No. 05-04-00756-CR
Opinion Filed May 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81722-03. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice LANG.
Keith Kendall Loucks, appellant, appeals a jury verdict finding him guilty and the trial court's assessment of punishment at 12 years of confinement. On appeal, appellant argues the evidence is legally and factually insufficient to support his robbery conviction because he was no longer in immediate flight after the theft when he assaulted the store employee. We conclude the evidence is legally and factually sufficient to support appellant's robbery conviction. Appellant's points are decided against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
The record contains two different spellings of appellant's middle name: (1) Kendall; and (2) Kindel. In addition, the record also refers to appellant as Keith Loucks and Keith M. Loucks. The record is silent regarding the reason for the various styles and spellings of appellant's name, and we note that neither appellant nor the State objected.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant went to a RadioShack three times to discuss purchasing a DVD player. During his third visit, he grabbed the DVD player and ran out of the store without paying for it. A RadioShack employee, Ryan Fernandez, saw appellant run with the DVD player to a car without a rear license plate and drive away from the RadioShack. He saw appellant's car drive to the parking lot of the Tom Thumb across the road where it disappeared. Mr. Fernandez got into his jeep and drove to the Tom Thumb parking lot. Jason Dunfield, the manager of the RadioShack, also got in his car to help Mr. Fernandez pursue appellant. Meanwhile, Richard Campbell, another RadioShack employee, remained at the store and telephoned 9-1-1. Also, Mr. Fernandez and Mr. Dunfield were on their cellular telephones with each other and the police. Mr. Fernandez and Mr. Dunfield "comb[ed] the area" and Mr. Fernandez saw appellant behind the Tom Thumb in the loading dock area. Appellant was outside of his car changing his shirt and wiping his forehead. Mr. Fernandez put his jeep into park blocking appellant's exit at one end of the loading dock area and Mr. Dunfield blocked the other exit with his car. They waited for the police to arrive. When appellant saw Mr. Fernandez watching him, he got back into his car and rammed it head on into Mr. Fernandez's jeep. Appellant rammed into Mr. Fernandez's jeep two more times until he was able to scrape by it. Then, appellant displayed a crude hand gesture in Mr. Fernandez's direction as he sped away. Mr. Fernandez followed appellant. Appellant suddenly hit his brakes causing Mr. Fernandez's jeep to slam into his car. Mr. Fernandez went into the next lane and appellant's car was beside his jeep. Appellant slammed his car into the side of Mr. Fernandez's jeep and then drove off over the median. Mr. Fernandez continued to follow appellant at a more cautious distance and eventually lost sight of him. Shortly afterward, the police found appellant and arrested him. It was approximately 15 minutes from the time the police were initially called until the time appellant was arrested. Appellant was indicted for aggravated robbery. After the trial, the jury found appellant guilty of the lesser included offense of robbery. The trial court heard evidence on punishment and sentenced appellant to 12 years of confinement. II. LEGAL AND FACTUAL SUFFICIENCY
In his sole issue on appeal, appellant argues that the evidence is legally and factually insufficient to support his robbery conviction. Specifically, appellant argues he was no longer in immediate flight after the theft when he assaulted the store employee. The State responds that the continuous nature of the chase, the short duration of the incident, the close proximity of the location of the assault to the store, and the fact that appellant was ultimately unsuccessful in his attempt to escape were sufficient for a jury to rationally conclude appellant was in immediate flight from the store when he assaulted the store employee. A. Standard of Review
Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id. 1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). 2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
A person commits robbery if he intentionally or knowingly threatens or places another in fear of imminent bodily injury while in the course of committing theft. See Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003 Supp. 2004-05). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of that property. See Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). "In the course of committing theft" includes conduct that occurs while the offender is in immediate flight after the commission of the theft. See Tex. Pen. Code Ann. § 29.01(1) (Vernon 2003 Supp. 2004-05). This definition of robbery proscribes the use of violence not only in the taking of property, but also violence in the offender's immediate efforts to keep the stolen property. Lightner v. State, 535 S.W.2d 176, 177-78 (Tex.Crim.App. 1976); see also Morgan v. State, 703 S.W.2d 339, 341 (Tex.App.-Dallas 1985, no pet.); Chamberlin v. State, 704 S.W.2d 801, 803 (Tex.App.-Dallas 1985, no pet.) (violence accompanying an escape immediately subsequent to a completed theft can constitute robbery). Neither the Texas Penal Code nor case law defines "immediate flight." Oggletree v. State, 851 S.W.2d 367, 369 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). The circumstances of each case must be compared to the relevant case law to determine if an offender's conduct falls within the ambit of "immediate flight." See id. Factors that courts have considered when determining immediate flight include: (1) whether the flight was one continuous episode or if there were intervening circumstances ( i.e., a series of incidents); (2) the distance of the location of the assault or the offender's apprehension from the scene of the theft; and (3) the duration between the theft and the assault or arrest. See Oggletree, 851 S.W.2d at 369-70 (offender engaged in one continuous, criminal episode, not a series of incidents, and his flight and reappearance occurred without intervening circumstances); Lightner, 535 S.W.2d at 178 (offender assaulted officer and was apprehended about 100 yards from scene of theft, and he was in custody within seven to nine minutes after the theft); see generally, Rabb v. State, 681 S.W.2d 152, 154 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd) (security officer, who returned offender to store after unsuccessful theft, was assaulted during immediate flight); Chamberlin, 704 S.W.2d at 802-03 (store manager who pursued offender to back of store was assaulted during immediate flight). C. Application of the Law to the Facts
Appellant's flight began when he ran out of the RadioShack with the stolen DVD player. Although Mr. Fernandez temporarily lost sight of appellant, he pursued appellant and, a few minutes later, found him a short distance from the store. Appellant's car was parked and he was changing his shirt and wiping his brow. When appellant saw Mr. Fernandez watching him, he got into his car and rammed it head on into Mr. Fernandez's jeep until he was able to escape past him. Viewing the evidence in the light most favorable to the verdict, there was evidence that appellant was in immediate flight after the theft when he assaulted Mr. Fernandez. There was evidence that appellant's assault of Mr. Fernandez occurred only a short distance from the RadioShack ( i.e., behind the Tom Thumb across the road). See Lightner, 535 S.W.2d at 178. Also, there was evidence that appellant assaulted Mr. Fernandez only a few minutes after he fled with the stolen DVD player, and he was arrested approximately 15 minutes after the theft. See id. Further, the record does not contain any evidence of intervening circumstances or a series of events occurring between the time appellant fled the store with the stolen property and the time Mr. Fernandez saw him again. See Oggletree, 851 S.W.2d at 369-70. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of robbery. It is clear that appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's robbery conviction. We decide appellant's sole issue on appeal against him. III. CONCLUSION
We conclude the evidence is legally and factually sufficient to support appellant's robbery conviction. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).