Joseph Daniel Lavender, Jr. v. The State of Texas--Appeal from 220th District Court of Comanche County

11th Court of Appeals

Eastland, Texas

Opinion

Joseph Daniel Lavender, Jr.

Appellant

Vs. No. 11-03-00090-CR BAppeal from Comanche County

State of Texas

Appellee

The jury convicted Joseph Daniel Lavender, Jr. of the offense of robbery and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 40 years.[1] Appellant brings two issues on appeal, challenging the sufficiency of the evidence supporting his conviction. Specifically, appellant challenges the evidence supporting the State=s contention that he intentionally or knowingly placed another in fear of imminent bodily injury in the course of committing a theft. We affirm.

To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

Appellant was indicted for the offenses of robbery and aggravated robbery arising from an incident that occurred on or about September 30, 2000. The State alleged that appellant committed robbery by intentionally or knowingly placing the victim in fear of imminent bodily injury in the course of committing a theft with the intent to obtain or maintain control of a stolen shotgun. See TEX. PENAL CODE ANN. '29.02(a)(2) (Vernon 2003). The aggravated robbery charge alleged that appellant used or exhibited the stolen shotgun as a deadly weapon during the robbery. See TEX. PENAL CODE ANN. ' 29.03(a)(2) (Vernon 2003).

The victim testified that, late in the evening of September 30, 2000, he received a call from his daughter who lived across the street that someone was attempting to open the door of his pickup. The victim observed appellant walking across the yard carrying a shotgun which the victim kept in his pickup. The victim described the ensuing events as follows:

And [the victim] said, Where you going? And [appellant] didn=t answer me. Then I said it again. I looked at him and he had my shotgun. I said, You got my gun, give me my gun back.

And he kept a walking and I was barefooted. I don=t walk barefooted. And he nearly got all the way to the driveway and I said, Why don=t you just drop my gun and get out of here?

And he said, Why don=t you come and get it? And he stick his hand inside his shirt pocket.[2]...He just kind of reached in there like that, like he had a gun or something.

The victim testified that he was frightened when appellant reached toward his waist. Appellant subsequently drove away with the victim=s shotgun. The victim stated that appellant neither pointed the shotgun at him nor threatened him with it during the episode.

Appellant did not contest the victim=s account of the incident. Instead, appellant devoted his efforts at trial toward presenting an insanity defense. The jury did not find appellant guilty of the offense of aggravated robbery. However, the jury made a finding of guilt on the robbery charge. Appellant bases his evidentiary challenge in large part on the jury=s refusal to find that appellant used or exhibited the stolen shotgun as a deadly weapon during the theft. He also relies on the absence of evidence of any other weapon. Appellant additionally asserts that the act which allegedly placed the victim in fear of imminent bodily injury occurred after he appropriated the shotgun.

With respect to the timing component of appellant=s evidentiary challenge, a person commits robbery if, in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Section 29.02(a)(2). In the course of committing theft includes conduct occurring in immediate flight after the theft or attempted theft. TEX. PENAL CODE ANN. ' 29.01(1) (Vernon 2003). Therefore, violence accompanying an attempted escape immediately after a completed or attempted theft can constitute robbery. Morgan v. State, 703 S.W.2d 339, 341 (Tex.App. - Dallas 1985, no pet=n). The evidence indicates that the violence which appellant committed occurred, at the latest, during his immediate flight after the theft.

A person commits robbery when he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death in the course of committing theft. Section 29.02(a)(2). The accused need not expressly threaten another or display a weapon to commit robbery. See Pitte v. State, 102 S.W.3d 786, 792-93 (Tex.App. - Texarkana 2003, no pet=n); Welch v. State, 880 S.W.2d 225, 227 (Tex.App. - Austin 1994, no pet=n); Williams v. State, 827 S.W.2d 614, 616 (Tex.App. - Houston [1st Dist] 1992, pet=n ref=d). It is sufficient to constitute robbery if the accused places the complainant in fear of bodily injury or death to the degree that reason and common experience will likely induce the complainant to part with his property against his will. See Devine v. State, 786 S.W.2d 268, 270 (Tex.Cr.App.1989); Cranford v. State, 377 S.W.2d 957, 958 (Tex.Cr.App.1964) (citing Easley v. State, 199 S.W. 476 (Tex.1917)); Pitte v. State, supra at 792-93.

The court in Cranford upheld a robbery conviction based upon the defendant making a gesture that the victim thought was a reach for a gun. Cranford v. State, supra at 958. The victim in this case testified that he believed appellant was reaching for a gun. The victim further testified that appellant=s gesture made him fearful. These facts and the fact that appellant held a shotgun during this episode were sufficient to place a reasonable person in the victim=s circumstances in fear of imminent bodily injury. See Welch v. State, supra at 226. We conclude that the evidence is legally and factually sufficient to support the finding that the victim was placed in fear of imminent bodily injury. Appellant=s issues on appeal are overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

September 25, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The applicable range of punishment was enhanced under TEX. PENAL CODE ANN. ' 12.42(d) (Vernon 2003) as a result of appellant having at least two prior felony convictions.

[2]The victim subsequently clarified that appellant stuck his hand inside his jacket toward his waist.