No. 10-06-00054-CR
Opinion delivered and filed November 15, 2006. DO NOT PUBLISH.
Appeal from the 220th District Court, Bosque County, Texas, Trial Court No. 05-08-13912-Bccr. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the judgment without a separate opinion.)
BILL VANCE, Justice.
Appellant Carl Phillip Monk was indicted for aggravated robbery. At trial, the State requested and the court submitted the lesser-included offense of robbery over Monk's objection. The jury convicted Monk of robbery and, upon a finding of "true" to a felony enhancement allegation, sentenced him to 45 years in prison. On appeal, he argues that the trial court erred in including the lesser-included offense in the jury charge and that the evidence is legally and factually insufficient to support the conviction.
The Charge
A jury charge instruction on a lesser-included offense must be given only if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists 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. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993)). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App. 1997). Monk does not challenge whether robbery is a lesser-included offense of aggravated robbery, rather he challenges whether there is evidence that would permit a rational jury to find that he is guilty only of the lesser offense. Hampton, 109 S.W.3d at 440 (citing Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002)). In determining if the second prong has been met, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted. Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). The State called two witnesses at trial, the victim of the alleged robbery, Andrew Parsons, and Deputy Sheriff August Threlkeld. Parsons testified that Monk, whom he met at a convenience store in Laguna Park, Texas, asked for a ride to Clifton. Parsons agreed to drive him approximately four miles to "Uncle Gus's turnoff." Parsons testified that, when they got to the turnoff, Monk asked that he take him back to the convenience store. Parsons then felt something touch his side and he saw the blade of a knife. Monk held the knife to Parsons's side throughout the return trip to the store but did not speak. Parsons stated that he was afraid and considered the knife to be a deadly weapon. At the store, Monk got out of the vehicle and took Parson's beer without further incident. Monk was still at the store when Threlkeld arrived, approximately fifteen minutes after he first received a call that "a man had been threatened at [the store] with a knife." He questioned Monk, who said he did not have a knife, and searched Monk's backpack, the store, and behind the store in "high grass" where an employee claimed to have seen Monk after the alleged robbery. The knife was never found. Threlkeld testified that although he searched everywhere the knife could have been, he could have "missed" the knife in the high grass behind the store. In Hampton, the Court of Criminal Appeals held that the second prong was not met because the only affirmative evidence adduced at trial concerning the issue of whether a knife was used was the victim's testimony that the defendant "brandished a knife and had held it to her throat." Hampton, 109 S.W.3d at 439. However, in this case, there was contradictory evidence concerning the issue of whether Monk used a knife. Threlkeld testified that Monk stated that he did not have a knife. We find that this is some evidence that if Monk is guilty, he is guilty only of the lesser offense. See id. at 440. Accordingly, we hold that the trial court did not err in submitting the lesser-included offense of robbery. Sufficiency of the Evidence
Standard of Review When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, 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, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000); Matson, 819 S.W.2d at 843. The standard of review for a factual sufficiency claim was recently revisited by the Court of Criminal Appeals in Watson v. State, ___ S.W.3d. ___, 2006 WL 2956272 (Tex.Crim.App. Oct. 18, 2006). We, as the reviewing court, ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson, ___ S.W.3d at ___, 2006 WL 2956272, at *8; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)). The appellate court Adoes not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment . . . A Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the fact finder's weighing of the evidence and disagree with the fact finder's determination. Watson, ___ S.W.3d at ___, 2006 WL 2956272, at *10 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex.Crim.App. 1990)). If an appellate court concludes that the evidence is factually insufficient, however, it must clearly state why it has reached that conclusion. Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986)). Legal Sufficiency Analysis A person commits the offense of robbery by intentionally, knowingly, or recklessly causing bodily injury to another or intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death in the course of committing theft. TEX. PEN. CODE ANN. § 29.02(a) (Vernon 2003). In viewing all the evidence, we cannot say that a rational trier of fact could not have found guilt beyond a reasonable doubt or that the jury was not rationally justified in finding guilt. Parsons testified that although Monk did not make any verbal threats, he held a knife to Parsons' side until they returned to the convenience store. Parsons further testified that he was afraid of Monk injuring him with the knife. In viewing the evidence in the light most favorable to the verdict we find that the evidence is legally sufficient to support the robbery conviction. Factual Sufficiency Analysis Considering all of the evidence in a neutral light, we find that the jury was justified in finding Monk guilty. Watson, S.W.3d at ___, 2006 WL 2956272, at *8. As stated above, Parsons testified that Monk threatened him by holding a knife to his side and then took Parsons's beer from his vehicle. We do not find that this evidence is "so weak" to make the jury's determination of guilt "clearly wrong and manifestly unjust." Id. Further, Monk presented no conflicting evidence. Accordingly, we find that the evidence was factually sufficient. Conclusion
The judgment of the trial court is affirmed.