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

O P I N I O N

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

directing the activities of a criminal street gang1and 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).
2

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.
3

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 
4

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).
5

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,3and 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.”
6

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.
7

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 
8

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 
9

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.
10

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.
11

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 
12

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 
13

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 firearms7and 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 
14

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.
15

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 
16

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.
17

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.
18

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
19

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.”
20

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.”
21

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 
22

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.
23

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.”
24

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.
25

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 
26

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.
27

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.”
28

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.” 
29

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 
30

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 
31

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.
32

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.
33

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.
34

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.
35

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 
36

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.
37

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 
38

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.
39

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 
40

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 
41

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.
42

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.”
43

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.” 
44

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.
45

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).
46

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.
47

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 
48

[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. 
49

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.
50

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, 

2015

April 3, 

2015

April 15, 

2015

April 26, 

2015

May 21, 

2015

Hill

Mitchner

Williams

Hill

Williams

Randall

Criswell

Williams

Randall

Criswell

Mitchner

Williams

Hawkins

Philpot

Randall

Criswell

Duplechin-Holden

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).
51

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 
52

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”).
53

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).
54

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 
55

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] 
56

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 
57

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:
58

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 
59

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).