## IN THE COURT OF CRIMINAL APPEAL S OF TEXAS

No. P D-1802-09
ERIC DESHO N SORRELL S, App ellant

v. THE S TATE O F TEXAS On Discretionary Re view of Case No. 13- 07-00633-CR of the Th irte enth Court of App eals,

Travis County
W O M A C K , J ., delivere d the opinion of the unanimous Court.
A Travis County

jury convicted the appellant, Er ic Deshon Sorr ells, of ag g ravated robber y . On appe al, the Thirtee nth Court of Appea ls found that the e vidence was insuffic ient to 1 support a convic tion of ag g ravated robbe ry , and re formed the judgme nt to reflec t conviction of the lesser -included of

fense of assa

ult by threa t. We gr anted the State’ s petition for discre tionary revie w on three g rounds: (1) whe ther the Court of A ppeals prope rly

revie wed the suf

ficienc y of the evidenc e; (2) w hether the Court of Appe als proper ly applied the law

of par ties; and (3) in the

T h e a p p e a l w a s t r a n s f

e r r e d f r o m t h e T h i r d t o t h e T h i r t e e n t h C o u r t o f A p p e a l s . 1S o r r e l l s - 2

alternative, whether

the Court of Appe als proper ly ref ormed the judg ment. We hold that the Court of Appea ls erre d in its review of the sufficie ncy of the e vidence . We theref ore ne ed not addre ss the State’s sec ond and third g rounds. We will rever se the Court’s de cision and re mand for c onsideration of the appellant’ s remaining claims. I . Ba ckg round The following fac tual backg round is abridg ed fr om the fac ts describe d by the Court of Appea ls. I n the ea

rly morning hours of January 30, 2005, Fr ance s Rey

nolds waited on a c urb outside an Austin nightc lub for her boy friend, N athaniel Rice , to retrieve her c ar f rom a ne arby parking lot. Rey

nolds testified that she leane d ag ainst a Mer cede s SUV parke d on the stree t. The appellant e merg ed fr om the club wea ring a blac k and g ray

swea ter a nd a blac k leather

jacke t. He told Rey nolds to “g et the f*** of

f the c ar” beca

use she wa s damag ing it. With gun in hand, the appellant struc k Rey

nolds across the side of her head, a nd the two beg an scuf

fling . Shortly there afte r, Rice a

rrived. A s Rice appr oache d, the appe llant turned, pulled bac k the slide of the g un, and said, “ [D] o y ou have a problem with me, too? ” Rice punc hed the a ppellant, and the two started f ighting . A man we aring a blue “ flanne l-ty pe” ja cket then r an up to Rice a nd punched him. Ri ce f

ell to the g round and Rey nolds went for he lp. When she returne d, the alter cation had ended. Rice told her that his jewelr y had bee n stolen. Rice testified that a fter r etrieving Rey nolds’s car , he drove to the front of the club and saw thre e men standing near Rey nolds. Rice saw Rey

nolds scuffling with the appellant. As Rice approa ched, the appellant pulled out a gun and “c ocked it at [Rice].” Rice pushed the g un out of the way and swung at the appe llant. The appe llant struck bac k, hitting Rice with the g un. At that moment, a man we aring a fla nnel jacke t punched Rice in the head. Rice was knoc ked to theS o r r e l l s - 3

g round and w as “jumped” by multipl e people . At some point the beatingcea sed and the assailants disperse d. Rice then be came awa re tha t he was no long er w ear ing his lion medallion neckla ce, w hich he va lued at appr ox imately $1,000. When the police ar rived moments later , Rice told them that his j ewe lry had bee n stolen. Kevin F ritz, a friend of Re y nolds and Rice, testified that he acc ompanied Rice to the parking lot to retrieve Re y nolds’s car . As they

drove to the f

ront of the c lub, Fritz saw Rey nolds arg uing w ith the appellant. F ritz followed as Rice appr oache d the appe llant. Upon noticing Rice , the appe llant turned and pointed a g un at Rice. Rice took a

swing at the appe llant, and then another man ca me up behind Rice a

nd hit him i n the hea d. A third man joined the fig ht; he and the sec ond man “jumped” Rice. F ritz t hen sawthe appe llant point the gun a t Rice. Fr itz ran up and pushed the appellant. The men then turne d their attention fr om Rice and be g an fig hting with Fr itz . Someone hit Fritz with a g un; after being dazed and stumbling f or a f ew se conds, F ritz looked up and sa

w the thre e men r

unning into the c lub. At some point during the a lterca tion, Fr itz noticed Rice’ s lion medallion necklac e on the g round. Offic er Char les Riley

testified that he wa s stationed near by when he was dispatche d to the incident. Riley

arr ived on the sce ne within twenty or thirty seconds of

the dispatch a

nd saw
sever al people in f

ront of the c lub; every one wa s being loud and y elling that “someone ha d taken something” and “some one had a g un.” Riley

lear ned that the g unman, a male wea ring a blac k leather jacke t, had g one inside the c lub. Ril ey ran into the a lley

behind the club a

nd saw thre e people wa lking a

way from him down the alley . One of the three , Rache l Harde man, turned a nd looked at Riley . Then she r emoved he r hand f rom her ja cket poc ket and de posited an objec t into the side of a

rec y cling rec eptac le. Afte r the thre e we re de tained, Riley sear ched the rec eptac le andS o r r e l l s - 4

found a g un. Riley

also noticed that the bla ck lea ther jac ket Har deman wa s wea ring was too big for he r. I nside a poc ket of the ja cket, Riley found the lion medallion nec klace . Both of the other detainee s were male. One , who would bec ome appe llant’s co-de fenda nt at trial, wore a blue denim jacke t. The other w as the a ppellant, who wor e a bla ck and ta n swea ter but wa s not wear ing a jac ket. Rey nolds, Rice, and F ritz di d not identify Har deman, but ea ch of the m identified the appellant a s the man who ha d been w ear ing the black leather jac ket. 2 I n addition to the fac ts describe d by the Court of Appe als, we f ind the following three piece s of testimony

to be important as we ll. First, Serg eant Richa rd Shirley testified that he a lso responde d to the incident, but he attempted to g ain entra nce thr oug h the front of

the club. As he looked into the club from the f ront, he saw

the appe llant wear ing a

black leather jac ket and moving towa

rds the bac k. When Shirley finally made it throug h the club and g ot to the alley behind it, he saw tha t three individuals had be en deta ined. He notice d that Har deman “ did have what appe are d to be the same jacke t” that the appe llant had bee n wea ring as he move d toward the back of the club. Second, Rice ide ntified the g un rec overe d by Offic er Riley

as the we apon pointed at him by the appe llant. Third, Off

icer Br ian L loy d, called a s a witness by the co- defe ndant’s counse l, testified without objection that Rice told him t hat the man with the g un and the blac k leather jacke t took Rice’s ne cklac e: [C ODEF ENDAN T’S COUNSEL ]: Sir, y ou had occ asion to talk to Nathaniel

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Rice; is that rig ht, sir? [L L OYD]: I did. [C ODEF ENDAN T’S COUNSEL ]: Now, ac cording to the best of y our rec ollection, these e vents had just happene d; had they not, sir? [L L OYD]: Yes. [C ODEF ENDAN T’S COUNSEL ]: Now, then, in talking to Nathaniel, Nathaniel told y ou, did he not, sir, that a blac k man had pr oduced a g un? [L L OYD]: Yes. [C ODEF ENDAN T’S COUNSEL ]: That a bla ck man ha d struck him with a g un? [L L OYD]: Yes. [C ODEF ENDAN T’S COUNSEL ]: He de scribed tha t same blac k man as taking his gold ne cklac e? [L L OYD]: Yes. [C ODEF ENDAN T’S COUNSEL ]: He de scribed tha t black man a s wea

ring a black leather jac ket? [L L OYD]: Yes. I I . Standard of Re view I n Clayton v. State we de scribed the standard of revie w appr opriate f

or addr essing the 3 sufficie ncy

of evide nce in c ases involving circ umstantial evidence and the dr awing of infer ence s by a jury : When we re view a c ourt of appe als’s application of the leg al suffic iency standard set out in Jack

son v. Virginia , the re levant question is whether , afte r viewing the 4 evidenc e in the lig ht most favorable to the prosec ution, any rational trier

of fa ct

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could have found the e ssential elements of the crime be y ond a re asonable doubt. This standard a ccounts for the fa ctfinder ’s duty

to resolve c onflicts in the testimony , to weig h the evidenc e, and to dr aw r easona ble infer ence s from basic fac ts to ult imate fa cts. Ther efor e, in ana ly zing leg al suffic iency , we de termine whether the nec essar

y infere nces a

re r easona

ble base d upon the combined a nd cumulative for ce of

all the evidenc e whe n viewed in the lig ht most favorable to the ver dict. Our re view of a ll of the evidenc e includes e vidence that was prope rly and improper ly

admitted. When the rec ord supports conf licting infe renc es, we presume that the fac tfinder r esolved the c onflicts in favor of the prosec ution and there fore defe r to that deter mination. Direct a

nd circ umstantial evidence are trea ted equa lly : Circumstantial evidence is as probative a s direct e vidence in establishing the g uilt of an ac tor, and c ircumstantial evidenc e alone can be sufficie nt to establish guilt. 5 To prove the essential ele ments of ag g ravated robbe ry in this case, the State ha d to show that the appe llant committed robbery as def ined in Section 29.02 of the Pena l Code, and used or exhibi ted a de adly

wea pon. Under

Section 29.02, the robbe ry in this case would be pr oved by 6 evidenc e that, in the cour se of c ommitt ing the ft as def ined in Chapter 31 of

the Penal Code a

nd with intent to obtain or maintain control of the prope rty , the appe llant intentionally or knowing ly threa tened or

place d another

in fea r of imminent bodily

injury or death. The phra se “in the

7
course of committing thef t” is defined by

Section 29.01 of the Pena l Code to mean “c onduct that
occur s in an attempt to commit, during the c ommissi on, or in immediate flig ht after the attempt or commission of theft.” A per son commits theft under Chapter 31 if he unlaw fully

appropr iates 8 proper ty with intent to deprive the owne r of the pr operty
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. 9S o r r e l l s - 7 I I I . On Appea l The Court of Appe als found that the e vidence was insuffic ient to prove e ither that the appellant wa s the perpe trator of the theft, or tha t the assault was c ommitt ed “in the c ourse of committing theft.” Wit h respe ct to the identity of the thief, the Court of Appea ls found that “[b] ased on [the] circ umstantial evidence , the jury could have rea sonably

inferr ed that the jac ket worn by Har deman be longe d to [ the appe llant] .” Neve rtheless, the Court found the evidenc e insuffic ient 1 0 to prove that the a

ppellant had possession of the neckla ce: At the time of [the appellant’s] arr est, althoug h the nec klace was found in a jacke t that the jury

could have inferr ed belong ed to [the appellant], neither the jac ket, nor the nec klace wer e found on his per son; instead, Har deman wa s wea ring the jacke t. This evidence is insufficient to show that [the appellant] had persona l possession of the ne cklac e at a

ny point in ti me or that he asser ted a distinct and pe rsonal rig ht to it. 1 1 Wit h respe ct to the nexus between the assault and the the ft, the Court rec og nized that the
occur renc e of a theft immediately

afte r an a ssault ty

pically supports an infer ence that the assault was intende d to fac ilitate the theft. Howeve r, the Court found that the inf ere nce w as neg ated in 1 2 the pre sent ca se bec ause the evidenc e re veale d an alter native motive that could not be r ationally disreg arde d: I n the pre sent ca se, the e vidence reve aled that [the appe llant’s] m otive for the assault was to g et Rey

nolds away

from the silver Me rce des SUV and to ke ep Rice from interf

ering . I n light of the fac t that (1) ther e is no evidenc e that the a ppellant approa ched Re y

nolds in an attempt to appropria te her proper ty ; (2) the a

ppellant

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did not approac h Rice in an a ttempt to appropriate his ne cklac e; (3) the re is no evidenc e that the a

ppellant was a

party to theft; and (4) no words, ac tions, or conduct dur ing the commission of the assault indicate tha t Rice’s assa ult was committed to facilitate the a ppropriation of his nec klace , a juror c ould not rationally disreg ard tha t [ the appe llant’s] onl y motive was to move Rey nolds from the vehicle and kee p Rice fr om interfer ing. I V. I dentity

of the Thief I n Clayton we state d that an appe llate cour t should determine whe ther ne cessa ry infere nces a

re r easona

ble “ba sed upon the c ombined and cumulative f orce of all the e vidence when view ed in the lig ht most favorable to the verdic t.” But in this case , the Court of Appe als 1 3 analy zed only the evidenc e that Ha

rdema n was we aring the appe llant’s jacke t. The Court over looked at lea st two other cr itical piece s of evidenc e. To be g in with, the g un was a lso in the appellant’s jac ket pocke t before being remove d and tossed by Har deman. The g un was c lear ly

in the appellant’ s possession and was use d by him in the commissi on of the assault. The e vidence that the g un was tra nsfer red f rom the appe llant’s possession during the assault to the appe llant’s jacke t pocket af ter the a ssault streng thens the infer ence that the neckla ce g ot in the appellant’s jac ket pocke t after also being in the appellant’ s possession. Fur thermore , viewed in the lig ht most favorable to the verdic t, Office r L loy d’s testimony provides dire ct evidenc e of the appellant’ s identity as the thief. D uring cross e x amination of Rice, the c o-def

endant’ s counsel aske d Rice, “D o y ou rec all telling the police that the man in the leather jacke t had taken y our nec klace s? Do y ou rec all telling them that? ” Rice c ould not reca ll that, so the co-de fenda

nt’s counsel c alled Of

fice r L loy d to relate , without objection, Rice’s statement to him that the man with the g un and the blac k leather jacke t had taken his ne cklac e.

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During closing argument, the co- defe ndant’s counse l reminded the jury of this testimony
. The Court of Appe als err ed in fa iling to consider the combined a

nd cumulative for ce of all of the a dmitted evidence . Viewing the evidenc e in the lig ht most favorable to the verdic t, a rational juror

could have found bey ond a re asonable doubt that the appellant c ommitt ed the thef t. V. Nexus Betwe en The ft and Assa ult I n Cooper v. State , relied upon by the Court of Appe als in this case, we held that in a robber y case the nexus between the assault and the the ft is “suffic iently proven if the State proves that the theft oc curr ed immediately afte r the a ssault,” and as a g ener al rule, “ a thef

t occur ring 1 4 immediately

afte r an a ssault will support an infere nce tha t the assault was intende d to fac ilitate the theft.” I n Cooper , the evidenc e showe d that the appe llant was workingon a fe nce w ith his

1 5 uncle. The appellant struc k his uncle fr om behind without warning and the two men be g an strug g ling on the g round. When his uncle re lease d his gr ip on the appellant, the a ppellant stood, walked to his uncle ’s truck, a nd drove a

way . The a

ppellant was f

ound in a neig hboringtown about an hour

later. Despite the a

ppellant’s testimony

that he wa s hallucinating and did not 1 6 know what he was doing when he took the truck, we found the e vidence “suff icient to support an infere nce that the assault was c ommitt ed in the cour se of the c ommissi on of the thef t.” 1 7 Cooper declined to a

nswer c omprehe nsively

the question of “w hether , and under what circ umstances, e vidence of a motive other than theft c an neg ate the natural infer ence that arises

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when a theft immediately

follows an assa

ult.” L imiti ng our holding to the fac ts of the ca se, in 1 8 which the a

ppellant claimed to be experiencing hallucinations, we “ simply [held] that the infere nce w ill not be neg ated by evidenc e of a

n alternative motive that the jury could ra tionally disreg ard.” 1 9 I n this case the Court of

Appea ls seems to have r ead Cooper to hold the inverse: any infere nce that the assault was intende d to fac ilitate the theft wa s neg ated be cause there was evidenc e of a

n alternative motive which the jury could not rationally

disreg ard. But we need not

2 0 addre ss the Court’s extension of Cooper beca use the Court er

red in c oncluding that the neg ation of such a n infere nce r esults in insufficient evidenc e. The a ppellant’s motive in committing the assa ult – whether “ [t he appe llant’s] assault of Rice wa s intended to fac ilitate the theft” – may be probative of the ne x us element, but it is not 2 1 itself an ele ment of the off ense of robber y . The ne x us element is that the assa ult was committed “in the cour se of c ommitt ing the ft,” whic h is defined a s “conduc t that occur s in an attempt to commit, during the commission, or in the imm ediate f light af ter the attempt or commission of theft.” 2 2 The State ha s alway s been a ble to prove r obbery

by forc e or thre ats committed befor e the theft or a ttempted theft. The dr afte rs of our pr esent Pena l Code pointed this out i n their

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comments to the prese nt robbery statute: Section 29.02 is broader

in scope than the [former] robbery offe nse ... bec ause it applies to violence used or thre atene d ‘in the cour se of c ommitt ing the ft,’ which is define d in Section 29.01 to include not only violent conduc t antecede nt to a complete d theft , but also violence a ccompa ny ing a n esca pe immediately subsequent to a c ompleted or a ttempted theft. ... The ... use or threa t of forc e in esca ping ... br oadens the scope of robber y . Her e, too, the conduc t is as dang erous as force or threats antece dent to the theft .” 2 3 This case is one of for ce a ntece dent to, or during , the theft. B ased on Rice ’s testimony that the nec klace was missing immediate ly afte r the a ssault, and Fr itz ’s testimony that he sawthe neckla ce on the g round during the cour se of the a ssault, a ra tional juror could dra w a r easona

ble infere nce that the assault and the the ft occ urre d simult aneously , and thus the assa ult was committed during the commission of theft. The e vidence in this case wa s thus sufficient to prove both that the a ppellant committed theft, and tha t he committed assault in the cour se of c ommitt ing the ft. We theref ore r ever se the decision of the Court of

Appea ls and rema

nd the ca se to that Court for c onsideration of the appellant’ s remaining claims.
Deliver ed June 22, 2011. Publis h.

S T A T E B A R C O M M IT T E E O N R E V IS IO N O F T H E P E N A L C O D E , T E X A S P E N A L C O D E : A P R O P O S E D R E V IS IO N ,

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