Nos. 05-03-00661-CR, 05-03-00665-CR.
Opinion issued March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause Nos. F03-71167-Kl and F02-73901-QL. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
Opinion By Justice BRIDGES.
Timothy Dale Lane appeals two convictions for aggravated robbery with a deadly weapon. Appellant waived a jury trial and pleaded not guilty before the court in each case. The trial court found appellant guilty, sentenced him to twenty-five years' confinement, and assessed a $10,000 fine in each case. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of each offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the convictions. We affirm the trial court's judgments.
Background
On October 15, 2002, appellant was given a criminal trespass warning by police to not go to the residence of Lashima Davis, the mother of appellant's infant son. Davis lived with her grandparents, Olivia and Leonard Brown, Sr., and an uncle, Leonard Brown, Jr. On October 17, 2002, appellant harassed Davis on the telephone. During one call, appellant said, "Bitch, you better kiss the baby good-bye because you ain't going to see him no more, ho." Davis testified that on the evening of October 17, 2002, appellant and several men kicked in the front door to her grandparents' apartment, demanded money at gunpoint, assaulted her uncle, took her money, and then left the apartment. Appellant was the only person Davis recognized. At the time the men broke in, Davis was taking a shower. She got dressed and looked out the bathroom door. Davis testified she saw "some guys" run into her uncle's bedroom. One man pointed a gun in Leonard, Jr.'s face and said, "If you move, I will blast this bitch." Davis tried to run out the front door that was standing open, but appellant stood in the doorway. Appellant grabbed Davis by her hair and dragged her back into the apartment. One of the men put a gun to Davis' head and asked her where the money was. Davis told the men she did not have any money. Davis testified she believed the men were going to kill them because they did not wear masks to hide their identities. Davis testified she had placed $500 on the kitchen table before she went to take a shower. Both she and appellant had "raised" the money for the baby. Davis testified she saw appellant take the money from the table right before he ran out the door with the other men. Olivia Brown, Davis' grandmother, testified she was sitting on her couch when men kicked in her front door around midnight. Three men came inside the apartment, one had a gun and one had a stick. When Olivia rose to get up from the couch, the gunman pointed his gun at her and told her to sit down. Olivia did not recognize two of the men, but she identified appellant as the third man. Appellant stood in the doorway while the other two men went back to Leonard, Jr.'s bedroom. Olivia heard the bedroom door being kicked in and heard the sound of fighting. She saw Davis run from the bathroom to the front door and saw appellant grab Davis by her hair and drag her back inside the apartment. One of the men put a gun to Davis' head and demanded money. Olivia testified she heard Davis say, "Timothy, why are you doing this. I got your baby here." Appellant said, "Now you see how it feel. You had no business calling the police on me." One of the men said, "Let's go." Appellant and the men ran out of the apartment. Olivia testified she was afraid she and her other family members would be shot because the men did not get what they came there to get. Leonard Brown, Jr. testified he was in his bedroom when two men kicked open the bedroom door. One man put a chrome gun in his face and said, "Where is the money at? You're going to die." Leonard, Jr. told the gunman he did not have any money. The gunman repeatedly demanded money and jewelry. Leonard, Jr. grabbed for the gun. He and the gunman wrestled over the gun, but the gunman got away and ran out of the bedroom. Leonard, Jr. went outside after the men, but he could not find them. When he was going back to the apartments, he saw appellant in a gray car with the other two men leaving the complex. Leonard Brown, Sr. testified he was in his bedroom watching television when he heard the front door "break down." He saw three men pass by his bedroom and go to Leonard, Jr.'s room. He got up from the bed to see what was going on. A man who held a .45-caliber automatic handgun in his hand said, "Go back and sit down, old man." Leonard, Sr. testified the man did not point the gun at him, but he believed if he did not sit down the gunman would shoot him. Leonard, Sr. heard the men go into Leonard, Jr.'s room and demand to know "where was the money" as they beat him. When Leonard, Sr. got up to look out his door, he saw Davis try to run out of the apartment. He saw appellant grab Davis and drag her back into the apartment. The other men came out of Leonard, Jr.'s bedroom, and appellant and the other men left the apartment together. Appellant denied he was with men who tried to rob the Browns and denied he knew who they were. Appellant testified he had been visiting a friend all evening when the friend drove him over to Davis' apartment so he could talk to her, even though he knew there was a protective order in effect prohibiting him from contacting Davis. Appellant claimed that as he walked from the car to Davis' front door, he heard screams. The door was standing open, and appellant saw a man with a gun standing over Davis. The gunman looked up at appellant. One of the men said "Let's go," and the gunman said, "Well, go get the car." But the other man said, "I'm going after him," meaning appellant. Appellant ran from the apartment. Appellant also testified he did not take any money from Davis or anyone else, he did not have a weapon, and he did not see anyone in Davis' family. In two issues, appellant argues the evidence is legally and factually insufficient to support his convictions. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). The State was required to prove beyond a reasonable doubt that appellant, in the course of committing theft and with intent to obtain and maintain control of the property, intentionally or knowingly threatened Leonard Brown, Jr. and Lashima Davis with imminent bodily injury or death and used or exhibited a deadly weapon during commission of the offense. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). 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. See Tex. Pen. Code Ann. § 7.02 (Vernon 2003). Here, appellant argues the evidence is legally and factually insufficient to prove the element of theft. Appellant argues the evidence shows that no property was taken from Brown, and appellant had an equal right to possess the $500, which was to be used for the care of his infant son. The State responds the evidence is legally and factually sufficient to support the convictions because appellant had no ownership interest in the $500, and the evidence shows appellant attempted to get money from Brown. We agree with the State. Davis testified she placed $500 on the kitchen table before she went to take a shower. The money was from savings contributed by herself and appellant for the care of their infant son. Appellant and other unidentified men kicked in the front door and demanded money at gunpoint. Several witnesses testified they saw appellant grab Davis by her hair and drag her back inside the apartment when Davis tried to run out the front door. One of the unidentified men put a gun to Davis' head, while appellant still held her by the hair, and demanded money. Davis testified she saw appellant take the $500 from the kitchen table right before he left the apartment. At trial, appellant testified he did not take $500 from the kitchen table, he knew nothing about the money, and he did not contribute to the $500. The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Even if appellant contributed some of the money that comprised the $500, he did not contribute all of it and he had no right to exercise control over the money by breaking down the apartment door and seizing the money at gunpoint. Cf. Freeman v. State, 707 S.W.2d 597, 605 (Tex.Crim.App. 1986) (store security guard had greater right to possession of merchandise than defendant who turned over not-paid-for merchandise to a co-employee). Brown testified appellant was with two other men who kicked open his bedroom door. One of the men pointed a gun at Brown and demanded money and jewelry. Brown's testimony that one of the men pointed a gun at him and demanded money and jewelry is sufficient to show an intent to commit theft. See, e.g., Williams v. State, 537 S.W.2d 936, 938 (Tex.Crim.App. 1976). Moreover, proof of a completed theft is not required to establish a robbery. See Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim. App. 2003). Having reviewed all of the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the convictions. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's first and second issues. We affirm the trial court's judgment in each case.