Houston Woman Accused Of Robbing Man Of His Jay Z Tickets & Running Him Over

Case Number: 01-16-00399-CR

Judge: Laura Carter Higley

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Cory Stott
The Honorable Kim K Ogg
Daniel McCrory

Defendant's Attorney:

Seth Herschel Kretzer

Description: Darden was indicted for aggravated robbery with a deadly weapon. The
indictment alleged that Darden “on or about December 15, 2013, did . . . while in
the course of committing theft of property owned by [B. Ginsburg], and with intent
to obtain and maintain control of the property, intentionally, knowingly and
recklessly cause serious bodily injury to [Ginsburg] by DRIVING A MOTOR
VEHICLE ONTO WHICH THE COMPLAINANT WAS HOLDING, ON A
ROADWAY”; “by FAILING TO STOP A MOTOR VEHICLE ONTO WHICH
THE COMPLAINANT WAS HOLDING”; “DRIVING A MOTOR VEHICLE
OVER THE COMPLAINANT”; “by KICKING THE COMPLAINANT WITH
HER FOOT.” Further, it alleged that she “used and exhibited a deadly weapon,
namely, a motor vehicle, during the commission of said offense and during the
immediate flight from said offense.”
Appellant signed a plea document entitled “Waiver of Constitutional Rights,
Agreement to Stipulate, and Judicial Confession.” The stipulated facts in the
document mirror the allegations contained in the indictment. The document also
contains the handwritten notation, “State Moves to reduce to Aggravated Assault.”


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The plea document also states that “I understand the above allegations and I
confess that they are true and that the acts alleged above were committed on
December 15, 2013.” The Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession further recites: “In open court I consent to the
oral and written stipulation of evidence in this case. . . .” The document went on to
to confirm that “punishment would be set without an agreed recommendation.”
Appellant signed the plea document, and her signature was sworn and subscribed
before a deputy district clerk, dated October 2, 2014.
Appellant’s defense attorney also signed the document, confirming that he
had discussed the document and its consequences with Appellant. The attorney
further confirmed that he believed Appellant knowingly and voluntarily signed the
document after their discussion. An assistant district attorney also signed the
document, consenting to and approving Appellant’s waiver of trial by jury and
stipulation of evidence. The trial court’s signature is also on the plea document,
indicating that Appellant had knowingly and voluntarily made the plea.
In another document entitled “Admonishments,” Appellant initialed each
admonishment paragraph in the document. The admonishments began by
informing Appellant that she was “charged with the felony offense of Aggravated
Robbery,” but “the State moves to reduce such charge to Aggravated Assault SBI.”
In one admonishment, Appellant specifically acknowledged that she had “read the


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indictment and committed each and every element alleged.” Appellant’s signature
on the document was sworn to by the district clerk. Appellant’s counsel also
signed the admonishment document as did the trial court, dated October 2.
At the plea hearing—held the same day Appellant had signed the plea
documents—the trial court asked Appellant, if she knew what charge she was
facing and what she pleaded to that charge:
THE COURT: Ms. Darden, you are before the Court charged by felony indictment with the offense of aggravated robbery with serious bodily injury; however, I see the State is moving to reduce that to the offense of aggravated assault. As reduced, it carries a range of punishment from 2 years to 20 years in the Texas Department of Criminal Justice and a fine not to go over $10,000. Did you understand the charge and the range of punishment you are facing?
THE DEFENDANT: Yes.
THE COURT: To that charge, how do you plead, guilty or not guilty?
THE DEFENDANT: Guilty.
The trial court orally admonished Appellant regarding the consequences of
her plea. The trial court determined that Appellant had voluntarily pleaded guilty,
ascertained that Appellant knew she was giving up her right to a trial to decide
whether she was guilty, and ensured that Appellant understood the range of
punishment. The trial court stated that it would reset the hearing to another date to
allow time for a presentence investigation (“PSI”) report.


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Appellant also testified briefly that Denitra Green, Appellant’s co-defendant,
drove Appellant and Appellant’s child to meet Ginsburg to exchange money for
tickets. Instead of an exchange, Appellant testified that after she received the
tickets, Green drove away with Ginsburg hanging onto the car, until he fell off:
I gave him my money, and [Ginsburg] gave me the tickets. I handed the tickets to Green so she could look at them and she was, you know, looking at them and as she sees that she has the tickets, she decides to pull off . . . . [T]he window’s still down on my side -- and he comes and grabs . . . my window . . . like, you know, your car’s running out of gas and you’re trying to push it and that’s how he was running in her car. So I’m getting really frightened and scared so get in the back and I’m just, like, you know, like scared screaming, scared. And she’s, like, “If you don’t get off,” I’m going to go faster. I thought he let go voluntarily because she said that. So after that, he was off of her car.
Appellant did not hear from Green again until they went to the concert together.
After completion of the PSI, the trial court conducted a joint sentencing
hearing for both Appellant and Green, though the trial court severed the cases
before final sentencing. The State offered the PSI report of both Appellant and
Green into evidence without objection by Appellant. The PSI report for Appellant
states that Appellant responded to Ginsburg’s Craiglist offering to sell eight JayZ
concert tickets. Appellant arrived in a four-door sedan driven by Green. At
Appellant’s request, Ginsburg leaned into the car to show her the tickets, and
Appellant took the tickets. Green started to drive off with Ginsburg hanging off
the car. Appellant hit and kicked Ginsburg to try to make him let go of the car


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until he fell off. Ginsburg suffered a broken arm, leg, torn ACL, three shattered
fingers, and numerous skin lacerations. Both Appellant and Green were identified
at the concert by their assigned seating, and arrested.
Ginsburg testified during the State’s case, and his testimony supports the
facts alleged in the PSI report with minor variations. Ginsburg testified that “I did
feel a kick on my arm, directly at the arm . . . from the passenger either moving or
doing something out of scared.” The kick “allowed me to break free and I did hit
the car and the ground.” As a result, Ginsburg testified that he suffered his
injuries.
Appellant testified during her case, but she denied intentionally kicking or
hitting Ginsburg. When asked on direct examination if she intended to kick
Ginsburg off the car, Appellant responded, “I don’t know how I would have
possibly kicked him while in a car. I mean, I don’t recall kicking him. Maybe by
getting in the backseat, I might have accidentally; but I didn’t kick him
intentionally, if I did.” Also, when asked, “Now, you’ve pled guilty to aggravated
assault as it refers to Mr. Ginsburg,” Appellant answered, “Yes, Sir.”
At the end of the sentencing hearing, the trial court found Appellant guilty of
aggravated assault with a deadly weapon and sentenced her to 15 years
imprisonment. This appeal followed.



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Sufficiency of Evidence to Support Conviction
In her sole issue on appeal, Appellant contends that the evidence was
insufficient to support the trial court’s judgment because the judicial confession
was “an attestation to the charge of aggravated robbery, not aggravated assault, and
that error was compounded in open court, when the judge failed to state with any
clarity what charge [Appellant] would be pleading to.” She also asserts “the State
presented no evidence that she acted intentionally, knowingly or recklessly, a
requisite element of the charge.”
A. Legal Principles
In a review of the sufficiency of the evidence to support each element of a
criminal offense, “we consider all of the evidence in the light most favorable to the
verdict to determine whether, based on that evidence and the reasonable inferences
therefrom,” the factfinder was rationally justified in finding guilt beyond a
reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
Article 1.15 of the Code of Criminal Procedure provides that when a
defendant waives her right to a jury trial in a felony case:
[I]t shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.


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TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005). The “[e]vidence offered in
support of a guilty plea may take many forms,” including a “written stipulation of
what the evidence against [her] would be,” and such a stipulation “will suffice to
support the guilty plea so long as it embraces every constituent element of the
charged offense.” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).
A defendant who pleads guilty need not concede the veracity of the evidence
to which she stipulates, but if she does, the court will consider the stipulation to be
a judicial confession. See Stone v. State, 919 S.W.2d 424, 426 (Tex. Crim. App.
1996). The evidence does not have to establish the defendant’s guilt beyond a
reasonable doubt but must embrace every element of the offense charged. Staggs
v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
When presented with conflicting evidence after entry of a guilty plea, the
trial court may find the accused guilty, not guilty, or guilty of a lesser offense, as
the facts require. See Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App.
[Panel Op.] 1980); Rivera v. State, 123 S.W.3d 21, 33 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d); see also Aldrich v. State, 53 S.W.3d 460, 467 (Tex. App.—
Dallas 2001), aff’d, 104 S.W.3d 890 (Tex. Crim. App. 2003) (holding trial court
should consider all evidence submitted, and then find defendant guilty as charged,
guilty of lesser-included offense, or not guilty, as required by evidence.)


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An offense is a lesser-included offense if the lesser offense: (1) “is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged”; differs from the charged offense by requiring
a (2) “less serious injury or risk of injury” or (3) “less culpable mental state”; or (4)
“consists of an attempt to commit the offense charged or an otherwise included
offense.” TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006).
A person commits robbery if, in the course of committing theft, and with
intent to obtain or maintain control of property, she intentionally or knowingly
places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN.
§ 29.02(a)(2) (Vernon 2011). Theft is the unlawful appropriation of property with
the intent to deprive the owner of the property. See id. § 31.03(a) (Vernon Supp.
2016). A person commits aggravated robbery when she commits robbery and uses
or exhibits a deadly weapon. See id. § 29.03(a)(2) (Vernon 2011). A deadly
weapon may include “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” See id. § 1.07(a)(17)(B)
(Vernon Supp. 2016).
A person commits the offense of assault “if the person: (1) intentionally,
knowingly, or recklessly causes bodily injury to another . . . .” TEX. PENAL CODE
ANN. § 22.01(a)(1) (Vernon Supp. 2016). A person commits the offense of
aggravated assault if the person commits assault and “(1) causes serious bodily


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injury to another . . . ; or (2) uses or exhibits a deadly weapon during the
commission of the assault.” TEX. PENAL CODE ANN. § 22.02(a) (Vernon 2011).
The proof necessary for the elements of aggravated assault with a deadly
weapon may be encompassed within the proof necessary to establish the
aggravated robbery charged in an indictment. See Zapata v. State, 449 S.W.3d
220, 225 (Tex. App.—San Antonio 2014, no pet.).
B. Analysis
Appellant signed a document entitled “Waiver of Constitutional Rights,
Agreement to Stipulate, and Judicial Confession.” The stipulated facts in each
document mirror the allegations in the indictment for aggravated robbery with a
deadly weapon, except it adds the handwritten note, “State Moves to reduce to
Aggravated Assault.” With respect to the offense against Ginsburg, Appellant
confessed that she “on or about December 15, 2013, did . . . while in the course of
committing theft of property owned by [B. Ginsburg], and with intent to obtain and
maintain control of the property, intentionally, knowingly and recklessly cause
serious bodily injury to [Ginsburg] by DRIVING A MOTOR VEHICLE ONTO
WHICH THE COMPLAINANT WAS HOLDING, ON A ROADWAY”; “by
FAILING TO STOP A MOTOR VEHICLE ONTO WHICH THE
COMPLAINANT WAS HOLDING”; “DRIVING A MOTOR VEHICLE OVER
THE COMPLAINANT”; “by KICKING THE COMPLAINANT WITH HER


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FOOT.” Further, she confessed that she “used and exhibited a deadly weapon,
namely, a motor vehicle, during the commission of said offense and during the
immediate flight from said offense.”
Appellant waived “the right of trial by jury . . . [and] the appearance,
confrontation, and cross-examination of witnesses, and my right against self
incrimination.” She acknowledged, “I understand the above allegations and I
confess that they are true and that the acts alleged above were committed on
December 15, 2013.” In addition, in the written admonishments, Appellant
consented to “the oral and written stipulations of evidence in this case” and
acknowledged that she “read the indictment and committed each and every element
alleged.”
In short, the record shows that Appellant signed a sworn written statement
covering all elements of the charged offense, admitting her culpability and
acknowledging that the allegations against her were true and correct. Thus,
Appellant “acknowledged, independently of her guilty plea, that [she] ‘committed
each and every element alleged.’” Cardenas v. State, 403 S.W.3d 377, 381 (Tex.
App.—Houston [1st Dist.] 2013), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014)
(citing Menefee, 287 S.W.3d at 13). “When an appellant has provided a valid
judicial confession to all of the elements of the offense, the record need not provide
further proof.” Id. (citing Menefee, 287 S.W.3d at 13–14, 17–18). We hold


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Appellant’s judicial confessions supplied sufficient evidence to prove the elements
for either an aggravated-robbery offense or the lesser-included offense of
aggravated assault. See Merritt, 368 S.W.3d at 525.
Appellant first argues that her judicial confession is insufficient because it
was “an attestation to the charge of aggravated robbery, not aggravated assault, and
that error was compounded in open court, when the judge failed to state with any
clarity what charge [Appellant] would be pleading to.” In support of Appellant’s
claim, she cites to Breaux v. State for the proposition that where a judicial
confession is insufficient, the judgment must be reversed. 16 S.W.3d 854, 857
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Because her judicial
confession supported the elements of aggravated robbery, Appellant argues, the
elements of aggravated assault were unsupported.
Breaux is, however, distinguishable from the instant case because Breaux
involved the omission of an element in the judicial confession, not the sentence of
a lesser-included offense. In Breaux, our sister court found no evidence of harm to
the complainant in the judicial confession, which was the State’s sole piece of
evidence. Id. The judicial confession omitted the word ‘injury’: “on or about
FEBRUARY 23, 1998, did then and there unlawfully, intentionally, knowingly and
recklessly, by driving a motor vehicle in the direction of JOHN UPTON, cause
bodily [sic] to JOHN UPTON.” Id. Because the judicial confession did not


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evidence injury, the trial court held the judicial confession was insufficient to
support Breaux’s conviction. Id.; see also York v. State, 566 S.W.2d 936, 938–39
(Tex. Crim. App. 1978) (holding omission of part of clause “without the effective
consent of the owner” from judicial confession made confession insufficient to
support conviction because necessary element of offense of burglary of habitation
was not established by any other evidence.) Appellant does not allege the
indictment or confession is missing an element, such as injury, but that none of the
elements of aggravated assault are included because she pleaded guilty to
aggravated robbery.
But aggravated robbery contains the lesser-included offense of aggravated
assault as alleged in the indictment and judicial confession. See TEX. CODE CRIM.
PROC. ANN. art. 37.09; Zapata, 449 S.W.3d at 225. The State indicted Appellant,
and Appellant judicially confessed to aggravated robbery with a deadly weapon:
 while in the course of committing theft of property owned by [B.
Ginsburg];
 with intent to obtain and maintain control of the property;
 intentionally, knowingly and recklessly cause serious bodily injury to
[Ginsburg] by [various means described above]; and
 she “used and exhibited a deadly weapon, namely, a motor vehicle,
during the commission of said offense.


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(emphasis added); see TEX. PENAL CODE ANN. §§ 29.02(a)(2); 29.03(a)(2). A
person may be charged with aggravated assault if she “intentionally, knowingly, or
recklessly causes bodily injury to another” and “uses or exhibits a deadly weapon
during the commission of the assault.” Id. §§ 22.01(a)(1); 22.02(a)(2). Both
elements were alleged by the State in the indictment, and thus aggravated assault
by causing bodily injury and using a deadly weapon is a lesser-included offense of
the aggravated robbery charged in the indictment. See Zapata, 449 S.W.3d at 225.
We hold the judicial confessions, which mirrored the indictment, supplied
sufficient evidence to prove the elements for the aggravated assault offense. 2 See
Merritt, 368 S.W.3d at 525.
A court may, and the trial court did find Appellant guilty of the lesser
offense of aggravated assault, as the facts require. See Thomas, 599 S.W.2d at 824;
Rivera, 123 S.W.3d at 33; Aldrich, 53 S.W.3d at 467. Thus, we conclude that even
if Appellant pleaded guilty and confessed only to aggravated robbery, the trial
court could find her guilty of aggravated assault, as it did.
2 As the State points out, Ginsburg’s testimony and the PSI report, admitted without objection at the sentencing hearing, also contained evidence of Appellant’s guilt for each offense. See Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (rejecting argument that evidence of guilt must be presented during “guilt/innocence phase” and noting that “article 1.15 does not distinguish between evidence offered at the guilt/innocence phase and the punishment phase”).


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Also contrary to Appellant’s assertion, the trial court did not create
confusion when it asked for Appellant’s plea, because the record reflects an initial
charge of aggravated robbery with a deadly weapon reduced to aggravated assault
with a deadly weapon. The indictment was for aggravated robbery. Both the
“Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession” and admonishments indicate that the initial charge was aggravated
robbery, but the State moved to reduce the charge to aggravated assault. Appellant
signed both documents and initialed the paragraph in the admonishments. The trial
court’s statement acknowledges the State’s motion and explained the reduced
sentence range of aggravated assault before asking Appellant to plead. Further,
during Appellant’s testimony, when asked, “Now, you’ve pled guilty to aggravated
assault as it refers to Mr. Ginsburg,” Appellant answered, “Yes, Sir.” Thus, we
hold Appellant pleaded guilty to aggravated assault with a deadly weapon, though
she confessed to facts that would support either an aggravated-robbery offense or
the lesser-included offense of aggravated assault.
Appellant also argues that the evidence was not sufficient to support that she
acted intentionally, knowingly or recklessly, a requisite element of the charge,
because testimony did not support those elements. She asserts that her testimony
during the colloquy did not admit to intentionally, knowingly, or recklessly kicking
Ginsburg. She next asserts that Ginsburg’s testimony “confirms that [Appellant]


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could very well have been scared and moving to the back seat,” and so “does not
know whether she kicked him intentionally or knowingly or recklessly.” She
asserts that these statements render the evidence insufficient to sustain her
convictions. We disagree.
Presuming Appellant’s assertion, the trial court could still have found her
guilty of the lesser-included offense. As discussed above, the judicial confession
supported all the elements of the offense. The trial court could properly resolve the
conflicting evidence by finding Appellant guilty of the lesser-included offense.
See Thomas, 599 S.W.2d at 824; Rivera, 123 S.W.3d at 33; Aldrich, 53 S.W.3d at
467. We conclude that even if testimony did not support the intent element, other
evidence did, and so the trial court’s judgment is supported by some evidence. As
such, we must support it. See Merritt, 368 S.W.3d at 525.
We overrule Appellant’s sole issue.

Outcome: