Opinion
No. 10-05-00262-CR
Opinion delivered and filed September 13, 2006. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2004-1343-C. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Glenn Alvin Reed of robbery. The jury found that Reed is an habitual offender and assessed his punishment at ninety-nine years' imprisonment. Reed contends in three points that: (1) the evidence is legally insufficient to prove that he assaulted the complainant "in the course of committing theft"; (2) the evidence is factually insufficient to prove that he assaulted the complainant with intent to maintain control of stolen property; and (3) the court abused its discretion by excluding his own testimony that he is hyperactive and was not taking medication at the time of trial, which he offered to explain his behavior at trial. We will affirm.
In the Course of Committing Theft
Reed contends in his first point that the evidence is legally insufficient to prove that he assaulted the complainant "in the course of committing theft" because a period of time elapsed between the admitted theft and his altercation with the complainant Danny Nix. When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Section 29.02 of the Penal Code defines the offense of robbery as follows:(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;
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.TEX. PEN. CODE ANN. § 29.02(a) (Vernon 2003). According to section 29.01, "`In the course of committing theft' means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id. § 29.01(1) (Vernon 2003). The Eastland Court has concluded that the term "immediate flight" encompasses "[a] reasonable time in view of particular facts and circumstances of [the] case under consideration." Thomas v. State, 708 S.W.2d 580, 581 (Tex.App.-Eastland 1986, pet. ref'd) (quoting Black's Law Dictionary 675 (5th ed. 1979)). Thus, the Court found the evidence legally sufficient to sustain the appellant's robbery conviction where she was detained by a security guard when attempting to leave a Wal-Mart without paying for merchandise, was taken to an office to await the police, and assaulted the security guard thirteen to twenty minutes later. Id. at 580-81; accord Lightner v. State, 535 S.W.2d 176, 177-78 (Tex.Crim.App. 1976); Oggletree v. State, 851 S.W.2d 367, 369-70 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Rabb v. State, 681 S.W.2d 152, 153-54 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd). Here, the complainant Nix left his cell phone in his Chevrolet Suburban when he went in a store. When he returned, he noticed that the phone was missing. He checked for it in the store, but it was not there. He then used a second cell phone to dial the number for the missing phone and try to locate it. As he sat in the Suburban calling his other phone, he noticed Reed across the street "pull[ing] his pants leg out like something was bothering him." Reed then began to walk away from the area. Nix dialed the number again and noticed Reed reacting in the same manner. Nix then started the Suburban and drove around the corner in the direction Reed had gone. Nix dialed the number again when he was within twenty feet of Reed and could hear his missing phone playing the Aggie War Hymn. Nix got out and asked Reed if he had his phone. Reed said that he did, pulled it from his pants pocket, and extended it in his hand as if he were going to return it to Nix. When Nix grabbed the phone however, Reed would not let go. Instead, Reed hit Nix in the left eye. The force of the blow broke Nix's glasses and bloodied his face. A brief struggle ensued and Reed dropped the phone. Nix grabbed the phone and then retreated to the Suburban. He then returned to the store and called the police. A store employee testified that he saw Nix entering the store as the employee went to the bank, and when the employee returned fifteen to twenty minutes later, Nix was "shaking" and "bleeding," indicating that the entire encounter between Nix and Reed occurred during that timeframe. Nix testified that Reed hit him in the eye when Nix tried to take back his stolen cell phone and that Reed refused to let go of the phone. Based on the store employee's testimony, the entire episode lasted between fifteen and twenty minutes. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that Reed assaulted Nix "in immediate flight" after stealing the phone. See Thomas, 708 S.W.2d at 581; see also Lightner, 535 S.W.2d at 177-78; Oggletree, 851 S.W.2d at 369-70; Rabb, 681 S.W.2d at 153-54. Accordingly, we overrule Reed's first point.
Intent to Maintain Control of Stolen Property
Reed contends in his second point that the evidence is factually insufficient to prove that he assaulted Nix with intent to maintain control of stolen property. When reviewing a factual insufficiency complaint, we ask whether the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt" or whether the contrary evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A defendant's intent may be inferred from his conduct and words. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004); Nguyen v. State, 177 S.W.3d 659, 664 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Here, Nix testified that Reed refused to let go of the cell phone and hit Nix in the eye when he tried to take it back. Conversely, Reed testified that he returned the phone to Nix, who hit him after retaking the phone. Reed also testified to several prior felony and misdemeanor convictions. Thus, resolution of the issue of whether Reed assaulted Nix with the intent to maintain control of the stolen cell phone rests primarily on a credibility determination. The jury is "the sole judge of the weight and credibility of witness testimony." Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). By its verdict, the jury chose to believe the State's version of the events. See Parker v. State, 119 S.W.3d 350, 355 (Tex.App.-Waco 2003, pet. ref'd). We must defer to the jury in its resolution of such issues. See Vasquez, 67 S.W.3d at 236; Parker, 119 S.W.3d at 355. Thus, we cannot say that the controverting evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule Reed's second point.Exclusion of Reed's Medical Testimony
Reed contends in his third point that the court abused its discretion by not allowing him to testify that he is hyperactive and had not been taking his medication at the time of trial, which exacerbated his condition. Reed argues that this testimony is relevant to explain his behavior at trial because the jury may have viewed his behavior as an indication that he was not being truthful. The testimony Reed sought to offer is similar to that offered in cases involving child witnesses or witnesses who are mentally challenged in some respect.[W]e recognize that some witnesses are viewed by society as "impaired": jurors may naturally tend to view with suspicion the competence of a class of people to testify because of a condition or disability embodied by the class. Some examples of this phenomenon would include young children and mentally retarded persons. When an "impaired" witness or declarant is expected to testify, expert testimony should be permitted in the offering party's case-in-chief concerning the ability of the class of persons suffering the "impairment" to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case. Testimony admitted pursuant to this "impaired" witness theory should be limited to a discussion of the class rather than the individual witness and should focus on the ability of the class to accurately perceive, remember, etc. rather than any tendency to do so.Schutz v. State, 957 S.W.2d 52, 70 (Tex.Crim.App. 1997) (citing Yount v. State, 872 S.W.2d 706, 711-12 (Tex.Crim.App. 1993)). Applying these principles to Reed's case, it may have been appropriate to offer testimony during Reed's case-in-chief that he suffers from attention deficit hyperactivity disorder or similar condition and "expert testimony" regarding the behavioral characteristics of persons with this condition. Cf. id. However, this is not the type of testimony Reed offered. Rather, Reed sought to introduce testimony that he had been treated in several mental health institutions for "my hyperactiveness." He testified that he was "probably" supposed to be taking medication at the time of trial "[f]or a few things" including "your hyperactivity, the way you act[, t]he way you jerk around[, h]ow busy you are." Reed's counsel offered this testimony in an effort to explain Reed's "negative body language" from which jurors "might assume that he's lying." Counsel explained, "I think we may have a reasonable explanation [that] the way he may appear in front of the jury has to do with his lack of medication that's been prescribed." However, Reed conceded moments later that his doctor had taken him off this medication. Thus, the focus of the basis for the admission of this testimony was to attribute Reed's courtroom behavior (which is not well defined in the record) to "his lack of medication." Because Reed conceded that his doctor had taken him off of this medication however, we cannot say that the court abused its discretion by excluding the testimony. Accordingly, we overrule Reed's third issue. We affirm the judgment.