Opinion
No. 05-03-00144-CR
Opinion issued October 14, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-26029-LS. AFFIRMED
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Frank Charles Walker appeals his conviction for robbery. On March 14, 2002, appellant entered an Exxon gas station late at night and ordered the sole employee, Michelle Brown, to open the cash register. She complied. Appellant took approximately $60 and fled. He was later arrested and charged with robbery. After finding him guilty, the jury assessed punishment, enhanced by a prior conviction, at seventy years' confinement and a $5,000 fine. In two issues, appellant contends the trial judge erred in failing to instruct the jury on a lesser included offense and the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment. In his first issue, appellant claims the trial judge erred in failing to instruct the jury on the lesser included offense of theft in his robbery case. Appellant contends the jury should have been instructed on the lesser included offense of theft because there was some evidence the victim was not sure appellant would cause her bodily harm. We disagree. To determine if a defendant is entitled to a lesser-included offense instruction, a two-prong test applies: (i) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (ii) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Lofton v. State, 45 S.W.3d 649, 651 (Tex.Crim.App. 2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). A person commits robbery if, in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). Here, we focus on only the second element because theft is a lesser included offense of robbery. See Jacob v. State, 892 S.W.2d 905, 908-09 (Tex.Crim.App. 1995); Bignall, 887 S.W.2d at 23. The charge instructed the jury it could convict appellant if it found beyond a reasonable doubt that appellant, "while in the course of committing theft and with the intent to obtain and maintain control of the property of Michelle Brown . . . did then and there intentionally or knowingly threaten or place said [Brown] in fear of imminent bodily injury." The evidence presented by the prosecution indicated that appellant entered the Exxon station and, after inquiring about money orders, walked around the counter to Brown's side. He told her to open the register. He also told her "Don't press any buttons. Don't do anything. Just stand over there." He added, "I'm not playing with you." Brown testified she was scared because she did not know if he had a weapon and what he was capable of doing. She was afraid he was going to hurt her. When asked if she felt like he threatened her, she responded, "Well, just by coming in, you know, it's a threat to me." Asked to clarify the statement, she stated that she felt threatened by his coming around the counter to where she was standing. She testified she was afraid he could hurt her. This evidence shows appellant committed theft and in the course of his actions, he threatened Brown with imminent bodily injury. The defense did not present any independent evidence regarding the offense. Because no evidence exists in the record showing appellant merely committed theft without threatening Brown with bodily injury, we conclude the evidence failed to raise the possibility that appellant, if guilty at all, was guilty only of theft. See Bignall, 887 S.W.2d at 24 (it is not sufficient that jury may disbelieve crucial evidence pertaining to greater offense; rather, evidence from some source must affirmatively raise issue of lesser offense). Therefore, appellant was not entitled to a lesser included offense charge on theft. Under his second issue, appellant contends the evidence is factually insufficient to support his conviction. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. We affirm the trial court's judgment.