Opinion
No. 05-17-00063-CR
03-28-2018
FRED MORRIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F16-52640-T
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Evans
Fred Morris appeals his conviction by the trial court for robbery. Punishment was assessed at five years' imprisonment. On appeal, appellant contends that the evidence is insufficient to support the conviction. Appellant also requests that we modify the judgment to reflect that he entered a plea of not guilty to the offense and that the punishment assessed was not the result of a plea bargain. We modify the trial court's judgment to reflect appellant's plea of not guilty and that there was no plea bargain. As modified, we affirm the trial court's judgment.
BACKGROUND
On March 2, 2016, Charles Nwabuisi worked as a cashier at the 7-Eleven store on Fitzhugh in Dallas. During the early morning hours, Nwabuisi was robbed by appellant and accomplice, James Robertson. Evidence of the incident was presented through witness testimony and video surveillance from the store.
The second man was identified in the affidavit for arrest warrant as James Robertson. The arrest warrant also identifies a third man, accomplice, Anthony Colden, as the driver of the truck in which appellant and Robertson fled after committing the robbery.
Nwabuisi testified that when appellant and Robertson first came into the store, there were two other customers in the store. Appellant went to the restroom while Robertson browsed and left the store. Once the two other customers left, Robertson came back into the store and appellant came out of the restroom and joined him. Nwabuisi testified that appellant shoved him and said "Let me take care of my business." Appellant then pulled out a trash bag, went behind the counter into the cashier area and started loading up packages of cigarettes. Nwabuisi testified that he tried to stop him and appellant knocked him over. Nwabuisi testified that Robertson joined appellant and that when Nwabuisi was shoved, he fell on the counter and that it hurt. At that point, Nwabuisi gave up trying to stop the two men, left the cashier area and called 911. Nwabuisi was examined by someone from the fire department but did not go to the hospital.
Detective Richardson testified that she responded to the robbery call and talked to Nwabuisi at the scene. Patrol officers located appellant and the accomplices a short time later and they were brought down to police headquarters where they were interviewed. Detective Richardson testified that during the interview, appellant admitted to his involvement in the incident, admitted to stealing cigarettes from the store, and admitted to shoving the clerk. Detective Richardson identified appellant in the surveillance video as the man putting cigarettes into the bag and stated that the video showed that both men shoved Nawbuisi but that it was Robertson who shoved him harder with his shoulder, while appellant shoved him more with his arm. Detective Richardson also testified that it was clear from the interviews and the video surveillance that both appellant and Robertson were working together.
Detective Richardson's interview with appellant was admitted into evidence and played for the trial court judge.
The video surveillance of the incident generally showed everything Nwabuisi testified to including Robertson joining him and Nwabuisi being shoved into the shelving. However, as noted by the State in its brief, there appears to be a nine second gap in the video surveillance just before appellant is seen walking behind the counter and therefore, does not show Nwabuisi's initial encounter with appellant about which Nwabuisi testified that appellant first shoved him.
ANALYSIS
I. Sufficiency of the Evidence
In appellant's first issue, he contends that the evidence is insufficient to support a conviction for robbery because the video evidence does not support a finding that appellant caused the complainant bodily injury, either acting alone or as a party. Appellant contends that based on the complainant's testimony and circumstances of the offense as depicted in the video surveillance tape, it was not reasonable for the trial court to conclude that the contact between the complainant and appellant and his accomplice caused the complainant bodily injury. We disagree.
In reviewing the sufficiency of the evidence, we view all 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact-finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899.
A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control property, he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02(a)(1) (West 2011). Bodily injury is "physical pain, illness, or any impairment of physical condition." TEX. PENAL CODE ANN. § 1.07(8) (West Supp. 2017). Direct evidence of physical pain, however minor, is sufficient to establish bodily injury. Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) (citing Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009)); see also Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975). Further, a fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. Garcia v. State, 367 S.W.3d at 688 (citing Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.)).
In this case, there was direct evidence that Nwabuisi suffered pain when he was shoved by appellant or Robertson because Nwabuisi testified that it hurt. See Garcia, 367 S.W.3d at 688. Further, it was reasonable for the trial court judge to infer that Nwabuisi felt pain from being shoved into the shelving based on the video surveillance showing that his body hit the shelving hard enough to cause the shelving to move from the impact. Whether the trial court relied on the complainant's testimony or the video surveillance, or both, the trial court, as fact-finder, judged the credibility of the witnesses, reconciled conflicts in the testimony, and could have accepted or rejected any or all of the evidence on either side. We conclude the evidence is sufficient to support the conviction. See Davis v. State, 490 S.W.3d 268, 271-72 (Tex. App.—Fort Worth 2016, pet. ref'd) (evidence sufficient to convict appellant of aggravated robbery of customer; appellant and gunmen were in the process of stealing money from cash register when gunmen pointed their guns at customer and stole his money).
Appellant's first issue is overruled.
II. Modification of Judgment
In his second and third issues, appellant requests that we modify the judgment to accurately reflect that appellant entered a plea of not guilty to the offense and that there was no plea bargain agreement. The trial court's judgment reflects that appellant pleaded guilty to the offense and that the five year sentence was a plea bargain. However, the trial record shows that appellant entered a plea of not guilty to the offense. The trial record also shows that the punishment assessed was not the result of a plea bargain. Accordingly, we modify the judgment to reflect that appellant pleaded not guilty to the offense and that there was no plea bargain. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd.).
CONCLUSION
As modified, we affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
170063F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-52640-T.
Opinion delivered by Justice Evans, Justices Francis and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The Section entitled "Plea to Offense" is modified to state "Not Guilty."
The Section entitled "Terms of Plea Bargain" is modified to state "N/A." As REFORMED, the judgment is AFFIRMED. Judgment entered this 28th day of March, 2018.