CALVIN DEWAYNE RANDLE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed October 17, 2006.
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01602-CR
............................
CALVIN DEWAYNE RANDLE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-45625-MT
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Moseley
        A jury convicted Calvin Dewayne Randle of aggravated robbery and the trial court assessed punishment, enhanced by one prior felony conviction, at fifteen years' confinement. Randle appeals, asserting in four issues that the evidence is legally and factually insufficient to support the conviction, the trial court erred in not submitting a defensive issue to the jury, and the State gave an improper jury argument. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion, Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
        In Randle's first and second issues, he contends the evidence is legally and factually insufficient to support his conviction. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000) (factual sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. Art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
        A person commits aggravated 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, and uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission or in immediate flight after the attempt or commission of theft. Tex. Pen. Code Ann. § 29.01(1). Abandonment of the property stolen does not prevent the proscribed conduct from constituting aggravated robbery. See Chamberlain v. State, 704 S.W.2d 801, 803 (Tex. App.-Dallas 1985, no pet.) (citing White v. State, 671 S.W.2d 40, 41-43 (Tex. Crim. App. 1984)).
        The record contains evidence, including Randle's testimony, that he went into a department store, took two fishing reels from the sporting goods department to the toy department, and cut both boxes open with his knife. Jose Luis Reyes, the store's loss prevention officer, testified he saw Randle take two fishing reels out of the packaging, stuff them into his pants, and walk out of the store without paying for the items. Reyes followed Randle and confronted him outside the store. Reyes told the jury that Randle pulled a knife on him and threatened to cut him. Randle testified that he did not pull his knife on Reyes, yet he admitted to the arresting officer that he pulled a knife on Reyes after Reyes bumped into him and grabbed him by the arm. The reels were never found in the department store or in the field where Randle fled. The open packages were found in the toy department. Reyes stated that it would have been easy for Randle to have tossed the reels into the field where they could not be found.
        Randle contends the evidence is factually insufficient because he abandoned his attempt to commit theft before he left the store. He testified that he intended to steal the reels, but changed his mind after opening the packages and put the reels on a shelf in the toy department before leaving the store. Randle argues the evidence is factually insufficient because the reels were never found in his possession or in the field where he fled. He contends that Reyes was mistaken about the theft and even though Randle opened the boxes, he did not take the reels from the store. There is evidence that when Reyes stopped Randle outside the store, Reyes did not notice any bulging in Randle's pants or see the reels in Randle's pants. However, Reyes said that he did not lose sight of Randle at any time when he was inside the store. The reels were never found either in the store or in the field where Randle fled.
        Having considered the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We conclude the evidence is legally and factually sufficient to support the conviction. We resolve Randle's first and second issues against him.
        In Randle's third issue, he argues the trial court erred in not submitting a defensive issue in the jury charge. Randle's counsel asked the trial court to include renunciation of the offense in the jury charge. The trial court indicated that the charge would include language regarding attempt and counsel could argue that before the jury. After an off-the-record conference, defense counsel responded that he did not want an additional instruction and had no objection to the charge. On appeal, Randle argues the evidence raises the defensive issue of renunciation under section 15.04 of the Penal Code. Tex. Pen. Code Ann. § 15.04(a) (Vernon 1994). Section 15.04(a) provides an affirmative defense to prosecutions for attempt under section 15.01. Id.
        Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See id; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). If the alleged error is the omission of a defensive issue, the defendant must show he timely requested the issue or objected to its omission because the trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
        Renunciation is an affirmative defense to a prosecution for an attempt offense. Tex. Pen. Code Ann. § 15.04(a). Randle was not charged with an attempt offense under section 15.01. He was charged with aggravated robbery under Tex. Pen. Code Ann. § 29.03. Thus, the renunciation defense was not applicable to the case and the trial court did not err by failing to give the instruction even if Randle properly requested it. See Westbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000) (renunciation instruction under penal code §15.04(b) not warranted where defendant was not prosecuted for conspiracy to commit or solicitation of murder). We resolve Randle's third issue against him.
        Randle's fourth issue alleges that he was harmed by improper argument by the prosecutor. Randle, however, did not object to the State's argument and by failing to object to the complained of jury argument, Randle forfeited his right to raise any alleged error on appeal. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (defendant must object and pursue an objection to adverse ruling in order to complain about erroneous jury argument on appeal). A timely and specific objection, motion, or complaint and a ruling by the trial court are required to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a). Because Randle failed to make a timely objection to the State's jury argument we resolve the fourth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051602f.u05
 
 
 

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