Opinion
No. 05-10-01148-CR
Opinion issued July 15, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-80073-10.
Before Justices O'NEILL, FRANCIS, and MYERS.
MEMORANDUM OPINION
Amar Rashad Britton appeals his conviction for the robbery of Kien Nguyen. Although appellant was charged with aggravated robbery, the jury convicted him of the lesser included offense of robbery. The trial court assessed punishment at six years in prison and a $3500 fine. In a single issue, appellant challenges the legal sufficiency of the evidence to support his robbery conviction. We affirm. Appellant claims no evidence shows he intentionally or knowingly placed Nguyen in fear of imminent bodily injury or death. He contends because the jury rejected the deadly weapon element of aggravated robbery and Nguyen did not testify he was placed in fear by means other than the firearm, the evidence is insufficient to uphold his robbery conviction. In addressing a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). We give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt but "is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances." Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (West 2010). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(a), (b)(1). If no actual threats were conveyed by the defendant, the factfinder must conclude the victim "perceived fear" or was "placed in fear" by the circumstances, including the defendant's words and actions. Williams v. State, 827 S.W.2d 614, 616-17 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). Appellant advertised a cell phone for $100 on Craigslist. Nguyen called appellant about the phone and the two agreed to meet at Sunflower Lane in Plano, the address appellant listed in the advertisement. Nguyen arrived after dark, parked, and called appellant. Appellant told Nguyen to drive to the end of the street. Appellant and his companion, Carissa Long, walked up to Nguyen's car. Nguyen rolled his window down about six or seven inches, and appellant handed Nguyen the phone through the window. Nguyen looked at the phone, saw it was scratched, and offered appellant $80 instead of the asking price of $100. Nguyen handed the phone back to appellant so appellant could remove the SIM card. Nguyen took $80 from his wallet and, when he held it up to show he had the money, Long reached through the window and tried to grab the money from Nguyen. The two struggled over the money until Nguyen saw appellant pointing a gun at him. Nguyen released Long and the money. Appellant grabbed Long and pulled her out of the car. Appellant told Nguyen to get out of the car but he refused. Appellant then told Nguyen to give him his wallet. Nguyen took the remaining money out of the wallet and gave it to appellant who then fled the scene with Long. Nguyen was afraid because appellant had a gun pointed at him. Nguyen drove home and told his sister, Hoai Nguyen, about the robbery. She then called the police. According to Hoai, Nguyen was scared and upset when he returned home. She said Nguyen was not his "everyday self" and she could tell from his facial expressions he was scared. Plano police officer Ben Waite said, on meeting Nguyen shortly after the robbery, he could tell Nguyen was nervous and shaken up by the incident. Nguyen was too distraught to provide a written statement when they first met. When Nguyen calmed down, he told his sister in his native language of Vietnamese what had happened, and Hoai "tried [her] best to translate [it] to English." Officer Waite said details were probably lost in the statement because of the "language barrier." In contrast, appellant said Nguyen got out of his car when he arrived and was pacing back and forth. Appellant, who was watching from a house, said Nguyen's behavior made him nervous so he asked Nguyen to move further down the street by a street light. According to appellant, Nguyen had the window cracked open about three to four inches when he and Long approached. After looking at the phone, Nguyen said he would pay $80 because of the scratch. Appellant started taking off the back of the phone to get the SIM card out when Long, acting on her own, reached through the window and grabbed the money Nguyen was holding. Appellant only grabbed Long to prevent Nguyen from pulling her into the car. Once he pulled Long out of the window, she ran back to the house, and he followed her. Appellant said neither of them had the money and he thought it fell on the ground outside the car. Appellant denied having a gun. Appellant's mother, Ashley Britton Jones, who is now disabled, was a major in the United States Army before leaving the service. She testified she has never had a gun in the house and appellant had no gun training, did not own a gun, and did not know how to handle a gun. She cleaned his room weekly and regularly changed the sheets on his bed. She knew there was no gun in his dresser drawers, under the mattress, or anywhere else in the room. She conceded she did not know all of her son's friends or whether those friends had guns. Viewed in the light most favorable to the jury's verdict, the evidence shows appellant asked Nguyen, a Dallas resident, to meet appellant at an unfamiliar location in Plano. After he arrived at the location, Nguyen was instructed by appellant by phone to drive down the street and park. Appellant had another person with him; Nguyen was alone and it was after dark. When Nguyen showed appellant the money, Long reached into the car and took the money by force. Nguyen's sister said when he got home, she could see "he was scared." Officer Waite described Nguyen as nervous and "shook up" by the incident. Although the jury rejected the deadly weapon element of the higher charge, they nevertheless could have concluded from other evidence presented that Nguyen was placed in fear of imminent bodily injury during the commission of the offense. We conclude the evidence is sufficient to support appellant's conviction for robbery. We overrule appellant's single issue. We affirm the trial court's judgment.