Clark v. State

Do Not Publish

Submitted on June 23, 2021

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 18-09-12648-CR

Before Golemon, C.J., Horton and Johnson, JJ.

MEMORANDUM OPINION

LEANNE JOHNSON Justice.

A grand jury indicted Appellant Marquis Deshawn Clark Jr. for aggravated robbery by using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code Ann. § 29.03(a)(2). Clark pleaded "not guilty," but a jury found him guilty of the offense charged and assessed punishment at imprisonment for life. Clark appeals his conviction, raising six issues. Finding no reversible error, we affirm.

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Evidence at Trial

Testimony of Law Enforcement Officers

Corey Cooke, a deputy with the Montgomery County Sheriff's Office testified that he responded to a call at about 2:45 a.m. on August 23, 2018, for an aggravated robbery at a Circle K convenience store in Porter, Texas. Cooke testified that the surveillance video showed that the suspects arrived in a black Dodge Ram truck and left in the same vehicle. According to Cooke, four men arrived in the truck and entered the store, and two of the men had handguns. The suspects held a man in the parking lot at gunpoint and forced the man into the store, one suspect jumped over the counter and put a gun in the cashier's face, took $50 from the register, about ten packs of cigarettes, and two cell phones. One of the suspects was not wearing a mask and he was later identified as Lacharles Craige and as the man who put a gun in the cashier's face.

The surveillance video from the Circle K was admitted into evidence and published to the jury. Cooke identified Trenton Jackson and Lacharles Craige in the video. Cooke also identified a third suspect wearing all black, a mask, and red gloves, and a fourth suspect wearing a University of Houston hoodie and mask. Craige had a black and silver semi-automatic handgun, Jackson also had a pistol pointed at the cashier, and the third suspect who was wearing the red gloves had a black semi-automatic handgun. According to Cooke, the suspects also held two

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people in the parking lot at gunpoint and stole their cell phones so they could not notify law enforcement. Cooke characterized the robbery as "extremely violent and extremely reckless[.]"

The following day, Cooke learned of a robbery at an adult bookstore in Houston that was also committed by four men about thirty minutes after the robbery at the Circle K. Cooke contacted Detective Nealy with the Houston Police Department who provided a photograph of one of the suspects from the adult bookstore robbery and that photograph was of Craige. Craige was the only suspect in the Circle K robbery who was not wearing a mask. Cooke learned that Nealy had already interviewed Craige, and Craige had admitted to the Circle K robbery. Cooke testified that he spoke with a victim whom the suspects pulled into the store from the parking lot, and the victim recalled that someone held a pistol to the back of his head. On cross-examination Cooke testified that Lacharles Craige and the third suspect, who wore red gloves, held guns to the victims' heads. Cooke agreed that the third suspect seemed to be a "lookout" for a while and then he went behind the counter.

Detective Brad Curtis, with the homicide and violent crimes unit of the Montgomery County Sheriff's Office, testified that he was assigned to the Circle K robbery that occurred on August 23, 2018, in Porter. He had reviewed videos of the Circle K robbery and of the robbery committed about thirty minutes later. Curtis

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agreed he verified that four people were involved in both robberies. According to Curtis, the deputies who responded to the robbery quickly learned of another similar crime that occurred not far away that seemed to involve the same vehicle and people. Curtis testified that the responding deputies at the Circle K identified that a Dodge pickup truck was involved in the Circle K store robbery, and later a wrecked Dodge pickup truck was located at the scene of the second robbery. Curtis identified certain exhibits as photos of Clark, Craige, Jackson, and Cameron Lucas. Curtis agreed that Craige had entered a guilty plea and received a fifty-year sentence, Jackson pleaded guilty and received a forty-year sentence, and Lucas pleaded guilty and received a thirty-year sentence-all for their involvement in the Circle K robbery. On crossexamination, Curtis agreed that based solely on the video from the Circle K, he could not say that Clark was in the store that night.

Officer Bobby Carlyle, with the Houston Police Department, testified that on August 23, 2018, he responded to a "hold-up panic alarm" from an adult bookstore. Carlyle testified that when he arrived and entered the store, he encountered a man wearing a hoodie and a mask who was holding a gun, and the man ran toward the back of the store where he got into a black four-door sedan and drove to the front of the store. When Carlyle's backup arrived, the officers pursued the vehicle south toward Houston, they lost the vehicle for a while, but other police units caught the vehicle when it crashed. According to Carlyle, the police matched one of the suspects

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to video from the store's surveillance cameras. Carlyle also testified that he talked with the store's cashier shortly after the robbery, and she told them, "they [] made her... get naked and then made her perform oral sex on [two] of them."

Officer Joshua Vincent, with the Houston Police Department, testified that on the night of August 23, 2018, dispatch put out a priority call for service on a holdup panic alarm at an adult bookstore. Before he could get to the location, he heard over the radio that the suspects' vehicle had crashed, and the suspects were running on foot. He and his superior officer stopped the vehicle to help set up a perimeter, and a Black male who was bloody and sweaty approached the vehicle and said he was in a crash and was hurt. Vincent testified that he later identified the man as Lacharles Craige.

Special Agent Curtis Williams, with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), testified that he is a digital media collections specialist trained to extract information stored on electronic devices, including from cell phones. Williams agreed he was contacted by another special agent to complete a "cell phone dump" in this case pursuant to a warrant, and he identified Clark's cell phone, which was admitted into evidence. He was unable to unlock the cell phone, but ATF was able to extract information from the phone and store it on two USB drives, and Williams generated a report on the phone's contents, which was admitted into evidence.

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Special Agent Dominic Rosamilia, a special agent with ATF assigned to violent crimes, testified that he was brought into this case by a Houston Police Department robbery task force officer. According to Rosamilia, ATF became involved because the crimes were in two jurisdictions and initial investigation discovered that robberies had been committed in three counties. Rosamilia testified that the suspects would use stolen vehicles and often wore the same clothing, including a skull mask. Rosamilia characterized the robberies as "a string of violence."

Rosamilia stated he served as a case manager, and he took over the search warrant for the phones. Rosamilia testified that he received a report of the "cell phone dump" of Clark's phone, and he examined the timeline of calls, messages, and pictures from the phone. According to Rosamilia, the timeline from Clark's cell phone showed no data, messages, or pictures during at least a two-hour window on the dates of the robberies except for one Facetime call. Based on his experience and training, this indicated the cell phone user was likely turning the phone off during that window, and he was unable to identify the phone's location from pings off cell towers during that window. Rosamilia testified that the report from Clark's phone showed more than twenty Google searches between August 27 and September 4 for news updates on robbery, update on adult bookstore robbery, "adult bookstore employee raped in takeover robbery[, ]" and suspects caught after sexual assault.

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Rosamilia also testified that in the days prior to August 24, 2018, the report showed searches for "Shipley Donuts robbery[, ]" a drive-through robbery at McDonald's, and robberies in northwest Houston. According to Rosamilia, one message from the phone dated August 23, 2018 stated "I lost my stuff on the lick last night[.]" Rosamilia testified that he identified other messages from the phone dated August 29 indicating that people were "snitching" or "telling[]" and at that time, arrests had been made in the robbery. Rosamilia also identified a message from the phone identifying the sender as "Marquis." Rosamilia also identified a photo from the phone that depicted Clark with a semi-automatic firearm with an extended magazine that holds thirty rounds of ammunition, and he agreed that a gun similar to this had been used in at least one of the robberies in this case.

Detective Jeremy Curtis, with the Houston Police Department, testified that he is assigned to the robbery division, violent offender task force, and the ATF crime strike force in Houston. Curtis agreed that, with the assistance of ATF, he was able to link numerous aggravated robberies that took place in and around Houston based on common factors, including the clothing and faces of the individuals involved in the series of robberies, their guns, and their propensity for violence with firearms. He agreed that there were instances where robberies were committed "within minutes of each other [and] [i]n close proximity to...