### IN THE

TENTH COURT OF APPEALS

No. 10

- 19

- 00127

- CR

CRYSTAL THOMPSON

, Appellant

v.

THE STATE OF TEXAS

, Appellee

From the 77th District Court

Freestone County, Texas

Trial Court No. 18

- 102

- CR

MEMORANDUM OPINION

The jury convicted Crystal Thompson of the offense of aggravated robbery . The

trial court found the enhancement paragraph to be true and assessed punishment at

thirty

- five years confi nement. We affirm.Thompson v. State Page 2 S UFFICIENCY OF THE E VIDENCE

In the first issue, Thompson argues that the evidence is insufficient to support her

convictio n. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

Wh en addressing a challenge to the sufficiency of the evidence, we consider

whether, after viewing all of the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential elements of

the crime beyond a reason able doubt. Jackson v. Virginia

, 443 U.S. 307, 319,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State

, 514 S.W.3d 227, 232 (Tex.

Crim. App. 2017). This standard requires the appellate court to defer “to

the responsibility of the trier of fact fairl y to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackso n

, 443 U.S. at 319. We may not re

- weigh

the evidence or substitute our judgment for that of the factfinder. Will iams

v. State

, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting

a sufficiency review must not engage in a “divide and conquer ” strategy

but must consider the cumulative force of all the evidence. Villa

, 514 S.W.3d

at 232. Although juries may not speculate about the meaning of facts or

evidence, juries are permitted to draw any reasonable inferences from the

facts so long as ea ch inference is supported by the evidence presented at

trial. Cary v. State

, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016)

(citing Jackson

, 443 U.S. at 319); see also Hooper v. State

, 214 S.W.3d 9, 16

- 17

(Tex. Crim. App. 2007). We presume that the factfinde r resolved any

conflicting inferences from the evidence in favor of the verdict, and we

defer to that resolution. Merritt v. State

, 368 S.W.3d 516, 525 (Tex. Crim.

App. 2012). This is because the jurors are the exclusive judges of the facts,

the credibil ity of the witnesses, and the weight to be given to the

testimony. Brooks v. State

, 323 S.W.3d 893, 899 (Tex. Cri m. App.

2010). Direct evidence and circumstantial evidence are equally probative,

and circumstantial evidence alone may be sufficient to upho ld a conviction

so long as the cumulative force of all the incriminating circumstances is

sufficient to support th e conviction. Ramsey v. State

, 473 S.W.3d 805, 809

(Tex. Crim. App. 2015); Hooper

, 214 S.W.3d at 13.

We measure whether the evidence presen ted at trial was sufficient to

support a conviction by comparing it to “the elements of the offense asThompson v. State Page 3

defined by the hypothetically correct jury charge for the case.” Malik v.

State

, 953 S.W.2d 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 inc rease the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.” Id. ; see

also Daugherty v. State

, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)

. The “law

as authorized by the indictment” includes the statutory elements of the

offense and those elements as modified by the indictment. Daugherty

, 387

S.W.3d at 665.

Zuniga v. State

, 551 S.W.3d 729, 732

- 33 (Tex. Crim. App. 2018).

Crystal Thompson was working the night shift at McDonald ’ s on January 10, 2018.

Thompson and Akeevah Jackson, the night manager, were the only two employees in the

store after 11:00 p.m. Supervising manager, Mike Gose, testified that store policy

required the lobby doors to be locked a t 11:00 p.m

. Only drive through service was

availa ble until the store reopened the following morning

. Gose stated that all doors

remain shut throughout the night and that no one is allowed to go in or out until 6:00

a.m

. when the morning ma nagers arrive and unlock the lobby doors

.

The security video from McDonald’s shows Thompson unlocking a door and

propping it open just after midnight on January 10, 2018

. At approximately 3:15 a.m.

,

Jac kson was in the office counting the money from the day. Thompson came by the office

and told Jackson she was going to use the restroom

. Moments later t he security video

shows Thompson making a phone call outside of the restroom. Robert Thompson

enter ed the store at approximately 3:25 a.m. and went into the office where Jackson was

counting t he money. Robert hit Jackson in the head with a pistol and told her to get onThompson v. State Page 4

the ground. Thompson came into the office moments later. Thompson got on the

ground, and the security video appears to show Robert kick her before leaving the office.

Robert left the McDonald’s through the back door setting off an alarm. Thompson

followed Robert to the back door and closed the back door.

Jackson called 9

- 1

- 1 to report the robbery. Officer Rodney Price, with the Fairf iel d

Police Department, responded to the robbery call. Officer Price saw a person matching

the description of the suspect running in the area. After a chase, Officer Price

apprehended the suspect and detained him

. Officers found the stolen money and the

pis tol when searching the area. The pistol recovered was a BB pistol that had the weight

and appearance of a firearm.

After Robert was detained, officers asked both Jackson and Thompson if they

knew him. Jackson said that she did not, but Thompson did not respond. Officers later

learned that Robert and Thompson are married. Gose came to the store in response to

the rob bery. He reviewed the security video with law enforcement. Thompson was

placed under arrest.

Thompson was charged as a party to agg ravated robbery. The law of parties

authorizes conviction for the collective conduct of two or more people. Johnson v. St ate

,

560 S.W.3d 224, 2 29 (Tex. Crim. App. 20 18). "A person is crimi nally responsible as a party

t o an offense if the offense committe d by his own conduct, by the conduct of another for

which he is criminally responsible , or by both." T EX

. P ENAL C ODE A NN

. § 7.01 (a) (WestThompson v. State Page 5

2011 )

. Under Section 7.02(a)(2) a person is criminally responsible for the conduct of

another if he intends comm ission of the offense and does something to help the other

person to commit it

. Johnson v. State , 560 S.W.3d at 230.

A person is crimi nally responsible for an offense committed by the conduct

of another if, acting with intent to promote or assist the commi ssion of the

offense , he solicits, encourages, directs, aids, or attempts to aid the other

person to commit th e offense

.

T EX

. P ENAL C ODE A NN . § 7.02 (a) (2) (West 2011 )

.

Thompson contends that the State had to prove that she knew Robert would use

or exhibit the BB pistol at the time she acted to assist him in the commission of the offense.

Thompson specifically argues that the evidenc e is insufficient to show that she knew

Robert was going to use or exhibit a deadly weapon.

A conviction for an aggrava ted offense must be supported by evidence that the

defendant committed, or was criminally responsible for committing, the aggravating

ele ment. Stephens v. State

, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986) ; Wyatt v. State

, 367

S.W.3d 337, 341 (Tex. App.

— Houston [14th Dist.] 2012, pet. dism'd, untimely filed) ;

Woods v. State

, No. 05

- 18

- 00444

- CR, Tex. App. 2019 L EXIS 6271 * 31 (Tex. App.

— Dallas,

July 23, 2019

, pet. ref’d )

. For a party to an offense to be liable for the use or exhibition of

a deadly weapon as an element of aggravated robbery, there must be evidence that the

defendant not only participated in the robbery before, while, or a fter a d eadly

weapon was displayed, but did so while being aware that the deadly weapon would be,

was being, or had been used or exhibited during the offense. Woods v. State at *31 ; WyattThompson v. State Page 6

v. State

, 367 S.W. 3d at 341

- 42

. Our sufficiency review is not limited to evidence that the

defendant knew in advance the dead ly weapon would be used or exhibited during the

robbery. Woods v. State at *31.

The record is clear, and Thompson does not dispute, that Robert used or exhibited

the BB pistol during the commission of the offense. Thompson argues the evidence does

not show that she knew Robert would use or exhibit the BB pistol. However, the record

shows that Thompson came into the office where Robert struck Jackson in the head with

the B B pistol

. Thompson encountered Robert in the office and told officers he pushed her

to the ground and kicked her. Thompson also followed Robert as he left the McD o n ald’s.

The evidence supports a finding that Thompson participated in the robbery while the

weapon was displa y ed and was aware that the B B pistol was being or had been used or

exhibited during the robbery. We find that the evidence is sufficient to support

Thompsons’s conviction for aggravated robbery. We overrule the first issue.

J URY C HARGE

In the second issue, Thomp son argues that the trial court failed to pr operly instruct

the jury regarding the offense charged. In analyzing a claim of jury charge e rror,

we must first determine if error exists. See Almanza v. State

, 686 S.W.2d 157, 173

- 74 (Tex.

Crim. App. 1985) ; Riggs v. State

, 482 S.W.3d. 270, 273 (Tex. App.

— Waco 2015, pet. ref’d).

If it does not, our inquiry ends. Riggs v. State

, 482 S.W.3d. at 273

. If, however, we findThompson v. State Page 7

error in the charge, we next consider whether an objection to the charge was made and

analyze the error for harm. Id.

If an error was properly preserved by objection, reversal will be necessary if there

is some harm to the accused fr om the error. Almanza v. State , 686 S.W.2d at 171.

Conversely, if error was not preserved at trial by a proper objection, a reversal will b e

granted only if the charge error causes egregious harm, meaning the appellant did not

receive a fair and impartia l trial. 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. Riggs v. State

, 482 S.W.3d. at 273

. However, the Court of Criminal

Appeals h as suggested that it is unlikely that charge error in the abstract portion of the

charge which is not present in the application paragraph wi ll be egregiously harmful. Id

.

For both preserved and unpreserved charging error, the actual degree of harm

must b e assayed in light of the entire jury charge, the state of the evidence, including

contested issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole. To obtain a re versal

for jury

- charge error, an appellant must have suffered actual harm, not mere ly theoretical

harm. Id

.

Thompson specifically argues that the jury charge failed to properly tailor the

culpable mental states to the elements they applied to and that t hose errors were

exacerbated because the trial court failed to instruct the jurors that they must find sheThompson v. State Page 8

knew Robert would use or exhibit the BB pistol before they could convict her as a party

to aggravated robbery.

There are three "conduct elements" w hich may be involved in an offense: (1) the

nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding

the conduct. Cook v. State , 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). An offens e may

contain any one or more of the se "conduct elements" which alone or in combination form

the overall behavior which the Legislature criminalized, and it is these essential "conduct

elements" to which a culpable mental state must apply. Id . Thus, the culpable mental

state definitions in the charge must be tailored to the conduct elements of the charged

offense. Cook v. State , 884 S.W.2d at 487

. Where the charged offense does not include a

particular conduct element, it is error for the court's charg e to contain a definition of the

cul pable mental state for that conduct element in the abstract portion of the charge. Riggs

v. State

, 482 S.W.3d. at 274. A trial court does not err, however, in defining the culpable

mental states for nature, result, and circumstances surrounding conduct w hen all three

of the conduct elements are contained within the offense. See Patrick , 906 S.W.2d 481, 492

(Tex. Crim. App. 1995); Gutierrez v. State , 446 S.W.3d 36, 40 (Tex. App.

— Waco 2014, pet.

ref'd).

The court's charge in this case defined "intentiona lly" and "knowingly" according

to Texas Penal Code Section 6.03. Those definitions are as follows:Thompson v. State Page 9

(a) A person acts intentionally, or with intent, with respect to the nature of

his conduct or to a result of his conduct when it is his conscious objective

or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature

of his conduct or to circumstances surrounding h is conduct when he is

aware of the nature of his conduct or that the circumst ances exist. A person

acts knowingly, or with knowledge, with respect to a result of his conduct

when he is aware that his conduct is reasonably certain to cause the result.

T EX

. P ENAL C ODE A NN

. § 6.03(a) (b) (West 2011 ).

Aggravated robbery, as charg ed in this case, is committed when, in the course of

committing theft, a person threatens or places another in fear of bodily injury or death

and the person uses or exhibits a dea dly weapon. T EX

. P ENAL C ODE A NN . §§ 29.02(a)(2),

29.03(a)(2) (West 2019 ). The element "in the course of committing theft" refers to the

circumstances surrounding the conduct, rather than the result. Gutierrez v. State , 446

S.W.3d at 40

. Because the form of robbery alleged is "aggravated" by the use of a deadly

weapon, th at element refers to the nature of conduct rather than the result of conduct

because a weapon is "deadly" if it is "capable" of causing serious bodily injury in the

manner of its use, without regard to whether the actual result is the infliction of serious

bo dily injury. Id

.

B ecause the charge used language of all three conduct elements in its definitions

of the culpable mental states and all three conduct elements are present in this case, the

trial court did not err in charging the jury. See Gutierrez v. State , 446 S.W.3d at 40

.

Moreover, because Thompson did not object to the charge, a reversal will be granted only

if the charge error causes egregious harm

. Where the application paragraph correctlyThompson v. State Page 10

instructs the jury, an error in the abstract instructi on is not egregious. Medina v. State

, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999)

.

Thompson also argues that the charge failed to instruct that she must have kn own

Robert would use or exhibit a deadly weapon

. The trial court instructed the jury :

N ow beari ng in mind the foregoing instructions, if you believe from the

evidence beyond a reasonable doubt, that on or about the 10th day of

January, 2018, in Freestone County, Texas, Crystal Thompson did then and

there while in the course of committing theft of pr operty and with intent to

obtain or maintain control of the property, intentionally or knowingly

threaten or place Akeevah Jackson in fear of imminent bodily injury or

death, and the defendant did then and there use or exhibit a deadly

weapon, namely BB pi stol; or if you find from the evidence beyond a

reasonable doubt that on or about the 10th day of January, 2018, in

Freestone County, Texas, Robert Th ompson did then and there while in the

course of committing theft of property and with intent to obtain or maintain

control of the property, intentionally or knowingly threaten or place

Akeevah Jackson in fear of imminent bodily injury or death, and Robert

Thompson did then and there use or exhibit a deadly weapon, namely BB

pistol and that the defendant, Crys tal Thompson, with the intent to promote

or assist the commission of the offense, if any, solicited, encouraged,

directed, aided or attempted to aid R obert Thompson to commit the offense,

if she did, then you will find the defendant "Guilty" of the offense of

Aggravated Robbery as charged in the indictment.

T he jury was authorized to convi ct Thompson of aggravated robbery with a deadly

weapon only if it found beyond a reasonable doubt that she acted with intent to promote

or assist Robert Thompson in the co mmission of the offense by encouraging, aiding, or

attempting to aid him in the robbery of Jackson with a deadly weapon. No greater

speci ficity in th e charge was required. Woods v. State

, No. 05

- 18

- 00444

- CR, Tex. App. 2019Thompson v. State Page 11

L EXIS 6271 * 13. ( citing Vasque z v. State

, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012)). We

overrule the second issue.

C ONCLUSION

We affirm the trial court’s judgment.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

Affirmed

Opinion delivered and filed August 19 , 2020

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