Digbie, Sidney Robotus v. The State of Texas--Appeal from 243rd District Court of El Paso County

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State: Texas

Court: Texas Northern District Court

Docket No: 08-01-00066-CR

Case Date: 09/26/2002

Plaintiff: Digbie, Sidney Robotus

Defendant: The State of Texas--Appeal from 243rd District Court of El Paso County

Preview:Digbie, Sidney Robotus v. The State of Texas--Appeal from 243rd District Court of El Paso County
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) SIDNEY ROBOTUS DIGBIE, ) No. 08-01-00066-CR ) Appellant, ) Appeal from ) v. ) 243rd District Court ) THE STATE OF TEXAS, ) of El Paso County, Texas ) Appellee. ) (TC# 980D11753) OPINION Sidney Robotus Digbie appeals his robbery conviction. A jury found Appellant guilty and assessed his punishment at a fine of $10,000 and imprisonment for a term of sixteen years. We affirm. FACTUAL SUMMARY

Jose Dominguez and Jose Rafael Pena met at El Paso Community College. In late 1998, they began working together on an illegal drug transaction involving the purchase of 500 pounds of marihuana on behalf of individuals from out of state. One of those men was Herman Lawson. Dominguez contacted a person he knew as Chris Sainsbury[1] to provide the marihuana and they negotiated a price of $20,000 per 100 pounds. On December 11, 1998, the buyers, including Lawson, arrived in El Paso with over $100,000. One of Lawson=s friends, Derek Kennedy, flew into El Paso and rented a car for the purpose of transporting the marihuana back to the East Coast. On the evening of December 11 at about 7 p.m., Dominguez and Pena met with two individuals, Joey Martinez and Chris Szczech, who were associated with Sainsbury. They met at a Taco Bell for the purpose of showing the sellers the money. After Pena showed them $20,000, Martinez and Szczech made a telephone call for the ostensible purpose of proceeding with the transaction. Pena had the rest of the money with him. The group then met at a house in northeast El Paso for the purpose of counting all of the money. After they finished, the group went to a Whataburger and Martinez made some telephone calls to determine where they would meet to make the exchange. While they waited, Martinez went over to a red minivan which had stopped in the street. When he came back, Martinez told them that the marihuana would be ready in about five minutes. A short time later, he made another phone call and then told Pena that they were ready. Pena, Lawson, and Dominguez then followed Martinez and Szczech to a location for the exchange of the cash for
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marihuana.

Pena exited the vehicle first and Dominguez followed him. Pena walked towards a rock wall and then came back, telling Dominguez to hurry up and get in the van so they could leave. Pena got back out of the van and asked Martinez where were the drugs. Dominguez saw two black males he had not previously seen walk over and begin talking to Pena and asking him what was the problem. When Pena complained that they were Abullshitting@ them and called them Aniggers,@ one of the black males shot Pena. Dominguez identified Appellant as the second black male who stood approximately one foot away from the shooter. After the shooting began, Martinez jumped in his car and drove away. Pena crawled into the van while Lawson drove. Dominguez ran while the shooter chased him. He could both see and hear bullets striking the road by his feet. Dominguez=s buttock was grazed by a bullet but he made it to a house. A woman opened the door and called the police for him. The police picked up Dominguez and took him back to the crime scene. Dominguez later identified Szczech, Appellant, and the shooter from photo lineups. Derek Kennedy and his wife, Ramona, flew to El Paso on December 11 for the purpose of driving a rental car back to Georgia for a friend, Herman Lawson. Kennedy knew that the vehicle would contain marihuana but he did not know the exact amount. Late that same evening, Lawson called Kennedy and told him he had been shot. Kennedy and his wife got dressed and drove around looking for a Pizza Hut on Dyer Street. After getting directions, Kennedy found the Pizza Hut and he saw paramedics at a Whataburger located adjacent to the Pizza Hut. Kennedy went inside of the Whataburger and found Lawson on the floor of the restaurant=s kitchen being treated by the paramedics. Lawson, who was in pain and appeared confused, had a bullet wound in his upper shoulder area and an exit wound in his back. Kennedy attempted to follow the ambulance, but police officers wanted to interview him. He spoke with the police officers on the scene for about forty-five minutes and then went to the police station to give a written statement. Police officers discovered Pena seated in the front passenger seat of a minivan in the Whataburger parking lot. Officer Anthony Weathersbee could not get a pulse so he began performing chest compressions. After noticing his hands were wet with blood, Weathersbee lifted Pena=s shirt and found a small bullet hole in his chest. Paramedics took over the efforts to revive Pena but he died as the result of his injuries. During their investigation, police officers found beneath the minivan=s seat a box containing $1,000 wrapped in a rubber band but they did not find any other money in the van. They also found an empty gym bag, packing and wrapping materials, boxes, and some scales. The back glass of the van had been shattered by gunfire.

A few days after the shooting, the police identified Appellant as a suspect. On December 15, 1998, Appellant waived his Fifth Amendment rights and gave a voluntary written statement regarding the shooting. He stated that on the evening of December 11 at about 10:30 p.m., a person known to him as AFesto@[2] came to Appellant=s home. Festo asked if Appellant would do something for him. When Appellant asked what, Festo asked Appellant to go with him to an area in northeast El Paso known to them as Athe couch.@ He promised to give Appellant some marihuana. Appellant agreed and they left the house. As they drove to Athe couch@ in a minivan belonging to Chris Sainsbury, Festo told Appellant that he needed for Appellant to Awatch his back.@ Festo would not tell him what they were going to do but simply said, AYou=ll see, you=ll see.@ When they arrived, Festo gave Appellant an aluminum baseball bat. They got out of the van and Appellant hid the bat out of view behind a rock wall. Festo finally told Appellant that they were there Ato pick up Festo=s money.@ Appellant knew that Festo was Atalking about ripping the money off, because he is known for that@ and Appellant had not seen any marihuana in the van. Appellant also knew that Festo had a gun in his pants pocket. He believed it was a small .38 caliber semiautomatic weapon.

Two other individuals known to Appellant, Joey Martinez and Chris Szczech, arrived in a white car. They were being followed by a minivan. Both vehicles pulled up and parked. The driver, a light skinned Hispanic male, got out of the van and told Festo that they wanted to do this quick. Appellant saw a black male seated in the back seat of the van. Another Hispanic male got out of the van. The driver asked Festo if he could Asee the stuff@ but Festo insisted on seeing the money first. The driver told Festo that Ayour homie already saw the money and counted it.@ As Festo
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talked to the driver, Appellant had walked over to Martinez=s car. The driver then walked back to his minivan and sat on the passenger seat. After a few minutes of conversation between Festo and the driver, Martinez told them to hurry. The driver told the other Hispanic male to get in the van. When they refused to wait, Festo began shooting. Appellant began running after Martinez who had left in his car. He saw Chris Sainsbury running up the side of a dirt hill. Appellant had not known that Sainsbury was present. Appellant saw Festo chasing the second Hispanic male and shooting at him. As the van left, gunfire struck the back glass of the window, shattering it. Appellant ran home and did not talk to Festo until Monday, December 14. He asked Festo why he had shot the guy. Festo replied, AHe was going to get away.@ Festo did not know why Sainsbury had hidden. He told Appellant to remain calm and assured him everything would be fine. At the conclusion of his statement, Appellant admitted knowledge of the planned robbery but denied any intent to hurt anyone: I want to say that the whole incident was not suppose [sic] to happen like that. We were suppose [sic] to go down there and got [sic] his money and then left but when the dude was trying to leave that=s when everything got messed up. By that I mean Festo had shot him and nobody was suppose [sic] to get shot or die.

Two days later, Appellant told the police he wanted to talk with them about some matters he had left out of his first statement. In a second written statement, Appellant admitted that Chris Sainsbury called him on December 11 at about 10:30 p.m., and asked if he could borrow a gun from Damian McElhinny. Appellant told him that McElhinny would not loan him a gun but would probably sell one. McElhinny refused to sell the gun to Sainsbury but agreed to sell it to Appellant for $100. Sainsbury gave Appellant $100 to buy the gun. Festo picked up Appellant and they went to McElhinny=s house. McElhinny required Appellant to sign a receipt for the purchase of the black .38 automatic. Appellant gave the gun to Festo when they got out to the car. When they got back to Appellant=s house, they telephoned Sainsbury who came over and picked up the gun. Appellant recalled that Festo told Sainsbury that another person they knew had some ammunition. Appellant also admitted that he talked to Sainsbury at Athe couch@ and asked him what he was doing there. Sainsbury told him that he was watching for Martinez and the others to arrive. Appellant=s statement regarding the purchase of the gun was corroborated by McElhinny=s testimony and the admission of the receipt. The weapon had a full clip in it and McElhinny offered Appellant additional ammunition for it. He did not actually see Appellant take the ammunition. After the shooting, Sainsbury asked McElhinny to report the weapon as stolen but he refused. Police officers found eight live rounds in Appellant=s closet during the execution of a search warrant. Shortly after the shooting, police investigators went to Athe couch@ and found a baseball bat leaning against a rock wall in the same manner as described by Appellant in his first statement. They also found one spent .38 shell casing manufactured by Remington Peters, the same brand as the live rounds found in Appellant=s closet. A .38 caliber slug was removed from Pena=s body. At trial, Appellant testified in his own defense. Asserting that both of his written statements were inaccurate, he told the jury that he went to Athe couch@ with Festo and Sainsbury only to smoke marihuana. He denied knowing that Festo or Sainsbury intended to rob anyone. Further, he could not hear any of the conversations between Festo and the robbery victims. When he heard the gunshots, he ran away.

A grand jury indicted Appellant for the capital murder of Pena. The indictment contained a second count of murder. At trial, the State abandoned the second count and proceeded solely on the capital murder charge. The trial court instructed the jury on the lesser-included offense of robbery. Further, the charge contained an instruction on the law of parties such that the jury was authorized to convict Appellant as a party to the robbery. The jury found Appellant guilty of the lesser-included offense of robbery. LEGAL SUFFICIENCY In his sole point of error, Appellant challenges the legal sufficiency of the evidence to sustain his conviction of robbery.
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Standard of Review In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

Elements of the Offense and the Law of Parties A person commits robbery if, in the course of committing theft as defined in Chapter 31 of the Penal Code and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex.Penal Code Ann. ' 29.02 (Vernon 1994). Further, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex.Penal Code Ann. ' 7.01(a)(Vernon 1994). A person is criminally responsible for an offense committed by another if, acting within intent to promote or assist the commission of the offense he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex.Penal Code Ann. ' 7.02(a)(2). The application paragraph of the charge permitted the jury to convict Appellant as a party to robbery.

In order to establish liability as a party, it must be shown that, in addition to the illegal conduct by the primary actor, the accused harbored the specific intent to promote or assist the commission of the offense. See Lawton v. State, 913 S.W.2d 542, 555 (Tex.Crim.App. 1995); Garcia v. State, 871 S.W.2d 279, 281 (Tex.App.--El Paso 1994, no pet.). The evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by acts, words, or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.)(opinion on reh=g), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996). The agreement, if any, must be before or contemporaneous with the criminal event. See Beier v. State, 687 S.W.2d 2, 3-4 (Tex.Crim.App. 1985). While an agreement of the parties to act together in a common design seldom can be proved by direct evidence, reliance may be had on the actions of the parties, showing by either direct or circumstantial evidence, an understanding and common design to do a certain act. See Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986), cert. denied, 515 U.S. 1107, 115 S.Ct. 2256, 132 L.Ed.2d 263 (1995); Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.--Austin 2001, pet. ref=d). Circumstantial evidence alone may be sufficient to show that one is a party to the offense. See Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App. 1977); Barnes, 62 S.W.3d at 297. The State must show more than mere presence to establish participation in a criminal offense. See Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. [Panel Op.] 1981)(opinion on reh=g). Nevertheless, mere presence is a circumstance tending to prove that a person is a party to the offense, and when taken with other facts, may be sufficient to show that he was a participant. See Valdez, 623 S.W.2d at 321; Barnes, 62 S.W.3d at 297. In determining whether an accused participated in the offense as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense. Ransom, 920 S.W.2d at 302. The Evidence

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Taken in the light most favorable to the verdict, the evidence showed that Appellant had prior knowledge of the sham drug transaction and Festo=s intent to rob the victims of the money. Appellant agreed to accompany Festo for the purpose of Awatching his back@ during the robbery. Only a short time before the robbery, he purchased a loaded weapon on behalf of Sainsbury and gave it to Festo. He knew Festo had the weapon in his pocket at the scene. Further, Appellant accepted a baseball bat from Festo and carried it to the scene of the planned robbery. Based upon this evidence, a rational trier of fact could have found Appellant guilty of robbery as a party. See Barnes v. State, 56 S.W.3d 221, 238-39 (Tex.App.--Fort Worth 2001, pet. ref=d)(in capital murder prosecution, evidence showed an understanding and common design to commit a robbery where defendant discussed Ahitting a lick@ or robbery with his accomplices, and secured a weapon and made a mask). Appellant=s sole point of error is overruled. The judgment of the trial court is affirmed. September 26, 2002 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish)

[1] Sainsbury is also referred to as Chris Stansbury by some witnesses. For consistency and to avoid confusion, we will refer to him as Sainsbury throughout the opinion. [2] Appellant knew Festo=s name to be Jimil Gillian but his legal name is Michael Jones.

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