Opinion
NO. 09-11-00352-CR
06-20-2012
VALENTINE KALIE, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 11-02-01923 CR
MEMORANDUM OPINION
A jury convicted Valentine Kalie, Jr. of two counts of aggravated robbery and one count of evading arrest with a vehicle. The jury sentenced Kalie to thirty-five years in prison for count one (aggravated robbery), nine years in prison for count two (evading arrest with a vehicle), and thirty years in prison for count three (aggravated robbery). In two appellate issues, Kalie challenges the legal sufficiency of the evidence to support the aggravated robbery counts and contends that conviction for both counts violates double jeopardy. We affirm the trial court's judgment.
Background
On the evening of October 2, 2010, C.M and S.R. were leaving a local pizza restaurant when a man approached S.R. and said, "[G]ive me your [car] keys or I am going to kill you." C.M. had opened the passenger's side door and she saw the man through the window. S.R. turned and asked "[W]hat?" and the man repeated, "[G]ive me your keys or I will kill you." The man pointed a knife at S.R. C.M., who had closed the car door and walked to the back of the vehicle, heard the man tell S.R. to give him the keys or he would kill her. She saw the man pointing a knife at S.R. B.W., a restaurant employee, had seen the man approach the victims and she saw the "shimmer" of a knife. S.R. testified that she took the man's threat seriously and felt afraid. She believed the man would kill her if she did not give him the car keys. C.M. feared being hurt and feared that the man would use the knife on C.M. or S.R. S.R. backed away and handed the car keys to the man. C.M. and S.R. testified that, as the man stepped into the vehicle, he told them not to make a scene or he would kill them. The man got into the vehicle and drove away. C.M. and S.R. identified Kalie as the robber.
The victims ran inside the restaurant to tell the employees what occurred. B.W. testified that the victims ran into the restaurant saying, "Help, he is stealing my car." S.R. told B.W. that Kalie said, "Give me your car or I am going to kill you." B.W. told the 9-1-1 operator that Kalie said, "[G]ive me your keys or I will kill them." Outside the restaurant, the girls saw a police officer and notified him of the car theft.
Sergeant Willie Kendrick, Jr. testified that he was responding to an alarm at another business when a vehicle cut across the parking lot at a high rate of speed. When he saw C.M. and S.R. run around the corner and learned that S.R.'s vehicle had been stolen, Kendrick followed Kalie and eventually caught up with him. Kendrick and Deputy Gary Harmon testified that Kalie was driving erratically and speeding. When Kendrick activated the lights on his patrol car, Kalie did not stop the vehicle. Kalie eventually lost control of the vehicle, the vehicle sideswiped some trees, sheared off a telephone pole, hit a culvert, and flipped several times. Kalie was ejected from the vehicle. At the scene of the wreck, Kendrick found a multi-tool, on which the knife blade was extended. He testified that this knife is capable of causing serious bodily injury or death. Darla King, a crime scene investigator, testified that she did not find any usable fingerprints on the knife.
Kalie denied ever having seen this knife or exhibiting a knife during the robbery. According to Kalie, he was being chased by some men when he saw S.R. walking to her vehicle and he told her to give him her keys. S.R. turned around and said "What?" and Kalie stated "Give me your f- keys." Kalie testified that he was holding his cellular telephone in his hand and that S.R. handed him the keys. Kalie stepped into the vehicle and drove away. Kalie denied ever seeing C.M. during the theft or knowing that she was present. He testified that he never threatened to kill them if they made a scene.
Kalie testified that he saw Kendrick behind him, but he never saw any indication that Kendrick wanted to stop his vehicle. When Kendrick activated his patrol car's lights, Kalie accelerated and did not voluntarily stop the vehicle. Kalie admitted speeding and placing other motorists in danger during the police chase. Kalie further admitted that he had previously been convicted of aggravated robbery with a knife after pleading guilty.
Legal Sufficiency
In issue one, Kalie challenges the legal sufficiency of the evidence to support his conviction for the two aggravated robbery counts. Kalie complains that both counts stem from a single theft that cannot support two aggravated robbery convictions. Kalie contends that there was no theft or attempted theft of C.M. Accordingly, he maintains that inclusion of count three during the punishment phase prevented the jury from assessing a fair and just sentence.
The "Jackson v. Virginialegal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury's responsibility to fairly resolve conflicting testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
A person commits aggravated robbery if (1) "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[;]" and (2) "uses or exhibits a deadly weapon[.]" Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (West 2011). A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07 (a)(17)(B) (West Supp. 2011).
Because the amendments to section 1.07 are not material to this case, we cite to the current version of the statute.
The jury heard evidence that Kalie intended to take the vehicle and flee from the police. The jury also heard evidence that, in the course of committing theft of the vehicle, Kalie used or exhibited a knife and threatened to kill the victims. Both victims testified that they were afraid for their lives. Kendrick testified that the knife found at the scene of the wreck was capable of causing serious bodily injury or death. As sole judge of the weight and credibility of the evidence, the jury was entitled to disbelieve Kalie's testimony that he did not use or exhibit a knife and did not threaten to harm the victims. See Hooper, 214 S.W.3d at 13. Moreover, the "primary interest protected by the robbery offenses is the security of the person from bodily injury or threat of bodily injury that is committed in the course of committing theft." Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). The allowable unit of prosecution for robbery focuses on the number of victims assaulted during the course of committing theft. Id. at 560-61.
The jury could reasonably conclude that, in the course of committing theft of the vehicle with intent to obtain or maintain control of the vehicle, Kalie intentionally or knowingly threatened or placed both C.M. and S.R. in fear of imminent bodily injury or death and used or exhibited a deadly weapon. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a). Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could find, beyond a reasonable doubt, that Kalie committed two counts of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a); see also Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13. We overrule issue one.
Double Jeopardy
In issue two, Kalie contends that his conviction for two aggravated robbery counts violates double jeopardy. To assert a double jeopardy claim on appeal, the appellant must have preserved his double jeopardy claim in some fashion, at or before the time the charge was submitted to the jury. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000). A double jeopardy claim may be raised for the first time on appeal if "the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and [] enforcement of usual rules of procedural default serves no legitimate state interests." Id. at 643.
In this case, the record does not indicate that Kalie objected on double jeopardy grounds before the trial court submitted its charge to the jury. Prosecuting a defendant twice for an assaultive offense, such as aggravated robbery, does not violate double jeopardy because the allowable unit of prosecution for an assaultive offense is each victim. Hawkins, 6 S.W.3d at 561. For this reason, Kalie could be charged and convicted for aggravated robbery of both S.R. and C.M., even though both counts stem from a single theft. See id. We do not find a double jeopardy violation that is clearly apparent on the face of the record. See Gonzalez, 8 S.W.3d at 643. We overrule issue two. Having overruled Kalie's two issues, we affirm the trial court's judgment.
AFFIRMED.
__________________
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.