Opinion
No. 05-06-00552-CR, 05-06-00553-CR
Delivered: Opinion delivered July 24, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F04-49716-HQ, F04-49717-UQ.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
A jury convicted Delton Lee Hendrix of aggravated robbery and aggravated assault with a deadly weapon, and, after Hendrix entered pleas of true to two enhancement paragraphs, assessed punishment at thirty-five years and eighty years, respectively, in prison. Hendrix asserts the trial court erred in denying his requested instructions on a lesser-included offense in each case. Finding no error, we affirm. In the aggravated robbery offense, Maggie Vasquez testified she was working the drive-thru window at the Jack in the Box restaurant at LBJ Freeway and Abrams Road. The final customer in line placed an order and drove up to the window to pick up his food. The customer, identified as Hendrix, handed Vasquez a $5 bill. As she opened the cash register to make change, Hendrix "started cussing" her and asked her to give him money. When Vasquez turned to ask if Hendrix was serious, she saw a "big gun" in her face and saw bullets in the gun. Vasquez was nervous because she knew her cash drawer had just been changed and held only a small amount of money. She started grabbing the money, and Hendrix was "reaching out with his hands" for the money "calling her the B word." Hendrix ordered her to "hurry up" and demanded "the 20s." Vasquez told him she did not have access to the safe. Hendrix continued to yell at her, so she took change from the drawer and began "throwing it in the car." Co-worker Martha Watson noticed the confrontation and heard Hendrix say to Vasquez, "Hold on a minute. I'm fixing to give it to you." Looking out the drive-thru window, Watson saw a gun in Hendrix's hand. She said the gun was a revolver and had bullets in the cylinder. Hendrix was pointing the gun out the window of his car toward Vasquez. Watson thought Vasquez was going to be killed. When Watson noticed that Vasquez seemed "frozen" with terror, she came up behind Vasquez and told her to give the customer what he wanted. Vasquez gathered up the "green money" from the cash register, stuffed it in the sack containing the food order, and handed it through the window to Hendrix. When he drove away, Vasquez fell to the floor crying. Jack in the Box employees gave police a license plate number and a description of the robber and the car. Dallas police detective Michael Swain conducted the investigation, interviewed the witnesses, and assembled a six-photo lineup that he took to Vasquez to view. After viewing the photographs, Vasquez identified Hendrix as the customer who robbed her at gunpoint. Detective Rudy Contreras interviewed Hendrix after his arrest and took two written statements from him. In his first statement, Hendrix said he went through the drive-thru at Jack in the Box to get food. As Vasquez handed him the food, she asked, "Is this all you want?" Hendrix responded, "Yes, that's all I can afford." According to Hendrix, Vasquez gave him the food and then said she "thought this was going to be a robbery." Hendrix said he said no, and Vasquez "threw $25 in the car and she said that's all she had. That was it. I left." In his second written statement, Hendrix said he "forgot to mention that when I went through the Jack in the Box, I had the gun beside me in the passenger seat of the car. She could have seen it. She threw $25 in the car." At trial, Hendrix testified he ordered a Jumbo Jack at the outside "voice box" and was instructed to drive around to the window. The Jumbo Jack was on sale for ninety-nine cents. Hendrix gave the attendant $1.25 and he received thirteen or sixteen cents in change. Vasquez gave him his food, and he thanked her. As he was about to drive away, Vasquez said, "Wait a minute. I thought you were gonna rob me." Hendrix responded, "Rob you?" He looked down and noticed the pistol sitting on the passenger seat. Hendrix said he told Vasquez, "'I'm sorry. I must have forgot this gun was sitting in the seat.'" Vasquez told him to "hold on" and then opened the register and "threw $25 in the car." Hendrix told the jury that he thought she was "crazy" and drove off and kept going. He said he had the gun in the car but denied pointing it at Vasquez or having said anything about a robbery. Hendrix testified he was baffled by her statement and behavior but thought "if anything she's stealing money in the store and looking for somebody to blame it on." In the aggravated assault offense, Kebede Gemta testified he was working alone at the 7-Eleven convenience store at Kingsley and Plano roads. While Gemta was waiting on one customer, a man came in the store and asked for a gasoline can. The man, who seemed to be in a hurry, did not wait his turn and paid for the gasoline can and gasoline. Twenty or thirty minutes later, the man returned to the store and said, "I need my money. Give me my money." Gemta told the man he could not refund the money for the gasoline can because it had been used. He tried to be polite to the man to avoid an argument or confrontation. The man moved next to the cooler in front of Gemta and pulled a gun. Gemta was terrified and begged the man not to kill him. When Gemta reached for the telephone, the man fired a shot, striking him in the left arm. Gemta fell to the ground. Gemta was unable to identify the man who shot him, but a surveillance videotape recorded the incident and was admitted into evidence. Hendrix "concedes that the [j]ury could have identified [him] as the man who shot him" from that videotape. Detective Contreras questioned Hendrix about this offense. Hendrix gave a written statement, which was admitted at trial. In the statement, Hendrix said he went to the 7-Eleven and "told the guy I ran out of gas and gave him $5. He told me to bring the gas can back, that they never bring the gas cans back. He goes, 'Never mind. I'll call the police.' I saw him reach for something. I pulled the gun out on him and it just fired. That's it. I left." At trial, Hendrix told the jury that he could not "understand what [Gemta] said, but he said, 'All right. They never bring the gas cans back. Go ahead.' And I thought this dude's weird. I couldn't understand what he was saying." Hendrix promised to wash it out and bring it right back. When he was getting gas, the pump automatically stopped at $1. Hendrix had given Gemta $5 and hoped "he's not gonna wig out on me" expecting to have gotten more gasoline. Hendrix put the gas in the car, but it was not enough to "crank it up." Hendrix returned to the 7-Eleven and told Gemta, "I can't crank my car on this dollar." Gemta replied that he charged Hendrix for the gas can. Hendrix said he "couldn't understand" Gempta because Gempa was "foreign." Gemta said he was going to call the police and was already on the phone when Hendrix saw him "put his hands under the counter." Hendrix testified he moved toward the door and heard the police sirens but noticed Gemta seemed to be waiting for him to open the door. Hendrix thought Gemta had a gun and intended to shoot him in the back as he left so Hendrix "pointed it at him, fired and hit him." Hendrix testified he pulled the gun out of his pocket with his finger on the trigger, and the gun went off. When asked if he intended to fire the gun, Hendrix responded: "I was not intending to shoot this person. If he pulled a gun on me, I was gonna try to keep him from shooting me first." Hendrix left the store. At trial, Hendrix objected in writing to the trial court's failure to include a lesser-included offense in each of the jury charges. In his sole issue in each appeal, Hendrix argues that he was entitled to a charge on terroristic threat as a lesser-included offense of aggravated robbery and to a charge on deadly conduct as a lesser-included offense of aggravated assault. We use a two-prong test to determine whether a defendant is entitled to an instruction on a lesser-included offense. Sorto v. State, 173 S.W.3d 469, 475-76 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 2982 (2006). We first determine if the lesser offense is included within the proof necessary to establish the offense charged. Id. Then, we evaluate the evidence to determine whether there is some evidence that would permit a rational jury to acquit the defendant of the greater, charged offense, while convicting him of the lesser-included offense. Id. We begin with the aggravated robbery case. Hendrix was charged with, while in the course of committing theft, intentionally and knowingly threatening and placing Maggie Vasquez in fear of imminent bodily injury and death, while using or exhibiting a firearm. Terroristic threat is defined as threatening to commit any offense involving violence to any person with intent to place any person in fear of imminent serious bodily injury. See Tex. Pen. Code Ann. § 22.07(a)(2) (Vernon Supp. 2006). In his brief, Hendrix provides no explanation or analysis of the first prong of the test. Specifically, Hendrix does not analyze how the offense of terroristic threat (1) is established by proof of the same or less than all the facts required to establish the commission of the aggravated robbery in this case; (2) differs from that of aggravated robbery only in the respect that a less serious injury or risk of injury to the same person suffices to establish its commission; (3) differs from that of aggravated robbery only in the respect that a less culpable mental state suffices to establish its commission; or (4) consists of an attempt to commit the aggravated robbery or an otherwise included offense. See Tex. Code Crim. Proc. Ann. Art. 37.09 (Vernon 1981). Because Hendrix must establish both prongs to be entitled to reversal, and he has failed to address the first, he cannot show reversible error. Regardless, even if we assumed he established the first prong, the second prong fails. With respect to this prong, Hendrix contends that while the State's case tends to establish the elements of aggravated robbery, his trial testimony and written statements to Detective Contreras negate the intent to commit theft. He admits having the gun in the passenger seat of the car, but denies having used it to rob Vasquez. Hendrix's evidence is that he did not touch the weapon or in any way indicate an intent to use it against Vasquez. His testimony was that he had just apologized for leaving the gun in the passenger seat, explaining he forgot it was there, when Vasquez told him to "hold on" and began throwing money at him. Hendrix further surmised that she was the one stealing money from the restaurant and was looking for someone to blame. In other words, Hendrix's argument is that he committed no offense, not that if guilty, he was guilty of only the lesser offense. That being the case, he has failed to establish the second prong. See Hackbarth v. State, 617 S.W.2d 944, 946-47 (Tex.Crim.App. [Panel Op.] 1981). We overrule his sole issue in the aggravated robbery case. In the aggravated assault offense, Hendrix argues the trial court erred by failing to instruct the jury on the lesser-included offense of deadly conduct. The State acknowledges that deadly conduct can be a lesser-included offense of aggravated assault as charged in this case, satisfying the first prong of the analysis. See Guzman v. State, 188 S.W.3 185, 190 (Tex.Crim.App. 2006); Ford v. State, 38 S.W.3d 836, 845 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Further, the State's contention that because Hendrix actually injured Gemta, he cannot be guilty "solely of deadly conduct" was also addressed in Guzman. Guzman, 188 S.W.3 at 191 n. 11. Therefore, this issue turns on whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense and not of the greater. The indictment charging Hendrix with aggravated assault alleged that he (1) intentionally, knowingly, and recklessly caused bodily injury to Kebede Gemta by shooting him with a firearm, a deadly weapon, and used or exhibited a deadly weapon during the commission of the assault, and (2) intentionally, knowingly, and recklessly caused serious bodily injury to Kebede Gemta by shooting him with a firearm, a deadly weapon. A person commits deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. See Tex. Pen. Code Ann. § 22.05(a) (Vernon 2003). A person acts recklessly when he is aware of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist. See Tex. Pen. Code Ann. § 6.03 (c) (Vernon 2003). Hendrix argues his testimony and written statements to police provide "more than a scintilla of evidence" that he lacked the intent to shoot the complainant and that the gun discharged accidentally. He maintains the jury should have been given the "more moderate option" of finding him guilty of deadly conduct and that his testimony that the gun "just went off" is sufficient to raise the lesser offense. In determining whether there is evidence to support a charge on recklessness, a statement that the defendant did not intend to kill the victim "cannot be plucked out of the record and examined in a vacuum." See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). Hendrix, the sole witness for the defense at trial and the only possible source for evidence raising the lesser offense of deadly conduct, presented a variety of different theories for why he shot Kebede Gemta: it was an accident, it was a warning shot, or it was an intentional act. But the primary focus of the defense in this case was that Hendrix was afraid he was going to be shot in the back by Gemta, so he pulled his gun, pointed it at Gemta, and fired in self defense. Hendrix told the jury he felt threatened by Gemta because as Hendrix started walking to the door of the 7-Eleven: "[Gemta] kept moving, acting like he was gonna wait for me to open the door. Once I opened the door, he was gonna shoot me in the back. I pulled out a gun, turned around and the gun went off, shot him in the arm." Hendrix said he was afraid and pulled out the gun with his finger on the trigger and "the gun went off." When asked if he was intending to fire the gun, Hendrix responded that he "was not intending to shoot this person. If he pulled a gun on me, I was gonna try to keep him from shooting me first. I wasn't intending to shoot him." Later he testified, "I felt this guy was gonna shoot me in the back. I was in defense of myself ." He also said Gemta was "bringing bodily injury to me." At times Hendrix testified he did not intend to shoot the gun but then said he was afraid, thought he was going to be shot in the back, so he pointed his gun at Gemta, "fired and hit him." Hendrix said he believed he "was a hundred percent in the right." He also testified that he fired his gun as "a warning shot, actually. If he did have a gun, it was enough for me to get out of the store." Even though appellant claimed the gun just went off and he did not intend to shoot Gemta, he consistently testified he was afraid he was going to be shot in the back and acted to protect himself when he pulled the gun "pointed it at him, fired and hit him." Hendrix's statement that he did not intend to shoot Gemta must be examined in context. See Kennedy v. State, 193 S.W.3d 645, 652 (Tex.App.-Fort Worth 2006, pet. ref'd). Viewed in the context of the entire record, Hendrix's testimony describes essentially an act of self-defense and, consequently, does not amount to evidence upon which a jury could rationally find that he only acted recklessly with respect to shooting the complainant. The jury charge included instructions on self defense. We conclude the trial court did not err by denying Hendrix's request for a deadly conduct charge. Accordingly, we overrule his issue in the aggravated assault offense. We affirm the trial court's judgments.