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In re J.K.

Court of Appeals of Texas, Fourteenth District

June 11, 2019

IN THE MATTER OF J.K.

          On Appeal from the County Court at Law No. 4 Fort Bend County, Texas Trial Court Cause No. 17-CJV-021351

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          Meagan Hassan Justice.

         Appellant J.K., a juvenile, appeals from the trial court's adjudication order finding that he engaged in delinquent conduct by committing aggravated robbery.[1]Appellant argues (1) the trial court erred in denying his motion to suppress, and (2) the trial court's findings are not supported by legally sufficient evidence. For the reasons below, we affirm.

         Background

         Appellant was arrested for aggravated robbery in connection with a stolen Xbox. Appellant pleaded "not true" to the allegations and proceeded to a bench trial.

         Complainant E.T., a seven-year-old girl, testified at Appellant's trial.[2] E.T. was home alone at her family's apartment the afternoon of August 19, 2017, when an intruder "knocked a lot of times" on the apartment door before breaking in. E.T. testified the intruder was carrying a long black gun with "a little red on the top of the gun." E.T. said the intruder told her something in a "mean voice" before walking into her seventeen-year-old brother's bedroom and stealing her brother's Xbox. The intruder left the apartment shortly afterwards.

         Describing the intruder, E.T. testified he was wearing black, blue, and red clothing, carrying a blue bag, and covering part of his face with a bandana. E.T. stated the intruder's skin was "kind of dark, but . . . a little light," and said his skin color was "peach, but darker."

         When the intruder broke into the apartment, E.T. was on the phone with her mother, Tina, who was at work. Testifying at Appellant's trial, Tina stated she could hear someone knocking on the door while she was on the phone with E.T. Tina then heard a "loud noise" and "a louder voice like someone broke in." E.T. ended the phone call and Tina called the apartment office, letting them know someone had broken into the apartment. Tina left her job and drove to the apartment.

         Joshua Grice, an employee at the apartment complex, answered Tina's phone call and ran to the family's apartment. When Grice got to the apartment, the front door was cracked open and the door's locking mechanism was broken. Grice called out but no one responded. Grice walked away from the apartment building towards the complex's fence line and observed a "younger black man" with a black and blue backpack walking away from the complex. Grice testified the individual was wearing a black shirt and black shorts and that a "bat or stick" was protruding out of the backpack.

         Grice walked back to the family's apartment and found E.T. hiding underneath a blanket in the master bedroom. E.T. told Grice that a man entered the apartment carrying a gun and repeatedly asked E.T., "Where is my weed?" E.T. told Grice the man was wearing all black and covering his face. Grice called 911 and two police officers, Deputy Christopher Arias and Detective Jessip Murphy, arrived at the family's apartment.

         Before the officers' arrival, Tina picked up E.T. from the apartment and left to get her son, V.T., from his friend's house. Tina, E.T., and V.T. returned to the apartment approximately ten minutes after the officers' arrival. Tina and V.T. spoke to the officers and, at Appellant's trial, acknowledged they initially lied to the officers because they did not want to admit E.T. was home alone. Tina and V.T. testified that they eventually told the officers the "true version" of where they were when the apartment was broken into: Tina was at work and V.T. was staying at a friend's house.

         Testifying at Appellant's trial, Deputy Arias stated that E.T. told him "a bad man had entered or came into the resident's apartment." Deputy Arias asked E.T. whether the intruder was carrying a weapon and E.T. indicated the intruder was carrying a gun "like the duty weapon [Deputy Arias] had on [his] hip at the time." Describing E.T.'s demeanor, Deputy Arias stated she "appeared as if a traumatic event had just occurred."

         The officers also spoke to V.T. and asked him if he knew who may have been responsible for breaking into the apartment and taking the Xbox. V.T. told the officers about an incident several weeks before during which he and a friend were smoking marijuana in the apartment complex parking lot when they were approached by a young, African-American man. The young man identified himself as Appellant and the boys exchanged information about the high schools they attended. V.T. testified that he and Appellant attended the same school. V.T. said Appellant was acting "suspicious" that evening and was "just walking around in circles" at the apartment complex.

         After speaking with the family, Detective Murphy contacted the Fort Bend school district to get Appellant's information and address. At 9:45 p.m. that evening, Detective Murphy and another detective arrived at Appellant's address. The detectives knocked at Appellant's front door for about 5-10 minutes before Appellant answered. Appellant said he was home alone and the detectives called Appellant's mother and "gave her a rundown of what was happening." Appellant's mother came home and gave the detectives consent to search the house. In an upstairs room, the detectives found marijuana and an Xbox with a serial number matching the system stolen from V.T.'s room. The detectives questioned Appellant about the Xbox and, according to Detective Murphy, Appellant gave different accounts for how he came to possess the Xbox before eventually admitting that he took it.

         Appellant was the last witness to testify at his trial and stated that, the day before the robbery, V.T. had messaged him about buying marijuana. Appellant arrived at V.T.'s apartment on August 17, 2019, and knocked for 5-10 minutes. After nobody answered, Appellant testified that he kicked in the door and entered the apartment. Appellant said he carried a baseball bat in his bag but left the bat outside of the apartment when he entered.

         Appellant saw E.T. on the phone when he entered the apartment and said he did not speak to her. Appellant walked into V.T.'s bedroom and took marijuana and an Xbox. Appellant left the apartment and walked away from the apartment complex. Appellant testified that he "probably" was the person Grice saw walking away from the complex.

         During his testimony, Appellant did not deny that he entered the apartment. He stated his intent was to steal marijuana. Appellant said he did not carry a gun when he entered the apartment. Appellant stated he did not talk to E.T. or make any threats toward her. Appellant said he was wearing dark clothing and a bandana over his face when he entered the apartment.

         After closing statements, the trial court found beyond a reasonable doubt the following allegation of aggravated robbery:

That [Appellant], on or about August 9, 2017, in Fort Bend County, Texas, did then and there while in the course of committing theft of property owned by [E.T.] and with intent to obtain and maintain control of the property, intentionally and knowingly threaten or place [E.T.] in fear of imminent bodily injury or death, and the [Appellant] did then and there use and exhibit a deadly weapon, to-wit: a firearm; and that this act is a violation of section 29.03 of the Penal Code.

         The trial court made the following finding in response to a special issue submitted as to the use or exhibition of a deadly weapon:

That [Appellant], while in the course of committing the delinquent conduct of AGGRAVATED ROBBERY, did then and there personally use or exhibit a deadly weapon, to wit: a firearm, in the commission of the Aggravated Robbery.

         Appellant ...


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