BRENT RICHARD SEXTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 25, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00678-CR
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BRENT RICHARD SEXTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-82845-07
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OPINION
Before Chief Justice Wright and Justices Richter and Lang
Opinion By Justice Richter
        A jury convicted appellant of the offense of robbery. After pleading true to four separate enhancement paragraphs, appellant was sentenced to 99 years' imprisonment. In two issues on appeal, appellant contends the trial court erred in denying his motion for continuance and that the evidence was legally and factually insufficient to support his conviction. Finding no reversible error, we affirm the trial court's judgment.
 
Background
 
        On the morning of September 28, 2007, Stacy Flumerfelt had just finished showering when she heard her dog barking. When she went to the front of the house to close the shutters, she glanced outside and recognized appellant as an employee of the pool service she previously employed. Although she was not expecting appellant, Flumerfelt put on a robe and answered the door. Because Flumerfelt had recently cancelled appellant's pool servicing company, she assumed he was there to ask her to reconsider.
        When Flumerfelt opened the door, appellant pushed his way inside and shut the door behind him. Appellant started to walk toward the back of the house, but then came back toward Flumerfelt and said “I need to talk to you about a couple of things.” Flumerfelt responded that she had only a minute to talk. Appellant then glanced down at Flumerfelt's hand and said “first, you are going to give me your wedding ring.” When appellant said this he had a mean look on his face and Flumerfelt interpreted the statement as “dead serious.” Shocked and scared, Flumerfelt gave appellant her ring.
Appellant was very agitated and was pacing. Flumerfelt backed up into the corner by the door and appellant said “second, you cancelled our pool service.” Flumerfelt thought she was in danger and believed appellant to be crazy and angry. Because appellant had robbed her, Flumerfelt believed appellant was going to kill her because she could identify him. Flumerfelt put her hand on the door and appellant said “no.” When Flumerfelt reached for the door, appellant grabbed her from behind, around her waist. During the resulting struggle, the door came open and Flumerfelt was able to escape running and screaming. Crying and hysterical, she flagged down a neighbor who was driving by. Even though they could see appellant speeding off in his car, Flumerfelt did not want the neighbor to leave her to chase him because she was afraid appellant would return to kill her. Plano police officer David Tilley was called to the scene and described Flumerfelt as “extremely distraught.”
        Appellant was charged with the second degree felony offense of robbery and entered a plea of not guilty. The case was tried before a jury and appellant testified in his own defense. Upon conclusion of the trial, the jury found appellant guilty of the offense of robbery. Appellant plead true to four separate enhancement paragraphs, each of which involved conviction for burglary of a habitation, and the court assessed punishment at 99 years' imprisonment. This appeal followed.
Discussion
 
Denial of Continuance
        In his first issue, appellant argues that the trial court erred in denying his motion for continuance. Appellant filed the motion on the morning of trial, seeking a continuance because counsel had not had sufficient time to obtain appellant's cell phone records. The motion, however, was not sworn. See Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006). An unsworn motion for continuance preserves nothing for our review. See Dewberry v. State, 4 S.W.3d 735, 756 (Tex. Crim. App. 1999). We therefore resolve appellant's first issue against him.
Sufficiency of the Evidence
        In his second issue, appellant contends the evidence was legally and factually insufficient to support his conviction for robbery. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine
whether the fact-finder's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).Then, we determine whether the evidence supporting the verdict is so weak that the verdict is “clearly wrong” and “manifestly unjust” or whether the verdict is “against the great weight and preponderance of the conflicting evidence.” Watson, 204 S.W.3d at 414-15. Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To establish that the appellant committed the crime of robbery, the state was required to prove that appellant, while “in the course of committing theft” intentionally or knowingly threatened Flumerfelt “or placed [her] in fear of imminent bodily injury or death.” See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). A person acts intentionally when it is his conscious objective or desire to engage in the conduct that causes the result. Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances surrounding his conduct exist. Tex. Penal Code Ann. § 6.03(b) (Vernon 2003). A jury may infer the requisite intent from a defendant's actions. See Taylor v. State, 859 S.W.2d 466, 468 (Tex. App.-Dallas 1993, no writ). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009- 10).
        It is well settled that to constitute robbery, there must be violence or intimidation of such nature that the injured party is put in fear. Cranford v. State, 377 S.W.2d 957, 958 (Tex. Crim. App. 1964). But a person need not actually possess a weapon to be convicted of robbery. Id. at 959. Threats may be communicated through action, conduct, or words. Richardson v. State, 834 S.W.2d 535, 537 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd).
        The victim's fear must arise from the conduct of the accused, rather than mere timidity of the victim. Cranford, 377 S.W.2d at 959. The statute is satisfied where the victim reasonably believes he will be injured if he does not comply with the robber's demands. Id.; see also Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Thus, our inquiry is whether the words and conduct of the appellant were sufficient to place a reasonable person in the victim's circumstances in fear of imminent bodily injury. See Welch v. State, 880 S.W.2d 225, 226-27 (Tex. App.-Austin 1994, no pet.); Williams v. State, 827 S.W.2d 614, 616 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd).
        In considering whether a reasonable person in Flumerfelt's circumstances would be placed in fear, we note that she was clad in a bathrobe, home alone with a man who pushed his way into her home, closed off her exit, adopted a menacing look, and demanded her property. A reasonable person in Flumerfelt's circumstances could have deduced that appellant's demand carried with it an implied threat of imminent bodily injury.
        Flumerfelt testified that she was shocked and scared when appellant demanded her ring. After she gave him the ring and had backed into the corner by the door, appellant made the statement about cancelling the pool service. At that juncture, Flumerfelt believed she was in danger and thought appellant was crazy and angry. Flumerfelt testified that because appellant had robbed her and she could identify him, she thought appellant was going to kill her. Flumerfelt further testified that she thought she needed to get out of the house immediately. But when she put her hand on the door, appellant said “no.” When she reached for the door, appellant grabbed her from behind and a struggle ensued. Although it was not true, Flumerfelt screamed that her husband was home. Flumerfelt stated that during the robbery, she was thinking “somebody's in my house and this is how I'm going to die and I can't get out and I'm all alone.”
        When appellant testified, he admitted that he went to Flumerfelt's home on the morning in question, but denied forcing his way into her house, taking her ring or assaulting her. Instead, he claimed that Flumerfelt called him that morning and asked him to come by to look at a problem she was having with her pool. Appellant insinuated that when he arrived and asked Flumerfelt what she needed, she propositioned him. When this occurred, appellant stated “I don't think this is going in the right direction. You called and said it was a pool matter. This doesn't seem to be a pool matter.” Appellant testified that after he made this statement, he walked out of the house. As he approached his vehicle, Flumerfelt came running out of the house and flagged down a car. According to appellant, Flumerfelt was not screaming as she exited her home.
         Relying on Flumerfelt's testimony about believing she was in danger after appellant made the statement about cancelling the pool service, appellant contends that Flumerfelt never explained any overt act that caused her to be fearful before appellant demanded the ring. But a jury may find fear from a menacing glance and a hand gesture, even where no verbal threats are made. See Wilmeth v. State, 808 S.W.2d 703, 706 (Tex. App.-Tyler 1991, no pet.). Under the “placed in fear” language in section 29.02 of the penal code, the factfinder may conclude that an individual was “placed in fear” in circumstances where no actual threats are conveyed. See Williams, 827 S.W.2d at 616. Regardless of whether Flumerfelt was also afraid after she handed appellant her ring, she testified that she was scared at the time appellant demanded her ring.   See Footnote 1 
        Despite appellant's testimony to the contrary, the jury believed that appellant's actions were calculated to and did involve the requisite fear, and the jury was free to make this determination. See Williams, 827 S.W.2d at 617.Viewing the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found appellant's conduct was sufficient to place Flumerfelt in fear of imminent bodily injury, a fear that in reason and common experience would have caused her to part with her property. Considering all the evidence neutrally, we further conclude that the jury's verdict in this case is not irrational, clearly wrong or manifestly unjust, or against the great weight and preponderance of the conflicting evidence. Appellant's second issue is overruled.
 
Conclusion
 
        Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
 
                                                                          
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47
080678F.U05
 
Footnote 1 The State argues without supporting authority that the robbery was ongoing after Flumerfelt handed appellant her ring. Because the record reflects the requisite fear was present when the ring was demanded, we need not address this argument.