Perry v. State

Full title: GREGORY RAY PERRY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 8, 2003

No. 05-02-00500-CR (Tex. App. Apr. 8, 2003)

Opinion

No. 05-02-00500-CR.

Opinion Issued April 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).

Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-37205-VM. Affirmed.

Before Justices JAMES, BRIDGES, and RICHTER.

OPINION

Opinion By Justice RICHTER

Gregory Ray Perry appeals his conviction of aggravated robbery of a person sixty-five years of age or older with a deadly weapon, namely an automobile. See Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 2003). The trial court assessed a punishment of forty-five years imprisonment. In two points, appellant contends: (1) the trial court erred in overruling his objection to allow the lesser-included offense of assault in the court's charge; and (2) the evidence is factually insufficient to support his conviction. We affirm.

Background

On August 30, 1999, Pat Macon, a sixty-five-year-old woman, was at a gas station fueling her car when appellant entered the car and tried to start it. As Macon leaned into the car to grab her purse, appellant struck and pushed Macon, trying to get her out of the car. Appellant started the car and sped away, dragging Macon until she fell to the pavement. Macon suffered a broken nose, bruised ribs, and scratches on her arms and legs. Clark Bryant, Edgar Martinez, and John White witnessed the crime. On September 1, 1999, Kentucky State Trooper Laura Isenberg ran a check on a car with Texas license plates that was stopped on the side of the road and discovered the car had been stolen. As she attempted to discuss the matter with the driver, appellant, he sped away in Macon's car, crashed into a police vehicle, and steered the car into an oncoming lane of traffic. Once stopped, Isenberg arrested appellant. At trial, the State presented testimony from Macon, Bryant, White, and Isenberg. Appellant testified on his own behalf. The trial court charged the jury on the offenses of aggravated robbery and the lesser-included offense of unauthorized use of a motor vehicle. The jury reached a verdict of guilty, and the trial court assessed punishment. This appeal ensued.

Lesser-Included Offense Instruction

In his first point, appellant contends the trial court erred in denying his request for the lesser-included instruction on assault. Appellant cites his own testimony to show some evidence the acts of assault were unintentional and accidental. Appellant testified that the gas pump hit Macon, he never touched her, he did not intend to cause her bodily injury, and he did not know she was holding on to the car when he drove off. He simply thought the only crime he had committed was stealing her car. According to appellant, based on his testimony, the jury should have been given the chance to decide that, if Macon was accidentally struck and the car was not used as a deadly weapon, if appellant was guilty, he was only guilty of assault. Appellant was charged with aggravated robbery. A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). A person commits aggravated robbery if he commits robbery and (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is sixty-five years of age or older. See id. § 29.03(a). A person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another. See id. at § 22.01(a)(1). The indictment in this case stated that appellant did:

unlawfully, then and there while in the course of committing theft and with intent to obtain and maintain control of the property of PAT MACON, . . . the said property being an automobile, without the effective consent of [MACON] and with intent to deprive [her] of said property, did then and there knowingly and intentionally cause bodily injury to PAT MACON, by striking [her] with Defendant's hand and dragged [her] with an automobile, a deadly weapon, and [she] was at the time of the offense at least 65 years of age.

To determine whether a charge on a lesser-included offense should have been given, we implement a two-step test. See Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993). In the first step, we decide whether the offense is actually a lesser-included offense of the offense charged. See Feldman, 71 S.W.3d at 750. Here, the first step has been met because assault is a lesser-included offense of aggravated robbery. See Cooper v. State, 29 S.W.3d 901, 902, 905 (Tex.App.-Beaumont 2000), rev'd on other grounds, 67 S.W.3d 221 (Tex.Crim.App. 2002); Gilchrest v. State, 904 S.W.2d 935, 940 (Tex.App.-Amarillo 1995, no pet.). The second step requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Id. In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id. In making this determination, we review all of the evidence presented at trial. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id. For appellant to be entitled to an instruction on the lesser-included offense of assault, there had to be some evidence that if he was guilty, he was guilty only of assault, and not of robbery. Therefore, to merit an instruction on assault, there had to be some evidence appellant did not commit theft, the principal element distinguishing robbery from assault. Compare Tex. Penal Code Ann. § 22.01 with §§ 29.02, 29.03. Here, appellant admitted he stole Macon's car. There is no evidence in the record from which a rational jury could find appellant was guilty only of assault and he did not steal the car. See Jones v. State, 833 S.W.2d 118, 128 (Tex.Crim.App. 1992) (concluding that where capital murder defendant confessed that he killed victim to facilitate his taking of stereo without being later identified, his contention that he could have been found guilty only of murder is negated and lesser-included charge is properly refused). Thus, the trial court did not err in refusing appellant's request for the lesser-included charge of assault. We overrule the first point.

Factual Sufficiency

In his second point, appellant contends the evidence is factually insufficient to support his conviction because the State failed to show he intended to hurt Macon with a deadly weapon or to otherwise injure her. In conducting a factual sufficiency review, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that 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 Zuliani v. State, No. 1168-01, slip op. at 6, 2003 WL 246065, at *2 (Tex.Crim.App. Feb. 5, 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000)); Glauser v. State, 66 S.W.3d 307, 314-15 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). As stated above, a person commits aggravated robbery if he commits robbery and either (1) uses or exhibits a deadly weapon or (2) causes bodily injury to another person if the other person is sixty-five years or older. To prove an automobile is a deadly weapon, the State must prove that the automobile, in the manner of its use or intended use, was capable of causing death or serious bodily injury. See Noyola v. State, 25 S.W.3d 18, 20 (Tex.App.-El Paso 1999, no pet.); Green v. State, 831 S.W.2d 89, 92 (Tex.App.-Corpus Christi 1992, no pet.). We first review the evidence supporting the jury's finding that appellant intended to hurt Macon with a deadly weapon or to otherwise injure her. Macon, a sixty-five-year-old woman, testified appellant pushed her and told her to get back from the car. They fought, and Macon grabbed onto the steering wheel. Appellant drove away, dragging Macon with the car. Appellant pushed her, forcing her to let go, and she fell face down on the concrete. She suffered a broken nose, bruised ribs, multiple bruises and scratches on her arms and legs. Bryant, a witness, saw a black male "punch" Macon as she was reaching inside the car. Bryant noted that the man drove away with Macon being dragged ten to twenty feet before she fell and the car door closed. Appellant admitted he was involved in the incident. White, also a witness, testified he heard Macon scream, he looked at her, and he saw appellant punching her in the face. When White reached the car, appellant "just stomped on the gas and took off and started dragging her through the parking lot" approximately ten to fifteen feet. We next compare the evidence above with that which does not support the jury's finding. Appellant testified he did not intend to harm Macon with the car; instead, he only intended to steal the car. When she told him to get out of the car, he said "okay," and as she backed up, he closed the door and drove away. Her injuries were the result of the gas pump hitting her and her clothing getting caught in the car door. He did not know she was still attached to the car, and he never laid a hand on her. The weight to accord evidence is within the sole province of the jury, because this determination turns on an evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). It is the jury's duty to resolve conflicting views of the evidence; we may find the evidence factually insufficient only when necessary to prevent manifest injustice. See id. at 407. Here, the jury was free to believe Macon's, Bryant's, and White's testimony and disbelieve appellant's testimony. After conducting a neutral review of all the evidence in the present case, we conclude the State presented factually sufficient evidence that appellant used the car in a manner that was capable of causing death or bodily injury. See Noyola, 25 S.W.3d at 20 (holding car was used as deadly weapon when appellant quickly accelerated vehicle in reverse, dragging complainant behind him); Green, 831 S.W.2d at 92 (holding car was used as deadly weapon when appellant accelerated car toward complainant in threatening manner that caused complainant to believe he had to run into store to avoid being hit). The proof of guilt was not so obviously weak as to undermine confidence in the jury's determination, and the proof of guilt, although adequate when taken alone, was not greatly outweighed by contrary proof. We overrule the second point. We affirm the trial court's judgment.