Porter v. State

JIMMY PORTER, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-20-00142-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 26, 2021

Do not publish. TEX. R. APP. P. 47.2 (b).

On appeal from the 36th District Court of San Patricio County Texas.

Before Chief Justice Contreras and Justices Benavides and Silva

MEMORANDUM OPINION

GINA M. BENAVIDES JUSTICE

By two issues, appellant Jimmy Porter appeals his convictions for aggravated robbery, a first-degree felony, and unlawful possession of a firearm by a felon, a third-degree felony.^[1] See TEX. PENAL CODE ANN §§ 29.03, 46.04(e). Porter argues that the evidence was insufficient to support his convictions, and his trial counsel was ineffective for failing to request a directed verdict. We affirm.

I. Background

On August 30, 2019, Aransas Pass Police were called to the local Sonic restaurant around 7:15 p.m. in regard to an aggravated robbery. Upon arrival, Officer Jessica Dougherty made contact with Sara Lynda Ortiz, the complainant, who described to Officer Dougherty what had occurred. Officer Dougherty testified that Ortiz was visibly shaken and told her that a customer had shown her a gun and taken her money while she was delivering an order of food. Officer Dougherty reviewed the surveillance video and identified a silver Mazda hatchback leaving the Sonic, even though Ortiz had described the vehicle as tan or gold in color. Officer Dougherty later responded to the City of Rockport, where a vehicle matching the description of the one involved in the offense at Sonic was located, but she left shortly thereafter because she did not have jurisdiction in Rockport.

Ortiz testified that her day was a "regular day" until she took an order out to stall seventeen. She said the customer pulled "something like a towel" over the center console onto his lap and pulled back the towel to show her part of a gun. Ortiz explained the man said he was robbing her, and she gave him all the money and change she had in her pockets. Ortiz said the man told her to go get money from inside the Sonic store but then reversed and left the location. Ortiz testified that she always looked at the vehicle registration stickers when she delivered orders and noticed this vehicle's sticker was from Tarrant County. She stated there was a single man in the vehicle, and he had a big tattoo on his neck. Although unsure, she thought it was an eagle and definitely saw a "wing." Ortiz explained she was more focused on the gun, which she described as black and "not a handgun." She stated she felt threatened when the event occurred. Ortiz identified Porter as the man who robbed her at Sonic and said she was sure it was him.

Officer Jack McCarty of the Aransas Pass Police Department testified that when he was traveling to the Sonic location, he saw a light-colored vehicle speeding down the road, weaving through traffic. Officer McCarty gave a brief chase but was unable to catch the speeding vehicle or get the license plate number. He also responded to Rockport around 10:10 p.m. where Porter was later apprehended. On cross-examination, Porter asked if Rockport was in Aransas County, and Officer McCarty said yes. Porter then asked if Officer McCarty had jurisdiction in Rockport since Officer Dougherty said she did not. Officer McCarty responded that he does have jurisdiction because Aransas Pass falls into Aransas, San Patricio, and Nueces Counties.

Officer Bryan Cantu, formerly with the Rockport Police Department, testified that he located a vehicle matching the description of the vehicle involved in the Sonic robbery around 10:00 p.m. at a Rockport Valero gas station. He stated that when he approached the vehicle, he noticed the registration sticker was from Tarrant County and he saw an "AR-type rifle" in the front passenger seat and four other rifles in the back seat, all in plain view. Officer Cantu explained that Porter took off running out the back door of the Valero, and after a search involving multiple agencies, he was later found two hundred yards away in heavy brush.

Another officer from the Aransas Pass Police Department testified that during booking, he took photographs of Porter's tattoos, including a large insect resembling a bee on his neck.

Following the State's case-in-chief, Porter testified in his defense that he drove to the Aransas Pass area to meet a friend, Clifford Yell. Porter explained that he met Yell years prior when Yell trained to get a commercial driver's license. Yell was supposed to help Porter secure a job working on a shrimp boat. Porter said he lent Yell his vehicle around 5 or 6 p.m. so Yell could deliver some methamphetamine Porter had brought with him. Porter believed it was Yell who robbed the Sonic store. Porter stated Yell returned to Yell's home around 8:00 p.m. and Porter took the vehicle to meet a man named "Itchy" at the Valero about the shrimp boat job. He admitted he was supposed to give the guns found in the vehicle to Itchy for Yell and knew he was not supposed to be around guns as a felon. Porter explained that he went inside the Valero to get a drink, saw Officer Cantu looking in his vehicle, dropped his drink, and ran out the back door of the Valero because he knew he was going to get in trouble. Porter claimed he did not know anything about the robbery. Porter also admitted that he was currently on parole for an unrelated offense.

Ortiz was called as a rebuttal witness by the State and shown a picture of Yell. She stated that she had never seen Yell before and was confident that it was Porter who robbed her.

The jury found Porter guilty of both offenses as charged. Following a punishment hearing where Porter stipulated to his prior offenses, the trial court sentenced him to thirty years' imprisonment for the aggravated robbery and twenty years' imprisonment for the unlawful possession of a firearm charge to run concurrently. See id. This appeal followed.

II. Sufficiency of the Evidence

By his first issue, Porter argues the evidence was insufficient to support his conviction for aggravated robbery and that venue was not sufficiently proven in the unlawful possession of a firearm charge.

A. Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We consider both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). "Each fact need not point directly and independently to the guilt of a defendant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. 2020) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). We resolve any evidentiary inconsistencies in favor of the verdict, keeping in mind that the factfinder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Walker, 594 S.W.3d at 335; see TEX. CODE CRIM. PROC. ANN. art. 38.04.

Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). "The hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase 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." Walker, 594 S.W.3d at 336.

B. Aggravated Robbery

A hypothetically correct jury charge would state that Porter committed aggravated robbery if: (1) in the course of committing theft of property and with intent to obtain or maintain control of that property, he intentionally or knowingly threatened Oritz or placed her in fear of imminent bodily injury; and (2) he used or exhibited a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02, .03. Porter argues generally in his brief that the State lacked evidence of fingerprints, of a towel in his vehicle, that his car found in Rockport was the same vehicle from Sonic, that he had been at Sonic in Aransas Pass, or that he fit the same description given by Ortiz. Porter claims that because he testified he loaned his car to Yell, it was unreasonable to believe he committed the robbery.

However the jury heard the testimony from all of the witnesses, including Ortiz. Ortiz testified that the man who robbed her had a large wing tattooed on his neck, and even though that person had been wearing sunglasses, she positively identified Porter during trial multiple times. Ortiz stated she had no doubt that he was the man whom she served food to at Sonic, and who then showed her the barrel of a gun and demanded the money she had in her pockets. Ortiz also testified that she did not recognize Yell when shown his photograph. Moreover, the officers testified that Porter was found later that day in possession of a vehicle that matched the description...