

occurring before, during and after the commission of the offense” and may rely on actions of the

defendant which show an understanding and common design to do the prohibited act. Guevara,

152 S.W.3d at 49. Each fact need not point directly and independently to the guilt of the defendant

3
A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. TEX.
PENAL CODE ANN. § 31.03(a).
–11–
as long as the cumulative effect of all the incriminating facts are sufficient to support the

conviction. Id. Circumstantial evidence alone may be used to prove that a defendant is a party to

an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).

Kristian Rios’ Testimony

At trial, Rios testified that she, appellant, and Harris were friends and that she and Harris

were dating at the time of the robbery. Rios did not know Edward, but she knew that Edward,

Harris, and appellant were friends. On the day of the robbery, Rios and Harris were at Rios’s

mother’s house when Edward called and asked Harris for a ride home. Rios borrowed her mother’s

car.

Rios, accompanied by Harris, picked up Edward and appellant in south Dallas. She was

driving the men to Edward’s apartment in Pleasant Grove through downtown Dallas near Deep

Ellum when they saw a young couple, i.e., McKinney and Carpenter, walking alone in a “pretty

empty” area near the DART station. Rios testified that Harris “targeted” the couple. Harris told

her to stop and Rios complied, though she did not stop her vehicle right by the couple. Harris,

Edward and appellant exited the car.

Rios confirmed that she saw Harris, Edward and appellant approach the couple and that

they were acting together. While Rios initially denied knowing what the men intended when they

approached the couple, she testified that she knew they did not know the couple. Rios testified that

when she looked back, she saw the trio “wrestling” or fighting with the couple.

After their exchange with the couple, Harris, Edward and appellant ran back to Rios’ car.

Harris had been pepper sprayed on his face and appellant had been sprayed on his neck. Rios

noticed that both Harris and Edward were carrying guns. Harris told her to drive off.

As they passed a 7-Eleven, Harris told Rios to stop, which she did. Rios followed the men

into the 7-Eleven. Rios also followed the men into the store’s restroom where she saw that Edward

–12–
had a gallon of milk and was pouring milk on Harris’ face and appellant’s neck.4 Harris was

“screaming and stuff” because his eyes were burning and appellant was holding his neck. The four

walked out of 7-Eleven as the clerk was saying they needed to pay for the milk; no one paid the

clerk.

Edward told Rios to drive around the corner and pick them up. The men left on foot but

ran around the corner of the store. As they got into her car, the clerk was taking pictures of the

license plate.

After the men got into the car, Rios drove Edward and appellant to some apartments in

Pleasant Grove where they left Rios’ car. Harris stayed with Rios who then drove to her mother’s

house.

At trial, Rios identified several photographs of herself, Harris, Edward and appellant at the

7-Eleven. She testified that appellant was wearing a white tank top and blue shorts with his

underwear/boxers showing at his waist while Harris was wearing a white shirt, which he pulled

over his eyes to wipe off the mace.

Rios also identified a series of text messages between herself, Harris, appellant, and

appellant’s sister “TP.” These texts included three messages Rios sent to appellant. The first two

messages contain screenshots of Crime Stopper bulletins with pictures from the 7-Eleven

surveillance video. The third message was a question from Rios to appellant: “Corntey (sic). . . Do

you think all this is my fault[?]”

When asked what she meant by the question, Rios stated, “I mean, on Cortney’s behalf, I

feel like if I would never – if I would have never stopped at the 7-Eleven, because – just because

[Harris] told me to stop at the 7-Eleven and [sic] [Harris’s] behalf.” She acknowledged that she

4
Rios testified that she did not know that milk helped with pepper spray, but she guessed that Harris did as he
was the one who told her to stop at the 7-Eleven.
–13–
felt somewhat responsible because she stopped at the 7-Eleven where they were captured on the

surveillance camera and because she could have driven off when Harris initially told her to stop

before the robbery. In yet another text message Rios sent to the group she urged them to stick

together and pray for forgiveness.

Rios also identified two text messages she received from appellant, which he also sent to

Harris and TP, two days after the robbery:

If I ain’t never told y’all none, just know I love y’all to death. No matter
what goes on between us, whatever, y’all my family. Can’t nobody ever take y’all
place. My mistakes hurt y’all the most, but don’t let it bring y’all down. I got me. I
just want y’all to do everything in y’all power to stay out of the way and be safe in
these streets. I don’t know what to do at that moment, but I’ma (sic) be okay.

*

I put all y’all on this group thing because I wanted to tell all y’all at the same
time IK (I know) we fucked up and it ain’t no changing it, but don’t let my mistakes
bring y’all down, Cuz live y’all life stay out of the way. I’ma C y’all when I C
y’all[.]

Rios explained that the four of them ultimately devised a plan in which Rios would tell the

police, if questioned, that she sprayed Harris with pepper spray during an argument.

On cross-examination, Rios agreed that she never heard anyone discuss plans to commit

the robbery and that she did not know a robbery was going to happen. She confirmed that Harris

and Edward each had a weapon but appellant did not.

When asked if she knew that appellant, Harris and Edward were going to rob the couple

when they jumped out of the car, Rios initially said that she did not know. Rios ultimately admitted,

however, that she “knew what type of people they were,” and “knew exactly what they were up

to.” She said it was “not a secret” what they were going to do. She agreed that it was apparent to

her from the circumstances when she stopped the car that some type of criminal activity was going

to take place. Rios testified that, by the time they got to the 7-Eleven, she knew that the men had

tried to rob someone and been pepper sprayed in the process.
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Rios as an Accomplice Witness

In their briefs to this Court, both appellant and the State treat Rios as an accomplice witness.

An accomplice is a person who participates in the offense before, during, or after its commission

with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).

Presence at the crime scene does not make a person an accomplice; rather, an accomplice must

have engaged in some affirmative act that promotes the commission of the offense that the accused

committed. Id.

As the “getaway” driver, Rios qualified as an accomplice witness in this case.5 See Brewer

v. State, 852 S.W.2d 643, 647 (Tex. App.—Dallas 1993, pet. ref’d) (stating “evidence that a

defendant drove the getaway car after a robbery has been held sufficient to convict the driver as a

party to the offense”).

The trial court, however, did not instruct the jury that Rios was an accomplice as a matter

of law.6 Nor did the trial court instruct the jury to determine Rios’ status as an accomplice as a

fact issue.7 Neither the State nor appellant requested either instruction. Appellant does not

complain on appeal of the lack of such an instruction.

5
Rios was facing charges for her role in the robbery. At the time of trial she had spent a year in jail and was on
“house arrest” following her release. Rios and the prosecutor had discussed Rios’ involvement in the offense and had
reached an agreement whereby, in exchange for her testimony at trial against appellant, Harris and Edward, the
prosecutor would agree to a probated sentence for her.

6
A witness is an accomplice as a matter of law in the following situations:

1) If the witness has been charged with the same offense as the defendant or a lesser-included offense;

2) If the State charges a witness with the same offense as the defendant or a lesser-included of that offense,
but dismisses the charges in exchange for the witness’s testimony against the defendant; and

3) When the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the
witness was not an accomplice.

Ash v. State, 533 S.W.3d 878, 886 (Tex. Crim. App. 2017).
7
Case law generally holds that if the record contains evidence that a witness may have been an accomplice the
issue should be submitted to the jury to decide if the witness was an accomplice as a matter of fact. Ash, 533 S.W.3d
at 886.
–15–
Sufficiency of Evidence to Corroborate Accomplice Testimony

In addition to the general Jackson v. Virginia standard of review, we must review the

sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct

jury charge, not by the jury charge actually given. Gollihar v. State, 46 S.W.3d 243, 252 (Tex.

Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). Here, a

hypothetically correct jury charge would have included instructions on how the jury should

evaluate Rios’ testimony as an accomplice witness. Consequently, we evaluate Rios’ testimony

under the standard utilized for an accomplice witness.

Corroboration of Accomplice Witness Testimony

By statute in Texas, a conviction cannot be had upon the testimony of an accomplice unless

that testimony is corroborated by other non-accomplice evidence tending to connect the defendant

with the offense committed. See TEX. CODE. CRIM. PROC. art. 38.14. Corroboration is not sufficient

if it merely shows the commission of the offense. Id; see also Smith, 332 S.W.3d at 439.

When reviewing the sufficiency of non-accomplice evidence under Article 38.14, we must

decide whether the inculpatory evidence tends to connect the accused to the commission of the

offense. Id. at 442. We judge the sufficiency of non-accomplice evidence according to the

particular facts and circumstances of the case. Id. Either direct or circumstantial non-accomplice

evidence is sufficient corroboration if it shows that rational jurors could have found that it

sufficiently tended to connect the accused to the offense. Id. When there are conflicting views of

the evidence, i.e., one that tends to connect the accused to the offense and one that does not, we

defer to the factfinder’s resolution of the evidence. Id.

The non-accomplice evidence alone does not have to establish the defendant’s guilt beyond

a reasonable doubt, nor must it directly link him to the commission of the offense. Hernandez v.

State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); Lee v. State, 29 S.W.3d 570, 577 (Tex. App.—

–16–
Dallas 2000, no pet.). The accomplice witness rule is satisfied if there is some non-accomplice

evidence which tends to connect the accused to the commission of the offense alleged in the

indictment. Hernandez, 939 S.W.2d at 178. Evidence that the defendant was in the company of

the accomplice at or near the time or place of the crime is proper corroborating evidence, but such

evidence alone is not conclusive corroboration. Id. There is sufficient corroboration if the

combined force of all the non-accomplice evidence shows that rational jurors could have found

that it sufficiently tended to connect the defendant to the offense. Smith, 332 S.W.3d at 442.

Analysis

Our review of the evidence leads us to conclude that a rational jury could have determined

that appellant was one of the three men who exited Rios’ car and, acting in concert with Harris and

Edward, approached McKinney and Carpenter with the intent to rob the couple at gunpoint.

Appellant’s identity as one of the robbers was established. As appellant correctly states in

his brief to this Court, neither McKinney nor Carpenter identified him at trial as one of their

robbers. However, Carpenter was able to describe the clothing the robbers wore: “The one on the

left was the thinnest, and he had, I think, a blue jacket around his waist and, I believe, jeans. The

middle guy had, I think, just like a white tank top, and then the other one had like a white t-shirt

on.” McKinney also described one of the robbers as having on a white tank top. Photographs and

video from the 7-Eleven show that one of the three men entering the store was wearing a white

tank top with blue shorts; his underwear was visible around his waist. Appellant, during his

interview with Detective Cardenas, identified one of these photographs as being a photograph of

him. This evidence corroborated Rios’ testimony that photographs showing a man wearing a

“white tank top, blue shorts, and I think that’s actually his underwear showing” were photographs

of appellant at the 7-Eleven after the robbery.

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 While neither Rios nor any other witness specified why appellant actually participated in

the robbery, such testimony was not essential as motive is not an element of a criminal offense and

need not be proved to establish the commission of an offense. Bush v. State, 628 S.W.2d 441, 444

(Tex. Crim. App. 1982); Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972).

Moreover, Rios’ opinion as to why all three men were acting together and in concert was not

relevant beyond the fact that they were acting together as parties to a robbery.

As appellant correctly states in his brief to this Court, there was no testimony that appellant

was pepper sprayed in his face. However, Rios testified that appellant had pepper spray on his

neck while Harris had pepper spray in his eyes. Carpenter testified that she pepper sprayed all three

of the robbers because she believed that all three were a threat to her and McKinney. The video

from the 7-Eleven shows that one of appellant’s accomplices, identified as Harris, taking off his

shirt and wiping his face. Appellant is seen on the surveillance video holding the back of his neck

and wiping his neck with a cloth; this corroborates Rios’ testimony that appellant had pepper spray

on his neck. Appellant does not contest the evidence showing he is one of the three men on the 7-

Eleven surveillance video using milk to alleviate the burning caused by the pepper spray. The fact

that appellant was pepper sprayed, even though not in his face, is evidence that he was one of the

robbers.

Appellant’s claims that Carpenter described him as a “non-active participant” are not

supported by the record. During her testimony, the prosecutor asked Carpenter to be “real clear”

about the involvement of the three robbers.

Q. [BY THE PROSECUTOR] So the man standing next to you, what was
he doing specifically?

A. The one standing next to me, he was just kind of staring me down.

Q. Did he say anything?

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 A. He wasn’t saying anything. The only guy that said anything was the one
with the gun.

*

Q. And then what was the third man doing?

A. He was the bigger one, and I guess he was just kind of more like the
back-up guy, just standing there.

Q. Okay. Was it clear to you that these three people knew each other?

A. Yes.

Q. Did they appear to be acting together?

A. Yes.

Q. How could you tell that?

A. The fact that they were just kind of like all in a crowd, like kind of a gang
or something like that. Like that they were sitting there listening for people, and
they must have been there for awhile. There weren’t many people out that night.

Later, on cross-examination, defense counsel questioned the attention of the “third man” to the

robbery:

Q. When you say he wasn’t paying attention, what are you talking about?

A. He was kind of starring me down, like up and down, and wasn’t paying
attention to what was happening with Jackson.

Q. Why wouldn’t he have reacted when you started to pull the mace out?

A. He wasn’t looking at my hands when I was pulling it out. He was
focusing on whatever.

Appellant relies on Carpenter’s testimony in an effort to show that the evidence was insufficient

to establish that all three robbers were acting together. He also argues that he was the “third” man

“just standing there.”

Contrary to those arguments, there was ample corroboration that appellant was working in

concert with Harris and Edward to rob McKinney and Carpenter.

–19–
 McKinney testified as to why he thought all three men were acting together when he first

saw the men before they even approached him:

Their pacing was even. They weren’t looking at each other or
communicating, but the way that they were walking just in that straight line, five
steps behind each other, it definitely seemed like – it was just so evenly spread out,
that I doubt that that would have been by coincidence at all. Because they would
have at least walked in different parts of the sidewalk or not just been directly
behind one another.

McKinney believed it would have been “a very hard coincidence” for one of the three men to just

be standing there not participating in the robbery.

Carpenter testified that the three men came up and surrounded her and McKinney at the

same time. Carpenter thought that the three men were all acting together. It looked to her like they

were in a gang: “[t]he fact that they were just kind of like all in a crowd, like kind of a gang or

something like that.” Because all three appeared to be a threat to her, she pepper sprayed all three

robbers.

Appellant fled the scene of the robbery with Harris and Edward, which shows

consciousness of guilt. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (stating

that a “factfinder may draw an inference of guilt from the circumstance of flight”); Bigby v. State,

892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (same). Surveillance video from the 7-Eleven shows

the three men exiting Rios’ car and entering the store together; Rios followed them inside. The

video also shows appellant wiping his neck. Other videos show the men leaving the store together.

These facts corroborate Rios’ testimony that she drove the men away from the scene of the robbery,

to a 7-Eleven, and later from the 7-Eleven. Appellant clearly did more than just “stand by” while

his friends committed a robbery.

Based on a review of the evidence in the light most favorable to the verdict, we conclude

a rational trier of fact could have found beyond a reasonable doubt that appellant was one of the

–20–
three robbers who approached and surrounded McKinney and Carpenter. We overrule appellant’s

third issue.

Sufficiency of the Evidence: Deadly Weapon

In his fourth issue appellant claims that the evidence is insufficient to support the jury’s

verdict that appellant “knew that there would be use of a deadly weapon” during the robbery. The

State responds that the evidence is sufficient to support the finding that appellant knew a deadly

weapon would be, and was, used during the robbery. We agree with the State.

As noted above, the indictment charging appellant with aggravated robbery alleged that he

“used and exhibited a deadly weapon, to wit: A FIREARM.” The jury convicted appellant of

“aggravated robbery as charged in the indictment.”

A conviction for an aggravated offense must be supported by evidence that the defendant

committed, or was criminally responsible for committing, the aggravating element. Stephens v.

State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986); Wyatt v. State, 367 S.W.3d 337, 341 (Tex.

App.—Houston [14th Dist.] 2012, pet. dism’d, untimely filed). For a party to an offense to be

liable for the use or exhibition of a deadly weapon as an element of aggravated robbery, there must

be evidence that the defendant not only participated in the robbery before, while, or after a deadly

weapon was displayed, but did so while being aware that the deadly weapon would be, was being,

or had been used or exhibited during the offense. Wyatt; 367 S.W. 3d at 341-42; see also Boston,

373 S.W.3d at 839 n.7; Williams v. State, 05-14-00790-CR, 2016 WL 355115, at *7 (Tex. App.—

Dallas Jan. 28, 2016, no pet.) (mem. op. not designated for publication). Our sufficiency review is

not limited to evidence that the defendant knew in advance the deadly weapon would be used or

exhibited during the robbery. Mitchell v. State, 05-17-01265-CR, 2018 WL 4858731, at *3 (Tex.

App.—Dallas Oct. 8, 2018, pet. ref’d) (mem. op. not designated for publication) (citing Boston,

373 S.W.3d at 839 n.7).

–21–
 Here, the jury could rationally have inferred that, since all three men were acting together

when they approached McKinney and Carpenter, appellant knew a robbery was contemplated at

the time he got out of Rios’ car with his accomplices. The jury could also have inferred that,

because Harris and Edward got back into Rios’ car with guns after the robbery, they must have

gotten out of her car with those same guns. Because appellant exited Rios’ car with Harris and

Edward, a rational jury could infer that appellant knew that both Harris and Edward were armed

when they exited the car to rob the couple. It is, therefore, a reasonable inference that appellant

knew Harris and/or Edward would use their guns during the commission of the robbery. See Kirvin

v. State, No. 05-09-00382-CR, 2010 WL 3259798, at *5 (Tex. App.—Dallas Aug. 16, 2010, pet.

ref’d) (not designated for publication) (holding that, based on testimony that the defendant was the

“inside contact” and participated in planning and carrying out the offense, the jury could infer that

the defendant knew each person’s role in the offense, including use of a firearm by an accomplice).

The evidence showed that the man standing in front of McKinney pointed a gun at

McKinney’s chest and threatened to shoot McKinney if McKinney said anything. This was

witnessed by Carpenter. A rational jury could infer that appellant also heard his accomplice

threaten to shoot McKinney and saw at least one of the guns pointed at McKinney when the threat

was made. The evidence further showed that, after the gun was displayed to McKinney, appellant

continued to play his part in the robbery by maintaining his position in surrounding the couple to

ensure compliance with the demands for the couple’s property. It is a reasonable inference that

appellant knew a gun was being utilized during the robbery. See Crutcher v. State, 969 S.W.2d

543, 546-47 (Tex. App.—Texarkana 1998, pet. ref’d) (holding that a deadly weapon finding was

appropriate where a defendant becomes aware during robbery that a deadly weapon was being

used by an accomplice and the defendant continued to actively assist in the offense); Shaw v. State,

–22–
05-01-00876-CR, 2002 WL 959961, at *3 (Tex. App.—Dallas May 10, 2002, no pet.) (not

designated for publication)(same).

The evidence further showed that, after Carpenter pepper sprayed the robbers, all three men

got into Rios’ car together. Because Rios saw Harris and Edward with guns, it is a reasonable

inference that appellant also saw those guns. Yet appellant fled the scene of the robbery with

Harris, Edward, and the guns. It is a reasonable inference that appellant knew at least one gun had

been utilized in the robbery at the time he fled the scene of the robbery. See Escobar v. State, 28

S.W.3d 767, 772–76 (Tex. App.—Corpus Christi 2000, pet. ref’d) (holding that evidence was

sufficient to support a conviction for aggravated robbery when the defendant and his accomplices

stole merchandise from a department store and one of the accomplices, who had left the store

before the defendant and was sitting in the front seat of a parked car outside the store, pointed a

gun at a store employee who followed the defendant, and the defendant, who could not have gotten

into the car without seeing the gun, got into the backseat of the parked car and fled with his

accomplices).

We conclude that the evidence is legally sufficient to support the jury’s verdict that

appellant used and/or exhibited a firearm as a party to the robbery. We overrule appellant’s fourth

issue.

Modification of Judgment

In a cross-point, the State claims that the judgment should be modified to correct three

technical errors. Specifically, the State asks this Court to modify the judgment to reflect that 1) the

jury made a deadly weapon finding, 2) appellant entered a plea of “true” to the enhancement

paragraph, and 3) the jury found the enhancement paragraph to be true.

–23–
Deadly Weapon

The indictment alleged that appellant “while in the course of committing theft of property

and with intent to obtain or maintain control of said property, threaten and place JACKSON

MCKINNEY in fear of imminent bodily injury and death, and the defendant used and exhibited a

deadly weapon, to-wit: A FIREARM.” The jury convicted appellant of “aggravated robbery as

charged in the indictment.” Therefore, the jury made an affirmative deadly weapon finding. See

Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); Roots v. State, 419 S.W.3d 719, 724

(Tex. App.—Fort Worth 2013, pet. ref’d). The judgment, however, contains the entry “N/A” in

the “Findings on Deadly Weapon” field.

We have the authority to modify an incorrect judgment when the evidence necessary to

correct that judgment appears in the record. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas

1991, pet. ref’d).

Accordingly, we sustain the State’s cross-point and modify the trial court’s judgment to

read “Yes, a Firearm” in the “Findings on Deadly Weapon” field of the judgment.

Enhancement Paragraph

The indictment contained the following enhancement paragraph:

And it is further presented in and to said Court that prior to the commission of the
offense or offenses set out above, on the 14TH day of FEBRUARY, 2012, in cause
number JD-76266-W in the 304TH JUDICIAL DISTRICT COURT of DALLAS
County, Texas, a juvenile court, the defendant was adjudicated under Section 54.03,
Family Code, to have engaged in delinquent conduct constituting the felony offense
of CAPITAL MURDER, for which the defendant was committed to the Texas
Juvenile Justice Department under Section 54.04, Family Code.

The record shows that appellant entered a plea of “true” to the enhancement allegation and the jury

found that allegation to be true.

–24–
 The judgment, however, incorrectly reflects “N/A” on “Plea to 1st Enhancement

Paragraph” field and “N/A” on “Findings on 1st Enhancement Paragraph” field. Accordingly, we

sustain the State’s cross-point and modify the trial court’s judgment to read “TRUE”” in the “Plea

to 1st Enhancement Paragraph” field and also “TRUE” in the “Findings on 1st Enhancement

Paragraph” field. TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at

529-30.

Conclusion

As modified, we affirm the trial court’s judgment.

/Leslie Osborne/
LESLIE OSBORNE
JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)

180444F.U05

–25–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CORTNEY WOODS, Appellant On Appeal from the Criminal District Court
No. 7, Dallas County, Texas
No. 05-18-00444-CR V. Trial Court Cause No. F-1676149-Y.
Opinion delivered by Justice Osborne.
THE STATE OF TEXAS, Appellee Justices Schenck and Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

add a deadly weapon finding,
reflect a plea of true and a finding of true to the enhancement paragraph.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 23rd day of July, 2019.

–26–