No. 01-06-00560-CR
Opinion issued October 11, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 1011939.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Michael James Felder, of robbery, a second-degree felony, and, due to prior convictions, the trial court assessed his punishment at imprisonment for 25 years. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). In his sole point of error, appellant argues that the trial court erred when it denied his request for an instruction on the lesser included offense of theft. We affirm.
Robbery is a second-degree felony. See Tex. Pen. Code Ann. § 29.02(b) (Vernon 2003). A prior conviction, however, elevates robbery to a first-degree felony. Id. § 12.42(b) (Vernon Supp. 2006). The sentencing range for a first-degree felony is imprisonment for five to 99 years. Id. § 12.32(a) (Vernon 2003).
Background
On the evening of January 3, 2005, appellant walked into a Walgreens drug store, selected an item, brought it to the front cash register where Priscilla Ramirez was working, and said, "Open your register or I'll shoot you." At first, Ramirez thought appellant was joking because he did not look serious, so she refused. Ramirez testified that at this point, she did not feel threatened. However, appellant again told her to open her cash register. When Ramirez again refused, appellant walked behind the counter and poked Ramirez's waist with an unidentified object and told her to open her cash register. Ramirez opened the register, and appellant took the money inside and stuffed it into his pockets; she did not give the money to appellant herself because she "was scared" and "afraid that he was going to hurt me." Once he had the money, appellant left the store. While working at another cash register a few feet away from Ramirez, Yesenia Garcia saw appellant select an item and approach Ramirez. At first she thought he was "a regular customer," but she began to suspect something was wrong when she saw him leaning over the counter and talking to Ramirez in a low voice and noticed that Ramirez's face looked pale. Garcia began to walk toward the photo area with her cash drawer and noticed appellant walk behind Ramirez's counter. As she was walking, appellant turned around to look at her, and they made eye contact. Garcia slid her cash drawer under a door and notified her manager that they were being robbed. Garcia then walked back to the front of the store and saw appellant leave. Ramirez was crying and told Garcia, "[H]e had a gun . . . he said . . . he was going to do something." Within minutes of the robbery, police arrived at the store. As Officers Griffith and Dabila pulled into the parking lot of the Walgreens, several bystanders who were outside the store when appellant fled directed them south. Officers Griffith and Dabila soon found appellant hiding in a house. Although they found several people in the house, only appellant matched the description of the man who had robbed the Walgreens. Police found no money on appellant's person, but they did find "a pile of money" that "was all wrinkled up and wadded up like it was in someone's pocket" hidden beneath a pile of clothing in the house. Within 30 minutes of the robbery, police returned appellant to the Walgreens, where both Ramirez and Garcia positively identified him as the man who had robbed Ramirez. Instruction on Lesser Included Offense
In his sole point of error, appellant argues that the trial court erred in denying his request to instruct the jury on the lesser included offense of theft because Ramirez testified that she initially did not believe that appellant was serious. He argues that this evidence shows that he was guilty only of theft. A jury must be charged on a lesser included offense if (1) the lesser included offense is included within the proof necessary to establish the charged offense and (2) some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Robinson v. State, 174 S.W.3d 320, 333 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Thus, there must be some evidence that would negate the element raising the lesser included offense to the greater charged offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); Robinson, 174 S.W.3d at 333. Theft, by whatever method committed, is necessarily included in the alleged elements of the greater offense of robbery when the indictment alleges that it was committed "in the course of committing theft." Earls v. State, 707 S.W.2d 82, 84-85 (Tex.Crim.App. 1986). Here, the indictment alleged that appellant, " while in the course of committing theft of property owned by [the complainant] . . . and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] the [c]omplainant in fear of imminent bodily injury and death." (Emphasis added.) Accordingly, the first prong of the test is satisfied. See Rousseau, 855 S.W.2d at 672; Robinson, 174 S.W.3d at 333. The next question is whether some evidence exists in the record that would permit a rational jury to find that if appellant is guilty, he is guilty only of theft. See Rousseau, 855 S.W.2d at 672; Robinson, 174 S.W.3d at 333. 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. Pen. Code Ann. § 29.02(a)(2). A person commits theft if he "unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a) (Vernon Supp. 2006). Thus, in order for appellant to have been entitled to an instruction on the lesser offense of theft, some evidence in the record must negate the jury's finding that appellant intentionally and knowingly threatened Ramirez or placed her in fear of imminent bodily injury or death. See Aguilar, 682 S.W.2d at 558; Robinson, 174 S.W.3d at 333; accord Holiday v. State, 14 S.W.3d 784, 788 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) ("To be entitled to a jury instruction on the lesser included offense of theft, there must have been evidence proving appellant committed a theft of [the complainant's] property, but did not . . . threaten him in any way."). Here, the evidence shows that appellant intentionally and knowingly threatened Ramirez when he told her to open her register or he would shoot. Appellant also placed Ramirez in fear of imminent bodily injury or death when he walked behind the counter after she refused to open the cash register, poked her waist with an unidentified object — after implying that he had a gun by telling her that he would shoot her if she did not comply with his demands — and again ordered her to open the cash register. Ramirez testified that once appellant was behind the counter, she was scared and afraid that he might hurt her. Appellant points out that Ramirez did not initially believe that appellant was serious and that she initially refused to open the cash register and give him the money to support his argument that there is some evidence in the record that negates the jury's finding that he placed Ramirez in fear of imminent bodily injury or death. This evidence, however, does not negate the fact that appellant threatened Ramirez when he said he would shoot her if she did not open the cash register and the fact that he placed Ramirez in fear of imminent bodily injury or death when he then walked behind the counter, poked her, and again ordered her to open the cash register. See Aguilar, 682 S.W.2d at 558; Robinson, 174 S.W.3d at 333. Nor does appellant point to any contrary evidence suggesting that he did not threaten to shoot her if she did not comply with his demands or suggesting that he did not place her in fear of imminent bodily injury or death when he walked behind the counter and poked her with an unidentified object. See Aguilar, 682 S.W.2d at 558; Robinson, 174 S.W.3d at 333. We conclude, therefore, that appellant was not entitled to an instruction on the lesser offense of theft. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.