Opinion
No. 05-10-00486-CR
Opinion issued October 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-54057-R.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Darren C. Burns of aggravated robbery and assessed punishment at twenty-five years in prison. In nine issues, appellant challenges the legal and factual sufficiency of the evidence, charge error, and the trial court's jurisdiction over the case. For reasons set out below, we affirm. Amanda Delossantos and Chariti Nobles were employees of the Family Dollar store in South Oak Cliff. Delossantos was a sales clerk, and Nobels was the assistant manager. The two were unloading merchandise when appellant and a friend, Angela Bennet, came into the store. Delossantos said appellant looked "suspicious," and she suggested Nobles "put the cameras on him." Delossantos testified she went to the front of the store and waited for appellant. When he came to the cashier counter, appellant set down a bottle of STP. Delossantos said appellant's pants were "bulging" and she asked him to "give me the stuff out of your pants." Appellant screamed at Delossantos that he did not have to steal because he had money. Delossantos asked if appellant was "going to give me the stuff." Appellant continued to scream but did not remove the items from his clothing. When Delossantos told the cashier to call the police, appellant punched her in the face, dazing Delossantos and causing her to bleed. According to Delossantos, appellant told her he had a knife and was going to stab her. Delossantos stood back and realized appellant had a knife in his hand. She said she was scared when she saw the knife so she pulled out the box cutter she had been using while unloading merchandise. Appellant ran out a side door of the store and Delossantos ran out the front door in pursuit. Appellant chased a car and pleaded with its driver, "Angie" or "Annie," not to leave him. Finally, he jumped on the hood of the car. Delossantos took down the license plate number and ran to a nearby police officer and reported what had happened. Delossantos went to a minor emergency facility for treatment to her lip and nose. Nobles testified she observed appellant from the store security camera stuffing several cans of deodorant and STP in his pants. Nobles corroborated Delossantos's testimony regarding the interaction at the cashier's counter. Nobles said she heard Delossantos ask appellant to take the merchandise out of his pants and saw him flashing money and say he did not have to steal. He did not, however, remove the merchandise from his pants or pay for it. She saw appellant punch Delossantos in the face after Delossantos said to call the police. Nobles said Delossantos looked disoriented, and appellant pulled a knife with what looked like two blades, one at each end. After appellant pulled the knife, she said Delossantos pulled out the box cutter. Appellant then ran out the side door, and Nobles followed him. While fleeing, he dropped a bottle of fuel injector treatment on the parking lot. Bennet testified for appellant, and her version of events differed from that of Delossantos and Nobles. Bennet told the jury she and appellant went to the store. While she was shopping, she heard a commotion and saw appellant with his shirt pulled up, turning in a circle, to show Delossantos that he did not have anything under his clothing. The store employees locked them inside the store, and appellant asked Delossantos to unlock the door. (Delossantos said the store's doors were not locked.) Bennet said Delossantos refused and made a "hand motion" toward appellant, who then hit Delossantos. Bennet left the store through a side door, got in her car, and backed up to leave. Appellant ran out of the store and jumped on the hood. Bennet drove around the side of the building, appellant got in the car, and they left. Appellant purchased a sack of items at the store, but that when he got in the car, he did not have any Family Dollar items, including his purchase. Bennet acknowledged she was currently on probation for theft and was in jail on a probation violation. In his first five issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Issues two and four raise factual sufficiency complaints. The court of criminal appeals abolished factual sufficiency review in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Consequently, we do not address these issues. In issues one, three, and five, appellant asserts the evidence is legally insufficient to prove (1) he used or exhibited a deadly weapon in the course of committing theft; (2) he committed theft; and (3) the nexus between the assault and the theft. On a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether 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, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, 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. Tex. Penal Code Ann. § 29.02 (West 2011). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Id. at § 31.03(a), (b)(1) (West 2011). A person commits aggravated robbery if he uses or exhibits a deadly weapon during the course of robbery. Id. at § 29.03(a)(2). Here, the indictment alleged that appellant, while in the course of committing theft of personal hygiene product and gas treatment, struck Delossantos in the face with his hand and used and exhibited a deadly weapon, a knife. In his first issue, appellant contends the evidence was legally insufficient to support a deadly weapon finding. He argues the evidence regarding the knife was "meager" and the knife was never recovered. To establish the knife was a deadly weapon, the State had to prove beyond a reasonable doubt that, in the manner of its use or intended use, the knife was capable of causing death or serious bodily injury. Id. at § 1.07(a)(17)(B) (West 2011); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To satisfy its burden, the State was not required to introduce the knife into evidence or show the presence of a wound, but could simply show the knife was displayed in a manner conveying an express or implied threat that serious bodily injury or death would result if the aggressor is not satisfied. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Jones v. State, 843 S.W.2d 92, 96 (Tex. App.-Dallas 1992, pet. ref'd). Viewing the evidence under the standard of review, we conclude the evidence was legally sufficient to support the deadly weapon finding. Delossantos testified that after appellant punched her in the face, he pulled out a knife and repeatedly threatened to stab her. She was scared and feared imminent harm, leading her to pull her box cutter. Although Delossantos did not describe the knife, Nobles said it appeared to have blades on both ends. From this evidence, a rational jury could have reasonably believed the knife was capable of causing death or serious bodily injury. We overrule the first issue. In his third issue, appellant contends the evidence is legally insufficient to prove that he appropriated a personal hygiene product or gas treatment as alleged in the indictment. To the contrary, Nobles testified she saw appellant put cans of deodorant and other items in his pants. When appellant approached the cashier's counter, Delossantos could see that his clothing was bulging with the items. Delossantos asked appellant to empty his clothing of the items, and appellant refused, hit Delossantos, pulled a knife on her, and threatened to stab her. While fleeing the store, appellant dropped a bottle of fuel injector treatment on the parking lot. From this evidence, a jury could rationally conclude beyond a reasonable doubt that appellant appropriated both personal hygiene product (deodorant) and gas treatment (fuel injector treatment). We overrule the third issue. In his fifth issue, appellant contends the evidence is legally insufficient to prove the nexus between the assault and the theft. He argues the evidence showed he punched Delossantos because she was accusing him of theft and he pulled a knife in response to her pulling a box cutter. He contends neither of these assaults were committed in order to facilitate theft. We disagree. Delossantos testified appellant punched her in the face after she told the cashier to call the police because appellant would not remove the items from his pants. Moreover, both Delossantos and Nobles said appellant then pulled a knife on Delossantos, and Delossantos responded by pulling a box cutter. After hitting Delossantos and pulling the knife on her, he fled the store with the items still in his pants. This evidence was sufficient to support an inference the assault was committed in the course of the commission of the theft. Although appellent presented evidence from Bennet that Delossantos pulled out the box cutter before appellant pulled out a knife and appellant hit Delossantos after she made a "hand motion" toward him, it was the jury's prerogative to resolve any conflicts in the evidence. We overrule the fifth issue. In his sixth issue, appellant contends the trial court erred by denying his request to instruct the jury on the lesser-included offense of assault. The record shows that at the conclusion of the evidence, appellant requested the jury be instructed on self-defense and the lesser-included offense of simple assault. The trial court did not rule on his requests. The following day before closing arguments, the trial court asked whether the attorneys had any objections to the charge. Defense counsel initially said, "No objections from the defense." Then, defense counsel reminded the court he had requested a self-defense instruction. The trial court denied the request and asked appellant, "Any other specially requested instructions?" Defense counsel responded, "No, Your Honor." Lesser-included instructions are like defensive issues, and a trial court is not statutorily required to sua sponte instruct the jury on lesser-included offenses because these issues "frequently depend upon trial strategy and tactics." Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010); Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007) ("The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. But it does not inevitably follow that he has a similar sua sponte duty to instruct the jury on all potential defensive issues, lesser included offenses, or evidentiary issues. These are issues that frequently depend upon trial strategy and tactics."). Here, while appellant's counsel initially requested a lesser-included instruction, we conclude the record shows he abandoned that request by the next day when he pressed only the self-defense instruction. The trial court specifically asked if he had any other specially requested instructions, and defense counsel said he did not. Under the circumstances, we conclude appellant has waived any issue with respect to a lesser included charge on assault. We overrule the sixth issue. In his seventh issue, appellant argues the trial court erred by including language in the jury charge regarding good conduct time that is inapplicable to him. This argument has been rejected by the court of criminal appeals. See Luquis v. State, 72 S.W.3d 355, 357, 363 (Tex. Crim. App. 2002) (concluding trial judge did not err in including language in charge mandated by article 37.07, section 4(a) of the Texas Code of Criminal Procedure). We overrule the seventh issue. In his eighth issue, appellant contends the trial court erred by including a definition of reasonable doubt in the jury charge. He specifically complains about the following language: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." This Court has previously concluded the above language does not define reasonable doubt. O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd). Moreover, since our decision in O'Canas, the court of criminal appeals has held that a trial court does not abuse its discretion by including in the jury charge the instruction complained of in this case. Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004). In his ninth issue, appellant contends the trial court lacked jurisdiction to hear the case and render judgment because there is no transfer order between the 195th Judicial District Court in which the case was indicted and the 265th Judicial District Court. Appellant failed to preserve this complaint for review by failing to pursue a plea to the jurisdiction. Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.-Fort Worth 2002, pet. ref'd) (concluding that because lack of transfer is procedural, not jurisdictional, matter, appellant waives error on lack of transfer order by failing to file timely plea to jurisdiction). We overrule the ninth issue. We affirm the trial court's judgment.