## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00057

- CR

CHARLES WADE BRIGGS , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR

- 20

- 27898

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
On the night of July 21, 2017, at least three men forced their way into the home of Gina and Johnnie Jones, and while one of the men subdued Gi n a, the other men subdued Johnnie and shot him at close range in the back of his head. As a result, a Fannin County jury convicted Charles Wade Briggs of attempted 1 murder, 2 burglary of a habitation with intent to commit aggravated assault, 3 and engaging i n organized criminal activity. 4 In this appeal, 5 Briggs challenges his conviction for burglary of a habitation with intent to commit aggravated assault

. He contends (1) that there was insufficient evidence to support the jury’s verdict that he
committed burglary of a habitation , ( 2 ) that the trial court erred when it failed to give an accomplice witness instruction, ( 3 ) that the evidence does not corroborate the testimony of the accomplice witness, ( 4 ) that there wa s insufficient evidence to support the j ury’s de adly we apon finding , and (5) that he did not receive notice of the State ’ s intent to seek a deadly weapon finding . We will affirm the trial court’s judgment of conviction. Regarding Briggs’s second, third, and fourth issues, Briggs raise d i dent i cal issu es and made virtually identic al arguments in the appeal of his attempted murder conviction . Because

1 See T EX
. P ENAL C ODE A NN
. § 15.01.

2 See T EX
. P ENAL C ODE A NN
. § 19.02(b)(1). Brig gs was sentenced to twenty y e ar s ’ imprisonment for attempted murder.

3 See T EX
. P ENAL C ODE A NN
. § 30.0 2(a)(1), (d)(2). Briggs was sentenced to te n years’ impris onment for burgl ary of a ha bitati on with intent to commit aggravated assa ult.

4 See T EX
. P E NAL C ODE A NN
. § 71.02(a) (Sup p. )

. B riggs was sentenced to forty

- five years’ imprisonment for engaging in organi zed criminal activity.

5 In his ap peal in our cau se number 06

- 22

- 000 5 6

- CR, B riggs ap peals his conviction for attempted murder , and in his appe al in our cause number 06

- 22

- 00 0 5 8

- C R, Briggs appeals his conviction for eng aging in organized criminal activity

.3

these issues are identical to th ose addressed in our opinion dated this da te in Briggs v. State ,

cause nu mber 06

- 22

- 00056

- CR, we overrule thes e is s ues for the reasons stated in that opinion. Further, because we ha ve fully set forth the evidence presented at tri al in our opinion in c ause number 06

- 22

- 0005 8

- CR , we will not repea t it here.
I. Sufficient Evidence Support ed the Jury’s Verdict
In his fi rst i ssue, Br iggs contends that there was insufficient evidence to support the jury’s verdict that he was guilty of burglary of a habitation with intent to commit aggravated assault. Briggs ar gues that there was no e vidence that he entered Johnnie’s house , th a t he kne w or anticipated that a burglary and aggravated assault would be committed, that he solicited or aided other s to commit the offense, or that he conspired with other s to do so. A. Standard of Review “In evaluating legal sufficiency, we review al l th e evidenc e in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt.” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkan a 20 1 9 , pet. r e f’d) (citing Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)). “Our rigorous legal sufficiency review focuses on the quality of the evidence presented.” Id

. (citing Brooks , 323 S.W.3 d at 917

– 18 (Cochran, J., concurring)). “We exam i ne legal s ufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to
draw reasona ble inferences from basic facts to ultimate f acts

. ’ ” Id

. ( q uoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).4

“Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge .” Id

. at 298 (quoting Malik v. State , 953 S.W.2 d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theo r ies of li a bility, and adequately describes the particular offense for which the defendant was tried.’” Id

. (quoting Malik , 953 S.W.2d at 240). In our review, we consider “ events occurring before, during and aft er the commission of the offense and m ay re l y on acti o ns of the defendant which show an understanding and common design to do the prohibited act. ” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007 ) (quoting Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))

. It is not requir ed th a t each fa c t “ point directly and independen tly to the guilt of the appel lant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. ” Id

. “Circumstantial evidence and direct evidence are equ ally pr o bativ e in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone.” Paroline v. State , 532 S.W.3d 491, 498 (Tex. App.

— Texarkana 2017, no pet. ) (citing Ramsey v. State , 473 S.W.3d 805, 809 (Tex. Crim. Ap p. 2015 ) ; Hoope r , 214 S.W.3d at 13 (citing Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))) . “Further, ‘we must consider all of the evidenc e admitted at trial, even if that evidence was improperly admitted.’” Williamson , 589 S.W.3d at 297

– 98 (quotin g Fowler v . State , 517 S.W.3d 167, 176 (Tex. App.

— Texarkana 2017), rev ’ d in part by 544 S.W.3d 844 (Tex. Crim. App. 2018)).5

The jury, as “the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] ‘believe all of [the] w it n esses ’ testimony, portions of it, or none of it.’”
Id

. at 29 7 (second a lteration in original) (quoting Thomas v. State , 444 S.W.3d 4, 10 (Tex. Crim.
A pp. 2014)). “We give ‘almost complete deference to a jury ’ s decision when that decisio n is ba s ed upon a n evaluation of credibility.’” Id

. (quoting Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).
B. Analysis Briggs was charged with burglary of a habitation with intent to commit aggravated assault

. Because the evidence supported the the o ry that B r iggs might be liable as a party, the court’s charge included instructions that allowed the jury to convict Briggs either as a primary

actor or as a party. 6 Under the statute and the indictment, i n order to convict Briggs , as a primary

ac tor, of burglary of a habitation wit h i ntent to commit aggravated assault , the State had to show, beyond a reasonable doubt, that Briggs (1) entered a habitation (2) without the effective consent

o f t h e o w n e r t h e r e o f , Johnnie , 7 (3) with the intent to commit aggra v ated ass au l t. See T EX
. P ENAL C ODE A NN
. § 30.02 (a) , (d) ; Morrow v. State , 486 S.W.3d 139 , 164 (Tex. App.

— Texarkana 2016 , pet. ref’d ). A person commits an “ aggravated assault if the person commits an assault and (1) cau ses serious bodily injury to another ; or (2) us e s or exhibits a deadly weapon during the commission of the assault .” McDonald v. State , No. 06

- 21

- 00059

- CR , 2022 WL 23822 , at *2,

n. 4 (Tex. App.

— Texarkana Jan. 4, 2022, no pet.) (mem. op., not designated for publication)

6 See Tate v. State , 811 S.W.2d 607 , 607 n. 3 (Tex. Crim. A pp. 1991 ) ( “ [I] f th e evid en ce supports a charge on the law of parties, the court may charge on the law of parties ev e n th ough there is no such allegation in the indictment

. ” ).

7 Briggs does not con test that Johnnie’s house was a habi tation or that Johnnie was the own e r of th e habi ta tion, as those terms are defined under the Texas Penal Cod e. See T EX
. P EN AL C ODE A NN
. §§ 1 .07(35)(A), 30.01(1).6

(citing T EX
. P ENAL C O D E A NN
. § 2 2

. 0 2 (a) (Supp.)). “ A person commits an [ assault if he ] intentionally, knowingly, or recklessly cause s bodily injury to another

. ” T EX
. P ENAL C ODE A NN
. § 22.01(a)(1) (Supp.)

. The State tried the case, and the j ury was charged , on the alternativ e t heory th at Brigg s was liable as a party. Under th at theory, “[a] person is criminally respo nsible as a party to an offense if the offense is commit ted by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” T E X
. P ENAL C OD E A NN
. § 7.01. As applicable to this case, a person is criminally responsible for an offense committed by another person in two ways. Fi rst, the person is responsible for the conduct of another person i f, “ acting with intent to promote or

as s i s t the co mm i ssion o f the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense .” T EX
. P ENAL C OD E A NN
. § 7.02(a)(2). Second, the person is responsible for the co nduct of another person if , in the attem p t to carry o u t a c on spiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony ac tually committed, though having no intent to commit it, if the off ense was committed in furtherance of th e u nlawful pu r pose an d was one that should have been anticipated as a result of the carrying out of the conspiracy.
T EX
. P ENAL C ODE A NN
. § 7.02(b). Under the first of these ways , § 7.02(a)(2) , “ [t] h e w o r d s ‘ acting with intent to promote or assist the c omm i ssion of the offense ’ clearly mean, at a minim u m , that a d e fen dant must act intentionally with respect to the result elements of a result

- oriented offense. ” Nav a v. State , 415 S.W.3d 289 , 298

– 99 ( Tex. Crim. App. 2013)7

The first variant of a ggrav ated a ss a ult

— by causing serious bodily injury

— is a r e s u lt

orien te d of

fens e. Landrian v. State , 268 S. W .3d 532, 540 (Tex. Crim. App. 2008). Consequently , for the offense of burglary of a habitation with the intent to commit aggravate d assaul t by causing bodily in j ury, the intent to promote or assist inclu de s n ot only th e co mmis sion of the burglar y of a habitation, but also the result of the agg ravated assault , i.e ., the serious bodily injury of Johnnie

. See Nava , 415 S.W.3d at 300.

“ The seco nd variant of aggravat e d ass ault

— assault while using a deadly wea po n

— i s a

‘ nat ur e of the conduct offense. ’ ” Hall v. State , 145 S.W.3d 754, 758 (Tex. App.

— Texarkana 2004, no pet.) (citing Guzman v. State , 988 S.W.2d 884, 887 (Tex. App.

— Corpus Christi

– Edinb urg 1999, no pet.) )

. “ This is because the Texas Legislature has pr o s c ribed th e m ethod i n which the actor commits the assault, regardless of the outcome of tha t conduct. ” Id. “ A person acts intentionally, or with intent, w ith respect to the nature of his conduct

. . . when it is hi s conscious objective or desire to en ga g e in the c o n d uct. ” T EX
. P ENAL C ODE A NN
. § 6.03(a). As a result, the offense of burglary of a ha bitation with the intent to commit aggravated assault by

us ing or exhibit ing a deadly w eapon during the commis sio n of the assault requires that the intent to promote o r a ssist in c l u de no t only the intent to commit the burglary of a habitation, but also the intent that a deadly weapon be used or exhibited during the commis sion of the assault.
To prove party liability, “[t ] he necessary specific intent can be proven throug h

c i r cumstant i a l evide n ce, and we may rely on events that took place before, during, or after the commis sion of the offense. ” Cary v. State , 507 S.W.3d 750 , 758 ( Tex. Crim. App. 2016) (citing Wygal v. State , 555 S.W.2d 465 (Tex. Crim. App. 1977) )

. “ The j ur y m ay infer t h e requ i site8

mental state from (1) the acts, words, and conduct of the defendant, (2) the extent of the injuries to the victim, (3) the metho d used to produce the i njuries, and (4) the re lative size and s trength of the parties. ” Rhymes v. S ta t e , 536 S.W

. 3 d 8 5, 95 (Tex. App.

— Texarkana 2017, pet. ref’d ) (citing Patrick v. Sta te , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) ). Further, “the jury ma y

. . . infer intent fr om any facts in evidenc e which it determ ines prove [] the existence of [an] int en t t o kill, s u c h as th e use of a deadly weapon.” Id

. (quoting Brown v. State , 122 S.W .3d 794, 800 (Tex. Crim. App. 2003) ). Indeed, when a deadly weapon i s used in a deadly man n er , it is not only rea sonable to infer a n intent to kill, the inference of in te n t to kill is well

- nigh conclusive. Adanandus v. State , 866 S.W.2d 210, 215 (Tex. Crim. App. 1993)

.

“ In determining whether an a p p el lant is a party to a n offense, we may consid er ‘ events before, dur ing, and after the commission of the offense. ’ ” Rhyme s , 5 3 6 S.W.3d at 94 (quoting
Gross v. State , 380 S.W.3d 181, 186 (Tex. Crim. Ap p. 2012) ). We may also c onsider circumstantial e vid e n c e to de termine party s tatus. Gr oss v. State , 380 S.W.3d 181, 186 (T ex. Crim. App. 2012) (citing Ransom v. State , 920 S.W. 2d 2 8 8, 302 (Tex. Crim. App. 1996 ) ).

“ Without evidence of intentional particip ation by the accused, an accused may not be convi cte d

u nder th e law of partie s. ” Cary v. State , 507 S.W.3d 750 , 758 ( Tex. Crim. App. 2016) (citing Acy v. State , 618 S.W.2d 362 (T e x . Crim. App. [Panel Op.] 1981) )

. For that reason, “ mere presence of a pers on at the scene of a crime, or even f light from t he s c e ne, wit hout more, is
i nsufficien t to support a conviction as a party to the offense. ” Gross , 380 S.W.3d at 186

. In this c as e , the evidence, construed in the light most favorable to the jury’s verdict,
showed that the night before the attack on Johnnie , B r iggs ca lled Johnni e and threatened t o send9

som eone over to take care of him because he believed Johnnie was selling dr ugs to hi s s o n, Josh

. The next day, Briggs called his brother, Sha ne, whom Briggs knew to be in a violent biker gang, and Shane met him at h i s house within hours of the call , along wi th several fellow gang members. After Shane and his friends arrived, th ey conver se d with Briggs and Josh in the driveway, where they pr epa red their weapons, i ncluding several firearms. The group then proceeded t o Johnni e’s hou se a nd used Josh, who was fa miliar to Gina 8 and Jo hnnie, to gain
entrance to the house. After Josh gained en tr y , Shane, Briggs, and other members of the group inc apa citated Gina and ru shed to attack Johnnie at the back of the house. Ac co r ding to Johnnie , three men attac ked him, one of whom he identified as Josh’s dad, who told him , “ I called you and I told you th a t I was going to send som eb ody to take care o f you , ” immediatel y before Johnnie was shot point

- blank in the back of his head. Afterward, Brigg s emph asized to his family t hat Shane was not kidd ing when he threatened to kill them if they disclo sed his i nv o l vement, and Briggs immedi ately formulated an alibi that the family was instructed to use. Over the next three years, when t he in c ident c ame up in conversation, Briggs bra g ged that they got awa y with it. A lso, when Sapphire 9 threatened to lea ve Josh, Briggs r emind ed her that she kne w to o much and told her that t h ey knew how to kill a person and that the same could happen to her. The j ury , a s the trier of fact, wa s “the s ole judge of the credi bility of the witnesses and the weight to be gi ven their testim on y , ” Williamson , 589 S.W.3d at 297 , and could resolve any

8 Gina is Johnnie’s w ife.

9 Sapphire is Jo sh’s ex

- wife.10

co nflicts in witnesses’ testimony

. Consequently , they could have found Sap phi r e ’ s and Logan’s 10 testimony regard ing what Josh told the m happened at Johnnie’s house credible

. That
t estimony establi sh e d that Briggs entered Johnnie’s house without Johnnie ’ s c onsent. Further, b ased on the evidence of Brigg s ’ s threats, his soliciting the as sis t ance of a violent gang, h is active participatio n in the events leading up to, during, and after the shooting, and the u s e of a deadly weapon fired point

- blank into the back of Joh nnie’s head, the jury could have reasonably infer red that Briggs h ad the int ent t o a s sist or promote t he burglary of Johnnie ’s house with the intent to commit aggrava ted assault and that he had th e intent t o either cause serious bodily injury t o Johnnie or that a deadly w eap on be used or exhibited in assaulting Johnnie

. This sam e evi den c e showe d that Brig gs was an active parti cipant in the planning, preparation, and

e xecution of the burglary of Jo h n nie ’s ho use . For those reasons, we find that sufficient evidenc e supported the jury’s finding that Briggs was a party to t he burgla ry of Jo h nnie’s habitation with the intent to com mit aggravated assault

. 11 We overrule this issue.
II. Briggs Had Notice of t h e State’s Intent to Seek a Deadly Weapon Findi ng Briggs also compl ains that he was not given notice that the State would seek a deadl y
weap on f inding. Although he acknowledges that a n indictment’s allegation s may be sufficie nt to provide such notice, h e a r gues tha t the indictment in this case was no t sufficient to give him adequate notice.

10 Logan is Josh’s sister.

11 Because w e find that the re was sufficient evi den c e t o supp ort th e jury’s verdict under the promote

- or - assist theory o f party liability, we do not ad d r ess the evidence support ing the conspiracy theory of party liability.11

“ When the State seeks a deadly

- weapon finding agains t a defenda nt, it must provide notice of tha t fact to the defendant before trial. ” Vi ckers v. State , 467 S.W.3d 9 0 , 9 4 ( Tex. App.

— Texarkana 2015 , pet. ref’d ) (cit ing Ex parte Beck , 7 69 S.W.2d 525, 527 (Tex. Crim. App. 1989) ). “ However, unde r certai n circ ums t ances, a defendant may receive adequate notice of a deadly

- weapon issue based simp ly on the offense charged. ” I d

. ( citing Blount v. State , 257 S.W.3d 712, 713

– 14 (Tex. Crim. App. 2008) ).
In Blount v. State , the Texas Court of Criminal Ap peals he ld tha t a n indict ment that

a lleged that the defend ant comm itted burglary of a habitation in which he committed or attemp te d to commit aggrava ted assault was adequ ate not ice that a deadly weapon find ing would be sought. The c ourt e xplained:
A ggrava ted ass ault may be comm itt e d in on ly two ways: (1) by “ca us [ ing] serious bodily injury” or (2) by “ us[ing] or exhibit[ing] a de ad l y weapon during th e commission of the assault .” Each of these involves the use of a deadly weapon. The first way necessaril y impli es the use of a dea d ly weap on , which is “anything t hat in the manner of its use or intended u se is capable of causing dea th o r serious bodily injury.” The second way sp ecif ies the use of a deadly we apon. Therefore an allegation that a defendant co mmitted aggravated assa ult gives h im notice that the deadl y nature of the weapon alleged in the indi ctment would be an issue at tr i a l and that the St ate may seek an affirmative fin ding on the use of the wea pon. Blount v. State , 257 S.W.3d 712, 7 14 (Tex. C rim. Ap p. 2008) ( citati ons omitted )

. In Vickers , we appl ied the reasoning in Blount when “ [ t ] he in dictment charge [ d the defend an t ] with bu rglary of a habitation with intent t o commit aggravated assault and aggravated kid napping. Vickers , 467 S.W.3d at 9 6. We reasoned that ev en i f aggra va ted kidnapping c an be committed without using a deadly weapon , b ecause aggravated assault “ c an n o t be committed12

without either using a deadly weapon or causing serious b odily injury, then Blount applies, and Vicker s was on notice that the State wou l d seek a deadly

- weapon finding in this case. ” Id

. In this case, the indi ctment charged Briggs w ith b ur g l ary of a habitation with intent to commit ag gravated assault

. For that reason, Blount and Vickers apply , and we fin d Briggs had

su fficient notice tha t the St a te would seek a deadly weapon finding in th is case. 12 We overrule this issue.
III. Disposition
For t h e reason s stated , we affirm the trial cour t’s judgment.

Jeff Rambin J ustice Date Submitted: January 27, 2023 Dat e Decided: April 21 , 2023 Do Not Publish

12 Briggs also h ad notice that a deadly weapon finding would be sought because , in a s e pa r ate in dictme nt arising out of the same criminal episode , he was c harged with attempted murder by s hooting Johnnie in the head with a firearm

. See Brooks v. State , 847 S.W.2d 247 , 24 9 (Tex. Crim. App. 1993) (per c uriam) (orig. proceeding ) ( holding t ha t , w h en def endant knew of the charges alleged against hi m, knew that t hey arose out of the same cri mi n a l episode , and knew that the State alleged use of a deadly weapon during the course of th e criminal episode in a se parate indictm ent, the defendant had actu a l n otic e that the State would seek a deadly weapon finding).