Archie Wynn v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-03-00135-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ARCHIE WYNN, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Archie Wynn appeals his conviction for robbery, // for which he was sentenced to imprisonment for ten years. Appellant raises two issues on appeal. We affirm.

Background

Timothy Williams was married to Bannie Williams, the victim. On July 30, 2002, the Williamses drove to Green Acres Bowling Alley to celebrate their anniversary. At the bowling alley, the Williamses became acquainted with Appellant. Appellant offered to buy the Williamses drinks; the Williamses accepted. But when the time came for Appellant to pay for the drinks, he was two dollars short, and Bannie had to cover the shortfall. Appellant offered to give the Williamses five dollars if they would drive him home. // The Williamses agreed to give Appellant a ride.

The three got into the Williamses car and left the bowling alley. Timothy drove, while Bannie rode in the front passenger seat; Appellant sat in the middle of the back seat. As they traveled north toward Front Street, Timothy became concerned because they had driven so far. Appellant continued to give them directions.

Soon thereafter, Appellant said, Don t turn around. Timothy testified that, out of the corner of his eye, he saw Appellant making movements, such as putting his hand underneath his shirt near his waistband as if he were hiding something. Appellant s movements caused Timothy to believe that Appellant had a gun. Bannie turned around and also saw Appellant fumbling under his shirt. Bannie testified that she thought, Oh, my God. He s going to do something. Bannie further testified that she believed Appellant had a gun. Appellant told Timothy to stop the car. Appellant then stated, .... Just give me the money, let me out, and y all be on y all s way, and I ll be on mine. Bannie testified that she gave Appellant twenty dollars because she was scared and did not want to do anything to risk her and her husband s lives. Bannie stated that Appellant s words and actions caused her to be fearful of imminent bodily injury or death.

Once Bannie gave Appellant the twenty dollars, // Appellant exited the car and ran away. Timothy testified that he did not confront Appellant when Appellant got out of the car because he feared for his life. Nonetheless, the Williamses drove around in search of Appellant before Bannie convinced Timothy to drive to the police station.

Appellant testified in his defense and gave a different account of the events that evening. Appellant testified that while he rode in the Williamses car, the conversation turned to drugs. Appellant testified that he asked the Williamses to take him to a fish fry and paid them ten dollars. Appellant testified that when they arrived in that area, the Williamses gave him twenty dollars to get them some marijuana. Appellant stated that if he could not find any marijuana, he would give the money back to them. Appellant stated that he spoke to some people on the front porch of the house, went inside for a few seconds, and returned to the porch. However, Appellant testified that when he exited the house, the Williamses had left their vehicle and were standing on the front porch. Appellant acknowledged that although he had not procured any marijuana for the Williamses, he did not return their twenty dollars to them. According to Appellant, a disturbance occurred and the Williamses were told to drive around the block. Appellant testified that the Williamses drove away and he did not see them again. Appellant also testified that he was guilty of theft.

The jury found Appellant guilty as charged on the count of robbery as to Bannie. But as to Timothy, the jury found Appellant guilty of the lesser included offense of theft. This appeal followed.

Evidentiary Sufficiency

In issues one and two, Appellant contends that the evidence is neither legally nor factually sufficient to support the jury s verdict with regard to his robbery conviction. Specifically, Appellant argues that the evidence concerning his words and conduct was not sufficient to place a reasonable person in Bannie Williams s circumstances in fear of imminent bodily injury or death.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

A person commits the offense of robbery if, (1) in the course of committing a theft, and (2) with intent to obtain control of property, (3) he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. 29.02(a)(2) (Vernon 2003). In order to prove the offense of robbery, the accused must have made actual or threatened overtures of violence to the person of another, such that the threatened or injured party was put in fear. See Williams v. State, 827 S.W.2d 614, 616 (Tex. App. Houston [1st Dist.] 1992, pet. ref d). The fear must be likely to induce a reasonable person to part with property against his will. Id. Under the general, passive requirement that another be placed in fear, the factfinder may conclude that an individual perceived fear or was placed in fear in circumstances where no actual threats were conveyed by the accused. Id.

In the case at hand, the record reflects that Bannie Williams thought Appellant had a gun when he moved his hand under his shirt. Timothy testified that Appellant stated, .... Just give me the money, let me out, and y all be on y all s way, and I ll be on mine. Bannie also testified that Appellant stated that he would be on his way once he got what he wanted, and that she gave Appellant the money because she was scared and did not want to risk her life or her husband s life. Bannie stated that Appellant s words and actions placed her in fear of imminent bodily injury or death. We hold that the evidence was legally sufficient to support the jury s finding that Appellant was guilty of robbery.

Factual Sufficiency

Turning to Appellant s contention that the evidence is not factually sufficient to support the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant s sufficiency challenge, not just the evidence that supports the verdict. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute, and compare it to the evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. Clewis, 922 S.W.2d at 133. Our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).

Appellant argues that it was irrational for the jury to determine that he was guilty of robbery as to Bannie, but only of theft as to Timothy. Yet we fail to ascertain how, as Appellant contends, the jury s determination that one person, Timothy, was not placed in fear of imminent bodily injury or death necessarily requires the same determination as to another person, Bannie, who specifically testified that Appellant s words and actions placed her in fear of imminent bodily injury or death. Appellant further contends that the overwhelming evidence demonstrates that Bannie Williams was not placed in fear of imminent bodily injury or death, which is indicated by the fact that the Williamses immediately searched for Appellant after he fled their car. However, the record further reflects that Timothy, not Bannie, was driving the car searching for Appellant. Further still, the record indicates that Bannie convinced Timothy to abandon the search and drive to the police station. Moreover, the fact that the Williamses drove around the area searching for Appellant does not logically diminish Bannie s testimony that Appellant s words and actions placed her in fear of imminent bodily injury or death. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the trial court s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof so as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial court s verdict. Appellant s issues one and two are overruled.

Conclusion

Having overruled Appellant s issues one and two, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)