In the Court of Appeals for the Fifth District of Texas at Dallas 5th Court of Appeals FILED: 3/11/11 14:00 Lisa Matz, Clerk Amar Rashad Britton, Appellant v. No. 05-10-01148-CR The State of Texas, Appellee Trial Number 199-80073-10 in the 199th District Court of Collin County The Honorable James Fry, Judge Presiding by Assignment STATE S BRIEF Greg Willis Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division Oral argument is requested, but only if Appellant is also requesting argument. Emily Johnson-Liu Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 20004 McKinney, TX 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 24032600 Blake Glover & Bill Dobiyanski Asst. Criminal District Attorneys
Table of Contents Index of Authorities... ii Statement of the Case... 1 Statement of Facts... 1 Summary of the State s Arguments... 6 Argument & Authorities... 7 Issue (Sufficiency of the evidence)... 7 The evidence is sufficient to show Appellant placed the victim in fear of imminent bodily injury. Appellant and his accomplice chose the location where they lured the victim it was dark and unfamiliar to him, and they outnumbered him. Furthermore, Appellant himself admitted that he had scared the victim and that he had committed robbery. I. Standard of review... 7 II. The evidence was sufficient to prove robbery... 7 Prayer... 12 Certificate of Service... 12 i
Index of Authorities Cases Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)... 7 Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991)... 8 Jackson v. Virginia, 443 U.S. 307 (1979)... 7 Statutes, Codes, and Rules Tex Pen. Code 29.02(a)... 7 ii
Statement of the Case Appellant Amar Britton was indicted for aggravated robbery. CR 9. He pleaded not guilty, and a jury found him guilty of the lesser-included offense of robbery. CR 57. On the jury s recommendation, the trial court sentenced Appellant to 6 years in TDC and a $3,500 fine. CR 69, 71 Statement of Facts Kien Nguyen wanted to buy a cell phone with a touch screen. 3 RR 23. He saw Appellant s listing for one for $100 on craigslist and arranged to meet him. 3 RR 25. At Appellant s request, Kien drove up to Sunflower Lane in Plano. 3 RR 23, 26. It was nighttime after 7 p.m. in November. 3 RR 26. When he arrived, Kien called Appellant several times and, after several failed attempts, finally reached him. 3 RR 26. He then followed Appellant s instructions to drive to the end of the street. 3 RR 26. Appellant and a young woman walked up to Kien s car. 3 RR 27. Kien rolled down the window several inches, and Appellant gave Kien the cell phone to inspect. 3 RR 27. Kien looked it over, found a scratch on the side of the phone, and asked if Appellant would lower the price to $80. 3 RR 28. Appellant agreed. 3 RR 28. Kien returned the phone to Appellant to remove the SIM card and took out his $80 in cash. 3 RR 29. As Appellant took off the back panel of the phone, the woman who Appellant was with reached inside Kien s car to try to take his money. 3 RR 30, 47-50. Kien told her that he wanted the phone first and refused to let go of the $80. 3 RR 30. 1
No words were exchanged between Appellant and the woman. 3 RR 48-49. But Kien testified that Appellant pointed a gun toward his head through the window of the car. 1 3 RR 31, 48-49. Because of the gun, Kien was very afraid and released his hold on the money. 3 RR 31-32. The woman took it. 3 RR 31. When Kien let go of the money, Appellant no longer had the gun to Kien s head. 3 RR 31. Appellant then asked Kien to get out of the car and hand over his wallet. 3 RR 31, 65. Kien stayed put, took the rest of the money from his wallet, and gave it to Appellant. 3 RR 31. Appellant and the woman took the money and ran. 3 RR 33. Kien enlisted the help of his sister Hoai Nguyen and contacted the police. 3 RR 37-38. Hoai called Appellant s number, pretending to be a potential craigslist buyer, and was told that the cell phone in the ad was still available. 3 RR 76. Kien and his sister turned all the information they had over to Plano police, who connected the craigslist ad to Appellant. 3 RR 84, 123-24. The police searched Appellant s house but did not find a gun. 3 RR 138. Plano police then interviewed Appellant. SX 4. During the interview, Appellant admitted meeting Kien and showing him the touchscreen phone. SX 4 at 00:55. Appellant insisted that no one else was with him. SX 4 at 00:56:21. The detective told Appellant several times that there was a big difference be- 1 On cross-examination, Kien admitted that it was so dark that he could not identify Appellant, but he still insisted he had seen a gun, though he was never able to provide any more details about it, other than it was black. 3 RR 67-68, 94-95, 137-38. 2
tween robbery and aggravated robbery and suggested that Appellant tell him if, in fact, there had not been a real gun. SX 4 at 00:48 to 00:50 and 00:52 and 00:56. Appellant responded, as if hypothetically, that, Even if [he] did take [Kien s] money and walk off, he would still get in trouble. SX 4 at 1:00:52. The detective repeated that an aggravated robbery was different than a robbery and that he was giving Appellant an opportunity to explain his way out of an aggravated robbery. SX 4 at 1:01. Whenever the detective suggested that Appellant must have had a gun or something that looked like a gun, Appellant acted as if he were perplexed. SX 4 at 00:50:08 ( I don t understand [what could have looked like a gun]... I had my phone. ) & SX 4 at 1:04:20 to 1:04:40 ( What the hell?... I don t know where [the part about] a gun came from ). Appellant had already told the detective that he took the phone back after letting Kien inspect it. SX 4 at 00:50:22; 3 RR 132. But after the detective again stressed that this was the time to explain if it had not been an aggravated robbery, Appellant then said that Kien had told him, Just take [the $80]; just take it, and Appellant admitted, I just took it. SX 4 at 1:03:27 to 1:03:38. The detective repeated Appellant s claim that he had taken the phone and the money and ran off, and Appellant confirmed, That s what happened. SX 4 at 1:04. When the detective told Appellant another part of Appellant s story was not true (about the cell phone later being conveniently stolen), the following occurred: 3
Appellant: I didn t rob anyone. Detective McClendon: Sure you did. Appellant: Ok, that one. SX 4 at 1:07:08. At trial, Appellant testified, and the prosecutor asked him about this admission: Q: You remember at one point in your interview with Detective McClendon you also admitted to this robbery, one time. You remember? A: Me meeting up with Kien Nguyen? Q: Do you remember or do you not? Are you denying it? A: I m denying robbery, yes. Q: That s not my question. Are you denying that one time you admitted to Detective McClendon committing this robbery? A: I think I did, yes. Q: You did admit it, right? A: Yes. 4 RR 90. Appellant s version of events at trial was that his girlfriend had been with him and that, unexpectedly, his girlfriend reached for Kien s money while he was trying to take the SIM card out of the phone. 4 RR 50-51. He denied having a gun and claimed that he had not robbed Kien at all that the money just flew everywhere when he tried to pull his girlfriend s arm back out of Kien s car window and that they had taken off running. 4 RR 52-57. But during cross, Appellant admitted the element of fear: 4
4 RR 85. Q: You understand and agree, don t you, that you scared Kien? You realize that, don t you? A: Now, yes. Q: And you accept that, right? A: Yeah. Appellant s mother also testified that Appellant had never had a gun and that if there had been a gun in her house, she would have known about it. 4 RR 12, 13. On cross-examination, however, the prosecutor got her to admit she had lied to the detective before Appellant s arrest so that her son could be with her for Thanksgiving. 4 RR 24-25. The jury was instructed to first consider whether Appellant was guilty of aggravated robbery either as a principal or as a party to his girlfriend s conduct. CR 50-51. They were instructed to consider next the lesser-included offenses of robbery and theft from a person. CR 50-53. The jury ultimately returned a guilty verdict on robbery. CR 57. 5
Summary of the State s Arguments The evidence is sufficient to sustain the jury s guilty verdict for robbery. Although the jury rejected the deadly weapon element when they acquitted Appellant of aggravated robbery, the evidence was nonetheless sufficient for them to believe that Appellant threatened or placed the victim in fear of imminent bodily injury. Appellant and his accomplice chose the location where they lured the victim it was dark and unfamiliar to him, and they outnumbered him. Furthermore, Appellant himself admitted that he had scared the victim and that he had committed robbery. 6
Argument & Authorities Issue (Sufficiency of the evidence) The evidence is sufficient to show Appellant placed the victim in fear of imminent bodily injury. Appellant and his accomplice chose the location where they lured the victim it was dark and unfamiliar to him, and they outnumbered him. Furthermore, Appellant himself admitted that he had scared the victim and that he had committed robbery. I. Standard of review In reviewing the sufficiency of the evidence, an appellate court views the evidence in the light most favorable to the prosecution and determines whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). II. The evidence was sufficient to prove robbery A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex Pen. Code 29.02(a). Here, Appellant argues that there was insufficient evidence that he placed the victim in fear of imminent bodily injury since the victim testified about a gun, and the jury rejected the deadly-weapon element when they found Appellant guilty only of the lesser offense of robbery. See App. Brief at 3, 13, 27. But just because the jury rejected the allega- 7
tion of a deadly weapon does not mean that they rejected the whole of the victim s testimony. As the fact finder, the jury was entitled to judge the credibility of witnesses and could choose to believe only some of their testimony. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). There is no requirement that a single witness provide a cohesive theory of the lesser offense in order to justify conviction for the lesser. Here, the collective testimony from various sources supported Appellant s conviction for robbery. First, the circumstances of the offense even without testimony about the gun could have convinced the jury that Appellant s conduct and complicity in his girlfriend s conduct placed Kien in fear of bodily injury. Appellant lured Kien to the end of the street. It was dark. 3 RR 26. Kien, who lived in Dallas, was unfamiliar with the area. 3 RR 22-23, 26. He was outnumbered. 3 RR 27. Appellant s girlfriend reached her hand inside Kien s car to grab the money, demonstrating that she was willing to use some force to get what she wanted. 3 RR 30. These circumstances of Appellant s and his girlfriend s creation could have easily accounted for Kien s fear for his physical safety. Second, a number of witnesses testified that Kien actually was in fear. Kien Nguyen, his sister, and the responding officer all testified that Kien was shook up or upset after the incident. 4 RR 69 (Kien); 4 RR 75 (Hoai); 4 RR 86, 98 (Officer Waite). And importantly, Appellant connected Kien s fears to his own conduct: he admitted at trial that he knew he had scared Kien. 4 RR 85. This testimony made the evidence legally sufficient to show Appellant 8
placed Kien in fear of injury even if the jury disbelieved that a gun was involved. Furthermore, it was rational for the jury to reject the deadly weapon allegation and still believe other parts of Kien s testimony. The jury may have been persuaded by the defense s argument that the State had not proven the gun beyond a reasonable doubt. In closing, defense counsel argued: Now that brings you to the real problem with [Kien s] testimony.... which is[:] it was so dark, so black that he couldn t see [Appellant s] face a foot from him yet in that blackness he saw a black gun.... His story becomes inconsistent and it is certainly inconsistent about the most important point, a black gun, a gun that he can t give you a single detail about either other than it s black.... But he couldn t see [Appellant s] face from a foot away. How do you explain that unless it s not true. It s not true. 4 RR 117-18. Even the prosecutor admitted in final argument, There s only one real issue here folks, the firearm. That s the only issue in this case because the defendant left with the phone and the money. 4 RR 129. Appellant admitted that he had told the detective that he took the phone and the money. 4 RR 88. So while the jury may have thought Appellant probably had a gun, they may have harbored some doubt about it, and so for this reason they may have acquitted Appellant of aggravated robbery. But the jury was still entitled to believe Appellant s actions (or his actions in assisting his girlfriend) nonetheless caused Kien to fear imminent bodily injury. Appellant s interview with Plano police would have convinced them that there was more to Appellant s conduct than his simply taking 9
Kien s money from him without force or threat of force. Appellant as much as admitted he committed robbery with the exchange: [Appellant:] I didn t rob anyone. [Officer:] Sure you did. [Appellant:] Ok, that one. SX 4 at 1:07:08. If the jury thought that Kien might have been mistaken about the gun, there was still plenty of evidence that he was reacting in fear caused by Appellant s and his girlfriend s conduct from the location they selected, to the fact that there were two of them, and to their demonstrated use of physical force. Alternatively, the jury may have had a different theory in mind altogether when they convicted Appellant of robbery a robbery that occurred after Appellant had pulled a gun on Kien. They may have believed Appellant s testimony, in part, that he was surprised by his girlfriend s actions in taking Kien s $80 in the first place. 4 RR 50-51. They may also have believed defense counsel s suggestion during Kien s cross-examination that Appellant then used the gun solely to protect his girlfriend. 3 RR 55, 57-59. But they could have convicted Appellant for his conduct thereafter. According to Kien, Appellant asked for the remainder of the money in his wallet after the woman took the first $80. 3 RR 31-32, 65. Kien had testified that after he released his hold on the $80 and the woman took that money, Appellant was no longer holding a gun to his head. 3 RR 31, lines 17-22. The jury was entitled to find that Appellant was no longer using the gun (and thus there was no aggravated robbery) but his conduct in asking for the rest of Kien s money nonetheless constituted robbery. Under these facts, it is easy to conclude that Appellant had 10
placed Kien in fear of imminent bodily injury or death since Appellant had already threatened deadly force against him. Either way, the evidence is legally sufficient to convict Appellant of robbery, and Appellant s sole issue should be overruled. 11
Prayer Appellant s trial was without prejudicial error. The State prays that this Court will affirm Appellant s conviction and sentence. Respectfully submitted, Greg Willis Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division /s/ Emily Johnson-Liu Emily Johnson-Liu Asst. Criminal District Attorney 2100 Bloomdale Rd., Suite 20004 McKinney, TX 75071 State Bar No. 24032600 (972) 548-4331 FAX (214) 491-4860 Certificate of Service The State has sent a true copy of its brief by first-class mail to counsel for Appellant, Mark Heidenheimer, 2208 Wisteria Way, McKinney, TX 75071, on this, the 9th day of March 2011. /s/ Emily Johnson-Liu Asst. Criminal District Attorney 12