Opinion
No. 11-02-00347-CR
September 18, 2003. DO NOT PUBLISH. See TEX.R.APP.P. 47.2(b).
Appeal from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
OPINION
The jury convicted James Dannell Horton of aggravated robbery and assessed his punishment at seven years confinement. We affirm. Fiaz Hussain testified that on September 12, 2001, he was working at the Quik Way convenience store that his brother owned. Hussain stated that he arrived at work around 10:00 a.m. and that he was alone at the counter. Hussain said that three men came into the store together. One of the men went toward the back of the store and asked to use the restroom. Hussain informed him the store did not have a public restroom. Another of the men walked to the counter area and pulled a gun on Hussain. At that time, someone turned out the lights in the store. Hussain asked the man with the gun not to shoot him. Hussain said that he would give the men whatever they wanted. Hussain testified that the three men began taking money, lottery tickets, and cigarettes. Hussain identified appellant as one of the three men who entered the store. Hussain said that appellant was the one who asked to use the restroom. Hussain stated that after the other man pulled the gun on him, appellant came to the counter area and began taking money and cigarettes. Hussain said that the three men left the store after six or seven minutes. Deputy David Jones, with the Dallas County Constables Office, testified that on September 12, he was on patrol when a pedestrian flagged him down and informed him that someone was robbing the Quik Way convenience store. Deputy Jones went to the convenience store and he saw three men coming out of the store. The three men started running, and Deputy Jones chased them in his vehicle. Deputy Jones got out of his vehicle and began pursuing the men on foot. The three men went in different directions, and Deputy Jones followed one of them. Other law enforcement officials came to assist Deputy Jones in his pursuit of the individual. Deputy James DeCoux caught appellant and apprehended him. Deputy DeCoux testified that he found lottery tickets and money in appellant's pockets. In his sole point of error, appellant complains that the trial court erred in denying his request for an instruction on the lesser included offense of theft. A trial court must submit a jury instruction on a lesser included offense if the offense is included within the proof necessary to establish the offense charged and if there is some evidence in the record "that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense." Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Cr.App. 1997) (quoting Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Cr.App.), cert. den'd, 510 U.S. 919 (1993)); see TEX. CODE CRIM. PRO. ANN. ART. 37.09 (Vernon 1981). In order to raise the lesser included offense, the evidence must affirmatively raise the issue; it is not enough that the jury could simply disbelieve "crucial evidence pertaining to the greater offense." Bignall v. State, 887 S.W.2d 21, 24 (Tex.Cr.App. 1994). Theft is a lesser included offense of aggravated robbery. Bignall v. State, supra. Therefore, we must determine whether there is any evidence that appellant was only guilty of theft. Pursuant to TEX. PENAL CODE ANN. § 29.02 (Vernon 2003), a person commits the offense of robbery if in the course of committing theft he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2003). Appellant gave a written statement to the police that was read to the jury. In his statement, appellant said that he met "Dwaine" and "Peanut" on the morning of the offense. Appellant said that they decided to go to the convenience store and, on the way, "Dwaine" said that he was "fixing to hit the store." In his statement, appellant said that "Dwaine" pointed a gun at the clerk. Appellant said that he took $300 from the store and that he received some of the lottery tickets that "Dwaine" and "Peanut" took. Appellant argues that he should have received an instruction on the lesser included offense of theft because his statement, as well as the testimony at trial, shows that he did not use or exhibit a deadly weapon. Appellant contends that his statement establishes that he only took some cash and lottery tickets and is, therefore, only guilty of theft. The charge authorized the jury to convict appellant as a party to the offense. A person is criminally responsible as a party to an offense if the offense is committed by the conduct of another for which he is criminally responsible. TEX. PENAL CODE ANN. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by 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 ANN. § 7.02(a)(2) (Vernon 2003). In determining whether a defendant participated in an offense as a party, we may examine the events occurring before, during, and after the commission of the offense; and we may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Cr.App. 1994). While mere presence at the scene is not enough to sustain a conviction, such facts may be considered in determining whether an appellant was a party to the offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex.Cr.App. 1981). The record establishes that appellant knew that "Dwaine" planned to "hit" the convenience store before the three entered the store. The record shows that appellant assisted in the robbery and took money from the convenience store. It is undisputed that a gun was used in the commission of the offense. The record shows that appellant acted as a party to the offense of aggravated robbery. There is no evidence that appellant was only guilty of theft. Oakley v. State, 807 S.W.2d 378 (Tex.App.-Houston [14th Dist.] 1991), aff'd, 830 S.W.2d 107 (Tex.Cr.App. 1992). Appellant's sole point of error is overruled. The judgment of the trial court is affirmed.