Affirmed and Opinion filed January 28 , 201 4

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00114

- CR

ASHTIN LAWATHA JOHNSON , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 232nd District Court

Harris County, Texas Trial Court Cause No. 1327274

O P I N I O N

Appellant Ashtin Johnson was convicted of capital murder and sentenced to imprisonment for life without the possibility of parole. Appellant now appeals his conviction
, contending in a single issue that the evidence is legally insufficient to support his conviction. We disagree and
affirm the trial court ’ s judgment.2 BACKGROUND

Late o n the night of October 16, 2011, a ppellant left his home with two men, Martez Levy and a man known as “ Tray, ” and two women, Ceymone Anthony and Beonkay Kesee

. They drove down Bissonnet Street to an area where appellant said there was a lot of prostitution, and Anthony and Kesee got out of the vehicle at an apartment complex

. Ernesto Vasqu ez and Ben Hernandez were d riving by some
condominiums near Bissonnet Street so Vasq uez could solicit a prostitute
, and they encountered Anthony and Kesee

. The women offered Vasquez sex in exchange for thirty dollars if he came to their apartment

. They instructed him to pull into the parking lot of the condominiums and follow them

. While Vasquez parked, Kes e e contacted Levy

. Levy told appellant to come with him, and he and appellant walked down a breezeway between the
condominiums towards the women

. Appellant said Tray went to cover the back as
he “ was supposed to do .” Vasquez met the women and started walking with the m towards the apartments. Hernandez waited by the car.

A ppellant and Levy each grabbed one of Vasquez ’s arm s

. Anthony and
Kesee la ughed as Levy pulled out a gun and struck Vasquez in the face

. Levy yelled to appellant to get Hernandez, and appellant attempted to, but decided not to pursue him. Levy continued to strike Vasquez but he did not fall
, so appellant grabbed him to wrestle him to the ground

. Levy told appellant to check Va squez ’ s pockets . V a squez reached into his pockets and gave appellant tw o ten dollar bills

. Anthony and Kesee both insisted that Va squ ez had more money, so appellant
searched Va squ ez ’ s other pockets and took his wallet

. When appellant looked through it, he only found “fake Mexican” money in it

. Levy struck Vasquez again with the gun while he was on the ground and shot him in the head

. Appellant left the scene with Levy and Tray. A nthony and Kesee kept calling Levy to pick them3

up. Appellant later gave Levy the wallet he had taken from Vasquez, and Levy told him that he would destroy it

. A ppellant gave a statement to police admitting his presence at the time of the
offense , but claimed that he did not know what was happening until after Vasquez
was shot

. Appellant claimed he did not know Levy was going to rob the men until he struck Vasquez with the gun and told appellant to go through his pockets. Appellant stated he felt threatened by Levy and h ad no choice but to comply with his orders. Appellant admitted Levy had been bragging that he had a .45 but appellant contended he did not know Levy had the gun with him that night.
Appellant was indicted for capital murder. The jury charge included the definition of the law of parties and specifically applied the law of parties in the application paragraph. The j ury found appellant guilty of capital murder and, i n accordance with the jury’s verdict, the trial court sentenced appellant to life without p arole.

ANALYSIS

I. Standard of review
When reviewing the sufficiency of the evidence , we view all of the evidence in the light most favorable to the verdi ct and determine, based on that evidence and any reasonable inferences therefrom, whether a rational jury could have found the
elements of the off

ense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318

– 19 (1979)). In making this review, an appellate court considers all evid ence in the record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).4

We may not substitute our judgment for that of the jury by r eevaluating the weight and credibility of the evidence. Romero v. State, 406 S.W.3d 695, 697 (Tex. App.

— Houston [14th Dist.] 2013, pet. struck). We defer to the jury ’ s responsibility to resolve any conflicts in the evidence fairly, weigh the evidence,
and draw reasonable inferences. Id. The jury alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the evidence. Id. Therefore, the testimony of a single eyewitness can be enough to support a conviction. Id. (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). In addition, because it is the sole judge of the weight and credibility of the evidence, the jury may find guilt without physical evidence li nking the accused to the crime. Id. In conducting a sufficiency review, we do not engage in a second evaluation of th e weight and credibility of the evidence , but only ensure the ju ry reached a rational
decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App

. — Houston [14th Dist.] 2012, pet. ref ’ d).

II. A pplicable law
A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Tex.
Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011 & Supp. 2013 ). A person
commits ro bbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places
another in fear of i mminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(1)

- (2) (West 2011) . Theft is the unlawful appropriation of property with the intent to dep rive the owner of the property. Tex. Penal Code Ann. § 31.03 (West Supp. 2013)

. Appropriation of property is unlawful if it is without the

owner ’ s effective consent. Id. § 31.03(b)(1).5

A person may be guilty as a party to capital murder if the defendant committed the offense by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Penal Code Ann. § 7.01(a) (West 2011); see Gross v . State , 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). “ A person is criminally responsible for an offense committed by the conduct of another if :

. . . acting with intent to promote or ass ist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the othe r person to commit the
offense. ” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011)

. “ If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result
of the carrying out of the conspiracy. ” Tex. Penal Code Ann. § 7.02(b) (West 2011)

. Proof of a culpable mental state invariably depe nds on circumstantial
evidence. See He ckert v. State , 612 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1981) ; Martin v. State, 246 S.W.3d 246, 263 (Tex. App.

— Houston [14th Dist.] 2007, no pet.)

. A culpable mental state can be inferred from the acts, words, and
conduct of the accused. Martin , 246 S.W.3d at 263.

W e may look to events before, during, and after the commission of the
offense t o determine whether there is sufficient evidence that an individual is a party to an offense

. Gross , 380 S.W.3d at 186. We may also consider
circumstantial evidence. Id. “ There must be sufficient evidence of an understanding and common design to commit the offense. ” Id

. It is unnecessary
that each fact point directly to the guilt of the defendant so long as t he cumulative
effect of the fac ts are sufficient to support the conviction under the law of parties.6

Id. “ However, mere presence of a person at the scene of a crime, or even flight from the scene, without more, is insufficient to support a conviction as a party to
the offense. ” Id.

I II. Sufficient evidence supports appellant ’ s conviction

.
A person may be charged with an offense as a principal, a direct party, or a

co

- conspirator. See Tex. Penal Code §§ 7.01 (person is “criminally responsible” if offense is committed by his own co nduct or by the “conduct of another for which he is criminally responsible”); 7.02(a)(2) (describing criminal responsibility for direct party); 7.02(b) (describing criminal responsibility for party as co

conspirator). Because t he evidence offered at trial establish ed Levy shot Vasquez
, t he issue is whether the evidence supports appellant’s conviction as a direct party

or co

- conspirator

. As explained below, we conclude the evidence is sufficient to support appellant’s conviction as a co

- conspirator under s ection 7.02(b) because the evidence supports a finding that appellant should have anticipated the possibility of a murder resulting from the course of committing robbery.
Section 7.02(b) is quoted above, and it frames our sufficiency inquiry in this

case as follows: appellant is guilty of capital murder if (1) he was part of a conspiracy to rob Vasquez; (2) one of the conspirators murdered Vasquez ; (3) the
murder was in furtherance of the conspiracy; and ( 4 ) the murder should have been anticipated as a re sult of carrying out the conspiracy

. Hooper v. State , 214 S.W.3d 9, 14 n.4 (Tex. Crim. App. 2007)

. Appellant challenges the first and fourth elements, but we conclude that sufficient evidence of those element s supports the jury’s guilty verdict

. A. Evidence of a c onspiracy
Appellant claims there is no evidence that he conspired with Levy to rob7

Vasquez. Appellant points to his own statement, in which he claimed that he did not know Levy was going to rob Vasquez until Levy pulled out the gun and st ruck Vasquez. Appellant also claimed his actions were a result of his fear of Levy. Further, a ppellant relies upon the facts that he did not pursue Hernandez and money was left on the ground by Vasquez’s body as evidence that he did not know Levy planned to rob Vasquez.

The evidence showed that after the two women determined Vasquez had money to pay for prostitution
, Kesee contacted Levy. Anthony and Kes e e then led Vasquez to a spot where Levy and appellant were waiting , while Tray stayed back
with the car as appellant said he “was supposed to do

. ” Levy and appellant each grabbed one of Vasquez’s arms
, and Levy struck Vasquez in the face with a gun. Levy told appellant to get Hernandez but w hen Vasquez failed to fall, appellant grabbed him and wrestle d him to the ground

. Levy told appellant to check Vasquez’s pockets. After Vasquez gave appellant twenty dollars, appellant
search ed his pockets and took his wallet. When appellant found only “ fake Mexican” money, Levy struck Vasquez again and shot him in the head. Appellant then left the scene with Levy and gave Vasquez’s wallet to Levy

. Based on this evidence that a ppellant and his companions coordinated their movements throughout the offense, as well as appellant’s remark about what one of his comp anions “was supposed to do,” a rational jury could have found beyond
a reasonable doubt a prior or contemporaneous plan to commit this robbery in which appellant participated

. There was no evidence that appellant ever argued
with or r efused to follow Levy ’s directions. See Thompson v. State , 54 S.W.3d 88, 95 (Tex. App.

— Tyler 2001, pet. ref’d) (holding evidence of conspiracy sufficient
and notin g lack of evidence “ that any member of the group did anything but cooperate with the terms of the plan to commit robbery ” ). Although appellant said8

he w as afraid of Levy, there was no e vidence presented
, other than appellant’s own

statement , that support ed his claim. A ppellant asserted that he decided not to go
after Hernandez
, but a rational trier of fact could reasonably have found appellant could not go after Hernandez because he was busy subduing Vasquez. Appellant’s own statement that he did not conspire to rob Vasquez does not render the evidence to the contrary insufficient. According ly, we hold there was sufficient
evidence of appellant ’s involve ment in a conspiracy to rob Vasquez.

B. Evidence that the m urder s hould h ave b een a nticipated Appellant also asserts there is no evidence that he should reasonably have anticipated the po ssibility of a murder occurring in the course of the robbery
because there is no evidence he kne w or had reason to believe that Levy had a gun with him that night . Further, appellant claims there is no evidence that he had

rea son to believe Levy was a vio lent person o r would commit murder. “Knowledge of a co

- conspirator’s violent propensity or intent to commit aggravated assault is not an element of the offense under either theory of party liability, so the lack of evidence of such knowledge is no t dispositive of sufficiency.” Hooper , 214 S.W.3d at 14. Accordingly, appellant’s purported lack of knowledge of Levy’s violent nature or intent does not render the evidence
insufficient. Moreover, appellant’s claim that he had no reason to believe Levy was violent is contradicted by other evidence, including the coordinated use of
force to subdue the complainant and appellant’s statement that he feared Levy. See Gonzalez v. State , No. 13

- 10

- 00086

- CR, 2012 WL 361733, at *4 (Tex. App.

— Corpus Christi Feb. 2, 2012, pet. ref’d) (mem. op., not designated for publication) (holding defendant’s participation in violent robbery and his fear of co

- defendants, among other facts, provided sufficient evidence that murder should have been anticipated as result of robb ery).9

As to whether appellant was aware Levy had a gun, appellant admitted that he knew Levy had a

. 45 caliber silver gun. The evidence further demonstrat es that appellant knew Levy had the gun with him , at the latest, when Levy used it to strike Vasquez

— which was before appellant and his companions robbed Vasquez of his money

. “Evidence that a defendant knew his co

- conspirators might use guns in the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the pos sibility of murder occurring during the course of the robbery.” Love v. State , 199 S.W.3d 447, 453 (Tex. App.

— Houston [1st Dist.]
200 6 , pet. ref’d ) ; see also Nava v. State , 379 S.W.3d 396, 406

– 09 (Tex. App.

— Houston [14th Dist.] 2012) (holding evidence showed appellant knew gun was brought when co

- conspirator removed something wrapped in white towel from truck during criminal transaction), aff’d , 2013 WL 6636809 (Tex. Crim. App. Dec. 18, 2013) ; Turner v. State , No. 01

- 11

- 00839

- CR, __ S.W.3d __, 2013 WL 4520897, at *6

– 7 (Tex. App.

— Houston [1st Dist.] Aug. 27, 2013, no pet.) (holding evidence sufficient that appellant should have anticipated murder when he knew

co

- conspirator had a gun and appellant stated he first saw the gun on the night of
the offense when co

- conspirator showed it to victim)

. 1 We conclude t he cumulative effect of the evidence of events before, during, and after the robbery would permit a rational trier of fact to conclude beyond a reasonable doubt that appellant s hould reasonably have anticipated the possibility of a murder occurring in the course of the robbery.

1 Cf. Tippitt v. State, 41 S.W.3d 316 (Tex. App.

— F ort Worth 2001, no pet.) (evidence insufficient to find murder should have been anticipated where there was no evidence defendant knew the shooter had a gun when they entered the complainant’s home, and defendant was not in the room when the shooter pulled th e gun and fired). Tippitt ’s rejection of “inference stacking” was abrogated by Hooper , in which the Court of Criminal Appeals explained that juries are permitted to draw multiple reasonable inferences from the evidence, whether direct or circumstantial, b ut are not permitted to draw conclusions based on speculation. Hooper , 214 S.W.3d at 16

.10

Because t he evidence demonstrates appellant conspired with Levy to rob Vasquez and that appellant should have anticipated the murder of Vasquez as a
resul t of carrying out the robbery
, a reasonable juror could have found appellant guilty of the offense as a conspirator. Accordingly, w e overrule appellant ’ s sole
issue.

CONCLUSION Having overruled appellant ’ s issue, we affirm the trial court ’ s judgment.

/s/ J. Brett Busby Justice

Panel consists of Justices McCally, Busby, and Donovan. Publish

– Tex. R. App. P. 47.2(b).