LEMON v. STATE (2026)

OPINION

A jury found Appellant Shawn Lemon guilty of aggravated robbery with a deadly weapon, and the trial court sentenced him to 30 years' confinement. Appellant raises five issues on appeal challenging the sufficiency of the evidence, trial court procedures, and the bill of costs. We modify the judgment to delete certain court costs as not supported by the record and affirm as modified.

Background

A group of Houston police officers was surveilling banks for “jugging,” during which a customer is followed and robbed after leaving a bank with cash. The officers identified a suspect car and followed it to five different banks. At the second bank, the officers observed the car pull up behind a teller who was walking across the parking lot with his lunch bag; a person exited the car, took the teller's lunch bag, and got back in the car, telling the driver to “[g]o, go go.”

The officers staged an undercover operation at the fifth bank. Detective Rocchi parked and exited his vehicle, carrying a bag filled with cash. The suspect car drove towards him, and a passenger exited the car and grabbed Rocchi's bag, injuring Rocchi's hand. The passenger got back in the car with Rocchi's bag, and Appellant “drove away at a high rate of speed.” An officer followed the car with his emergency lights activated for over two miles, during which Appellant failed to stop and was speeding and driving aggressively. Appellant was arrested after the car struck another vehicle and crashed in a field.

Appellant proceeded to trial and the jury found him guilty of aggravated robbery with a deadly weapon. See Tex. Penal Code § 29.03(a)(2). Appellant timely appealed.

Analysis

I. Jurisdiction

Appellant first asserts that we lack jurisdiction because the record does not show the trial court pronounced his sentence in his presence. We disagree.

Courts are required to pronounce the sentence orally in the defendant's presence. See Tex. Code Crim. Proc. art. 42.03, § 1(a); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). The judgment, including the sentence assessed, is merely a written manifestation of that oral pronouncement. Taylor, 131 S.W.3d at 500. Oral pronouncement of the sentence in the presence of the defendant is “the crucial moment” when “all of the parties are physically present at the sentencing hearing” and able to hear and respond to the sentence. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). Pronouncement of the sentence is also the appealable event that vests the appellate court with jurisdiction. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (en banc).

The trial court orally pronounced Appellant's sentence after the parties' closing arguments in the punishment phase of trial and signed the judgment the same day. Appellant contends that the trial court's pronouncement was deficient because the court “never ordered that the punishment be carried into execution.” Appellant cites cases where the following language was held to be a valid pronouncement:

It is the order, judgment, and decree of the court that you be taken by the Sheriff ․ [and] held, until transferred to ․ [TCDJ] where you shall be confined for [incarceration period]. Your sentence shall commence today.

See, e.g., Carter v. State, No. 05-25-00281-CR, 2025 WL 3163317, at *2 (Tex. App.—Dallas Nov. 12, 2025, no pet.). Those cases held that the language the trial courts had used was sufficient for the pronouncement of sentence to be valid, but none held that it was necessary. Nor does Appellant cite any cases concluding that a pronouncement lacking this language was jurisdictionally deficient. We decline to impose that requirement here. The trial court told Appellant the length of his sentence and Appellant was given an opportunity to respond, thus satisfying the reasons underpinning the necessity of an oral pronouncement. See Ex parte Madding, 70 S.W.3d at 135. Magic words are not required.

We overrule Appellant's first issue.

II. Evidentiary sufficiency

Appellant next asserts the evidence is legally insufficient to maintain his conviction because the car he was driving was not used as a deadly weapon until after the robbery offense was completed. We disagree.

A. Standard of review

For a legal sufficiency review, we examine all evidence presented at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Perales v. State, 622 S.W.3d 575, 580 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). We defer to the factfinder to weigh the evidence and fairly resolve any conflicts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

B. Application

Appellant does not dispute that he committed theft and robbery, with Detective Rocchi as the victim of both. But Appellant argues that, to convict him of aggravated robbery, the State was required to prove that he used or exhibited the deadly weapon (i.e., the car he was driving) during his robbery of Rocchi. It did not make that showing, he says, because the robbery was complete when Rocchi was injured, before Appellant drove the car.¹ We reject this interpretation for two reasons.

First, it's belied by the relevant statutes. The aggravated robbery statute is premised on the commission of robbery as defined in section 29.02 and, separately, “us[ing] or exhibit[ing] a deadly weapon”:

(a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:

(2) uses or exhibits a deadly weapon[.]

Id. § 29.03(a)(2). “Robbery” as defined in section 29.02 is premised on causing bodily injury “in the course of committing theft”:

(a) 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[.]

Id. § 29.02(a)(1). “In the course of committing theft” includes “conduct that occurs ․ in immediate flight after the attempt or commission of theft.” Id. § 29.01(1). “Theft” is defined in chapter 31 as “unlawfully appropriat[ing] property with intent to deprive the owner of property.” Id. § 31.03(a). In other words, as relevant here, a person commits an aggravated robbery if (1) in the course of or in immediate flight after unlawfully appropriating property, and (2) with an intent to deprive the owner of the property, he (3) either intentionally, knowingly, or recklessly causes bodily injury to another, and (4) uses or exhibits a deadly weapon. Id. §§ 29.01(1), 29.02(a)(1), 29.03(a)(2), 31.03(a). Reading these statutes together, the definition of aggravated robbery encompasses conduct that occurs in immediate flight after the commission of theft. See id. §§ 29.01(1), 29.02(a)(1), 29.03(a)(2).

Contrast the aggravated robbery statute with the aggravated assault statute, where the legislature specified that a defendant must either cause serious bodily injury to another or use or exhibit a deadly weapon “during the commission of the assault.” See id. § 22.02(a)(2). When the legislature intends to require the use of a deadly weapon during the commission of the underlying offense, it knows how to say so. It didn't here. See Liverman v. State, 447 S.W.3d 889, 892 (Tex. App.—Fort Worth 2014), aff'd, 470 S.W.3d 831 (Tex. Crim. App. 2015) (different words are presumed to have different meanings).

Second, Appellant does not cite any case law to support his argument that a robbery is “complete” upon the injury to the individual victim. He correctly points out that the gravamen of aggravated robbery is the assaultive conduct upon each victim, Floyd v. State, 714 S.W.3d 9, 14 (Tex. Crim. App. 2024), but this does not change the fact that the statutory definition of aggravated robbery is built on the statutory definition of robbery, which is built on the statutory definition of theft—which includes the immediate flight after the commission of a theft. See Tex. Penal Code §§ 29.01(1), 29.02(a)(1), 29.03(a)(2), 31.03(a); see also Floyd, 714 S.W.3d at 12 (defining aggravated robbery by incorporating all relevant statutory provisions). Aggravated robbery therefore includes conduct that occurs in immediate flight after the commission of theft. See Tex. Penal Code §§ 29.01(1), 29.02(a)(1), 29.03(a)(2). To conclude otherwise would be to ignore the incorporation of theft into the robbery and aggravated robbery statutes.

Appellant also asserts that the court of criminal appeals has held that aggravated robbery requires use or exhibition of a deadly weapon “during the robbery.” See Glover v. State, 710 S.W.3d 816, 822 (Tex. Crim. App. 2025); Flores v. State, 620 S.W.3d 154, 158 (Tex. Crim. App. 2021). This argument misrepresents the import of Glover and Flores, where the facts showed that the defendants used the deadly weapons during the theft. See Glover, 710 S.W.3d at 818, 822 (the defendant used a pocketknife while stealing a cooler from a convenience store employee); Flores, 620 S.W.3d at 156-57, 158 (the defendant used a drill disguised as a gun while stealing money from a convenience store employee). These cases did not examine the issue presented here, where the deadly weapon was used in “immediate flight” from the theft that formed the basis of the aggravated robbery.

Case law suggests that the boundaries of “immediate flight” present a fact question for the jury's determination. For example, in Sweed, the defendant was charged with aggravated robbery after he stole a nail gun from a construction worker. Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011). But at least thirty minutes passed between the theft and his use of a deadly weapon: he went inside a nearby apartment for up to twenty minutes, then left the apartment and walked to a different part of the complex, where he talked with a group of people for up to ten minutes. Id. It was only when he was walking back towards the apartment that he waved a knife at a foreman, which was used as the basis of his aggravated robbery charge. Id. at 65. The court of criminal appeals held that this evidence was sufficient to create a fact question regarding whether the defendant's use of the knife occurred in the course of or in immediate flight from the theft. Id. at 69. Here too, the evidence was sufficient to raise a fact question regarding whether the car was a deadly weapon used in immediate flight from the underlying theft—and the jury found that it was.

Nor does the penal code's definition of “deadly weapon”—anything that “in the manner of its use is capable of causing death or serious bodily injury”—support Appellant's argument. See Tex. Penal Code § 1.07(17). That statute does not provide that any injury must involve the victim of the charged offense. It does not require an actual injury at all, but rather encompasses anything that is “capable of causing death or serious bodily injury.” Id. (emphasis added). As the court of criminal appeals has held, the word “capable” in that provision means it includes any conduct that “threatens deadly force.” McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (en banc). This definition of “deadly weapon,” in conjunction with the relevant statutes' use of “immediate flight,” is broad enough to encompass Appellant's conduct occurring after the underlying theft. See Tex. Penal Code §§ 1.07(17), 29.01(1), 29.02(a)(1), 29.03(a)(2).

Sufficient evidence also supports the jury's finding that the car was a deadly weapon. Evidence that a defendant's driving was reckless or dangerous is sufficient to show that a vehicle was used in a manner capable of causing death or serious bodily injury, including speeding, disregarding traffic signals, failing to maintain control of the vehicle, causing property damage, and failing to yield. Couthren v. State, 571 S.W.3d 786, 793 (Tex. Crim. App. 2019). The evidence shows that Appellant “drove away at a high rate of speed” after the theft. Officer Trang testified that Appellant didn't stop even though his emergency lights were activated and that Appellant was driving “aggressively,” going over the posted speed limit, and changing lanes repeatedly without signaling. Appellant eventually drove through a red light, struck another vehicle, and “spun out into a field.” This evidence is sufficient to show that Appellant drove the car in a manner capable of causing death or serious bodily injury in immediate flight from the theft, supporting the jury's aggravated robbery finding. See Tex. Penal Code §§ 1.07(17), 29.01(1), 29.02(a)(1), 29.03(a)(2).

We overrule Appellant's second issue.

III. Voir dire by associate judge

Appellant also asserts the trial court's judgment is void because an associate judge presided over jury selection without the constitutional authority to do so. We disagree.

Two statutes expressly authorize associate judges to select juries. See Tex. Gov't Code §§ 54A.006(d) (“An associate judge may select a jury.”); 54A.008(a)(15) (“an associate judge to whom a case is referred may ․ select a jury”). Appellant argues that these statutes are unconstitutional because they relegate to unelected associate judges ultimate judicial determinations reserved for elected district court judges. See Tex. Const. art. 5, § 1 (“The judicial power of this State shall be vested in ․ District Courts”); Howard v. State, 690 S.W.2d 252, 255 (Tex. Crim. App. 1985) (en banc) (magistrate judges may “assist the courts by processing those matters not requiring ultimate judicial determinations”).

A facial challenge to the constitutionality of these statutes must be raised in the trial court to be preserved for appellate review. See Baptiste v. State, ––– S.W.3d ––––, 2026 WL 1593770, at *1-3 (Tex. Crim. App. June 4, 2026). Appellant failed to raise this issue in the trial court.

Moreover, we have previously rejected this argument on the merits. See Allen v. State, No. 14-23-00761-CR, 2025 WL 978216, at *5-8 (Tex. App.—Houston [14th Dist.] Apr. 1, 2025, no pet.) (“we reject appellant's argument that the Texas Constitution expressly provides that only district judges have the power to preside over all aspects of a criminal case”); Gardner v. State, No. 14-23-00355-CR, 2024 WL 3898192, at *4 (Tex. App.—Houston [14th Dist.] Aug. 22, 2024, pet. ref'd) (“nothing in the plain text of the Texas Constitution prohibits associate judges from presiding over voir dire”). We reject it again here, too. See Allen, 2025 WL 978216, at *5-8; Gardner, 2024 WL 3898192, at *4.

We overrule Appellant's third issue.

IV. Witness summoning fees

Appellant asserts in his fourth issue that we should modify the judgment to remove improperly assessed witness summoning fees. We agree.

Upon conviction, the defendant must be assessed a $5 fee to defray the cost of services provided by a peace officer in summoning a witness. See Tex. Code Crim. Proc. art. 102.011(a)(3). This fee is assessed for each witness each time the witness is summoned. Adaji v. State, 729 S.W.3d 837, 850 (Tex. App.—Houston [14th Dist.] 2025, pet. ref'd). We look to the appellate record to determine whether the witness summoning fees are supported by sufficient facts. See Abad v. State, 729 S.W.3d 108, 117-18 (Tex. App.—Houston [14th Dist.] 2025, no pet.).

Here, the judgment assesses $600 in reimbursement fees against Appellant, $535 of which is for summoning witnesses. Appellant asserts the record supports only $25 in witness summoning fees because 104 subpoenas were not validly served by a peace officer. Appellant raises five challenges addressing these 104 subpoenas, which we consider in turn.

A. Subpoenas not executed

Appellant first asserts that six subpoenas were “entirely unserved,” pointing out that one subpoena lacks a return and five other returns say the subpoena was “Un-Executed.” We have previously held that an unexecuted subpoena does not support the witness summoning fee. See id. at 120. We conclude that the $30 in fees for these six witnesses should not have been assessed against Appellant.

B. Subpoena served by a district attorney

One subpoena has a return showing it was served by a “District Attorney” rather than a peace officer. We have previously held that subpoenas served by a district attorney do not support the witness summoning fee—subpoenas must be served by a peace officer. See id. (citing Tex. Code Crim. Proc. art. 102.011(a)). We conclude that the $5 fee for this witness should not have been assessed against Appellant.

C. Subpoenas delivered to an HPD liaison

Seventy-six subpoenas state that they were delivered to an “HPD liaison” rather than to the listed witness. We have previously held that service made on an HPD liaison does not support the witness summoning fee because “service was not made on the witness himself.” Adaji, 729 S.W.3d at 851. We conclude that the $380 in fees for these 76 subpoenas should not have been assessed against Appellant.

D. Emailed subpoenas that lack acknowledgement of receipt

Email can be a valid method of service if the subpoena is electronically transmitted to the last known electronic address of the witness with “acknowledgement of receipt requested.” Tex. Code Crim. Proc. art. 24.04(a)(3). Here, 15 returns state that they were “emailed to witness and/or designated recipient” but lack an acknowledgement of receipt by the witness. We have previously held that returns that do not acknowledge receipt of the email do not support the witness summoning fee. Abad, 729 S.W.3d at 122. We conclude that the $75 in fees for these 15 subpoenas should not have been assessed against Appellant.

E. Emailed subpoenas delivered to or received by someone other than the witness

Five returns state that the emailed subpoenas were received by someone other than the witness, and one return states that it was “delivered” to someone other than the witness. We have previously held that returns stating that service was made on someone other than the person listed in the subpoena do not support the witness summoning fee. Id. at 121. The $30 assessed for these six subpoenas should not have been assessed against Appellant.

* * *

In sum, we sustain Appellant's fourth issue, reduce the witness summoning fees from $535 to $25, and modify the judgment and bill of costs accordingly.

V. Bill of costs

The judgment states that Appellant shall pay the assessed costs and fees “[u]pon release from confinement.” Appellant requests that we modify the bill of costs to include a similar statement, and the State has no objection to this relief. We have previously granted this relief in similar circumstances, see id. at 123, and will do so here too. We sustain Appellant's fifth issue.

Conclusion

We modify the judgment to reduce the reimbursement fees from $600 to $90. We modify the bill of costs to reduce the witness summoning fee from $535 to $25 and to include a statement that Appellant need not pay the assessed costs and fees until his release from confinement. We affirm the judgment as modified.

FOOTNOTES

1.   The jury was also properly instructed that a person may be held criminally responsible for the conduct of another 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 §§ 7.01, 7.02(a)(2).

Katy Boatman, Justice