2016-02-19 1

STATEMENT OF THE CASE

Appellant brings this appeal from his murder conviction. CR:9, 80-83 He
here contests the evidence’s sufficiency to establish he reasonably should have
foreseen a murder could result from the aggravated robbery he was participating in.
Further, he sees reversible error in the trial court’s jury instructions on party
liability; specifically, he faults the court for not limiting statutorily-described
modes of conduct subjecting him to party liability to those modes the evidence
showed were actually applicable to his participation in the crime. From May 18-22,
2015, appellant’s trial took place with a jury selected and sworn, the indictment
read, and appellant’s plea of “not guilty” entered to the offense. RR2:200-205
After evidence was presented to the jury, appellant was found “guilty” as alleged
in the indictment. CR:71, 80; RR5:57 The punishment phase took place and
appellant was assessed punishment by the jury at 45 years in TDCJ-ID, with a
$10,000 fine. CR:52, 71, 80; RR6:29 Appellant filed a notice of appeal and
motions for new trial. CR:75-76, 84-85 The trial court certified appellant’s right of
appeal. CR:45, 77

STATEMENT OF FACTS

Evidenced at trial was that appellant participated in an aggravated robbery
of Edward Pendleton (“the victim”), from which the victim’s death resulted.
Appellant’s evidentiary challenge is directed to the State’s showing he should
reasonably have foreseen the victim’s death occurring in the aggravated robbery.

About 6:00 a.m. May 1, 2013, Danielle Luce (“Danielle”), in bed with her
husband, the victim, was awakened by a loud noise in the living room of their
house. RR2:217, 222, 239 Danielle first thought the television had fallen. RR2:222
Responding to the noise, the victim jumped over Danielle in the bed, and hurried
into the living room. Id. An instant later, Danielle heard two gunshots; she then
proceeded to her bedroom door. Id. There, Danielle saw two males in the living
room, one standing over the prone victim; as Danielle watched, that man shot the
victim in the back. RR2:223

Danielle retreated into the bedroom and slammed the door. RR2:224 The
two men pushed their way into the bedroom, and demanded to know where the
money was. Id. Danielle pointed to a purse in a baby bassinet in the room; one of
the men walked over the bed, and grabbed the purse. Id. The man with the gun
wore dark clothes, Danielle testified. RR2:233 The man who grabbed her purse
wore lighter clothes, perhaps white in color. Id. Both men were African-American,
Danielle noted, and both were taller than her 5’8’’ height. Id. She did not have a
good view of their faces. RR2:225 The man with the gun placed its barrel against
Danielle’s neck, demanding money; Danielle pointed to the victim’s pants. Id.
After rifling the pants, the men left the house. Id.

Danielle went to the victim, who was still alive, and tried to help him; the
victim repeated the name, “Morris, Morris.” Id. While attending to the victim,
Danielle telephoned 911. RR2:228 The victim sold drugs, Danielle acknowledged;
his street nickname was “ATX.” RR2:227 She and the victim fought over his drug
involvement, Danielle related, and he transacted his business only at a house other
than their residence. RR2:228 Paramedics took the victim to Amarillo’s Northwest
Texas Hospital. RR3:19 He died there at 8:37 a.m. Id.

Amarillo police officer Koval interviewed Danielle at the scene, in his patrol
car and because of the shock of what had transpired, Danielle had difficulty
remembering details. RR2:249 Koval then transported Danielle to the Special Crimes Unit office at the police station. RR2:250 There, another officer, who had
no knowledge of the victim or any suspect, showed Danielle a photographic lineup.
RR2:251 Danielle was unable to make any identification. RR2:252-53

Dr. Thomas Parsons performed the victim’s autopsy.1 RR3:39 The cause of
the victim’s death, Dr. Parsons testified, was three gunshot wounds. RR3:42 The
bullet causing one gunshot wound entered the victim’s right upper chest, went
through the second rib, perforated the upper and lower lobes of the right lung, and
exited the back through the seventh rib; that wound “very likely” have itself been
fatal, the doctor opined. RR3:43, 46 A second bullet entered the deltoid area of the
right arm, went through the shoulder joint, and exited the right upper chest, Dr.
Parsons related; that wound alone would not necessarily have been fatal. RR2:47-
50 The third bullet entered the left buttock, went through the pelvic organs,
perforated the right side of the liver, and terminated in the right side of the chest;
Dr. Parsons recovered that bullet in the autopsy. RR3:51 That wound, said Dr.
Parsons, very like would have itself been fatal. RR3:57

Early the afternoon of May 1, a police officer brought Damarrus “Morris”
Ary to Special Crimes Unit sergeant Jason Riddlespurger to be interviewed; Morris
became a person of interest in the case after his brother called the police. RR3:177-
78, 187-88 In that interview, Riddlespurger learned the names of possible suspects
in this case: Andrea Brown (“Andrea”), appellant, and K, and learned of the
apartment where those suspects might be located. RR3:178 Police SWAT team
members were sent to surveille the apartment, and a search warrant was obtained.
RR3:178-79

Amarillo police officer Toby Hudson, assigned to the SWAT unit, at about 4
p.m. May 1 began surveillance the apartment where the suspects were believed to
be. RR3:197, 199 In that connection, he was instructed to also observe a white
Chrysler 300 parked at the apartment complex, thought to be connected with the
crime. RR3:199 At about 7:50 p.m., Hudson testified, three persons left the
apartment, entered the automobile being surveilled, and departed the scene.
RR3:199-200 Hudson continued to watch the apartment until the search warrant
arrived. RR3:200

Away from the apartment complex, the Chrysler’s driver was stopped by
police officers. RR3:234 Amarillo police crime scene investigator Edward Carroll
drove the vehicle to the police department warehouse to secure it. RR3:235 He
then drove to the apartment to assist in executing the search warrant. Id. At the
apartment, officers saw Danielle’s purse in a high chair, Danielle’s driver’s license,
and the social security cards of Danielle and her two young sons. RR3:238-39 In a
bedroom, the searching officers found a box of .45 caliber ammunition; the box
was packaged to contain 50 bullets, but ten were missing. RR3:241 The head stamp
on the casings in the box was of the brand “GFL;” spent casings found at the
murder scene were also marked with the GFL brand. Id.

The following day, Carroll processed the white Chrysler Andrea had been
driving when stopped by police. RR3:246 A USB key was found in the back seat
of the vehicle which contained Danielle’s college literary papers. RR3:249, 251
Carroll lifted latent prints from the car’s exterior. RR3:252-56 A gun was found
hidden under the back seat on the left side of the car. RR3:257 Though the gun’s
chamber was empty, its magazine had eight bullets. RR3:261 The cartridges in the
magazine consisted of eight GFL brand and one PMC brand; the cartridges found
at the murder scene were of both those brands. RR3:262

Significant in the State’s case was the testimony of the accomplice witness
Andrea. On May 1, 2013, Andrea resided with her friend, Kortnee “Mariah”
Fennel at an Amarillo apartment. RR3:142 Also living at the apartment were
Marquis Wilkins – Mariah’s boyfriend and the father of her baby- , and Marquis’
friend Zyrus Williams. RR3:143 Additionally, appellant, and appellant’s friend
“Morris2” stayed at the apartment sometimes. Id. Shortly before May 1, “a dude
named K” came to stay at the apartment. RR3:144 Andrea saw K with a gun the
day he arrived at the apartment. RR3:157 She saw K load bullets into a clip, and
the clip into the gun, using his shirt to touch the bullets. RR3:157-58

Andrea was awakened about 7 a.m. May 1 when appellant and Morris asked
her for a ride. RR3:146 According to what appellant said to Andrea, the purpose of
the trip was to “hit a lick,” which Andrea understood to mean a drug transaction.
RR3:164 In her white 2001 Chrysler 300 she drove appellant, who sat in the front
passenger seat, K, who sat behind her on the back seat, and Morris, who sat on the
passenger side back seat, as appellant directed. RR3:147-48 Following appellant’s
directions, she drove to the San Jacinto area of Amarillo, and parked on a street a
block away from the destination residence. RR3:149

En route, appellant and Morris told her they were looking for “ATX,” who
sold drugs. Id. The men discussed who was going to open the door of the
residence; at that point, Andrea knew some illegal act was going to occur. RR3:150
After she had parked, the men exited the car and walked away, and she remained
seated behind the steering wheel. Id. Within five minutes, the men ran back to the
car; Morris was holding a black purse, and appellant held a gun. RR3:151 Inside
the car, the men yelled at each other: K declared, “I clapped that nigger;” Morris
expressed dismay that K had shot the victim; and, appellant exclaimed that the
shooting was not supposed to have happened, that they had not planned the
encounter that way. RR3:152 Appellant directed Andrea to drive the back streets
on the return drive to the apartment. RR3:153

Back at the apartment, the men, K with the gun in his waistband, went into
Marquis’ and Mariah’s bedroom, and appellant reported what happened. RR3:154
Appellant told Marquis that K kicked the door in, which caused appellant to fall
into the house through the entrance. RR3:155 The victim, appellant told Marquis,
came running around the corner into the living room, and K shot the victim;
appellant and K first thought the victim had a gun. Id. K then walked up to the
victim, appellant continued, and shot the victim again. Id. A female was present,
yelling and screaming, appellant related to Marquis; he, appellant, told the female
to “shut up.” Id. K said in the discussion with Marquis that he, K, pointed a gun at
a female, and she pointed to her purse, the victim’s pants, and a set of keys.
RR3:156 Appellant said he grabbed the purse, and the men ran out of the house. Id.
Later on May 1, Morris left the apartment; K initially did not want Morris to
leave, Andrea noted. RR3:157 Appellant admonished Morris, before Morris left,
not to discuss what had happened. RR3:156

The evening of May 1, appellant asked Andrea to drive him and K to
appellant’s grandmother’s house, first making a stop to “pick up some weed.”
RR3:158 She drove, appellant sat in the car’s front passenger seat, and K sat
behind her on the back seat. Id. Appellant and K were wearing the same clothes
they had been wearing early in the morning, Andrea noted. Id. As appellant had
asked, Andrea drove to the “weed house,” but no one was there. Id. Continuing the
drive to appellant’s grandmother’s house, Andrea was stopped by police.
RR3:158-59 As the stop was being effected, the officer activated the siren on the
patrol car and appellant asked K if K had a “piece” on him; K affirmed that he did.
RR3:159

Police officers took Andrea from the scene of the traffic stop to the Special
Crimes Unit office to interview her. Id. In that first interview, she did not give a
truthful account, Andrea acknowledged; she was afraid the victim’s family would
learn of her involvement, and she did not want to be on K’s bad side. RR3:159-60
Andrea’s mother persuaded here to go to the police station a few days later to give
a truthful statement and Andrea did. RR3:161

On October 18, 2013, Andrea was arrested for aggravated robbery because
of her involvement in this case. RR3:162 Aided by counsel, she struck a plea
bargain with the prosecutors: she pled guilty and was sentenced to five years
imprisonment; that bargained punishment recommendation was conditioned upon
her agreement to testify truthfully in this case. RR3:163, 167-68

Marquis likewise related important testimonial facts about the crime
participants’ actions and statements in the apartment on the day in question.
RR3:201-220 At the time of trial, Marquis was serving a six-year prison sentence
for an aggravated robbery offense unrelated to the instant case. RR3:203
At the end of April or early on May 1, 2013, Marquis recounted, appellant
brought K to the apartment; Marquis knew nothing about K. RR3:205 Marquis had
known appellant for a time, having attended high school with him. RR3:204 The
evening he came, K brought a gun, Marquis noted; appellant handled the gun but
never cocked it. RR3:211-12

On May 1, Marquis arose about 6:30 a.m., planning to care for his daughter
and niece; he learned he was not needed to baby-sit, as his brother-in-law did not
work that day as scheduled. RR3:207 About the time he got up, appellant, K, and
Andrea left the apartment. RR3:208 Thirty to 45 minutes later, appellant came into
his room, looking “scared.” Id. “They had to down a nigger,” appellant told
Marquis. Id. Marquis asked who they killed, but appellant stopped speaking when
K entered the room. RR3:209 K then took control of the conversation. Id. He
kicked open the door to the victim’s residence, K told Marquis, and the victim
came running around the corner inside; K then shot the victim. RR3:210
Right before May 1, Mariah recounted in her testimony, appellant brought K
to the apartment; no one but appellant knew K. RR4:26 K was carrying a gun as he
walked into the apartment; indeed, noted Mariah, K seemed “to always have that
gun with him.” Id.

Early the morning of May 1 Mariah related, appellant asked Marquis
whether he or Mariah had a bandana. RR4:28 Appellant then left the apartment
with Andrea and K, and Mariah went back to sleep. RR4:29 Later in the day, when
she returned to the apartment from work and school, appellant and K were
conversing about what had happened. RR4:30 That evening, appellant and K again
left the apartment; not long thereafter, police officers came to the apartment to
execute a search warrant. RR4:32 The officers took her to the police station to be
interviewed; in her statement to police, she was untruthful, Mariah acknowledged,
because “it didn’t have anything to do with me.” RR4:33

The night of May 1, appellant and K were delivered to the Special Crimes
Unit to be interviewed. RR3:179 In an hour-long interview, appellant gave
Riddlespurger different versions of his involvement in the robbery/murder.
RR3:185 Initially, appellant denied any involvement at all, asserting he had not
been to the victim’s residence in months. RR3:187 Later in the interview, appellant
told Riddlespurger he had been in Andrea’s car near the residence, but remained in
the car when Morris and K walked to the residence; Morris was the shooter,
appellant said. Id. Finally, appellant admitted to Riddlespurger he had walked with
K and Morris to the house; but, appellant explained, when the door was kicked in
by one of the other men he ran back to Andrea’s car, never himself entering the
house. RR3:188-89 Morris, appellant said, brought a purse back to the car.

Two particulars of appellant’s story were later disproven. Appellant told
Riddlespurger that Morris left the apartment on May 1, after the shooting, with the
murder weapon; the firearm shown to be the murder weapon was recovered hidden
elsewhere. RR3:130, 189 And, when appellant was asked if the purse was in the
apartment, appellant replied that “it shouldn’t be;” yet the purse was recovered in
the execution of the search warrant at the apartment. RR3:190

Amarillo police officer Joe Brown, a crime scene investigator with the
Special Crimes Unit, testified to his observations and activities at the residence
where the crime occurred. RR3:64-138 Arriving at the residence about 9 a.m. May
1, Brown noted damage to the interior portion of the front door, around the door
jamb, suggesting the door had been forced open. RR3:72 Officers at the scene
pointed out a shoe impression on the door, and Brown ensured the door was
preserved as evidence; the door and outer screen door were removed and taken to
the Special Crimes Unit laboratory. RR3:72, 76

A .45 caliber cartridge casing was found on the residence’s front porch,
Brown testified. RR3:78, 81 A second casing, also a .45 caliber, Brown said, was
found in the living room in a love seat. RR3:84, 87 A third casing, also a .45
caliber, was found on the bottom shelf of the entertainment center in the living
room. RR3:88 The third casing differed from the other two in that it was a PMC
brand; the other two casings were GFL brand. RR3:87, 90 Two spent bullets,
Brown noted, were found inside the residence. RR3:91 One bullet was found on
the floor of the children’s bedroom and another was found imbedded in the
bathroom wall. RR3:91, 95

Later on May 1, Brown helped Amarillo police officer Carroll process a
vehicle from which appellant and suspects Andrea and K had been detained.
Fingerprints were lifted from the back passenger quarter panel, the back passenger
door handle, and the front passenger door and window exteriors. RR3:131-32

Jimmy Rifenberg, a crime scene investigator with the Special Crimes Unit
and a fingerprint expert, related in his testimony his findings respecting evidentiary
items from the murder scene and the searched apartment. Seeing the faint shoe
impression on the front door of the residence at the murder scene, Rifenberg
removed the door and had it taken to the police laboratory. RR4:93-94 Rifenberg
determined, from comparison with appellant’s known prints, that appellant’s left
and right palm prints and left middle print were on the door. RR4:100 He did not
find the fingerprints of K, Morris, or appellant elsewhere in the residence. RR4:107

Rifenberg also lifted latent fingerprints from the apartment during the
execution of the search warrant. Prints from K’s left palm and left index finger
were lifted from the ammunition box containing 40 rounds. RR4:141
Also examined by Rifenberg were latent prints lifted from the Chrysler
automobile Andrea had been driving when stopped. The prints of all four suspects
appellant, K, Morris, and Andrea – were on the automobile. RR4:148 The
magazine in the Hi-Point .45 caliber pistol recovered from the car contained nine
rounds; eight of those rounds were GFL .45 ACP and the other was a PMC .45
auto round. RR4:155 Rifenberg lifted prints off the gun and magazine; K’s prints
were on the magazine and barrel. RR4:165 At the residence where the murder
occurred, Rifenberg discussed the cartridges found. RR4:159-60

Joseph Mata, a forensic scientist, tested the gun officers seized from
Andrea’s car. Two of the three fired bullets recovered at the murder scene were
fired from that gun, Mata testified; the third recovered bullet did not allow for
identification. RR3:187 The three cartridge casings found at the scene, said Mata,
were fired from the gun. RR4:183

Lyndsey Bynum, another forensic scientist, testified to her comparison of
the shoe impression on the recovered door from the murder scene and the right
shoe appellant wore. RR4:66-68 The tread designs were similar. RR4:67, 71
Russell Elliott, at the time of trial incarcerated at the Potter County
Detention Center, related a statement against interest appellant made to him. While
both were in jail, appellant told him that Morris shot ATX and that he, appellant,
was happy about it. RR4:76 Because, professedly, he was repulsed by appellant’s
participation in a horrific crime witnessed by a child, Elliott wrote a letter to the
47th District Attorney’s Office. Id. Later, as a jail trustee serving the prisoners their
meal trays, Elliott asked appellant who K was; appellant replied that K was the
original trigger man in this case. RR4:77 Appellant on a later date threatened
Elliott, telling Elliott he, appellant, had seen a video of appellant making a written
statement for police. RR4:78

SUMMARY OF THE ARGUMENT

For Issue One, sufficient evidence supports appellant’s guilt and the verdict
was not irrational because any inferences necessary to support the conviction are
reasonable and supported by the record. The State’s theory of the case was based
on party liability and appellant acted as a party in many ways. He brought in a
person, K, known to always have a gun to rob a drug dealer and he directed the
parties where to go for the home invasion. Evidence revealed the gun was loaded
before the robbery and K had it ready as appellant busted open the front door. A
cartridge was ejected on the front porch from the first shot as appellant and K
entered together. Appellant continued inside the home with K as K shot the victim
twice more. Neither appellant nor K attempted to aid the victim in any way. There
was no hesitation as appellant pushed further inside and demanded money from the
victim’s wife and took property. Afterwards, appellant told others “we” had to kill
the victim and “we” let the victim’s wife live. To the police, appellant lied about
the murder and did not assist in the investigation. The murder was committed in
furtherance of the robbery or felony conspiracy, and was an offense that should
have been anticipated as a result of carrying out the conspiracy. In sum, sufficient
evidence supports appellant’s guilt as a party to the murder.
For Issue Two, the jury was charged correctly by the trial court in this case.
Even assuming, arguendo, the charge should have been narrowed regarding modes
of conduct under party liability, the alleged error was harmless.