COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

MAURI CE CORNEL LTAB B, Appellant, V. THE STATE OF TEXAS, Appellee

. § § § § § § § No. 08-11-00046- CR

Appea l from the 213 J udicial District Court t h of Tar rant County , Texas (TC# 1079843D)

O P I N I O N Maurice Cornell Tabb a

ppeals his conviction for

the offe nse of a g g ravated robbe ry with a deadly wea pon. In a sing le issue, Appellant c ontends the trial cour t abused its discretion, during a unified punishment proc eeding , by permitting a

witness to testify

as to whethe r Appe llant appea red to be the ag g ressor dur ing the commission of the offe nse. F inding no r ever sible err or,

we a ffirm the tria l court’s judg ment. BACK GR OUND Appellant wa s indicted in September 2007, f or the off ense of ag g ravated robbe ry

with a deadly wea pon in Cause Number

1079843D. On Mar ch 3, 2008, the tria l court plac ed Appe llant on 10 y ear s’ def

err ed adjudication community supervision and a ssessed a f ine of $1,000. On J une 3, 2008, the State f iled a Petition to P roce ed to Adjudication alleg ing that Appellant had violate d the terms and c onditions of his communi ty supervision by

committing another offe nse and by

using a controlled substanc e. On De cembe r 4, 2008, the State filed its First Amende d Petition t o Procee d to Adjudication alleg ing that Appellant had violated the terms and conditions of his community supervision as desc ribed in its orig inal Petition t o Procee d toAdjudication as we ll as by : committi ng three new of fense s; failing to r eport to the Community Supervision and Corre ctions Depa rtment of Ta

rra nt County as direc ted; and assoc iating w ith a person known to Appe llant to be of a ha rmful or disre putable cha rac ter. The trial c ourt ultimately

dismiss ed the State’ s First Amende d Petition t o Procee d to Adjudication and modified A ppellant’s community

supervision to include a r equire ment that Appellant par

ticipate in a Substance Abuse F elony Punishm ent Fa cility

for a period of one y ear . On J anuar

y 15, 2010, the State filed its Second Amende d Petition t o Procee d to Adjudication alleg ing that on Aug ust 19, 2008, in Cause Number 1186781D, A ppellant violated the terms and c onditions of his communi ty supervision by

committing a ne w offe nse, specific ally , robber

y causing bodily injury to Mr. Kenne th Dozier. Defe ndant was indicte d for said offe nse on April 13, 2010. On Dec ember

13, 2010, in Cause Number 1186781D, Appellant pled g uilty to the offe nse of robbe ry

causingbodily

injury . On Dec ember

14, 2010, Appellant pled true to the alleg ations that he violated the te rms and conditions of his community supervision in Cause Number 1079843D by

committing the off

ense of robber y causingbodily

injury descr ibed above , and by using illeg al substance s as desc ribed in the State’s Sec ond Amended Petition to Procee d to Adjudication. At that time, the trial court c ommenced a hearing r elative to punishment in both cases in a unified proc eeding . The State c alled four witnesses in its case- in-chief and the de fense called five witnesse s in its case-in-c hief. On r ebuttal, the State re -ca lled two witnesses. The e vidence prese nted established that on August 19, 2008, Appellant was obse rved in Macy ’s Depa

rtment Store ac ting in a suspicious manne r. A Mac y ’s loss preve ntion officer went to the sales floor to investig ate while a nother loss preve ntion officer continued to monitor the

-2-situation on camera s in the secur ity office . The two loss preve ntion officer s continued to communicate by

cell phone. A t some point, Appellant attempted to leave the store without paying f or the mer chandise he wa s car rying. K enneth Doc ier he lp up his badg e and a ttempted to identify himself as a loss pre vention office r for Macy ’s Depa

rtment Stores. Be fore he could do so, Appellant pushed pa st Mr. Docier , “stiff-a rmed” him, and punched him in the fa ce a nd head. Mr. Docie r wa s able to slap all of the merc handise out of Appe llant’s arms. Mr. Doc ier then g rabbe d Appellant’s shirt and A ppellant slung Mr. Docie r into the stree t and on the ground. At that moment, a truck pulled up to the sc ene where Mr. Docie r wa s on his back on the g round and Appellant wa s standing ove r him. Appellent g ot into the truck and the truc k drove a way . Duringrebuttal, the State r e-c alled Ms. Roseanne Var g as. One of the que stions that Ms. Varg as wa s asked by the State was who she believe d to be the ag g ressor in the inc ident betwee n L oss Prevention Off icer Kenne th Docier

and Appe llant. The def

ense obje cted a

rguing that the question ca lled for spe culation and the tr ial court ove rruled the objection. Ms. Var g as responde d that Mr. Docie r did not appea r to be the a g g ressor. At the conc lusion of the hear ing, in Cause Number 1079843D , the trial cour t gr anted the State’s Second Ame nded Petition to P roce ed to Adjudication and a djudicated Appe llant guilty of the offe nse of a g g rava

ted robbe ry

with a dea dly

wea pon, based on A

ppellant’s plea s of true to the two para g raphs c ontained in the State’s Sec ond Amended Petition to Procee d to Adjudication. The Court fur

ther found A

ppellant guilty

of the off ense of robber y causingbodily

injury in Cause Number 1186781D based on A ppellant’s plea

of guilty to that offense the day

prior to the hear ing. T he trial c ourt then sentenc ed Appe llant to 15 y ear s confineme nt in the Texas Depa rtment of Criminal J ustice, Institut ional Division, both sentences to run c oncurr ently

. ANALYSIS
-3-In his sole issue, Appellant ar g ues that the trial c ourt abused its discre tion when it

allowed the State to pr esent re buttal testimony from a w itness who testified that it appea red to her that Appellant was the ag g ressor during a confr ontation betwee n Appellant and L oss Prevention Off

icer Kenne th Dozier. We reviewa trial c ourt’s rulingon the admissibilit y of evide nce f

or an a buse of discretion. See G reen v . State , 934 S.W .2d 92, 101-02 (Te x .Crim.App. 1996). So long a s the trial court’ s decision fa lls withi n the zone of re asonable disag ree ment, the rulingwill be aff irmed. Moses v . State , 105 S.W .3d 622, 627 (Tex.Crim.App. 2003). The admissibility of evidenc e at punishment is g uided larg ely by Article 37.07, se ction 3 of the Te x as Code of Criminal Procedure

. Haley v . State , 173 S.W .3d 510, 513 (Tex.Crim.App. 2005); seeT E X .C O D E C R I M .P R O C .A N N . art. 37.07, § 3(a )(1) (West Supp. 2011). “Unlike the guilt-innocence phase, the question at punishment is not whether the de fenda nt has committed a cr ime, but instead what sentenc e should be a ssessed.” Haley , 173 S.W .3d at 515, citing Sunbury v. State , 88 S.W .3d 229, 234 (Tex.Crim.App. 2002), and Rogers v. State , 991 S.W .2d 263, 265 (Tex.Crim.App. 1999). Her e, the de fense prese nted, duringits case- in-chief , the testimony

of Mr. Willi e B ean. Mr. B ean te stified, inter alia, that: (1) he w as a f riend of A

ppellant; (2) he drove A

ppellant to the Mac y ’s Depa

rtment Store; (3) whe n Appellant exited the store, he sa w Appellant a

nd a white g uy fig hting; (4) the white guy knocked A

ppellant’s hat f

rom his head a

nd tore Appe llant’s shirt off of Appellant’s body ; and (5) he did not see any box es or c lothes on the g round or a ny thing in Appellant’s ha

nds. Mr. Be an also testified that it appear ed to him that Appellant was “ trying to defe nd hisself,” [sic] t hat it “[l] ooked like the man w as trying to be at [Appellant] up,” and that it appea red that the man [Mr. Docier] “slipped and f ell down.” F inally , Mr. B ean stated that it

-4-looked like Appellant “ didn’t want to fig ht him,” that “the white guy , wanted to ke ep on

fig hting,” and that “[i]t looked like” Appe llant “wante d to give up.” In light of this testimony , the State, duringrebuttal, re called Ms. Rosea nne Va rg as who testified that it appea

red to he r that Mr. Doc ier did not appe ar to be the ag g ressor in the confr ontation. Under these c ircumstance s, we c onclude that the tr ial court' s decision to admit Ms. Varg as’ testimony

over a defe nse objec tion to speculation, to rebut Appellant’ s appar ent defe nsive theory

that he wa s not the ag g ressor in the c onfrontation, which A ppellant had plac ed in question through the testimony of Mr. B ean, f

alls within the z one of r easona ble disag ree ment and does not c onstitut e an a buse of discr etion. See G reen , 934 S.W .2d at 101-02.

CONCLUSION Havingoverr

uled Appellant’ s sole issue, we a ffirm the tria l court’s judg ment.

J anuar y 25, 2012 CHRI STOPHER ANTCL I FF , J ustice Be fore McClure, C.J ., Rivera, a nd Antcliff, JJ

. (Do Not Publish)

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