Aggravated Robbery and the Law of Parties

When a defendant is facing a charge of aggravated robbery or has been convicted of aggravated robbery and the allegation is that he is guilty because he was a party to the offense, the attorney for the State must prove that the defendant (1) was a party to the offense where a deadly weapon was used or exhibited and (2) knew such a weapon would be used or exhibited. Sarmiento v. State, 93 S.W.3d 566, 569 (Tex. Crim. App.―Houston [14th Dist.] 2002, pet ref’d.) (opinion on reh’g). The following guide should help with a defense of a charge of aggravated robbery when the defendant is charged as a party.

1.   Aggravated Robbery Defined

Section 29.02(a)(2) of the Penal Code defines robbery as follows:

A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1)intentionally, knowingly, or recklessly causes bodily injury to another; or,

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

Tex. Penal Code § 29.02(a)(2).

This offense becomes aggravated under § 29.03(a)(2) if the person “commits a robbery as defined in Section 29.02, and he: . . . (2) uses or exhibits a deadly weapon.” Id. § 29.03(a)(2).

2.   Definition of “Exhibit” in the Context of 29.03(a)(2)

The Penal Code does not define “exhibit.” See generally, Tex. Penal Code § 1.07. In the context of § 29.03(a)(2), this Court, in 2011, stated that “to ‘exhibit’ a deadly weapon only requires that it be consciously displayed during the commission of the required offense.” (Emphasis added.). Simple v. State, No. 05-10-00658-CR; No. 05-10-00659-CR, 2011 Tex. App. LEXIS 2581, 2011 WL 1329183 at *6 (Tex. App.―Dallas April 7, 2011, no pet.) (memo op.) (not designated for publication) (citing to McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000)).

The Court of Criminal Appeals considered the meaning of “exhibit” in the context of § 29.03(a)(2) in 2000 in McCain. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). In McCain, a man acting alone but carrying a large knife in his back pocket attacked and robbed a woman. There was “[n]o evidence that [during the attack that the] appellant touched, brandished, referred to, or overtly displayed the knife in any way other than having it partly sticking out of his pocket.” Id. at 499. The Court of Criminal Appeals held that, “the knife was partially exposed and from that exposure, the factfinder could rationally conclude that the knife was exhibited during the criminal transaction, or at least, that its presence was used by appellant to instill in the complainant apprehension, reducing the likelihood of resistance during the encounter.” Id. at 503. At the conclusion of its opinion, the Court of Criminal Appeals emphasized that, “[w]e are not equating mere possession with ‘use or exhibit’ under Texas Penal Code §29.03(a)(2). Rather, the determining factor is that the deadly weapon was ‘used’ in facilitating the underlying crime.” Id.

3.   Definition of “Use” in the Context of 29.03(a)(2)

The Penal Code does not define “use.” See generally, Tex. Penal Code § 1.07. In the context of an allegation of aggravated robbery, the Court of Criminal Appeals has defined “use” as “any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006). In 2006, the Court of Criminal Appeals, in Herring, held that that “Herring’s admission that he possessed the knife, coupled with his threat to kill [the complainant] and his taking the money, is legally sufficient evidence of use.” Id. at 766.

The Fifth Court of Appeals recently stated that, “[t]o ‘use’ a deadly weapon during the commission of an offense means that the deadly weapon was employed or utilized in order to achieve its purpose.” Simple, 2011 Tex. App. LEXIS 2581, 2011 WL 1329183 at *6.

4.  Law of Parties Generally

Section 7.02(a)(2) of the Penal Code provides that a person is criminally responsible for another person’s conduct if “acting with 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 § 7.02(a)(2).

Standing alone, proof that an accused was present at the scene of the crime or assisted the primary actor in making his getaway is insufficient. Scott v. State, 946 S.W.2d 166, 168 (Tex. App.―Austin 1997, pet. ref’d). The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); Armstead v. State, 977 S.W.2d 791, 797 (Tex. App.―Fort Worth 1998, pet. ref’d).

Evidence is legally sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by acts, words, or other agreement. Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.―Fort Worth 2001, pet. ref’d). Whether an accused participated as a party to an offense may be determined by examining the events occurring before, during, and after the commission of the offense and by the actions of the accused which show an understanding and common design to commit the offense. Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985); Armstead, 977 S.W.2d at 797.

5.  Law of Parties in the Context of Penal Code §29.03(a)(2)

To find an accused person guilty as a party under §29.03(a)(2) of the Penal Code, the jury must find that “he (1) was a party to the offense where a deadly weapon was used or exhibited and (2) knew such a weapon would be used or exhibited.” Sarmiento v. State, 93 S.W.3d 566, 569 (Tex. Crim. App.―Houston [14th Dist.] 2002, pet ref’d.) (opinion on reh’g).

Thus, “where the use of a deadly weapon is an element of the offense, the State automatically carries the burden of proving the defendant knew a weapon would be used or exhibited in the commission of the offense. In other words, even as a party, a defendant cannot be convicted unless his participation is accompanied with the intent ‘to promote or assist the commission of the offense.’” Id.

In Warren, the Fort Worth Court of Appeals considered an appellant’s contention that the evidence was legally insufficient to convict him as a party to an aggravated robbery. The Second Court of Appeals wrote:

Appellant’s criminal responsibility for Perkins’s use of the gun during the robbery is supported by the following facts. First, the weapon used by Perkins during the commission of the offense belonged to appellant’s girlfriend, Ferguson. Second, Ferguson kept the gun in [her] closet in the apartment that she shared with appellant. And third, appellant told Officer Skarbek that the gun belonged to Ferguson when he was apprehended. From these facts, a rational jury could infer that appellant intended to assist with the robbery by giving Ferguson’s gun to Perkins for him to use during the robbery. Warren v. State, No. 02-04-00225-CR 2005 Tex. App. LEXIS 6726, 2005 WL 1994245 *6 (Tex. App.―Fort Worth Aug. 18, 2005, pet. ref’d.) (memo op.) (not designated for publication).

6.   Conclusion

Establishing that a defendant is guilty of aggravated robbery as a party to the offense can be q technical endeavor. Using the case law above, hopefully counsel can present arguments on behalf of their client.