Opinion
NO. 03-17-00459-CR
04-19-2018
Roderick Dunan, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-15-301334 , HONORABLE TAMARA NEEDLES, JUDGE PRESIDING MEMORANDUM OPINION
Roderick Dunan was charged with robbery for "intentionally, knowingly[,] or recklessly caus[ing] injury to" Katelyn "Brodhead by grabbing her with his hands and scratching her with his hands and nails" "while in the course of committing theft of property and with intent to obtain or maintain control of said property." See Tex. Penal Code § 29.02 (setting out elements of offense of robbery and providing that offense is second-degree felony). The indictment also contained enhancement paragraphs alleging that Dunan had previously been convicted of several felony offenses. See id. § 12.42 (elevating permissible punishment range for felony offense if defendant has previously been convicted of additional felony offenses). Prior to trial, Dunan agreed to enter pleas of true regarding the prior offenses. In addition, under an agreement with the State, Dunan decided to waive his right to a jury trial in exchange for the State agreeing to a reduced punishment range of five years' to thirty years' imprisonment and to waive some of the enhancement allegations. At the end of the guilt-or-innocence phase of the trial, the district court found Dunan guilty of the charged offense. At the end of the punishment phase, the district court sentenced Dunan to ten years imprisonment and rendered its judgment of conviction accordingly. On appeal, Dunan contends that the evidence was insufficient to support his conviction. We will affirm the district court's judgment of conviction.
Prior to the start of the trial, Dunan informed the district court that under his agreement with the State, the State was waiving all but one prior enhancement allegation. However, the written agreement contained in the clerk's record shows that the State only "agreed to waive an enhancement."
BACKGROUND
As set out above, Dunan was charged with robbing Brodhead. During the trial, Brodhead, Dunan, and Dr. John Fabian were called to the stand to testify. In addition, various audio and video recordings were admitted into evidence and played for the district court.
After being called to the stand to discuss the events in question, Brodhead explained that she saw Dunan in the parking lot of a convenience store, that he told her that his car was not working, that he asked for a ride home, and that although she was initially apprehensive about the idea, she ultimately agreed to give Dunan a ride home. When describing the car ride, Brodhead stated that Dunan initially acted normally and that they made "small talk" but that Dunan later asked her "a weird question . . . about pornography." Moreover, Brodhead testified that Dunan continued to talk about pornography after they arrived at his apartment complex and after she parked her car to let him out. Next, Brodhead related that Dunan refused to get out of her parked car despite her repeated requests for him to leave. Further, Brodhead recounted that Dunan "put his hand down his pants" and exposed his penis, that she started screaming and ordered him out of her car, that he told her to calm down, that he stated that "he just wanted a couple minutes of [her] time," and that he started masturbating.
When testifying regarding what happened next, Brodhead stated that she pulled her "keys out of the ignition," grabbed her purse, and started to open her car door to "make a run for it," and Brodhead recalled that Dunan pulled her "back into the car," placed his arm over her mouth, clawed her face, and scratched her right arm with his fingernails. Furthermore, Brodhead related that she was "pretty sure he was trying to pull at" her purse and that she "was having to hold onto" the purse with all of her "might to keep it from being pulled away." Moreover, Brodhead testified that Dunan told her that he would let her out of the car if she would "[j]ust give" him the purse and that she was lucky that he did not have his knife with him. Additionally, Brodhead related that after struggling with Dunan, she was able to free her mouth, that she started screaming, that Dunan ran away, and that she called the police. In her cross-examination, Brodhead stated that the incident seemed like "it wasn't a thought-out thing" and that Dunan "may have gotten some of [her purse] in his hand and pulled it perhaps," but she related that Dunan was never able to pull the purse away from her. During her testimony, pictures of bruises and scratches that Brodhead allegedly sustained in the attack were admitted into evidence.
After Brodhead finished her testimony, an audio and video recording of an interview of Dunan by the police was admitted as an exhibit and played for the district court. During the interview, Dunan explained that he was thinking that he needed some money when he saw Brodhead walk into the convenience store and that he decided to try to persuade her to drive him home. In addition, Dunan informed the interviewing officers that his goal from the very beginning of his interaction with Brodhead was to lure her away from the store in order to take money from her, that he was trying to think of a way to take her purse during the car ride home, and that he tried to take her purse at the end of the encounter but could not get the purse away from her because she would not let go of it.
During his case in chief, Dunan elected to testify. In his testimony, Dunan agreed that most of Brodhead's testimony was true but explained that he did not intend to take Brodhead's purse when he got into her car. Moreover, Dunan admitted that he intended to expose his penis but related that after he exposed himself and after Brodhead told him to get out of the car, he "panicked" and "tried to grab her purse." Further, he recalled that he did not have any plan for what he would do in the event that she did not respond favorably to his decision to expose his penis. During his cross-examination, Dunan admitted that although he did not initially intend to take Brodhead's purse, he did try to grab her purse after "she rejected" his advances, explaining that grabbing the purse was his "way of trying to keep her in the car." Similarly, Dunan stated that he lied to the police when he told them that he tried to steal Brodhead's purse because he was "embarrassed about . . . [having] pull[ed] out [his] penis" and about having a compulsion to expose his penis to strangers.
After Dunan finished testifying, he called Dr. Fabian to the stand. In his testimony, Dr. Fabian explained that he was a psychologist, that he performed a psychological assessment of Dunan prior to trial, and that he determined that Dunan was competent to stand trial. Regarding the results of the testing, Dr. Fabian related that the testing showed that Dunan had several cognitive impairments, including deficits to his abilities to solve problems, process information, and control his impulses; that Dunan "has exhibitionistic disorder," which is evidenced by a desire to "flash" unsuspecting people; that Dunan suffers from attention-deficit-hyperactivity disorder and bipolar disorder; and that Dunan abuses drugs and was high on marijuana at the time of the offense. Further, Dr. Fabian testified that he did not believe that Dunan "thought of the consequences" that could result from taking the purse and that Dunan "may have been panicked" or "embarrassed" when he tried to take the purse, but Dr. Fabian also agreed that Dunan could have formed "the intent to steal th[e] purse in an instant" regardless of whether he had a plan to steal the purse before entering the car. Finally, Dr. Fabian agreed that someone with the type of cognitive deficits that Dunan has and who has been sexually "rebuffed" might do something like try to take a purse because he might not know how to respond to being rejected.
During the trial, Dunan agreed to stipulate that he "intentionally, knowingly, or recklessly caused bodily injury to" Brodhead on the day in question and that he "exposed [his] genitals" to "Brodhead during the course of these events." However, Dunan explained to the district court that he was still challenging whether he had the intent to steal Brodhead's purse during the encounter.
After considering the evidence presented at trial, the district court found Dunan guilty of the charged offense.
GOVERNING LAW
As set out above, Dunan was charged with the offense of robbery. Under the Penal Code, an individual commits the offense of robbery "if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Penal Code § 29.02(a). In addition, a person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a). Moreover, "'[i]n 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). An individual attempts to commit an offense if "with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Id. § 15.01(a). Accordingly, "[i]t is not necessary to prove a completed theft in order to prove the offense of robbery unless the State elects to allege in the indictment that a completed theft occurred." Dillard v. State, 931 S.W.2d 689, 696 (Tex. App.—Dallas 1996, pet. ref'd); see Russo v. State, 228 S.W.3d 779, 794 (Tex. App.—Austin 2007, pet. ref'd) (noting that "[p]roof of a completed theft is not even required" for robbery conviction). On the contrary, robbery can be established by evidence showing "that the accused assaulted the victim in an attempt to commit theft." Bell v. State, No. 10-16-00235-CR, 2017 WL 1957442, at *2 (Tex. App.—Waco May 10, 2017, pet. ref'd) (mem. op., not designated for publication). Moreover, "[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result," Tex. Penal Code § 6.03(a), and "[i]t is both a common-sense inference and an appellate presumption that a person intends the natural consequences of his acts," Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005).
On appeal, Dunan challenges the sufficiency of the evidence supporting his conviction. When reviewing the sufficiency of the evidence, appellate courts view the evidence in the light most favorable to the verdict and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this type of review, an appellate court must bear in mind that it is the factfinder's duty to weigh the evidence, to resolve conflicts in the testimony, and to make "reasonable inferences from basic facts to ultimate facts." Id. Moreover, appellate courts must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences were resolved in favor of the conviction and "defer to that determination." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that "direct and circumstantial evidence are treated equally" and that "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor" and "can be sufficient" on its own "to establish guilt." Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). The evidence is legally insufficient if "the record contains no evidence, or merely a 'modicum' of evidence, probative of an element of the offense" or if "the evidence conclusively establishes a reasonable doubt." Id. at 107 (quoting Jackson, 443 U.S. at 320).
DISCUSSION
In his sole issue on appeal, Dunan contends that "[t]he evidence is legally insufficient to sustain the conviction for robbery." When presenting this challenge, Dunan does not assert that the evidence is insufficient to support a conclusion that he inflicted bodily injury on Brodhead on the day in question and instead limits his evidentiary attack to the evidence regarding his intent to commit theft of Brodhead's purse. More specifically, Dunan contends that rather than establish "the specific intent to commit theft," the evidence establishes that his "actions were reactive and impulsive" "[d]ue to his cognitive and behavioral impairments."
When supporting his arguments, Dunan points to parts of Brodhead's testimony in which she indicated that Dunan did not appear to have a well-developed plan and that Dunan may have pulled at her purse. Further, Dunan highlights his own testimony in which he stated that he did not intend to steal the purse and was instead acting out after becoming embarrassed when Brodhead rejected his advances. In addition, Dunan refers to the testimony by Dr. Fabian describing various types of cognitive deficits and disorders that Dunan was suffering from. In light of the preceding, Dunan contends that the evidence shows that he "lacked specific intellectual and cognitive ability to formulate the specific intent to commit theft" or "formulate that required intent in an instant."
As an initial matter, we note that "the gravamen of robbery is the assaultive conduct and not the theft" and that Dunan does not assert that the evidence is insufficient to support a determination that he assaulted Brodhead. See Burton v. State, 510 S.W.3d 232, 238 (Tex. App.—Fort Worth 2017, no pet.). "Focusing on the gravamen of robbery, and viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that" Dunan assaulted Brodhead "during the incident." See Bell, 2017 WL 1957442, at *2; see also Sorrells v. State, 343 S.W.3d 152, 158 (Tex. Crim. App. 2011) (noting that robbery is often proved by evidence establishing "force or threats committed before the theft or attempted theft"); Cano v. State, 614 S.W.2d 578, 578-79 (Tex. Crim. App. 1981) (concluding that evidence was sufficient to support conviction of robbery for knowingly or intentionally causing bodily injury to complainant where defendant pushed complainant, causing her to fall onto pavement, while grabbing complainant's purse); Crawford v. State, No. 10-10-00003-CR, 2011 WL 5221241, at *1-2 (Tex. App.—Waco Oct. 26, 2011, no pet.) (mem. op., not designated for publication) (determining that evidence was legally sufficient to support robbery conviction even though defendant did not threaten victim where victim testified that purse was on her arm, that defendant pulled purse, and that defendant's actions left bruises on her arm).
Moreover, although it is true that Dr. Fabian did testify regarding various cognitive deficits and disorders that Dunan has, the district court as the factfinder in this case was free to decide what, if any, weight to give that evidence when determining whether Dunan had the applicable intent in this case. See Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005) (noting that "[t]he jury was able to hear all of" evidence regarding defendant's "history of mental illness" "and his frame of mind on the night of the offense," "determine the weight of the evidence, and choose whether or not Appellant possessed the requisite mens rea to commit this offense"). When deciding what weight to give that testimony, the district court was free to consider other evidence pertaining to the subject matter, including the recording of Dunan's interview with the police, Dunan's demeanor during his testimony at trial, and other portions of Dr. Fabian's testimony explaining that Dunan was competent to stand trial.
Similarly, although Brodhead indicated in portions of her testimony that Dunan did not appear to have any overall plan during their encounter and may have grabbed her purse, she also testified that he grabbed for her purse, that she had to hold onto it to prevent him from getting it, and that Dunan told her that he would let her go if she gave him her purse. See Wilkins v. State, No. 05-14-01365-CR, 2015 WL 4628214, at *4, *5 (Tex. App.—Dallas Aug. 4, 2015, pet. ref'd) (mem. op., not designated for publication) (overruling argument that evidence was insufficient to support aggravated robbery conviction because "nothing was stolen or attempted to be stolen from the victim" where evidence established that defendant "demand[ed] money and marijuana"); Johnson v. State, Nos. 05-02-00594—00595-CR, 2003 WL 21419046, at *5 (Tex. App.—Dallas June 20, 2003, no pet.) (finding evidence sufficient to support robbery conviction even though victim testified that defendant "did not take his wallet or any money" because victim "also testified that [defendant] demanded his wallet and searched his pockets"); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (explaining that "[i]ntent may . . . be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant").
Furthermore, although Dunan denied intending to steal Brodhead's purse during his testimony, Dunan repeatedly stated during his interview with the police that he decided that he would try to take money from Brodhead at the moment that he first saw her, that he was formulating a plan to take the purse during the car ride, and that he tried to take Brodhead's purse but was not able to because Brodhead resisted. See Garza v. State, 100 S.W.3d 347, 349, 350 (Tex. App.—San Antonio 2002, no pet.) (noting that defendant was asserting that evidence was insufficient to support his conviction for aggravated robbery because "he had not taken any property before he attempted to leave the gas station" and concluding that evidence was sufficient to support conviction where evidence showed that defendant "was attempting to take the cash register").
While perhaps there were conflicts in the evidence regarding Dunan's intent, resolution of any such conflicts fell squarely within the purview of the district court as the factfinder. In light of all of the evidence summarized above as well as the reasonable inferences that the factfinder could have made from that evidence and given that the standard of review for legal-sufficiency challenges obligates appellate courts to defer to the factfinder's resolution of conflicts in the testimony and to review the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 16-17, we cannot conclude that the evidence was legally insufficient to support the district court's determination that Dunan had the intent to deprive Brodhead of her purse and to obtain control of the purse in the course of committing theft. Cf. Crawford v. State, 889 S.W.2d 582, 584 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (determining that evidence was sufficient to support robbery conviction and determination that defendant "intended to steal money from" victim where evidence established that defendant "demanded money—a quarter" and that defendant attacked victim "because she refused to give him a quarter").
For all of these reasons, we overrule Dunan's sole issue on appeal.
CONCLUSION
Having overruled Dunan's sole issue on appeal, we affirm the district court's judgment of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: April 19, 2012 Do Not Publish