Opinion
No. 06-03-00147-CR.
Submitted: February 27, 2004.
Decided: April 12, 2004. DO NOT PUBLISH.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court No. F02-52964-KL.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Anthony Darnell Walton appeals from his conviction by a jury for aggravated robbery. The jury assessed his punishment at twenty-five years' imprisonment. Walton contends the trial court erred by refusing to charge the jury on the lesser included offense of theft and by failing to admonish him on the effect of his plea of true to the enhancement used during the punishment phase of trial. The evidence shows Walton was an accomplice in a spoiled robbery of a convenience store. Ben Williams, brandishing a stockless shotgun (that later proved to be inoperable), along with Walton, entered a Farm Boy Beverage store and demanded money. The evidence shows Williams, with his shotgun visible but under a towel, approached a register operated by Thang Nguyen and demanded money. Williams also ordered Octavio Sanluiseno, who was operating a second register, to open his register. At the same time, Walton grabbed Sanluiseno from behind, and he also ordered Sanluiseno to open the register. Williams and Walton took all the money in the cash registers and fled. As they were fleeing, Sanluiseno pulled a .45 pistol and opened fire on Williams, hitting him in the leg. Sanluiseno then chased Walton, stopped him, and returned him (with the money) at gunpoint to the store. There were several witnesses to the crime and subsequent chase, all of whom identified Walton as one of the perpetrators. To determine whether a charge on a lesser included offense should be given, we apply a two-step test. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002); see Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.Crim.App. [Panel Op.] 1981) (plurality opinion). The first step is to decide whether the offense is a lesser included offense of the offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 1981); Mathis, 67 S.W.3d at 925. The second step of the test requires us to evaluate the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Mathis, 67 S.W.3d at 925; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). Further, the evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113; Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim. App. 1997). This means the evidence must allow a jury to rationally conclude the appellant was guilty only of the lesser offense. Wesbrook, 29 S.W.3d at 113-14. A person commits theft if he or she unlawfully appropriates property with intent to deprive the owner of property. TEX. PEN. CODE ANN. § 31.03(a) (Vernon Supp. 2004). No threat or use of force is required for the commission of theft. One of the ways a person commits robbery is by threatening or placing another in fear of imminent bodily injury or death while in the course of committing theft. TEX. PEN. CODE ANN. § 29.02(a)(2) (Vernon 2003). One of the ways a person commits aggravated robbery is by using or exhibiting a deadly weapon while committing robbery. TEX. PEN. CODE ANN. § 29.03(a)(2) (Vernon 2003). Under the facts of this case, there is no doubt that theft is a lesser included offense of aggravated robbery. See Campbell v. State, 571 S.W.2d 161, 162 (Tex.Crim.App. 1978). The first part of the test is therefore met. The question at bar is whether there is some evidence that would permit a jury rationally to conclude Walton was guilty only of theft. Walton argues there is evidence he was unaware Williams had a shotgun until he was leaving the store with the money and suggests this supports his requested theft charge. He has directed this Court to no authority to support his contention. A person is criminally responsible as a party for an offense committed by another person if he or she "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 2003). The indictment alleges Walton intentionally and knowingly committed the robbery while using and exhibiting a deadly weapon (a firearm). The Code of Criminal Procedure requires that, when there is an "affirmative finding" by the fact-finder that, during the offense, "the defendant used or exhibited [a] deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited," the trial court must enter that finding in the judgment, and if the deadly weapon is a firearm, that fact shall also be entered. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2004); Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). The guilt/innocence charge to the jury defined robbery and aggravated robbery, and instructed the jury Walton could be found guilty if he had the requisite intent and conduct under the law of parties. In one application paragraph, the court authorized the jury to find Walton guilty of aggravated robbery, either acting alone or as a party. In a separate application paragraph, the court authorized the jury to find Walton guilty of the lesser offense of robbery, again, either acting alone or as a party. Walton requested a further instruction on the lesser offense of theft, but did not otherwise object to these instructions in the court's charge. The evidence suggesting Walton did not know Williams had a shotgun was in the form of testimony by a police detective given during an examining trial and introduced by the defense as a trial exhibit. The detective testified that, when he talked to Walton, he stated "he didn't know that the accomplice was — had a gun." This evidence, however, does not establish the lesser included offense of theft as a valid rational alternative to the charged offense. It is some evidence supporting a charge on the lesser offense of robbery, which the trial court properly gave. Sanluiseno testified that, in the course of the incident, Walton grabbed him from behind and told him to open the cash register, that he (Sanluiseno) was nervous, that Walton pushed him to get to the register, that Walton hit the cash register, and that he was afraid he might get shot. Further, there is evidence from multiple witnesses that Williams and Walton entered the store together and that Williams was brandishing a shotgun. There is evidence from one witness that the two were walking close together and that he saw Williams pull the shotgun out of his pants and then flip the towel over the gun as Williams and Walton went into the store. He also testified that in his opinion Walton was standing where he could see the weapon. The four witnesses inside the store all testified that Williams and Walton entered the store together and acted in tandem during the robbery and that the weapon was clearly visible during the entirety of the robbery. The evidence shows that all of Walton's conduct in the commission of the offense involved force or the threat of force, and under the law of parties, the jury could reasonably find, and did find, that Walton used or exhibited a deadly weapon. The evidence therefore supported the trial court's submission of aggravated robbery and the lesser offense of robbery. There is no evidence, however, that would allow a jury to rationally find that Walton was guilty only of the lesser offense of theft. The trial court did not err in denying Walton's request for submission of the lesser offense of theft. Walton next contends the trial court erred when it did not admonish him about the effect of his plea of true to the enhancement paragraph during the punishment phase. Counsel has provided no authority requiring such an admonishment in the context of a not guilty plea and trial, and there is no authority indicating otherwise. See Sylvester v. State, 615 S.W.2d 734, 736 (Tex.Crim.App. [Panel Op.] 1981); Brazell v. State, 828 S.W.2d 580, 582-83 (Tex. App.-Austin 1992, pet. ref'd); Revada v. State, 761 S.W.2d 426, 430 (Tex. App.-Houston [14th Dist.] 1988, no pet.). We affirm the judgment.