Moseby, Roger O'Neal v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed October 19, 2004

Affirmed and Memorandum Opinion filed October 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00428-CR

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ROGER O NEAL MOSEBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 920,607

M E M O R A N D U M O P I N I O N

Appellant, Roger O Neal Moseby, appeals a conviction for robbery on the grounds that: (1) the trial court erred by failing to instruct the jury on the lesser-included offense of theft; and (2) the evidence is legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

BACKGROUND

On August 10, 2002, Arturo Gonzalez left his truck unattended with the motor running and entered a store. While in the store, he saw appellant get into the truck and back away. Gonzalez went outside and held onto the door of the moving truck, struggling with appellant as appellant drove through the parking lot. After the truck stopped on an embankment, appellant pulled out a knife and got out of the truck. Gonzalez continued to struggle with appellant. Gonzalez disarmed appellant, and other people helped hold appellant at the scene until police arrived.

LESSER-INCLUDED OFFENSE

In his first issue, appellant contends the trial court erred by failing to instruct the jury on the lesser-included offense of theft. Generally, a trial court must instruct the jury on a lesser included offense when (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists in the record which would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). Some evidence of the lesser offense must exist; it is not enough that the fact finder may not have believed evidence of the greater offense. Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim. App. 1997).

A person commits robbery if, in the course of committing theft as defined in Chapter 31 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. Penal Code 29.02(a) (Vernon 2003). We recognize that theft can be a lesser included offense of aggravated robbery. See Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995). Therefore, we limit our review to whether some evidence exists in the record which would permit a rational jury to find appellant was guilty only of theft. In doing so, we must consider all the evidence introduced at trial. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995).

As evidence that he was guilty only of theft, appellant relies on (1) Gonzalez s testimony that he initiated the struggle with appellant, (2) Gonzalez s testimony that he continued to struggle with appellant, and (3) a witness s testimony that he did not see appellant use a knife.[1]

Gonzalez s testimony that he initiated the struggle and continued to struggle does not constitute evidence that he was not placed in fear of imminent bodily injury or death. Gonzalez testified that he was afraid of imminent bodily injury or death when appellant used the knife, not when the struggle was initiated. Thus, Gonzalez s actions before appellant used the knife are not relevant. As to Gonzalez s actions after appellant used the knife, he testified that he figured it was going to be either my life or [appellant s]. Thus, continuing to struggle was not inconsistent with being in fear of imminent bodily injury or death.

The witness s testimony that he could not identify the object used by appellant as a knife also does not constitute evidence that Gonzalez was not placed in fear of imminent bodily injury or death. The witness testified that he could not positively identify the object used by appellant as a knife.[2] However, the witness also testified that he was pretty far from the struggle, that he saw appellant make a swinging motion with the object in his hand, and that he assumed appellant had a knife. Therefore, none of this witness s testimony negates Gonzalez s testimony that appellant did use a knife. Regardless, proof of a weapon is not necessary in order to prove fear of imminent bodily injury or death. See Emerson v. State, 476 S.W.2d 686, 687 88 (Tex. Crim. App. 1972) (holding that defendant s action in placing his hand in his pocket as though he had a gun was sufficient to produce fear of bodily injury or death).

Because no evidence exists in the record which would permit a rational jury to find appellant was guilty only of theft, the trial court did not err in refusing to instruct the jury on the lesser included offense of theft. See Wesbrook, 29 S.W.3d at 113. We overrule appellant s first issue.

SUFFICIENCY OF THE EVIDENCE

In his second and third issues, appellant contends the evidence was legally and factually insufficient to support the verdict because the State failed to prove appellant placed Gonzalez in fear of imminent bodily injury or death.

In a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re weigh the evidence or substitute our judgment for that of the fact finder. Id. Therefore, if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In a factual sufficiency challenge, we view all the evidence in a neutral light and determine whether (1) the evidence supporting the verdict, when considered by itself, is too weak to support the conviction, or (2) contrary evidence, if present, is strong enough that the beyond a reasonable doubt standard could not be met. Zuniga v. State, __ S.W.3d __, No. 539 02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004). Although we review the fact finder s weighing of the evidence, and we are authorized to disagree with the fact finder s determination, our evaluation should not substantially intrude upon the fact finder s role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Gonzalez testified that he was placed in fear of imminent bodily injury or death. As we discussed above, appellant did not present any contrary evidence. A rational fact finder could have believed Gonzalez s testimony and convicted appellant for robbery. The evidence is both legally and factually sufficient to support the conviction. See Zuniga, __ S.W.3d at __, 2004 WL 840786, at *7; McDuff, 939 S.W.2d at 614. We overrule appellant s second and third issues.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 19, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Appellant also claims the jury questioned the veracity of the testimony of Mr. Gonzalez in relation to the knife. However, the jury s indication that there was a dispute regarding a portion of the testimony does not constitute evidence that appellant was guilty only of theft; it at most indicates the jury may have disbelieved evidence of robbery. Such disbelief would not entitle appellant to an instruction on theft. See Cantu, 939 S.W.2d at 646. Further, after the court reporter read that portion of the testimony back to the jury, the jury returned a unanimous verdict that appellant was guilty of robbery.

[2] The witness testified as follows:

Q: Could you see from the window if anything that the person the person who was trying to steal the truck, if he had anything in his right hand?

A: I can t say for sure, but I could have swore I saw something in his hand.

Q: And this something that you think you saw, can you give us some sort of size? Was it something large or something small?

A: Something just small. I mean, I not large enough to tell exactly what it could be but just, I mean, something.

. . .

Q: Are you swearing to this jury that you saw [appellant] with a knife?

A: I couldn t really tell what was in his hand, to be honest.

Q: Okay. I appreciate that answer, but this is my question. I m asking you, you re a witness in this case, you are not telling this jury at any time you saw [appellant] with a knife?

. . .

A: No.