DAVID RAY HARDEMAN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 11, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01423-CR
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DAVID RAY HARDEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 265th District Court
Dallas County, Texas
Trial Court Cause No. F88-95686-HR
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O P I N I O N
 
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Chief Justice Enoch
        David Ray Hardeman, appellant, was convicted of robbery after a bench trial. His punishment was assessed at twenty years' confinement. He claims on appeal that: (1) the trial court erred in finding the evidence sufficient to show appellant threatened or placed complainant in fear of imminent bodily injury during the commission of the offense; and (2) the trial court erred in finding the evidence sufficient to support the indictment. We overrule both points of error and affirm the trial court's judgment.
        On June 17, 1988, appellant entered a Tom Thumb Page grocery store at about midnight. A store employee observed appellant through binoculars and from a two-way mirror in the store. The employee watched appellant remove boxes of cologne from the store's shelf and put them down his pants. Appellant attempted to pass through the check stand and leave the store without paying for the items. The complainant, the night manager of the store, stopped appellant at the front of the store for questioning. Appellant tried to flee and a struggle ensued. The complainant, standing between appellant and the door, was rushed by appellant. The complainant was pushed out the door and onto his back. As he fell backwards, he grabbed appellant's ankles and held on until help arrived. The complainant testified that appellant's actions placed him in fear of imminent bodily injury and that he sustained scratches, bruises, and a twisted knee from the fall. Several employees assisted the complainant in grabbing appellant and returning him to the store. Appellant then began pulling the boxes of cologne out of his pants. The complainant testified he thought appellant was reaching for a gun or a knife and was again placed in fear of imminent bodily injury. Appellant made several more attempts to flee but was restrained.
         The complainant described appellant as a strong man, standing six feet five inches tall and weighing two hundred fifty pounds. During the struggle, appellant used his fists and elbows to break free. The assistant night manager testified that he was hit by appellant's swinging arms and knocked out of the store. He said he was scared of appellant and that his lower back was injured during the struggle. He identified appellant as the person who pushed down the complainant.
        Appellant testified that he did not do anything to place anyone in fear except run away from them. He denied having hit anyone and he stated he did not knock the complainant to the ground. However, appellant admitted that he did steal five bottles of cologne from the store and that he placed them in his pants and intended to leave the store without paying for them.
        In determining sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, a 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); Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
        Appellant asserts that the evidence presented at trial is insufficient to sustain his conviction for robbery due to the absence of evidence of actual or threatened violence during the commission of the offense. Appellant relies on Ex parte Evans, 530 S.W.2d 589 (Tex. Crim. App. 1975); Polk v. State, 157 Tex. Crim. 75, 246 S.W.2d 879 (1952); and Reese v. State, 91 Tex. Crim. 457, 239 S.W. 619 (1922). These cases, decided under former law, held that robbery will lie only where the threatened violence precedes the taking. However, they no longer are controlling. The Texas Penal Code has significantly changed the law of robbery. A person commits the offense of robbery if, in the course of committing theft, he "intentionally or knowingly places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 1974). "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. Penal Code Ann. § 29.01(1) (Vernon 1974). Under sections 29.01 and 29.02, supra, the offense of robbery includes any violence in the course of effectuating theft as well as any violence while in immediate flight from the scene of the theft. Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim. App. 1976).
        The record reflects that appellant struggled with the complainant and placed him in fear of imminent bodily injury, while in immediate flight from the scene of the theft. In viewing the evidence in the light most favorable to the verdict, the testimony was sufficient to show beyond a reasonable doubt that appellant used actual or threatened violence in the course of committing theft. We hold that the evidence was sufficient for the trial court to find appellant guilty of the offense of robbery. Appellant's first point of error is overruled.
        Appellant also asserts that the evidence is insufficient to show that five bottles of cologne were taken as alleged in the indictment. All the witnesses who testified about the number of bottles testified that either five or six bottles of cologne were taken. Appellant himself admitted that he took exactly five bottles of cologne. Therefore, no fatal variance existed between the indictment and the proof at trial. Accordingly, the evidence was sufficient to prove that appellant took five bottles of cologne. Appellant's second point of error is overruled.         The judgment of the trial court is affirmed.
 
 
                                                          
                                                          CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
881423.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Court of Criminal Appeals, sitting by assignment.
File Date[10-16-89]
File Name[881423]