Affirmed as Reformed and Memorandum Opinion filed November 22, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00522-CR

JOSHUA EUGENE PLASTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 73810

M E M O R A N D U M O P I N I O N

A jury convicted appellant of aggravated robbery with a deadly weapon. 

Appellant pled true to the enhancement allegation and the jury sentenced him to 

confinement for fifteen years. Appellant brings this appeal raising (1) error in the 

admission of evidence; (2) charge error; and (3) insufficient evidence. For the reasons 

set forth below, we affirm the judgment of the trial court as reformed.
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I. SUFFICIENCY OF THE EVIDENCE

We first address appellant’s third issue because it challenges the sufficiency of 

the evidence and seeks rendition of a judgment of acquittal. Appellant argues the State 

failed to prove beyond a reasonable doubt that he was a party to the offense.

A person may be charged with an offense as a principal, a direct party, or a coconspirator. See Tex. Penal Code Ann. § 7.01 (West 2011) (person is “criminally 

responsible” if offense is committed by his own conduct or by the “conduct of another 

for which he is criminally responsible”); Tex. Penal Code Ann. § 7.02(a)(2) (West 

2011) (describing criminal responsibility for direct party). 

In determining sufficiency of the evidence, we consider all the evidence, both 

direct and circumstantial, and any reasonable inferences which can be drawn from the 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury 

is the sole judge of the credibility of the witnesses and the evidence presented. See 

Villani v. State, 116 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2003, pet. 

ref’d.). We view all evidence in the light most favorable to the verdict and determine, 

based on that evidence and any reasonable inferences therefrom, whether any rational 

fact finder could have found the elements of the offense beyond a reasonable doubt. 

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We do not sit as the 

thirteenth juror and may not substitute our judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 

638 (Tex. Crim. App. 2010). We defer to the jury’s responsibility to fairly resolve 

conflicts in testimony, weigh the evidence, and draw all reasonable inferences from 

basic facts to ultimate facts. Id. Our duty as reviewing court is to ensure the evidence 

presented actually supports a conclusion that the defendant committed the crime. 

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We now set forth the evidence presented relevant to appellant’s complaint that the 
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State failed to prove beyond a reasonable doubt that he acted as a party to the offense. 

Sarah Stevenson was working at an Exxon gas station and convenience store when two 

men entered. Both men were wearing bandanas, caps, long-sleeve shirts and pants. 

Stevenson later recognized one of the men as Anthony Plaster, who had been in the 

store on an earlier occasion with his girlfriend. While the other man looked out the door 

and watched the store, Anthony came behind the counter and asked for the money. He 

had a knife or box cutter and Stevenson testified that she was scared of being hurt. 

Anthony took the cash from the register, a cigar box from under the register used to 

store cash, and some cigarettes. Stevenson did not recognize the lookout or hear his 

voice, but she heard Anthony say, “Watch my back, Steven.” Officer Kristy Mercado 

testified that not using someone’s real name would be a method to conceal an identity. 

Stevenson did not see the lookout with a weapon. Stevenson called the police after the 

men left. She later picked Anthony, but not appellant, out of a line-up. Anthony was 

arrested after Stevenson identified him.

Margaret Davis testified that at the time of the robbery she was living with 

appellant and his brother Anthony. On that day, she and Anthony argued over finances. 

Anthony subsequently left with appellant. Davis did not know exactly what they were 

wearing but testified they wore shorts and t-shirts. They returned with Elijah Sims and 

Anthony told Davis to pack her bags. Davis could not recall what they were wearing 

upon their return. Elijah then drove them to a motel where Anthony and appellant each 

gave Davis money and she paid for two rooms. Davis and Anthony shared a room while 

appellant had his own room. Davis and Anthony argued again at the hotel and Anthony 

told her that he got the money for the hotel by robbing an Exxon store in Freeport with 

his brother. Davis later overheard appellant ask Anthony, “Why did you tell her?” Davis

admitted that she did not hear the entire conversation and only related this information 
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to police after Detective Mercado told her that she needed to tell the truth or her 

children could be taken away. 

A video of Lieutenant Raymond Garivey’s interview of appellant was played 

before the jury. Appellant initially denied being with his brother the day of the robbery.

He later admitted that he, Anthony and Margaret went to the hotel that day.

A recording of a phone conversation from jail between appellant and Sarah Page, 

Anthony’s ex-girlfriend, was admitted into evidence. Page told appellant that she knew 

Anthony put him up to the robbery. Appellant denied it but admitted his brother 

“encouraged” him. 

From Stevenson’s testimony, the jury could have found the man with Anthony 

was acting as a lookout. The jury heard evidence that Anthony told Davis that he and 

appellant robbed the store and that appellant subsequently said, “Why did you tell her?”

The evidence showed that appellant and Anthony were together before, during, and after 

the robbery. Based on the evidence, a rational trier of fact could have concluded that 

appellant acted as a lookout with the intent to assist the commission of the offense by 

aiding or attempting to aid Anthony in committing the offense. See Cumpian v. State, 

812 S.W.2d 88, 90 (Tex. App.—San Antonio 1991, no pet.) (holding evidence was 

sufficient to support conviction for burglary of a building under the law of parties where 

the defendant appeared to be the “look-out person”). Viewing the evidence in its 

entirety, the evidence was legally sufficient to support appellant’s conviction under the 

law of parties. Issue three is overruled.

II. ADMISSION OF EVIDENCE

In his first issue, appellant contends the trial court erred by admitting the hearsay 

statements of Anthony, an alleged co-defendant. The record reflects appellant made a 

hearsay objection to Davis’s testimony that Anthony told her that they robbed the store. 
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Anthony’s statement to Davis is hearsay because it is an out-of-court assertion 

offered to prove the truth of the matter asserted. See Tex. R. Evid. 801(d). However, it is 

also a statement against penal interest, which is an exception to the hearsay rule. See

Tex. R. Evid. 803(24). Statements against penal interest can inculpate both the declarant 

and a third party, such as a co-defendant. Dewberry v. State, 4 S.W.3d 735, 751 (Tex.

Crim. App. 1999). A statement against interest includes a statement which, at the time 

of its making, so far tended to subject the declarant to criminal liability that a reasonable 

person in the declarant’s position would not have made the statement unless believing it 

to be true. Id. There are two requirements for admissibility of such a statement. Walter 

v. State, 267 S.W.3d 883, 890–91 (Tex. Crim. App. 2008). “First, the trial court must 

determine whether the statement, considering all the circumstances, subjects the 

declarant to criminal liability and whether the declarant realized this when he made that 

statement. Second, the court must determine whether there are sufficient corroborating 

circumstances that clearly indicate the trustworthiness of the statement.” Id. (citations 

and footnotes omitted). The burden is on the proponent of the statement to make this 

showing. Davis v. State, 872 S.W.2d 743, 747 (Tex. Crim. App. 1994). Whether the 

burden has been satisfied is entrusted to the sound discretion of the trial court. 

Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994). 

Anthony’s admission to Davis that he and appellant robbed the store subjected 

Anthony to criminal liability. Cf. Trevino v. State, 218 S.W.3d 234, 239–40 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (finding co-defendant’s statement 

implicating defendant was not inculpatory but an attempt to shift the blame and 

therefore did not fall under the admission against interest exception to the hearsay rule). 

The disserving nature of Anthony’s statement when it was made is obvious. See Walter, 

267 S.W.3d at 891 n.26. Anthony’s statement was corroborated by Stevenson’s 

identification of Anthony as the person who threatened her and removed property from 
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the store. It was also corroborated by Anthony’s additional statement to Davis that he 

robbed the store. Thus the challenged statement was sufficiently against Anthony’s

penal interest as to be realized by him and was corroborated by other evidence

indicating its trustworthiness. Accordingly, the trial court did not abuse its discretion in 

admitting the evidence. Issue one is overruled.

III. CHARGE ERROR

Appellant’s second issue asserts the jury charge failed to properly apply the law 

of parties. The record reflects the charge of the court defined the law of parties in the 

abstract portion of the charge but wholly failed to mention or reference that law in the 

application paragraph. Accordingly, the charge was erroneous. See Vasquez v. State, 

389 S.W. 3d 361, 369 (Tex. Crim. App. 2012) (citing Plata v. State, 926 S.W.2d 300, 

304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 

234 (Tex. Crim. App. 1997)).

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The record reflects, and appellant concedes, no objection was made to the court’s 

charge. Therefore, any harm must be egregious to require reversal. Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). An egregious harm 

analysis considers: (1) the entire jury charge; (2) the state of the evidence including the 

contested issues and the weight of the probative evidence; (3) the arguments of the 

parties; and (4) any other relevant information revealed by the record of the trial as a 

whole. Id. Jury charge error is egregiously harmful if it affects the very basis of the case, 

deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. 

Egregious harm is a difficult standard to prove. Taylor v. State, 332 S.W.3d 483, 489 

(Tex. Crim. App. 2011).

Under the first Almanza factor, we examine the entire jury charge. In this case, 

 

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The State does not claim otherwise in its brief.
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the charge contains four paragraphs, two paragraphs above the application paragraph, 

correctly defining criminal responsibility as a party based on the conduct of another. A 

reasonable jury would refer to the abstract definition of the law of parties without the 

necessity of it being repeated in the application paragraph. See Vasquez, 389 S.W.3d at 

371. 

Under the second Almanza factor, we examine the evidence at trial. The only 

theory of appellant’s liability offered by the State at trial was as a party to the offense. 

According to the State’s evidence, appellant acted as the lookout. There was no 

evidence appellant threatened Stevenson or took any property from the store. From this 

evidence, the jury could have reasonably inferred that appellant aided Anthony in 

committing the offense. See id. (finding a reasonable jury could conclude the defendant 

aided in carrying out the robbery scheme by acting as the getaway driver).

Under the third Almanza factor, we examine the arguments of counsel at trial. 

During its closing argument, the State explained the law of parties and what proof was 

required to show appellant was a party and argued appellant was guilty as a party. 

Although appellant’s counsel did not discuss the law of the parties per se, he argued the 

State failed to prove beyond a reasonable doubt that appellant was “the second person” 

— the one without “some sort of bladed instrument.” Because none of the arguments 

suggested appellant might be guilty as a principal, there was no danger of confusion. 

See id. at 372 (concluding that if the law of parties is the focus of the evidence and is

correctly argued, it is unlikely that any error in failing to repeat the definitional language 

in the application paragraph makes any practical difference to the jury). 

Finally, under the last Almanza factor, we consider any other relevant information 

revealed by the trial record as a whole. During voir dire, the State explained the law of 

the parties and provided examples. 

After reviewing the record, we conclude that the jury could not have been misled 
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by the court’s charge. Applying the Almanza analysis, we hold that appellant’s rights 

were not harmed by the trial court’s error failing to include the appropriate language 

regarding party liability in the application paragraph of the jury charge. See Perez v. 

State, 08-12-00340-CR, 2015 WL 4940375, at *1 (Tex. App.—El Paso Aug. 19, 2015, 

no pet., not yet released for publication); Williams v. State, 01-12-00040-CR, 2013 WL 

485809, at *6–8 (Tex. App.—Houston [1st Dist.] Feb. 7, 2013, no pet.) (mem. op.) (not 

designated for publication). Appellant’s second issue is overruled.

IV. CONCLUSION

Our review of the judgment reflects it incorrectly states “N/A” in regards to the 

enhancement allegation. Accordingly, we reform the judgment to reflect that (1) 

appellant pled true to the allegation contained in the enhancement paragraph; and (2) the 

allegation contained in the enhancement paragraph is true. As reformed, we affirm the 

trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Busby, Donovan, and Wise.

Do Not Publish — Tex. R. App. P. 47.2(b).