Court of Appeals of Texas, First District, Houston
On Appeal from the 262nd District Court, Harris County, Texas. Trial Court Case No. 1319079.
For APPELLANT: Jerald K. Graber, Houston, TX.
For STATE: Devon Anderson, District Attorney - Harris County, TX, Houston, TX; Carol M. Cameron, Assistant District Attorney, Harris County, Texas, Houston, TX.
Panel consists of Keyes, Higley, and Massengale
Evelyn V. Keyes Justice.
A jury convicted appellant, Triston Young, of aggravated robbery and assessed punishment at twenty-five years' confinement. In his sole issue on appeal, appellant contends that the trial court erroneously refused to instruct the jury on the lesser-included offense of robbery.
On September 4, 2011, Dennis Martinez, Bores Dominguez, and Jose Melendez, the complainant, were talking outside of Melendez's apartment at the Waterford Park Apartments in southwest Houston when a group of four or five men walked up to them. One of the men pointed a gun at Melendez and his friends, and another man, whom Melendez identified in court as appellant, hit Melendez in the face. The men insulted Melendez and his friends and demanded that they hand over their money and cell phones. Three of the men grabbed Melendez and his friends, and the other two men stood nearby and insisted that Melendez comply. The man with the gun pointed the gun at Melendez's wife, who was inside the apartment but visible through a window, and threatened to kill Melendez if he did not let him inside. Melendez heard his wife lock the door to their apartment, and he refused to let the robbers inside. The man holding the gun shot Melendez, and the group fled in a blue and white taxi van. It is undisputed that appellant did not use or exhibit a gun during this incident and that he did not shoot Melendez.
After the shooting occurred, Martinez gave a description of the suspects and the van to Houston Police Department (" HPD" ) officers, and the officers ultimately tracked the van to another apartment complex. At this complex, the officers found and detained several men, including appellant, in an apartment rented by the owner of the van. Officers brought Dominguez and Martinez by this apartment complex for a field identification, and Dominguez identified several of the men, including appellant, as those involved in the earlier robbery. In a search of the apartment, officers discovered the cell phones stolen during the robbery and a gun that was later confirmed by the HPD crime lab to be the gun used to shoot Melendez.
After officers arrested appellant, Officer J. Rachel conducted appellant's custodial interrogation. The trial court admitted a DVD recording of this interview. In the interview, appellant told Officer Rachel that, on the day of the incident, three of his friends were complaining about how they were having money issues, and they talked about going to " hit someone," which Rachel explained was slang ...