Quinton Malbrough v. State

Opinion issued September 1, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00941-CR
———————————
QUINTON MALBROUGH, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1524524

OPINION

A jury found appellant, Quinton Malbrough, guilty of the felony offense of

directing the activities of a criminal street gang1 and assessed his punishment at

confinement for sixty years. In five issues, appellant contends that the evidence is

1
See TEX. PENAL CODE ANN. § 71.023(a), (b).
legally insufficient to support his conviction, he is entitled to a proper review of the

factual sufficiency of the evidence, and the trial court erred in instructing the jury on

the law of parties and in making a deadly-weapon finding in its written judgment.

We modify the trial court’s judgment and affirm as modified.

Background

Harris County Sheriff’s Office (“HCSO”) Sergeant B. Katrib testified that in

spring 2015, he investigated a series of aggravated robberies involving cellular

telephone stores in Harris County, Texas. The aggravated robberies that Katrib

investigated included: (1) the March 18, 2015 aggravated robbery of a Cellular Sales

cellular telephone store located at 9501 West Road in Harris County; (2) the April

3, 2015 aggravated robbery of a RadioShack electronics and cellular telephone store

located at 5185 West 34th Street in Harris County; (3) the April 15, 2015 aggravated

robbery of an A-Wireless cellular telephone store located at 15375 Wallisville Road

in Harris County; (4) the April 26, 2015 aggravated robbery of an AT&T cellular

telephone store located at 2123 Crosby Freeway in Harris County; and (5) the May

21, 2015 aggravated robbery of a Connectivity Source cellular telephone store

located at 566 West FM 1960 in Harris County.

According to Sergeant Katrib, the March 18, 2015 aggravated robbery was

reported at 7:57 p.m. The April 3, 2015 aggravated robbery was reported at

1:35 p.m. The April 15, 2015 aggravated robbery was reported at either 6:35 p.m.

2
or 6:49 p.m. The April 26, 2015 aggravated robbery was reported at 2:35 p.m. And

the May 21, 2015 aggravated robbery was reported at 6:34 p.m. or 6:44 p.m.

Appellant was involved with or linked to the aggravated robberies.

March 18, 2015 Aggravated Robbery

Cellular Sales is a retailer for Verizon Wireless. Robert Penny, a regional

director for Cellular Sales, testified that on March 18, 2015, an aggravated robbery

occurred at a Cellular Sales cellular telephone store located at 9501 West Road in

Harris County. According to Penny, two individuals entered the store that evening,

“robbed the people that were there,” and took a large number of cellular telephones

and devices from the store. One of the individuals participating in the aggravated

robbery had a firearm. Two employees were working at the time.

When Penny arrived at the store after the robbery, the store’s employees were

very distressed and indicated that they had been scared during the robbery. One of

the employees was “still shaking.” Penny stated that the total value of the cellular

telephones and devices that were taken during the aggravated robbery was about

$60,000 or $70,000.

John Davis testified that, on the evening of March 18, 2015, he was at the

Cellular Sales cellular telephone store when the store was “robbed at gunpoint.”

According to Davis, while he was talking with a sales associate in the store, two

Black males entered. One “guy came up to [Davis and the sales associate that was

3
helping him] with something over his face and a hoodie and a gun pointed at [them].”

The other male started “corralling” the other sales associate in the store and moving

her toward Davis. The men said, “Take us to the phones, the room with the phones,”

and they began pushing Davis and the two sales associates toward the back of the

store. When Davis and the two sales associates made it into the inventory room, the

men “ask[ed] for all of the phones” and gave Davis and the sales associates a

pillowcase to put the cellular telephones inside. The men knew that “one of the

phones in the safe ha[d] [a] tracker in it” and so they asked Davis and the sales

associates “not to give them the one with the tracker in it.”2 After the men had the

cellular telephones, they told Davis and the sales associates to lie down on the ground

and to not come out. Although the men tried to leave the store through a backdoor,

when they were unable to, they left through the front door.

According to Davis, the men looked young, either in their “[l]ate 20s” or

“early 30s.” They seemed calm, comfortable, well-planned, and like it “wasn’t their

first time.” Davis feared for his life, and one of the sales associates was “stricken

with fear.” Davis called for emergency assistance after the men left. Davis believed

that the men took a lot of cellular telephones from the store.

2
A cellular telephone “with [a] tracker blends in with the others, but when [it is]
picked up [it] activates and acts [as] a tracking device.” See Edwards v. State, No.
14-17-00460-CR, 2019 WL 2426710, at *1 n.1 (Tex. App.—Houston [14th Dist.]
June 11, 2019, pet. ref’d) (mem. op., not designated for publication).

4
 A copy of a videotaped surveillance recording from the aggravated robbery as

well as a copy of the audio recording of Davis’s telephone call for emergency

assistance were admitted into evidence at trial. A list of the cellular telephones and

devices that were taken from the Cellular Sales store during the aggravated robbery

was also admitted into evidence.

HCSO Deputy S. McWhirter testified that on March 18, 2015, while on patrol,

he responded to a call for emergency assistance related to an aggravated robbery of

a Cellular Sales cellular telephone store. While at the store, McWhirter was

approached by an employee of the nearby Kroger grocery store who had seen two

men fleeing in a car after the robbery. McWhirter was able to review a videotaped

surveillance recording of the Kroger grocery store’s loading dock, which showed a

four-door silver Nissan Altima car waiting behind the store. That same car is visible

on the videotaped surveillance recording from the Cellular Sales cellular telephone

store before the aggravated robbery occurs.

Sergeant Katrib testified that the March 18, 2015 aggravated robbery was

committed by Anthony Hill, Levonte Williams,3 and Deondrick Mitchner.4

3
Sergeant Katrib testified that Williams is Mitchner’s brother and Williams’s
nickname is “Pops” or “Big Pops.”
4
Sergeant Katrib testified that Mitchner’s nickname is “Doola.”

5
April 3, 2015 Aggravated Robbery

Jose Plietez testified that on April 3, 2015, he was a store sales manager at a

RadioShack electronics and cellular telephone store located at 5185 West 34th Street

in Harris County. On April 3, 2015, while Plietez was working in the back room of

the store—where the most expensive items like cellular telephones, tablets, and

headphones were stored—an aggravated robbery occurred. Plietez first noticed on

a monitor that there were three people around the front counter of the store and that

one of his employees, a sales associate, had his hands up. Plietez pushed a panic

button which sent an emergency alert to law enforcement officers. Plietez did not

attempt to forcefully close the safe that, at the time, was open in the store’s back

room, because he was afraid that he or the sales associate would be retaliated against.

According to Plietez, the three individuals committing the aggravated robbery

came into the back room where Plietez was and they asked for the cellular telephones

and other devices. They instructed Plietez to put the cellular phones and devices

into a bag and told him to “make sure not to put a tracker inside of . . . the bag.” The

three individuals took most of the safe’s contents. One of the individuals also took

Plietez out to the front of the store and told him to “[p]ut all of the money that was

in the [cash] register . . . in the bag.” When the three individuals left, they “t[ook]

off to the back” of the store. Plietez and the sales associate secured the store’s

entrances and exits and called for emergency assistance.

6
 Plietez testified that during the aggravated robbery he feared for his life and

he was afraid for his safety and the safety of the sales associate. He estimated that

the three individuals took about $200 from the cash register and about $20,000 worth

of cellular telephones and devices from the store.

A copy of a videotaped surveillance recording from the aggravated robbery

was admitted into evidence at trial.

Houston Police Department (“HPD”) Officer E. Gutierrez testified that on

April 3, 2015, while on patrol, he responded to a call for emergency assistance at the

RadioShack electronics and cellular telephone store. Upon arrival at the store,

Gutierrez learned that the individuals who had committed the aggravated robbery

fled in a tan four-door car.

April 15, 2015 Aggravated Robbery

A-Wireless is a retailer for Verizon Wireless. Darell Jerome Miles, Jr.

testified that on April 15, 2015, he was working as a sales associate at an A-Wireless

cellular telephone store located at 15375 Wallisville Road in Harris County. On that

day, two Black males wearing black masks entered into the store and “began to rob”

it. The men had a firearm. Miles went to the cash register and then got on the

ground. Eventually, one of the individuals wearing a black hoodie came and got

Miles and two female customers and brought them to the back of the store where the

safe was located. The men then told Miles to fill a “bed sheet” or tablecloth with

7
cellular telephones and devices, and Miles did so. The men stole a large amount of

cellular telephones and devices with a high retail value from the store’s safe.

Miles testified that he was afraid that the men committing the aggravated

robbery would shoot him if he did not cooperate with the robbery. And Miles stated

that “anytime someone put[s] a gun in your face, you don’t know what they’re going

to do.” Miles called for emergency assistance after the men left the store. According

to Miles, the two men who robbed the store took steps to conceal their identities and

the men broke two customers’ cellular telephones during the robbery, A woman

outside of the store told Miles that the men got into a car and “t[ook] off.”

A copy of a videotaped surveillance recording from the aggravated robbery as

well as a copy of the audio recording of Miles’s telephone call for emergency

assistance were admitted into evidence at trial.

HCSO Deputy B. Mills testified that on April 15, 2015, while on patrol, he

responded to a call for emergency assistance at an A-Wireless cellular telephone

store related to an aggravated robbery. Upon arrival, several employees and several

witnesses told Mills that they had been “robbed at gunpoint” and that the two

individuals—Black males wearing masks and carrying a large bag—who had

committed the aggravated robbery—fled from the store in a silver Dodge Caravan

car with a certain license plate number. When Mills “r[an] the license plate

[number],” he received information that the car had been stolen. The car was later

8
found in a residential area about a mile away from the A-Wireless cellular telephone

store. According to Mills, the total value of the cellular telephones and devices taken

from the store was about $51,205.

Sergeant Katrib testified that the silver Dodge Caravan car that had been used

to commit the aggravated robbery was later found abandoned in a field in a nearby

residential area. A copy of a videotaped surveillance recording from a house in the

residential area was admitted into evidence at trial, and it shows a silver Buick car,

driven by a third person, in the area near where the silver Dodge Caravan car was

abandoned. The recording also shows the individuals who committed the aggravated

robbery getting into the silver Buick car after they abandoned the silver Dodge

Caravan car and fleeing the area. Katrib described the silver Buick car as a “pick-up

vehicle or [a] second getaway vehicle.”5 The Buick car belonged to an individual

named George Randall.

April 26, 2015 Aggravated Robbery

Brandon Nolen testified that on April 26, 2015, he was working as a sales

associate at an AT&T cellular telephone store located at 2123 Crosby Freeway in

Harris County, when two Black males and one Black female, wearing masks and

carrying firearms, came into the store. The three individuals threw him and two

5
Sergeant Katrib explained that the use of “a stolen vehicle and a safe vehicle” was
a common theme in the aggravated robberies involved in this case.

9
customers on the ground, and they broke the customers’ cellular telephones. The

three individuals then took Nolen and the two customers to the back of the store

where the safe was located. The two customers were placed in the corner, and Nolen

was forced to open the safe. The three individuals gave Nolen a bag and told him to

“fill it up” with cellular telephones and devices. They pushed their firearms into his

back and threatened him.

According to Nolen, a “tracker phone” made it into the bag.6 The three

individuals took a large number of cellular telephones and devices, ordered Nolen

and the customers not to move, and left the store through the front door. Nolen

called for emergency assistance.

A copy of a videotaped surveillance recording from the aggravated robbery as

well as a copy of the audio recording of Nolen’s telephone call for emergency

assistance were admitted into evidence at trial. A list of the cellular telephones and

devices that were taken during the robbery was also admitted into evidence.

Raymond Polka testified that on April 26, 2015, he and his nephew, Dalton

Grosshart, were at an AT&T cellular telephone store located at 2123 Crosby

Freeway when “three people came in and robbed the store.” According to Polka,

6
Nolen testified that a “tracker phone” is “a phone that sits in the back of the safe”
that “blends in with all the other phones.” Once it is removed from “whatever it’s
on, it sets off an alarm and triggers silently.” It alerts law enforcement officers and
the store’s manager.

10
two Black males and one Black female entered the store. The three individuals were

wearing hoodies and masks, and the woman was also wearing gloves. The three

individuals told everyone in the store “to get down.” They took Polka’s cellular

telephone and smashed it. They then took Polka, Grosshart, and the sales associate

into the store’s back room. Polka and Grosshart were placed in the corner and told

to crouch down, and the sales associate opened the safe. The three individuals took

the contents of the safe and left the store.

Grosshart testified that on April 26, 2015, he and Polka “were held at gunpoint

with an employee in [an] AT&T store.” According to Grosshart, he was at the store

to get a cellular telephone when three individuals—two males and one female—

“rushed around the corner” and “c[ame] into the store wearing all black [with] their

faces covered.” When the three individuals came in, they yelled for everyone to “get

on the ground.” At least two of the individuals had firearms. They had Grosshart,

Polka, and the sales associate go to the back room of the store where the safe was

located. Grosshart and Polka were placed in a corner of the back room and their

cellular telephones were broken by “[t]he bigger guy.” One of three individuals, a

“smaller guy” with a firearm, told the sales associate to open the safe and put all the

cellular telephones and devices into a bag. He pressed the firearm against the sales

associate’s back and told him to “[h]urry up.” The three individuals ran out the front

11
door of the store when they were done. Grosshart believed at the time that he would

be shot if he did not listen to the three individuals, and he feared for his life.

HCSO Deputy J. Palermo testified that while on patrol on April 26, 2015, he

responded to a call involving an aggravated robbery of an AT&T cellular telephone

store located at 2123 Crosby Freeway. At the time, the individuals who had

committed the robbery were fleeing in a gray Pontiac car while being tracked by law

enforcement officers using a global positioning system (“GPS”).

While responding to the call, Palermo located the gray Pontiac car and

attempted to initiate a traffic stop, but the individuals continued to flee in the car.

When the car finally stopped, three of the four individuals in the car fled on foot; the

driver remained with the car. After the driver was arrested, Palermo “clear[ed]” the

car to make sure that no one else was inside. Palermo found boxes of cellular

telephones and a firearm inside the car—items, according to Palermo, that were

consistent with a person having committed the offense of aggravated robbery. The

three individuals that fled on foot were later found by law enforcement officers.

HCSO Deputy A. Alvarado testified that on April 26, 2015, while on patrol,

he responded to a call regarding an aggravated robbery of an AT&T cellular

telephone store located at 2123 Crosby Freeway. He explained that law enforcement

officers were using a “Bloodhound system” or a “GPS tracker that [was] put in

during [the] robbery” to locate the individuals who had committed the aggravated

12
robbery. When Alvarado spoke to the employee and customers who were inside the

store during the aggravated robbery, they stated that “they had just been robbed at

gunpoint” and that the individuals involved in the robbery had “stole[n] things from

the safe in the back room.” Alvarado noted that at least one of the witnesses’ cellular

telephones had been broken during the robbery.

Alvarado further testified that a large amount of cellular telephones still in

their original packaging were later recovered from the Pontiac car that had been used

to flee after the aggravated robbery. The car also contained firearms 7 and cash.

Mitchner—one of the three people who had fled on foot—was found and detained

by law enforcement officers that same day.

Harris County Constable’s Office (“HCCO”), Precinct 3, Deputy J. Wilson

testified that on April 26, 2015, he assisted in searching for the individuals who had

committed the aggravated robbery of a cellular telephone store. He found and

detained Williams, who had fled on foot.

Sergeant Katrib testified that James Philpot was the driver of the gray Pontiac

car involved in the April 26, 2015 aggravated robbery and that Mitchner, Williams,

and Jaimi Hawkins committed the April 26, 2015 aggravated robbery.8 Philpot,

7
Sergeant Katrib testified that he was able to connect one of the firearms found in the
Pontiac car to the March 18, 2015 aggravated robbery of the Cellular Sales cellular
telephone store.
8
Hawkins testified that she participated in the April 26, 2015 aggravated robbery of
the AT&T cellular telephone store located at 2123 Crosby Freeway. She stated that
13
Mitchner, and Williams were all located and arrested on the day of the aggravated

robbery.

Sergeant Katrib noted that the April 15, 2015 and April 26, 2015 aggravated

robberies had similarities, including that during both aggravated robberies

customers’ cellular telephones were smashed on the ground and rendered inoperable,

employees and customers were taken to the back of the stores, similar clothing was

worn by one person involved in both robberies, and both robberies involved a

“violent takedown of the stores.” Katrib stated that an individual named Terrence

Edwards had organized the April 26, 2015 aggravated robbery.

May 21, 2015 Aggravated Robbery

Connectivity Source is a Sprint retailer. Matthew Major testified that he is

the director of field operations for Connectivity Source. According to Major, on

May 21, 2015, an aggravated robbery occurred at a Connectivity Source cellular

telephone store located at 566 West FM 1960 in Harris County. Major was notified

of the robbery when a “GPS tracker that [was] inside of an iPhone box” was removed

from the store’s safe. When the tracker sent him an alert, he was able to view the

surveillance camera system for the store, and he saw that there was an active robbery

in progress. Although law enforcement officers would have been notified when the

after leaving the store, she, Mitchner, and Williams got into a black car and then
switched and got into the Pontiac car about a mile down the street from the AT&T
cellular telephone store.

14
tracker was removed from the safe, Major also called for emergency assistance.

When Major arrived at the store after the aggravated robbery, the store’s employees

were “emotionally shooken [sic] up” due to having “a gun stuck to [their] head[s].”

Jose Barrera testified that on May 21, 2015, he was working as a sales

associate at a cellular telephone store located at 566 West FM 1960 when an

aggravated robbery occurred. Barrera stated that he saw a car approach the store and

two males wearing masks came into the store. One of the men had a firearm. They

told Barrera to get on his knees and then took him, a customer, and another employee

to the back room of the store where the safe was kept. The men told them to “hurry

up” and to “put as many [phones] as they could” in a bag. And the men stated that

they did not want a “tracker phone.” Another employee removed the cellular

telephones and devices from the store’s safe, and the two men ended up taking a

“tracker phone.” A call for emergency assistance was made after the men left the

store. Barrera testified that he was afraid that the two men would shoot him if he

resisted.

A copy of a videotaped surveillance recording from the aggravated robbery

was admitted into evidence at trial. Additionally, a copy of a videotaped surveillance

recording from a Chili’s restaurant located next to the Connectivity Source cellular

telephone store was admitted into evidence. A list of the cellular telephones and

devices that were taken from the Connectivity Source cellular telephone store during

15
the aggravated robbery was also admitted into evidence. The total value of the

cellular telephones and devices taken from the store during the robbery was about

$29,257.70.

HCSO Deputy T. Bullard testified that while on patrol on May 21, 2015, he

responded to a call involving an aggravated robbery. Bullard initially responded to

the Chili’s restaurant located next to a Connectivity Source cellular telephone store

at 566 West FM 1960. Bullard was notified by a witness inside the restaurant that

the aggravated robbery was occurring at the nearby cellular telephone store. Bullard

saw the individuals committing the aggravated robbery fleeing the cellular telephone

store after the robbery in a four-door, silver car. Bullard further testified that while

he was in the parking lot of the Chili’s restaurant, he saw a gold Mercedes Benz car

with two Black males in the front seats.

While viewing the videotaped surveillance recording from the Connectivity

Source cellular telephone store at trial, Deputy Bullard noted that the same gold

Mercedes Benz car that he saw in the parking lot of the Chili’s restaurant can be seen

in the recording and that the parking spot where the car was located during the

aggravated robbery had a “good view” of the cellular telephone store. Bullard

further explained that after the individuals committing the aggravated robbery left

the store in their silver car, the gold Mercedes Benz car immediately pulled out of

its parking spot.

16
 HCSO Deputy D. Wilkie testified that while on patrol on May 21, 2015, he

responded to a call for emergency assistance involving an aggravated robbery of a

Connectivity Source cellular telephone store located at 566 West FM 1960. At the

time, Wilkie assisted in locating the car, a silver Mercury, that the individuals who

had committed the aggravated robbery were using to flee. Another law enforcement

officer initially located the car and attempted to initiate a traffic stop, but the car

continued to flee. Wilkie then found the car. Eventually, the driver of the car

damaged the vehicle and crashed it at the end of a dead-end street. The driver stayed

with the car, but two individuals got out of the car and fled on foot. Wilkie detained

the driver—an individual named Antoine Duplechin-Holden.

HCSO Sergeant J. Mabry testified that while on patrol on May 21, 2015, he

responded to a call for emergency assistance related to an aggravated robbery of a

Connectivity Source cellular telephone store located at 566 West FM 1960. Mabry

assisted in coordinating law enforcement efforts after the silver Mercury Grand

Marquis car, which the individuals who had committed the aggravated robbery were

using, crashed at the end of a dead-end street. Mabry explained that the driver of the

car was detained, but law enforcement officers had to find the two individuals who

had fled on foot after the car crash. Mabry inventoried the items in the Mercury

Grand Marquis car and found about forty cellular telephones in boxes, ski masks,

gloves, and Duplechin-Holden’s driver’s license and other identification.

17
 HCCO, Precinct 4, Deputy J. Glaze testified that on May 21, 2015, he assisted

in the search for individuals involved in an aggravated robbery. According to Glaze,

the car that the individuals who committed the aggravated robbery used crashed and

two individuals got out of the car and fled on foot. Glaze, with his K-9 unit, became

involved in the search for the two fleeing individuals. The individuals were seen

fleeing toward the backyards of houses in the area. Glaze ultimately found Randall

and a second individual in a shed in the backyard of a house.

Sergeant Katrib testified that Randall, Duplechin-Holden, and an individual

named Christin Criswell committed the May 21, 2015 aggravated robbery of the

Connectivity Source cellular telephone store. They were arrested and interviewed

by Katrib. Criswell admitted to Katrib that he had also committed the April 15, 2015

aggravated robbery of the A-Wireless cellular telephone store.

In regard to appellant’s role in the May 21, 2015 aggravated robbery, Sergeant

Katrib explained that appellant and Edwards engaged in planning and

counter-surveillance for the robbery. They also “g[ave] the orders and directions to

the individuals to commit the aggravated robbery while [they] ke[pt] a watch from”

appellant’s car, which had “a direct vision to the [cellular telephone] store to look

out for any law enforcement.” Appellant’s gold Mercedes Benz car was in the

parking lot of the Chili’s restaurant’s next to the Connectivity Source cellular

telephone store during the aggravated robbery. And appellant conducted

18
surveillance from his car before the aggravated robbery occurred. Katrib also

explained that appellant and Edwards gave orders to Randall, Duplechin-Holden,

and Criswell—the individuals who committed the aggravated robbery of the

Connectivity Source cellular telephone store.

Anthony Hill

Hill testified that he pleaded guilty to committing the March 18, 2015

aggravated robbery of the Cellular Sales cellular telephone store located at 9501

West Road and to committing the April 3, 2015 aggravated robbery of the

RadioShack electronics and cellular telephone store located at 5185 West 34th

Street. Hill further testified that he had a close relationship with Edwards and

appellant.9 Edwards and appellant had a close relationship, and they were together

“all the time.”

In regard to the March 18, 2015 aggravated robbery of the Cellular Sales

cellular telephone store, Hill stated that he was originally contacted by Randy

Sullivan, an individual he knew from school, and told to come to Sullivan’s house

on March 18, 2015. Sullivan asked Hill if he wanted to participate in a robbery and

said that Hill would be the driver. Sullivan explained that two other individuals

would “go in, . . . get what they needed to get, and come out and come back to the

9
Hill testified that Edwards’s nickname is “T Streets” and appellant’s nickname is
“Quinn Quinn.”

19
house.” Appellant and Edwards were at Sullivan’s house for this conversation. Hill

drove his car, a Nissan Altima, with two other individuals inside, and he followed

behind Edwards and appellant, who were in Edward’s car, a Buick, to the cellular

telephone store where the robbery was going to be committed. Hill did not know

beforehand where he was driving. Edwards and appellant were present for the

robbery, and Hill communicated with them via speakerphone while the aggravated

robbery was taking place. Hill called Edwards’s cellular telephone, and Edwards

told him “everything that was going on” while the robbery was occurring. Although

Hill did not know where Edwards and appellant had parked Edwards’s car during

the aggravated robbery, he stated that they had to be someplace where they could

see the Cellular Sales cellular telephone store.

Hill further testified that Williams and Mitchner10 were the two individuals he

drove to the Cellular Sales cellular telephone store on March 18, 2015. He dropped

them off, and they went into the store to commit the aggravated robbery while Hill

waited in his car near the back of the store. Hill did not know whether they had a

firearm when they went into the store.

Eventually, Williams and Mitchner returned to Hill’s car with a large bag of

cellular telephones. Hill knew when Williams and Mitchner were headed back to

10
According to Hill, Williams’s nickname is “Pop” and Mitchner’s nickname is
“Doola.”

20
his car after the robbery because Edwards told him when they were speaking on their

cellular telephones. After the robbery, Hill drove everyone to “Greenspoint” to

exchange the cellular telephones that had been taken during the robbery. At

Greenspoint, Williams and Mitchner got out of Hill’s car, and they took with them

the cellular telephones that were taken from the store. Williams and Mitchner went

over to Edwards’s car, but Hill did not know to whom the cellular telephones were

given. Hill did not see the cellular telephones again.

Later, Hill returned to Sullivan’s house, and Edwards and appellant also

returned to the house. Edwards and appellant paid Hill, Williams, and Mitchner.

Hill received $750 for participating in the aggravated robbery.

According to Hill, Edwards was the only person “that cashed out the phones”

that were taken during March 18, 2015 aggravated robbery of the Cellular Sales

cellular telephone store. And it was Edwards who told Williams and Mitchner to

watch out for “tracker phones.”

In regard to the April 3, 2015 aggravated robbery of the RadioShack

electronics and cellular telephone store, Hill testified that he, Williams, Criswell,

and Randall participated in that robbery. Hill became involved in the April 3, 2015

aggravated robbery after Edwards called him and asked if he “want[ed] to make

some more money like [he] did the first time.” Hill met the individuals participating

in the robbery at the Pines of Woodforest apartments where appellant lived. Hill

21
again followed Edwards’s car, the Buick, to the RadioShack electronics and cellular

telephone store because he did not know where the robbery was going to take place.

Edwards and appellant just told Hill to follow them in Edwards’s car.

Hill waited in his car at a nearby hotel while Williams, Criswell, and Randall

went into the store. Hill did not know who had carried a firearm into the store during

the robbery. While Hill waited, he was in contact with Edwards and appellant on

speakerphone, and they told Hill what was happening while the robbery was

occurring. After the robbery, Hill drove Williams, Criswell, and Randall back to the

apartments where appellant lived and exchanged the cellular telephones from the

robbery while inside appellant’s apartment. According to Hill, while inside the

apartment, they “all pulled out the phones to see what kind [they] had” and everyone

laughed and said at the same time: “These some cheap phones.” Edwards paid Hill

about $300 for participating in the April 3, 2015 aggravated robbery. He was paid

less for this robbery because of the quality of the cellular telephones that were taken

from the RadioShack electronics and cellular telephone store. Hill later told

Edwards that he no longer wanted to participate in any robberies.

On cross-examination, when asked whether appellant had ever “supervise[d],

direct[ed], or finance[d] any robberies,” Hill stated that to his knowledge, appellant

had not. But Hill also noted that Edwards never used appellant’s cellular telephone

to communicate.

22
Deondrick Mitchner

Mitchner testified that he committed the March 18, 2015 aggravated robbery

of the Cellular Sales cellular telephone store located at 9501 West Road and the

April 26, 2015 aggravated robbery of the AT&T cellular telephone store located at

2123 Crosby Freeway. Mitchner became involved with these robberies because of

his brother, Williams. According to Mitchner, before the March 18, 2015 aggravated

robbery, Williams came home with “some money” and Mitchner asked Williams

where it had come from. After Williams explained to Mitchner that he had been

participating in robberies, Williams asked Mitchner if he wanted to participate as

well.

On March 18, 2015, Mitchner went with Williams to the Timberwoods

Condominiums (the “Condos”) to discuss the robbery. At the Condos, Mitchner met

appellant and Edwards.11 Mitchner talked to appellant and Edwards briefly, and they

told Mitchner to “get in and out.” After the Condos, the group left to go commit the

robbery, and at that point, Mitchner did not know where they were going. Hill, who

Mitchner did not know at the time, drove Mitchner and Williams to the robbery

location. Mitchner found a firearm in Hill’s car, which he assumed was to be used

in the robbery. Mitchner took the firearm into the cellular telephone store to commit

11
Mitchner testified that appellant’s nickname is “Quinn” and Edwards’s nickname is
“T Streets.”

23
the robbery. According to Mitchner, he and Williams waited in Hill’s car for about

six minutes before they went inside the store, and during that time, Hill was talking

on his cellular telephone. Mitchner overheard someone on Hill’s cellular telephone

ask, “Y’all good, like [a]re y’all going to do it? Can y’all do it right now?” And

Mitchner responded, “[y]eah” to that person. He and Williams then got out of Hill’s

car and went inside the store to commit the robbery.

After the robbery, Mitchner and Williams ran out of the store and around to

the back where Hill had parked his car. Mitchner stated that he and Williams took

a large number of cellular telephones from the store. After the aggravated robbery,

appellant and Edwards were supposed to sell the cellular telephones. Mitchner was

paid by Edwards, or appellant, or both, about $800 or $900 later that night for his

participation in the aggravated robbery. Edwards and appellant took Mitchner home

after the robbery. Mitchner stated that he, Williams, Hill, Edwards, and appellant

participated in the March 18, 2015 aggravated robbery of the Cellular Sales cellular

telephone store.12

12
In regard to the March 18, 2015 aggravated robbery, Mitchner summarized his
testimony, stating that Williams took him to the Condos where he met Edwards and
appellant; he got in a car that was already at the Condos; the car had a firearm inside
waiting for him; he discussed with Williams who would carry the firearm; the car
drove Mitchner to a location that had been preselected; Mitchner committed a
robbery; and Mitchner was paid by either Edwards or appellant or both afterwards.

24
 In regard to the April 26, 2015 aggravated robbery of an AT&T cellular

telephone store, Mitchner testified that Williams received a telephone call and then

spoke to Mitchner about the robbery. This time, Mitchner and Williams went to a

house located at 102 Black Walnut Drive near a Wal-Mart store and waited. James

Philpot, the driver, came and picked Mitchner and Williams up from the house in a

Pontiac car, and he drove them to the AT&T cellular telephone store. Mitchner

stated that another car, a Buick, also went to the same store.

Mitchner testified that he, Williams, and Hawkins committed the April 26,

2015 aggravated robbery of the AT&T cellular telephone store. And before entering

the store, they waited in Philpot’s car for about ten or fifteen minutes so that there

would be fewer customers inside of the store. Both Mitchner and Williams carried

firearms during the robbery, and Mitchner believed that he used the same firearm

that he used during the March 18, 2015 aggravated robbery. The firearms that they

used during the commission of the robbery were inside Philpot’s car. Mitchner knew

that he would be paid for his participation in the aggravated robbery and that the

cellular telephones that they would take from the store would be sold in bulk

afterwards.

Mitchner also testified that Williams, his brother, had participated in the April

15, 2015 aggravated robbery, and Mitchner identified Williams on the videotaped

25
surveillance recording from the April 15, 2015 aggravated robbery of the A-Wireless

cellular telephone store located at 15375 Wallisville Road.

On cross-examination, Mitchner testified that Williams introduced him to

Edwards, Edwards “gave [him] the rundown of what to do,” Edwards told him about

“tracker phones,” Edwards picked the location to exchange the cellular telephones

that were taken from the stores, and Edwards paid him. Mitchner stated that

appellant did not give Mitchner any orders.

Antoine Duplechin-Holden

Duplechin-Holden testified that he, Randall,13 and Criswell14 participated in

the May 21, 2015 aggravated robbery of the Connectivity Source cellular telephone

store. At the time, Duplechin-Holden needed money after he lost his job, and

Randall, his friend, appeared to have “a lot of money.” Duplechin-Holden learned

that Randall had been committing aggravated robberies and decided that he wanted

to participate with him. In April 2015, Randall took Duplechin-Holden to the

Condos, where he met appellant and “a few other guys.”

The first time that Duplechin-Holden went with Randall to the Condos, he

stayed in the car most of the time, but Randall stood outside the car and talked with

13
According to Duplechin-Holden, Randall’s nickname is “Pookie.”
14
Duplechin-Holden testified that Randall and Criswell were friends from school.

26
appellant and Edwards.15 There were about twelve people outside the Condos with

ages ranging from fourteen years old to the late twenties. Duplechin-Holden met

both appellant and Edwards that day. Duplechin-Holden talked to them and shook

their hands. Later, Randall explained who “T Streets was, who [appellant] was, and

a couple of other young guys.” According to Duplechin-Holden, his trip to the

Condos with Randall was the “first step into a group of people that was organized to

commit aggravated robberies.”

The second time that Duplechin-Holden went to the Condos he sat in the car

and did not speak to anyone. Duplechin-Holden stated that he and Randall were

“just riding” and “went over there.”

The third time that Duplechin-Holden went to the Condos, he was with

Randall and Criswell. And during that visit, he had a conversation with appellant

inside appellant’s car—a Mercedes Benz. At first, Randall and appellant were

having their own conversation and then Randall introduced Duplechin-Holden to

appellant. Appellant asked Duplechin-Holden who he was, if he did in fact attend

college, and whether he was “sure [that he] want[ed] to get involved.” Appellant

told Randall that he would “let [Randall] know when something . . . pop up pretty

soon,” meaning that appellant would tell Randall when a target for an aggravated

robbery had been determined.

15
Duplechin-Holden testified that Edwards’s nickname is “T Streets.”

27
 The fourth time that Duplechin-Holden went to the Condos was on May 20,

2015—the day before the May 21, 2015 aggravated robbery. At the time, there were

a lot of people and activity at the Condos, and Edwards was “probably the main

person to be around.” After about twenty minutes of being there, Randall,

Duplechin-Holden, and Criswell went to the side to discuss the aggravated robbery

the next day.

At that time, appellant discussed with Randall, Duplechin-Holden, and

Criswell “how the day would go after [they] received the tink.”16 Appellant told

them that that the next day he and Edwards would have a “tink” for Randall,

Duplechin-Holden, and Criswell to use and to “answer the phone when [they]

call[ed].” He also explained that during the aggravated robbery two of them would

go inside the store and one person would drive. The driver would drop off the two

individuals at the store and then “wait until they’re finished[] [and] come right back.”

Appellant also said that he and Edwards would be “parked somewhere real close [to]

keep[] an eye on what’s going on, as well [as] keep[] an eye out [to] let[] [them]

know when to commit the crime.” In other words, appellant told Randall,

Duplechin-Holden, and Criswell that he and Edwards would be nearby when the

robbery was being committed, would watch the robbery, and they would tell

16
Duplechin-Holden testified that a “tink” was a “stolen car used when [someone is]
committing a crime.”

28
Randall, Duplechin-Holden, and Criswell when to go into the store and when to

come out.

Appellant and Edwards also instructed Randall, Duplechin-Holden, and

Criswell to “grab the phones” while inside the store and that, if they were “able to

get in the safe in the back room,” to “try to grab as much as [they] c[ould] and to get

out quick.” Appellant emphasized that the robbery should take three to five minutes

at the most and that it should not be “a long process.” Appellant also told Randall,

Duplechin-Holden, and Criswell about the potential for a “tracker phone[]” or

“tracking devices” and to “look out for trackers.” When asked whether appellant

“communicate[d] . . . [the] specifics and sort of tactics about how the[] robber[y]

would and should be committed,” Duplechin-Holden stated: “He did the day before,

yes.”

In regard to additional plans for the aggravated robbery, Duplechin-Holden

testified that, before the robbery, he, Randall, and Criswell decided that Randall

would be the driver and Duplechin-Holden and Criswell would go inside the store.

Criswell was going to carry the firearm. On May 20, 2015, Randall told

Duplechin-Holden via text message that a “[p]hone store” would be the target for

the aggravated robbery. And the initial plan for the robbery was for Randall,

Duplechin-Holden, and Criswell “to use a tink to go to the robbery” and also to park

one of their own cars nearby. After the robbery, they would switch cars and “drive

29
off.” And they would return to the Condos to give “the merchandise” or the cellular

telephones from the store to appellant and Edwards.

Both appellant and Edwards explained to Randall, Duplechin-Holden, and

Criswell the reason for using a stolen car and a “safe car.” And although appellant

and Edwards did not give “full details” on what they were going to do with the

cellular telephones after the robbery, they did state that they would be “taking the

phones to whoever they connect, or plug, or whoever their person they knew was to

receive money for the phones[,] [l]ike, a transaction.” It was Duplechin-Holden’s

impression that if he did his part then he would receive his “cut” after the robbery

was completed. When asked at trial who had come up with the plan for the

aggravated robbery, Duplechin-Holden stated that both appellant and Edwards had.

On May 21, 2015—the day of the robbery—Randall drove

Duplechin-Holden’s car over to appellant’s apartment. Duplechin-Holden’s car, a

Mercury Grand Marquis, was going to be used as the “safe car” for the robbery and

“paper tags” were put on his car. Appellant and Edwards then arrived in their own

car, and another individual “pulled up in the tink”—a Dodge Durango sport utility

vehicle. Randall, Duplechin-Holden, and Criswell picked up the “tink” from

appellant and Edwards at the appellant’s apartment. They were told by appellant

and Edwards to go ahead and go over to the area of town where the robbery was

going to be committed and to “wait for [their] cue” because appellant and Edwards

30
were going to instruct Duplechin-Holden and Criswell when to actually enter the

cellular telephone store and “start the robbery.”

Duplechin-Holden explained that he began driving the “tink” toward the

robbery location, while Randall followed behind him in Duplechin-Holden’s car

with Criswell. But the “tink” stopped working on the drive. Duplechin-Holden then

left the “tink,” after wiping it down, and got in his own car with Randall and

Criswell. Duplechin-Holden decided to just use his own car during the robbery.

When they arrived at the cellular telephone store, they parked across the street and

waited for about twenty or thirty minutes “for [a] call to let [them] know to go” or

“to . . . drive to the venue or the [cellular telephone] store.” While waiting, Randall

spoke to appellant and Edwards on his cellular telephone. Edwards and appellant

were parked in appellant’s car, a Mercedes Benz, in the parking lot of the cellular

telephone store near a Chili’s restaurant.17 Appellant and Edwards said things like

“[h]old on,” “[a] lady inside,” “[s]omeone’s in there,” and “[w]ait.” Appellant was

the person who was mostly giving Randall the play-by-play and status updates over

the telephone.

Duplechin-Holden further testified that the first time that Randall actually

drove over to the cellular telephone store he did not stop because appellant and

17
At trial, Duplechin-Holden identified appellant’s car in the parking lot on the
videotaped surveillance recording from the AT&T cellular telephone store.

31
Edwards saw someone go inside the store. And they told Randall to “go around”

and to “come back around.” When Randall returned to the store for the second time,

Randall dropped Duplechin-Holden and Criswell off near the side of the AT&T

cellular telephone store and they ran inside. Both Duplechin-Holden and Criswell

were wearing masks and gloves.18 Once they were inside the store, they told the

employees to put the cellular telephones in the bag and to stay calm. During the

robbery, Duplechin-Holden and Criswell were on the telephone with Edwards so

that appellant and Edwards could hear what was happening in the store and so that

they could alert Duplechin-Holden and Criswell to anything that was happening

outside the store. Duplechin-Holden explained that it appeared that someone told

Randall when to come back to the store to pick up Duplechin-Holden and Criswell.

Appellant’s car drove off from the parking lot after Randall, Duplechin-Holden, and

Criswell left in Duplechin-Holden’s car.

While riding in Duplechin-Holden’s car after the robbery, Duplechin-Holden

stated that he and Criswell were checking for “tracker phones” and throwing them

out of the car. At some point, law enforcement officers began to follow

Duplechin-Holden’s car. Randall spoke to appellant while they were fleeing from

18
Duplechin-Holden noted that he and Criswell used their own masks and gloves that
they purchased from a store.

32
law enforcement officers, and appellant told Randall that if they “g[o]t away” then

to “holler” at him and he would come pick them up.

While fleeing from law enforcement officers, Duplechin-Holden and Criswell

threw a firearm and “clip” out of the car as well as some cellular telephones and

devices that did not appear to be very valuable. Eventually, the tires on

Duplechin-Holden’s car blew out, and the car stopped at the end of a dead-end street.

Duplechin-Holden stayed with the car, but Randall and Criswell fled on foot. Law

enforcement officers later located Randall and Criswell.

According to Duplechin-Holden, the firearm that was used in the May 21,

2015 aggravated robbery of the AT&T cellular telephone store came from a house

located at 102 Black Walnut Drive near a Wal-Mart store. On May 10 or May 11,

2020, Randall, Duplechin-Holden, and Criswell followed Edwards over to the house.

Edwards went inside the house, and Randall, Duplechin-Holden, and Criswell

remained outside in their car. Edwards came back out with a black backpack and

gave it to Randall, Duplechin-Holden, and Criswell. Inside of the backpack were

two firearms.19 Duplechin-Holden explained that sometimes firearms are referred

to as “burner[s],” like “throw-away pistol[s],” in conversations. Criswell kept the

firearms until the May 21, 2015 aggravated robbery, and he carried a firearm during

19
Duplechin-Holden identified the firearms as the ones recovered by law enforcement
officers after the May 21, 2015 aggravated robbery.

33
the robbery. When asked at trial who supplied the firearms for the May 21, 2015

aggravated robbery, Duplechin-Holden stated that Edwards had.

Duplechin-Holden also testified that Randall is appellant’s cousin. And

Randall told Duplechin-Holden that appellant and Edwards were “the overseers of

the whole situation, . . . the whole lick or robbery.”20 Appellant and Edwards would

“ch[o]ose . . . the guys that would go in the store, grab and go.” Randall was paid in

cash for his participation in certain robberies, and before May 21, 2015, he had been

“the driver” during another aggravated robbery. Randall had explained to

Duplechin-Holden that after each robbery was complete, “the proceeds” were

delivered to appellant and Edwards, and they paid Randall.

Duplechin-Holden described appellant and Edwards as people that “everyone

was drawn to” and stated that they were popular in the community because “[t]hey

were the guys that were setting up the licks” or robberies. Appellant was more

outspoken when Edwards was not around.

Ali Riaz

Ali Riaz testified that between March 2015 and June 2015, he worked at a

cellular telephone store located at TX-249 and Bammel-North Houston Road. At

the store, among other things, he bought used or new phones to resell. Riaz stated

that he bought certain cellular telephones from Edwards between March 2015 and

20
Duplechin-Holden stated that a “lick” is a robbery.

34
June 2015 that he knew were stolen. According to Riaz, Edwards initially started

selling him small amounts of cellular telephones, but the number of cellular

telephones increased over time. During one large transaction, Edwards sold Riaz

thirty cellular telephones. Edwards would call Riaz and ask him how much he could

offer for a particular cellular telephone, and if they agreed on a price, then Edwards

would come into the store and sell Riaz the phone. Edwards contacted Riaz at least

once a week to see if Riaz could purchase any cellular telephones. Riaz estimated

that, in total, during March 2015 and June 2015, Edwards received about $45,000 or

$50,000 from Riaz related to sales of cellular telephones. Riaz believed that the

cellular telephones that he received from Edwards would be sold overseas. Riaz

stated that he had never seen appellant before and did not conduct any transactions

with appellant.

Cellular Telephone Communication Evidence

Houston Police Department (“HPD”) Officer J. Taylor testified that he is a

member of the communications intelligence unit in the criminal intelligence division

of the HPD, and he analyzed historical cellular telephone records related to certain

aggravated robberies of cellular telephone stores in 2015.

In regard to the March 18, 2015 aggravated robbery, which was reported at

about 7:57 p.m., Taylor examined telephone calls that occurred between 7:30 p.m.

and 7:45 p.m. According to Taylor, appellant’s cellular telephone utilized a cellular

35
telephone tower near the robbery location at 7:30 p.m. The call involving

appellant’s cellular telephone lasted about six minutes, and it occurred before any

call for emergency assistance was made about the aggravated robbery.21

In regard to the April 3, 2015 aggravated robbery, which was reported at about

1:35 p.m., Taylor determined that a telephone call between Edwards’s cellular

telephone and Hill’s cellular telephone occurred near the time of that robbery. The

call lasted about thirty-three seconds. A telephone call also occurred between

appellant’s cellular telephone and Williams’s cellular telephone near the time of the

aggravated robbery. Appellant’s cellular telephone called Williams’s cellular

telephone and the call lasted about twenty minutes. The code *67 was used on

appellant’s cellular telephone to try and “obfuscate [the] number from the caller ID

of the person that [it was] calling.” Both the telephone call between Edwards and

Hill, and the telephone call between appellant and Williams, utilized a cellular

telephone tower near the robbery location.

Taylor also testified that immediately after the robbery was reported to law

enforcement officers, Edwards’s cellular telephone called Riaz’s cellular telephone

about nine times in ninety-minutes. Further, telephone calls between Edwards’s

cellular telephone and appellant’s cellular telephone occurred after the robbery, and

21
Sergeant Katrib similarly testified that on March 18, 2015 at 7:30 p.m., Mitchner’s
cellular telephone called appellant’s cellular telephone for about six minutes.
Mitchner participated in the March 18, 2015 aggravated robbery.

36
those calls utilized a cellular telephone tower near the cellular telephone store where

Riaz worked. Taylor stated that the data he reviewed indicated that, after the April

3, 2015 aggravated robbery, both Edwards and appellant traveled to the area near

the cellular telephone store where Riaz worked.

In regard to the April 15, 2015 aggravated robbery, which was reported at

about 6:35 p.m. or 6:49 p.m., Taylor testified that a telephone call was made from

Edwards’s cellular telephone to Williams’s cellular telephone at 6:35 p.m. The call

lasted about thirteen minutes. Taylor also stated that a telephone call was made from

appellant’s cellular telephone to Randall’s cellular telephone at 6:29 p.m., and that

call lasted about twenty-five minutes. After the aggravated robbery, a telephone call

was made from Edwards’s cellular telephone to Riaz’s cellular telephone. And

several “communication events” occurred between Edwards’s cellular telephone and

appellant’s cellular telephone after the robbery. These “communication events”

indicated that appellant’s and Edwards’s cellular telephones were in the area near

Riaz’s cellular telephone store after the April 15, 2015 aggravated robbery.

In regard to the May 21, 2015 aggravated robbery, which was reported at

about 6:34 p.m. or 6:44 p.m., Taylor testified that a call was made from appellant’s

cellular telephone to Randall’s cellular telephone. The call lasted about twenty

minutes. Another telephone call was made from Criswell’s cellular telephone to

appellant’s cellular telephone, and it lasted about ten minutes. Both of these

37
telephone calls, which occurred on May 21, 2015, utilized a cellular telephone tower

near the May 21, 2015 robbery location.22

In regard to communications between Edwards with Riaz specifically, Taylor

testified that between April 2, 2015 and April 16, 2015, multiple communications

between Edwards’s cellular telephone and Riaz’s cellular telephone occurred. And

both appellant’s cellular telephone and Edwards’s cellular telephone traveled to the

area near Riaz’s cellular telephone store on several occasions after the aggravated

robberies had occurred.23

Finally, Taylor testified that both Edwards’s cellular telephone and

appellant’s cellular telephone communicated with the cellular telephones of the

individuals who had committed the aggravated robberies and some of those

communications occurred while the robberies were in progress.

Sergeant Katrib testified that, during his investigation, he searched various

individuals’ cellular telephones and he found photographs and cellular telephone

22
Sergeant Katrib stated that the telephone calls on May 21, 2015 were consistent with
appellant’s roles in the aggravated robberies of counter-surveillance and “shot
calling.”
23
Sergeant Katrib also testified that during the course of his investigation, he found
that a cellular telephone number linked to Riaz’s cellular telephone store located at
TX-249 and Bammel-North Houston Road was repeatedly called either just before
or just after the aggravated robberies had occurred. Katrib also determined that
Edwards made multiple trips to Riaz’s store to sell stolen cellular telephones.

38
communications between appellant, Edwards, and the individuals who participated

in the aggravated robberies.

On Randall’s cellular telephone, Sergeant Katrib found photographs of

Randall “flashing a sum of money” which were taken either on the same day that he

committed an aggravated robbery or a couple days after. Randall’s cellular

telephone also contained recent telephone calls from appellant, including a call from

appellant’s cellular telephone after the aggravated robbery on May 21, 2015

committed by Randall, and during the time that law enforcement officers were

searching for Randall, Duplechin-Holden, and Criswell. Additionally, Randall’s

cellular telephone showed telephone calls from both Duplechin-Holden’s and

Criswell’s cellular telephones on May 21, 2015 before they committed the

aggravated robbery together. Randall’s cellular telephone also received a call from

Edwards’s cellular telephone, and the telephone numbers for appellant, Edwards,

Duplechin-Holden, and Criswell were all saved in Randall’s cellular telephone.

Sergeant Katrib also reviewed text messages between Randall’s cellular

telephone and Edwards’s cellular telephone and between Randall’s cellular

telephone and appellant’s cellular telephone. Messages from Randall’s cellular

telephone to appellant’s cellular telephone on April 15, 2015 discussed preparations

for committing a robbery that day. Other text messages between Randall’s cellular

telephone and appellant’s cellular telephone before the May 21, 2015 aggravated

39
robbery indicate preparation, such as planning to secure a “tink,” planning on using

a “safe car” during the robbery, determining the location of the robbery, and

discussing whether appellant had firearms to use in the robbery. Messages from

appellant’s cellular telephone request that Randall get everyone together and also

state that appellant and Edwards would be going to check out a robbery target.

On Criswell’s cellular telephone, Sergeant Katrib found a call log showing a

telephone call from Criswell’s cellular telephone to appellant’s cellular telephone on

May 21, 2015 as well as a telephone call between Criswell and Randall on May 21,

2015. Further, a photograph of Criswell wearing a watch that was worn by one of

the individuals who had committed the April 15, 2015 aggravated robbery of the

A-Wireless cellular telephone store was saved on Criswell’s cellular telephone.

Additionally, Criswell’s cellular telephone contained photographs of him with a

large amount of money being displayed.

In regard to appellant’s cellular telephone, Sergeant Katrib testified that

communications between appellant and Edwards were extracted from appellant’s

cellular telephone. For instance, on March 24, 2015, appellant’s cellular telephone

sent text messages to Edwards’s cellular telephone stating: “Hit me wen u get

up. . .we gotta go to wrk today n I think I gotta spot frfr”; “Verizon”; and “No law.”24

24
According to Sergeant Katrib, appellant had “done his homework” and was telling
Edwards about a plan to commit an aggravated robbery of a Verizon cellular
telephone store that did not have any law enforcement presence. And Katrib noted
40
And on March 26, 2015, appellant’s cellular telephone sent a text message to

Edwards’s cellular telephone stating: “We gotta do sum today,” which Katrib

testified meant that appellant was talking about committing an aggravated robbery.

Additionally, on April 3, 2015—the day of the aggravated robbery of the

RadioShack electronics and cellular store—Edwards’s cellular telephone sent

appellant’s cellular telephone a “screen shot” of Edwards’s conversation with “Ali,

the plug,” i.e., Riaz, that discussed if certain cellular telephones were “in the box”

and contained a price list for various types of cellular telephones. In the screenshot

messages, Ali tells Edwards to “bring” the cellular telephones. Sergeant Katrib

noted that the prices for the cellular telephones listed were a lot lower than market

value for such telephones which would indicate that the cellular telephones had come

from illicit activities such as aggravated robberies.

Other text messages sent from appellant’s cellular telephone to Edwards’s

cellular telephone reference the April 15, 2015 aggravated robbery of the A-Wireless

cellular telephone store. Further, on May 20, 2015, the day before the aggravated

robbery of the Connectivity Source cellular telephone store, text messages from

appellant’s cellular telephone state: “Watz up on d tink.” Sergeant Katrib testified,

based on his investigation, that such messages meant that appellant was checking on

that the A-Wireless cellular telephone store, which was robbed on April 15, 2105,
was a Verizon retailer.

41
the status of obtaining a stolen car to be used to commit the aggravated robbery the

next day. Additional text messages from appellant’s cellular telephone indicate that

he had a target for the aggravated robbery. And following Randall’s arrest after the

May 21, 2015 aggravated robbery, a screen shot of Randall’s “booking information”

was texted from appellant’s cellular telephone to Edwards’s cellular telephone and

to the cellular telephone belonging to appellant’s girlfriend. In the text message to

appellant’s girlfriend’s phone, it states, related to Randall, “I didn’t even do 4aggs

wit him.”

Finally, Sergeant Katrib noted that appellant’s cellular telephone contained

text messages with a contact listed as “Nick D Plug” in appellant’s phone, and the

messages from appellant’s cellular telephone state that appellant has “a bunch of

[S]print phones” that are “[b]rand new” and “[i]n d box.” And the messages ask for

the prices. According to Katrib, these text messages and others, which occurred in

the days before the May 21, 2015 aggravated robbery of the Connectivity Source

cellular telephone store—a Sprint retailer—appear to have been setting up a sale of

a large number of cellular telephones.25

Further, activity analytics from appellant’s cellular telephone indicated that

he had substantial contact with Edwards, Randall, “Nick D Plug,” and two other

25
Sergeant Katrib also testified that during his investigation he found “communication
events” between appellant’s cellular telephone and the cellular telephone of “Nick
D Plug.”

42
individuals connected to the house located at 102 Black Walnut Drive near a

Wal-Mart store.26 And the March 18, 2015, April 3, 2015, April 26, 2015, and May

21, 2015 aggravated robberies all had links to the house on Black Walnut Drive.

Sergeant Katrib also testified that appellant’s cellular telephone contained

photographs of appellant posing with “a large sum of money,” including

photographs from March 20, 2015—two days after the aggravated robbery of the

Cellular Sales cellular telephone store—as well as photographs from April 15,

2015—the same day as the aggravated robbery of the A-Wireless cellular telephone

store. Katrib noted that the photographs on appellant’s cellular telephone contained

$100 bills, whereas the photographs that he found on Randall’s cellular telephone

contained lower denominations of bills. Katrib explained that the amount that an

individual received as proceeds from the commission of an aggravated robbery could

be related to that individual’s rank in the hierarchy—“it tends to show who was

basically in charge and who was doing what they were ordered to do.”

Sergeant Katrib testified that his investigation revealed that both Edwards and

appellant were equally involved in the aggravated robberies. Edwards and appellant

were both involved in the process of selecting the targets of the aggravated robberies,

involved with providing firearms and stolen cars to be used to accomplish the

26
Sergeant Katrib explained that, through his investigation, he determined that the
firearms used during the aggravated robberies came from the house located at 102
Black Walnut Drive and “a lot of the planning took place at that location.”

43
aggravated robberies, and involved in selecting and deciding the individuals who

would participate in the robberies. Edwards and appellant also conducted

counter-surveillance related to the aggravated robberies and gave instructions during

the robberies. Further, both appellant and Edwards received proceeds from the

aggravated robberies either immediately or shortly after the robberies, and they were

both involved in the process of selling the cellular telephones for cash and paying

the participants of the robberies.

Appellant’s Statement

Sergeant Katrib testified that following appellant’s arrest, he interviewed

appellant. Appellant told Katrib that Randall, Criswell, and Williams had committed

the April 3, 2015 aggravated robbery of the RadioShack electronics and cellular

telephone store. Appellant also admitted that he knew that Randall had been

committing aggravated robberies, and appellant acknowledged that he would ask the

individuals who were committing the robberies “is your plot good.” Appellant

would tell them “you-all go ahead.” Katrib believed that this indicated that appellant

was “giving orders to the[] people to go commit aggravated robberies.” Appellant

also admitted to Katrib that he was present in his car27 in the Chili’s restaurant’s

27
Appellant’s cellular telephone contained pictures of him with his car, a gold
Mercedes Benz. Appellant admitted that the gold Mercedes Benz car was in fact
his car.

44
parking lot on May 21, 2015 and that he had a direct line of sight to the Connectivity

Source cellular telephone store during the aggravated robbery of that store.

A copy of the videotaped recording of appellant’s statement was admitted into

evidence at trial. And a copy of an audio recording of a telephone call during which

appellant discussed the disposition of the cellular telephones that were taken during

the aggravated robberies was also admitted into evidence.28

Sufficiency of Evidence

In his first issue, appellant argues that the evidence is legally insufficient to

support his conviction because no rational trier of fact could have found that he was

part of the identifiable leadership of a criminal street gang, that the aggravated

robberies were committed by a criminal street gang, or that he knowingly financed,

directed, or supervised the commission of aggravated robberies by members of a

criminal street gang.

In his second and third issues, appellant argues that the evidence is factually

insufficient29 to support his conviction because the evidence when viewed in a

neutral light, fails to show that appellant was part of the identifiable leadership of a

28
We note that the appellate record contains additional evidence presented at trial,
including evidence of the items found in appellant’s apartment that were consistent
with someone having participated in aggravated robberies of cellular telephone
stores.
29
See Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Clewis v. State,
922 S.W.2d 126, 134 (Tex. Crim. App. 1996), overruled by Brooks v. State, 323
S.W.3d 893, 894–95, 912 (Tex. Crim. App. 2010) (plurality opinion).

45
criminal street gang, that the aggravated robberies were committed by a criminal

street gang, or that appellant knowingly financed, directed, or supervised the

commission of aggravated robberies by members of a criminal street gang.

Appellant further asserts that he has the right to a factual sufficiency review under

the Texas Constitution30 and this Court’s failure to conduct a proper factual

sufficiency review denies him due process of law and equal protection.31

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict 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, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process

safeguard, ensuring only the rationality of the trier of fact’s finding of the essential

elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d

866, 867 (Tex. Crim. App. 1988). We defer to the responsibility of the fact finder

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

inferences from the facts. Williams, 235 S.W.3d at 750. That said, our duty requires

us to “ensure that the evidence presented actually supports a conclusion that the

defendant committed” the criminal offense of which he is accused. Id.

30
See TEX. CONST. art. V, § 6(a).
31
See U.S. CONST. amends. V, XIV; TEX. CONST. art. 1, § 19.

46
 In reviewing the legal sufficiency of the evidence, a court must consider both

direct and circumstantial evidence, and any reasonable inferences that may be drawn

from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)

(evidence-sufficiency standard of review same for both direct and circumstantial

evidence). Circumstantial evidence is just as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). For evidence to be sufficient, the State need not disprove

all reasonable alternative hypotheses that are inconsistent with a defendant’s guilt.

See Wise, 364 S.W.3d at 903; see also Cantu v. State, 395 S.W.3d 202, 207–08 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court considers only whether

the inferences necessary to establish guilt are reasonable based on the cumulative

force of all the evidence when considered in the light most favorable to the jury’s

verdict. Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d at 13.

As previously noted, appellant asserts that the evidence is both legally and

factually insufficient to support his conviction for the offense of directing activities

of a criminal street gang. However, this Court now reviews the factual sufficiency

of the evidence under the same appellate standard of review as that for legal

sufficiency. See Edwards v. State, 497 S.W.3d 147, 156–57 (Tex. App.—Houston

47
[1st Dist.] 2016, pet. ref’d); Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d). As the Court of Criminal Appeals has stated:

“[T]he Jackson . . . legal-sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable

doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality

opinion); see also Payne v. State, No. 01-16-00821-CR, 2017 WL 5503650, at *2

(Tex. App.—Houston [1st Dist.] Nov. 16, 2017, no pet.) (mem. op., not designated

for publication). Thus, we disregard appellant’s argument that the evidence is

factually insufficient to support his conviction and focus solely on whether the

evidence is legally sufficient to support appellant’s conviction. See Payne, 2017 WL

5503650, at *2; see also Alvarado v. State, No. 01-14-00894-CR, 2016 WL

7694355, at *5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, no pet.) (mem. op.,

not designated for publication) (Court of Criminal Appeals “abolished

factual-sufficiency review of issues on which the State b[ears] the burden of proof

at trial”). In doing so, we note that this Court has previously rejected constitutional

challenges, such as those made by appellant, to the use of the Jackson

legal sufficiency standard when we are conducting a factual sufficiency review. See

Edwards, 497 S.W.3d at 156–57; Kiffe v. State, 361 S.W.3d 104, 109–10 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d); see also Rivera v. State, No.

48
01-17-00351-CR, 2018 WL 3352990, at *4 (Tex. App.—Houston [1st Dist.] July

10, 2018, no pet.) (mem. op.); Tan v. State, No. 01-15-00511-CR, 2016 WL

3542255, at *3 (Tex. App.—Houston [1st Dist.] June 28, 2016, pet. ref’d) (mem.

op., not designated for publication).

A person commits the offense of directing activities of a criminal street gang

“if the person, as part of the identifiable leadership of a criminal street gang,

knowingly finances, directs, or supervises the commission of, or a conspiracy to

commit, . . . by members of a criminal street gang . . . a felony offense that is listed

in Article 42A.054(a), Code of Criminal Procedure.” TEX. PENAL CODE ANN.

§ 71.023(a)(1); see also Edwards v. State, No. 14-17-00460-CR, 2019 WL 2426710,

at *13 (Tex. App.—Houston [14th Dist.] June 11, 2019, pet. ref’d) (mem. op., not

designated for publication). “[A] felony offense . . . listed in Article 42A.054(a),

Code of Criminal Procedure” includes the felony offense of aggravated robbery. See

TEX. CODE CRIM. PROC. ANN. art. 42A.054(a)(11); TEX. PENAL CODE ANN.

§ 71.023(a)(1); see also Edwards, 2019 WL 2426710, at *13. A “[c]riminal street

gang” means “three or more persons having a common identifying sign or symbol

or an identifiable leadership who continuously or regularly associate in the

commission of criminal activities.” TEX. PENAL CODE ANN. § 71.01(d) (internal

quotations omitted); see also Edwards, 2019 WL 2426710, at *13.

49
 Here, appellant asserts that no rational trier of fact could have found that (1) he

was part of the identifiable leadership of a criminal street gang; (2) the aggravated

robberies were committed by a criminal street gang; or (3) he knowingly financed,

directed, or supervised the commission of aggravated robberies by members of a

criminal street gang.

As the evidence set forth above demonstrates, the five aggravated robberies

of cellular telephone stores between March 18, 2015 and May 21, 2015 reflect a

similar scheme or plan. See Edwards, 2019 WL 2426710, at *13. And although the

aggravated robberies were not all committed by the same individuals, there was

significant overlap in the participants in the robberies as illustrated below:

March 18, April 3, April 15, April 26, May 21,
2015 2015 2015 2015 2015
Hill Hill Williams Mitchner Randall
Mitchner Williams Randall Williams Criswell
Williams Randall Criswell Hawkins Duplechin-Holden
Criswell Philpot

Williams was involved in four of the aggravated robberies; Randall was involved in

three of the aggravated robberies; Criswell was involved in three of the aggravated

robberies; Hill was involved in two of the aggravated robberies; Mitchner was

involved in two of the aggravated robberies; and Philpot, Hawkins, and

Duplechin-Holden were each involved in one of the aggravated robberies. See TEX.

PENAL CODE ANN. § 71.01(d).

50
 Additionally, the evidence shows that appellant was one of two leaders that

financed, directed, or supervised the five aggravated robberies involving Williams,

Randall, Criswell, Hill, Mitchner, Philpot, Hawkins, and Duplechin-Holden. See

Edwards, 2019 WL 2426710, at *13; see also TEX. PENAL CODE ANN. §§ 71.01(d)

(defining “[c]riminal street gang” as “three or more persons having a common

identifying sign or symbol or an identifiable leadership who continuously or

regularly associate in the commission of criminal activities” (internal quotations

omitted)), 71.023(a)(1). Appellant chose locations for the aggravated robberies,

assigned individuals certain tasks to be performed related to the aggravated

robberies, instructed the individuals on how to commit the aggravated robberies,

conducted counter-surveillance both before and during the aggravated robberies,

drove to the robbery locations with the robbery participants following behind to

show them where the robberies were to be committed, was present during the

aggravated robberies and acted as a lookout, maintained contact with and

communicated with the robbery participants before, during, and after the aggravated

robberies, followed the robbery participants away from the robbery location after the

robbery was complete, received the cellular telephones and devices taken during the

aggravated robberies, participated in the selling of the cellular telephones and

devices taken during the aggravated robberies, and paid the robbery participants for

51
their roles in the aggravated robberies. See Edwards, 2019 WL 2426710, at *13; see

also TEX. PENAL CODE ANN. § 71.023(a)(1).

Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have determined beyond a reasonable doubt that appellant

was part of the identifiable leadership of a criminal street gang, the aggravated

robberies were committed by a criminal street gang, and he knowingly financed,

directed, or supervised the commission of aggravated robberies by members of a

criminal street gang. See TEX. PENAL CODE ANN. §§ 71.01(d), 71.023(a)(1); see also

Edwards, 2019 WL 2426710, at *13–14. Thus, we hold that the evidence is legally

sufficient to support appellant’s conviction for the offense of directing activities of

a criminal street gang.

We overrule appellant’s first, second, and third issues.

Jury Charge Error

In his fourth issue, appellant argues that the trial court erred in instructing the

jury, over his objection, on the law of parties32 because it does not apply to the

offense of directing activities of a criminal street gang.

We review complaints of jury-charge error under a two-step process. See Ngo

v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State, 871

S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether

32
See TEX. PENAL CODE ANN. § 7.01 (“Parties to Offense”).

52
error exists in the trial court’s charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex.

Crim. App. 2013). Second, if there is error, the court must determine whether the

error caused sufficient harm to require reversal of the conviction. Id. If the

defendant preserved error by timely objecting to the charge, an appellate court will

reverse if the defendant demonstrates that he suffered some harm as a result of the

error. Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).

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.” TEX. PENAL CODE ANN.

§ 7.01(a). 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

to commit the offense.” Id. § 7.02(a)(2); Gross v. State, 380 S.W.3d 181, 186 (Tex.

Crim. App. 2012). “In general, an instruction on the law of parties may be given to

the jury whenever there is sufficient evidence to support a jury verdict that the

defendant is criminally responsible under the law of parties.” Ladd v. State, 3

S.W.3d 547, 564 (Tex. Crim. App. 1999); see also Saavedra v. State, No.

01-17-00295-CR, 2018 WL 3581081, at *6 (Tex. App.—Houston [1st Dist.] July

26, 2018, pet. ref’d) (mem. op., not designated for publication).

53
 Here, the trial court instructed the jury as follows:

All persons are parties to an offense who are guilty of acting
together in the commission of the offense. 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 to commit the offense. Mere presence
alone will not constitute one a party to an offense.

....

If you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, Terrence Devaughn Edwards, heretofore on or
about [the] 30th day of June, 2014 continuing through the 18th day of
June, 2015, did then and there unlawfully, as part of the identifiable
leadership of a criminal street gang, knowingly finance, direct, or
supervise the commission of the offense of aggravated robbery by
members of said criminal street gang, and that [appellant], with the
intent to promote or assist the commission of the offense, if any,
solicited, encouraged, directed, aided or attempted to aid Terrence
Devaughn Edwards to commit the offense, if he did, then you will find
[appellant] guilty of directing the activities of a criminal street gang, as
charged in the indictment.

Appellant argues that the trial court erred in instructing the jury on the law of

parties because under Texas Penal Code section 71.023(a) “a gang member can be

criminally liable for directing an organized criminal street gang only as a principal,”

applying the law of parties to the offense of directing activities of a criminal street

gang “leads to an absurd result” and “permits conviction on less evidence than the

statute requires,” and the trial court’s charge to the jury permitted the jury to convict
54
appellant of the offense of directing activities of a criminal street gang “without

proof beyond a reasonable doubt of [a] defining element of the offense—that

[a]ppellant was part of the identifiable leadership.” (Emphasis omitted.)

For purposes of this opinion we will presume, without deciding, that the trial

court erred in instructing the jury on the law of parties. See Edwards, 2019 WL

2426710, at *16. Because appellant did object to the trial court’s inclusion of the

law-of-parties instruction in its charge, we will reverse appellant’s conviction if

appellant demonstrates that he suffered “some harm.” Sakil, 287 S.W.3d at 25–26;

see also Johnson v. State, No. 01-17-00570-CR, 2018 WL 1630178, at *5 (Tex.

App.—Houston [1st Dist.] Apr. 5, 2018, no pet.) (mem. op., not designated for

publication) (“[I]f jury-charge error does exist, we review the record to determine

whether the error caused sufficient harm to require reversal.”).

Here, the trial court’s charge authorized the jury to find appellant guilty of the

offense of directing activities of a criminal street gang as either a principal or as a

party. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2); Edwards, 2019 WL

2426710, at *16. And as previously addressed, sufficient evidence supports

appellant’s guilt as a principal actor for the offense of directing activities of a

criminal street gang. See Edwards, 2019 WL 2426710, at *16. The Court of

Criminal Appeals has stated that “[w]here the evidence clearly supports a

defendant’s guilt as a principal actor, any error in the trial court in charging [the jury]

55
on the law of parties is harmless.” Black v. State, 723 S.W.2d 674, 675 (Tex. Crim.

App. 1986); see also Edwards, 2019 WL 2426710, at *16; Saavedra, 2018 WL

3581081, at *6; Nelson v. State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d).

Thus, having held that the evidence is legally sufficient to support appellant’s

conviction as a principal actor for the offense of directing activities of a criminal

street gang, we hold that appellant was not harmed by the trial court’s purportedly

erroneous instruction to the jury on the law of parties. See Nelson, 405 S.W.3d at

126; see also Edwards, 2019 WL 2426710, at *16 (where evidence sufficient to

support defendant’s conviction as principal actor for offense of directing activities

of criminal street gang, defendant did not suffer egregious harm from any error in

instructing jury on law of parties).

We overrule appellant’s fourth issue.

Modification of Judgment

In his fifth issue, appellant argues that the trial court’s judgment should be

modified to remove the trial court’s “affirmative finding that [a]ppellant used or

exhibited a deadly weapon” because the jury did not make an affirmative finding to

that effect and the trial court had no authority to include such a finding in its

judgment. The State concedes in its brief that “[a]ppellant’s position on this issue

appears to have some merit,” but it notes that “[t]he removal of the deadly weapon

56
finding from the [trial court’s] judgment should not have any other effect on the

case.”

Related to a deadly-weapon finding, on page 2 of the trial court’s judgment

under the “special findings” section, it states:

The court finds defendant used or exhibited a deadly weapon, namely,
a firearm, during the commission of a felony offense or during
immediate flight therefrom or was a party to the offense and knew that
a deadly weapon would be used or exhibited. Tex. Code Crim. Proc.
art. 42A.054(B)(2); Tex. Penal Code sec. 1.07(17)(A)(B).

An appellate court should not look at the facts of a case to determine if an

affirmative deadly-weapon finding is properly included in a trial court’s written

judgment. See Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985); Rachel

v. State, Nos. 02-18-00500-CR, 02-18-00501-CR, 2019 WL 5996985, at *7 (Tex.

App.—Fort Worth Nov. 14, 2019, pet. ref’d) (mem. op., not designated for

publication). Instead, the court must look to the charging instrument, the jury

charge, and the jury verdict to evaluate the propriety of a deadly-weapon finding in

the trial court’s judgment. See Polk, 693 S.W.2d at 396; Rachel, 2019 WL 5996985,

at *7. As the Court of Criminal Appeals has explained, when the jury is the trier of

fact, the trial court may not properly enter an affirmative finding concerning a

defendant’s use or exhibition of a deadly weapon or firearm during the commission

of the offense unless:

57
 1. the indictment specifically alleged that a deadly weapon was used
(using the words “deadly weapon”) and the defendant was found
guilty “as charged in the indictment”;

2. the indictment did not use the words “deadly weapon” but alleged
use of a deadly weapon per se (such as a firearm); or

3. the jury made an express affirmative finding of fact of use of a
deadly weapon in response to the submission of a special issue
during the punishment phase of trial.

See Polk, 693 S.W.2d at 396; see also Duran v. State, 492 S.W.3d 741, 746 (Tex.

Crim. App. 2016); Edwards, 2019 WL 2426710, at *17.

Here, the indictment did not use the words “deadly weapon” or allege the use

of a deadly weapon per se. See Edwards, 2019 WL 2426710, at *17. And a special

issue on the use of a deadly weapon was not submitted to the jury or decided by the

jury. See id.

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so, or make any appropriate order as the law and nature of the

case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d)); TEX. R. APP. P. 43.2(b). This power includes the power to

delete a deadly-weapon finding that was erroneously entered in the trial court’s

written judgment. Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st

Dist.] 2002, no pet.); see also Garcia v. State, No. 01-15-00030-CR, 2016 WL
58
7011411, at *11–12 (Tex. App.—Houston [1st Dist.] Dec. 1, 2016, pet. ref’d) (mem.

op., not designated for publication).

Thus, we modify page 2 of the trial court’s judgment to delete the following

from the “special findings” section:

The court finds defendant used or exhibited a deadly weapon, namely,
a firearm, during the commission of a felony offense or during
immediate flight therefrom or was a party to the offense and knew that
a deadly weapon would be used or exhibited. Tex. Code Crim. Proc.
art. 42A.054(B)(2); Tex. Penal Code sec. 1.07(17)(A)(B).

See Duran, 492 S.W.3d at 750 (modifying trial court’s judgment to delete

improperly entered deadly-weapon finding); Rachal, 2019 WL 5996985, at *7;

Edwards, 2019 WL 2426710, at *17; Garcia, 2016 WL 7011411, at *11–12.

We sustain appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court as modified.

Julie Countiss
Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.

Countiss, J., concurring.

Publish. TEX. R. APP. P. 47.2(b).

59