MICHAEL EDWARD WHITEFROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00118-CR
MICHAEL EDWARD WHITEFROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES PRESLAR FN:1 , BROWN FN:2 , AND ASHWORTH FN:3
OPINION PER CURIAM
JANUARY 23, 1989
        Michael Edward White was convicted by a jury of the offense of aggravated robbery. Punishment, enhanced by a prior conviction, was assessed at seventy-five years' confinement. Appellant raises two points of error on appeal, claiming that (1) the evidence is insufficient to support his conviction, and (2) the indictment did not provide sufficient notice. We overrule both appellant's points and affirm the judgment of the trial court.
        Appellant's first point of error challenges the sufficiency of the evidence on two bases: first, that the evidence showed that the complainant was not the "owner" of the money taken by appellant and his accomplice; and second, that the evidence did not show that appellant either threatened the complainant or placed him in fear of his life.         Gregory Hudson, the complainant, testified that at about 1:30 a.m. on November 1, 1987, he was cleaning up at the Taco Bell where he worked, when appellant pulled him partially through the doorway at the back of the building, hit him on the head with the butt of a gun, and said, "Move back, move back." Appellant then ran to the manager's quarters with the shift leader, Kellie McCarty, while his accomplice took Hudson and a co-worker into a storage area, had them lie down, and tied them up. After appellant and his accomplice left, the complainant and his co-workers untied themselves and called the police.
        Hudson also testified that he had authority to run the cash register and had control over the money put in the cash register. He further said that he had a greater right to possession of the money than did appellant or his accomplice. He also said that they took the money without his effective consent. Finally, he said that appellant and his accomplice placed him in fear of death.
        On cross-examination, he said that he never actually saw the money being taken; Kellie McCarty, the shift leader, was the person who was forced to physically release the money to appellant. He reiterated that he had as much control over the money as any of the employees of the establishment. He said that the money taken was from his cash register, and the money was his responsibility until the shift leader had counted it.
        In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex. Crim. App. 1984). The trier of fact is free to believe or disbelieve all or part of the testimony of any witness. Young v. State, 752 S.W.2d 137, 140 (Tex. App.--Dallas 1988, pet. filed).
        In the present cause, appellant does not argue that he did not rob anyone; rather, he argues that he did not rob the complainant because the complainant could not be the "owner" of the money taken in the robbery. Under Section 1.07(a)(24) of the Penal Code, an "owner" is a person who has title to the property, possession of the property, or a greater right to possession of the property than the actor. TEX. PENAL CODE § 1.07(a)(24)(Vernon 1974). This Court has previously held that an employee of a store was the "owner" of money taken in a robbery, even though another employee handled the store's cash receipts. Deloney v. State, 734 S.W.2d 6, 10 (Tex. App.--Dallas 1987, pet. ref'd). See also, Coleman v. State, 699 S.W.2d 598, 598-599 (Tex. App.--Texarkana 1985, no pet.).
        In the present cause, the complainant testified that he was a cashier at the Taco Bell robbed by appellant. He said that he had responsibility for the cash receipts from the cash register until the manager had counted the money; at the time of the robbery, the money had not yet been counted. He also said that he had a greater right to possession of the money than did appellant. Accordingly, we find the evidence sufficient to support the jury's finding that the complainant was the "owner" of the money taken in the robbery.
        Appellant next argues that the evidence is not sufficient to show that he either threatened the complainant or placed him in imminent fear of bodily injury or death. Threats may be shown by actions as well as words. See, e.g., Emerson v. State, 476 S.W.2d 686, 687-688 (Tex. Crim. App. 1972); Ector v. State, 634 S.W.2d 69, 71 (Tex. App.--Fort Worth 1982, pet. ref'd). The record reflects that appellant hit complainant on the side of the head with the butt of a gun, and commanded the complainant to "move back" in the course of taking the money. The complainant testified that appellant and his accomplice both displayed guns in a threatening manner, placing him in fear of death. We conclude that the evidence was sufficient to show that appellant both threatened the complainant and placed him in fear of bodily injury or death. Appellant's first point of error is overruled.
        Appellant claims in his second point of error that the indictment did not provide him sufficient notice to be able to prepare his defense. First, we note that appellant filed no motion to quash; as a result, all non-jurisdictional error in the indictment was waived. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon Supp. 1988). Further, the means by which the State was to prove ownership was essentially evidentiary; as a result, the State was not required to allege more than that appellant robbed the "owner" of the property. Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1981). Appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
 
        
 
FN:1 The Honorable Stephen F. Preslar, Chief Justice, Eighth Court of Appeals, retired, sitting by assignment.
FN:2 The Honorable Raleigh Brown, Justice, Eleventh Court of Appeals, retired, sitting by assignment.
FN:3 The Honorable Clyde R. Ashworth, Justice, Second Court of Appeals, retired, sitting by assignment.
File Date[01-02-89]
File Name[880118]