No. 01-03-00148-CR.
Opinion issued on March 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 209th District Court Harris County, Texas, Trial Court Cause No. 920955.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
GEORGE C. HANKS, Jr., Justice.
The jury found appellant, Terrance Jarrod Butler, guilty of aggravated robbery and assessed punishment at confinement for nine and one-half years. In four points of error, appellant contends that the evidence was legally and factually insufficient and the trial court erred when it denied instructions on the lesser-included offenses of robbery and aggravated assault. We affirm.
Background
Houston Police Department Officer Larry Allen, working in his undercover capacity, approached appellant to buy narcotics. Allen told appellant that he would buy 20 to 30 "cookies" or $10,000 worth of cocaine. Later, on July 24, 2002, at 10:30 p.m., Allen, accompanied by his partner, met appellant at a Kroger's parking lot to conduct the sale. Allen's hidden microphone, wired to a surveillance team, stopped working just before the sale. Appellant drove to the parking lot with Greg Milbourne. As Allen walked up to appellant's car, Milbourne got out of the front passenger seat and into the back seat, and appellant told Allen to get in the car. Allen refused. When Allen asked to see the "cookies," appellant demanded to see the $10,000 first. Allen took appellant to his partner's car, and, while appellant counted the money in the back of the car, Allen went to appellant's car where Milbourne gave Allen one "cookie" to weigh. Appellant walked back to Allen and Milbourne, and Allen's partner drove away with the money. Allen told appellant that he would call his partner to deliver the money once he had the cocaine. Appellant asked Allen to get in the car so that they could go to get the cocaine. Allen refused, and appellant said that he would pick up the cocaine and return in a few minutes. When appellant and Milbourne returned to the parking lot, appellant again insisted that Allen get in the car, and Allen again refused. Allen asked to see the cocaine; appellant expressed concern that the police were around and insisted that Allen get in the car. Allen sat halfway on the car seat, with his feet outside the door, and waited for appellant to show him the cocaine. Appellant reached inside his pants, pulled out an automatic firearm, and said, "Mother fucker get in this car or I'll kill you." Allen got inside the car and closed the door while appellant stuck the gun in Allen's side and Milbourne held a gun to Allen's head. Allen tried to escape, but appellant locked the doors. The men demanded that Allen call his partner to bring the money and told Allen that, if he refused, they would kill him. Meanwhile, Allen continued to give verbal distress signals to the surveillance officers, not knowing that his microphone did not work. As he drove away from the parking lot, appellant continued to point a gun at Allen. Allen called his partner on his cell phone, told his partner where they were headed, and pretended to arrange a meeting with him. Appellant noticed a patrol car behind them with activated overhead lights. Appellant accused Allen of being a police officer and continued telling him that he was going to die. Allen struggled with Milbourne for his gun, but appellant hit Allen on the head with a gun. As they neared an apartment complex, appellant, Milbourne, and Allen jumped out of the car and fled. The pursuing officers chased after appellant and saw him run into an apartment. After the officers arrested appellant, Allen identified him as the man who had kidnapped him at gunpoint and demanded the $10,000. Officers found the "cookie" that Milbourne had shown Allen but did not find the weapons. Legal Sufficiency
In his first point of error, appellant contends that the evidence was legally insufficient to support his conviction because the State failed to prove that he committed aggravated robbery. When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the conviction and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon Supp. 2004); Harper v. State, 930 S.W.2d 625, 630 (Tex. App.-Houston [1st Dist.] 1996, no pet.). To sustain a conviction for aggravated robbery, it must be shown that appellant used or exhibited a deadly weapon in the course of committing or attempting a theft. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon Supp. 2004); McCain v. State, 22 S.W.3d 497, 501-02 (Tex.Crim.App. 2000). Here, Officer Allen testified that appellant pointed a gun at him, demanded that Allen get into appellant's car, locked the doors so that Allen could not get out of the car, demanded that Allen retrieve the $10,000 from his partner, threatened to kill Allen, and hit Allen on the head with a gun. Allen testified that he was scared and was placed in fear of imminent bodily injury and death. We hold that the evidence was legally sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. We overrule appellant's first point of error. Factual Sufficiency
In his second point of error, appellant contends that the evidence was factually insufficient to support appellant's conviction because a rational trier of fact could not have concluded beyond a reasonable doubt that appellant intentionally and knowingly committed aggravated robbery. When reviewing a factual sufficiency challenge, 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, or so outweighed by contrary proof, as to undermine confidence in the jury's determination. King, 29 S.W.3d at 563. Accordingly, we will reverse the fact finder's determination only if a "manifest injustice has occurred." Id. (quoting Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000)). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and is free to accept or reject all or part of the witnesses' testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim. App. 1996). Appellant argues that the evidence suggests a "strong possibility" that no theft or attempted theft occurred. Appellant further argues that, because no deadly weapon was recovered from the scene or from appellant, the evidence was insufficient to sustain a conviction for aggravated robbery. Allen showed appellant the money, and appellant presented Allen with only one "cookie." Allen told appellant that there would be no exchange of money until he had possession of all the drugs. Yet, as Allen testified, appellant used a gun to force Allen into the car. Allen tried to escape but appellant locked the doors, stuck a gun in Allen's side, and drove away from the parking lot. While holding Allen at gunpoint and threatening him, appellant never promised to proceed with the drug transaction. Appellant repeatedly threatened to kill Allen and insisted that Allen contact his partner to retrieve the money. Appellant's companion, Milbourne, also pointed a gun at Allen and threatened him. Furthermore, the actual weapon used in the commission of an offense need not be introduced into evidence if a witness is able to testify about the weapon and the manner in which it was used. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. 1982); Victor v. State, 874 S.W.2d 748, 751 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Accordingly, we hold that the evidence was factually sufficient to support the verdict. We overrule appellant's second point of error. Lesser-Included Offense
In his third and fourth points of error, appellant argues that the trial court erred in denying his requested jury instructions on the lesser-included offenses of robbery and aggravated assault. In reviewing a court's decision not to give a charge on a lesser-included offense, we examine all of the evidence presented at trial, regardless of whether it is credible, controverted, or conflicting. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim. App. 1984); Garcia, 17 S.W.3d at 6. However, the evidence may not be "plucked out of the record and examined in a vacuum." Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986). The Court of Criminal Appeals has adopted a two-prong test to determine if a jury must be charged on a lesser-included offense. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985). First, the requested offense must be a lesser-included offense according to the definition set forth in the Code of Criminal Procedure. Creel v. State, 754 S.W.2d 205, 211 (Tex.Crim. App. 1988). Under the Code, an offense is a lesser-included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon Supp. 2004). Second, there must be some evidence that, if the accused is guilty, he is guilty only of the lesser-included offense. Hernandez v. State, 819 S.W.2d 806, 813 (Tex.Crim.App. 1991). If a defendant presents no evidence and no evidence otherwise raises the issue of a lesser offense, a charge is not required. Aguilar, 682 S.W.2d at 558; Garcia v. State, 17 S.W.3d 1, 6 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Robbery
In some circumstances, robbery may constitute a lesser-included offense of aggravated robbery. Little v. State, 659 S.W.2d 425, 426 (Tex.Crim.App. 1983); Teague v. State, 789 S.W.2d 380, 381 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd). Therefore, the first step of the Aguilar test is satisfied. See Aguilar, 682 S.W.2d at 558. Appellant must next show evidence that he could only have been found guilty of robbery and not of aggravated robbery. Robbery requires that the accused acquire or exercise control over property by the use of force or threat; however, there is no requirement that the accused use or exhibit a deadly weapon to exercise that control. See Tex. Pen. Code Ann. § 29.02. Appellant argues that, because the officers did not recover a firearm, there was evidence that he did not possess a firearm; thus, appellant was entitled to a lesser — included offense of robbery. The State responds that there is sufficient evidence to show that appellant carried a gun and there is no evidence to the contrary. The State further argues that, even if appellant did not have a firearm, according to the law of parties, a jury would still have found appellant guilty because the evidence revealed that Milbourne threatened Allen with a gun. As stated earlier, the actual weapon used in the commission of an offense need not be introduced into evidence if a witness is able to testify about the weapon and the manner in which it was used. See Morales, 633 S.W.2d at 868; Victor, 874 S.W.2d at 751. Here, Allen testified that appellant brandished a gun, used the gun to control Allen, put the gun in Allen's side, threatened to kill Allen as he pointed the gun at him, and struck Allen's head with the gun. Furthermore, Allen testified that Milbourne pointed a gun at Allen's head, threatened Allen, and struggled with Allen over the gun. There is no evidence that appellant, if guilty, was guilty only of the lesser offense of robbery. We overrule appellant's third point of error. Aggravated Assault
Aggravated assault can be a lesser-included offense of aggravated robbery. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim. App. 1994). Therefore, the first step of the Aguilar test is satisfied. See Aguilar, 682 S.W.2d at 558. Appellant must next show evidence that he could only have been found guilty of aggravated assault and not aggravated robbery. Aggravated assault requires that the accused threaten another with a deadly weapon. TEX. PEN. CODE ANN. § 22.02(a) (Vernon Supp. 2004). Aggravated robbery requires that an accused used or exhibited a deadly weapon in the course of committing or attempting a theft. TEX. PEN. CODE ANN. § 29.03(a)(2). Here, appellant argues that evidence exists that would permit a rational jury to find that a theft had not been committed, and, therefore, he was entitled to an instruction on aggravated assault. We disagree. Allen testified that appellant forced Allen into appellant's car with a gun and locked the doors to prevent Allen from escaping. Appellant and Milbourne pointed guns at Allen and demanded that he call his partner and retrieve the $10,000. The offense of aggravated robbery does not require that appellant actually obtain the money he sought. See Watts v. State, 516 S.W.2d 414, 415 (Tex.Crim.App. 1974) (holding that the actual success of obtaining the property sought is not an element of the offense of aggravated robbery). Furthermore, there was no evidence indicating that, once Allen obtained the $10,000 and gave it to appellant, appellant intended to give Allen the drugs. Accordingly, the trial court did not err when it refused appellant's request for the lesser-included offense of aggravated assault. We overrule appellant's fourth point of error. Conclusion
We affirm the judgment of the trial court.