                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NOS. 02-09-00441-CR
                                   02-09-00442-CR


DEDRICK D. THOMAS, JR.                                                   APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1
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                                   I. Introduction

      A jury convicted Appellant Dedrick D. Thomas, Jr. of two counts of

aggravated robbery and assessed punishment at twelve and fifteen years’

imprisonment and a $1,000 fine for each count. Appellant contends in a single

point that the trial court reversibly erred by refusing to submit a jury instruction on


      1
       See Tex. R. App. P. 47.4.
the lesser-included offense of robbery by threat in both cases. We affirm.

                   II. Factual and Procedural Background2

      On a Sunday afternoon in 2008, Appellant and another male entered a

MetroPCS store under the pretext of reactivating a wireless phone. The men

appeared to change their minds and wanted a new phone instead, so the clerk

had them complete the required start-of-service form. When the clerk walked to

the back of the store, Appellant followed and pointed a gun at her. While the

other man took the money from the cash register, Appellant ordered the clerk

onto the ground, pressing the gun to the clerk’s head. The clerk called the police

after the men fled the scene.

      Five days later, Appellant entered a different MetroPCS store under the

pretext of purchasing a wireless phone as a gift. Appellant began to complete

the start-of-service paperwork while the clerk helped Appellant’s accomplice, who

was pretending to be a customer. Appellant requested a different face plate for

the new phone, but when the clerk returned with the face plate, Appellant pointed

a gun at the clerk and threatened to shoot him if he did not comply. After the men

fled, taking merchandise and money, the clerk called the police.

      Appellant eventually became a suspect in both robberies. A search of

Appellant’s room in his mother’s house produced the clothes that Appellant wore


      2
      Because Appellant does not contest the sufficiency of the evidence to
support his conviction, we set out only so much of the evidence as required to
address Appellant’s point.


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in the first robbery, but police never found a gun or ammunition. Appellant was

indicted on two separate charges of aggravated robbery with the use or

exhibition of a deadly weapon, and he was convicted of both charges. 3 See Tex.

Penal Code Ann. § 29.03(a)(2) (Vernon 2003). The jury assessed punishment at

twelve and fifteen years’ confinement for the two cases and a $1,000 fine in each

case, and the trial court sentenced Appellant accordingly. This appeal followed.

                                   III. Discussion

      In his sole point, Appellant argues that the trial court erred by refusing to

submit an instruction on the lesser-included offense of robbery by threat in both

cases.    He contends that the complainants’ testimony admitting their lack of

experience with handguns was evidence that ―Appellant could have been guilty

only of two robbery by threat offenses.‖

A. Applicable Law

      We use a two-step process to determine whether a jury should be

instructed on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007). First, the requested charge must satisfy the requirements of a

lesser-included offense as defined by article 37.09 of the Texas Code of Criminal

Procedure. Id. ―An offense is a lesser included offense if . . . it is established by

proof of the same or less than all the facts required to establish the commission

of the offense charged.‖ Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).


      3
         The trial court granted the State’s motion to join the two cases.


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      Second, there must be evidence in the record that would permit a rational

jury to find that if the defendant is guilty, he is guilty only of the lesser offense.

Hall, 225 S.W.3d at 528; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005). To make this determination, we review all evidence presented at trial, but

we do not consider ―the credibility of the evidence and whether it conflicts with

other evidence or is controverted.‖ Banda v. State, 890 S.W.2d 42, 60 (Tex.

Crim. App. 1994), cert. denied, 515 U.S. 1105 (1995) (citing Marras v. State, 741

S.W.2d 395, 405 (Tex. Crim. App. 1987), overruled on other grounds by Garrett v.

State, 851 S.W.2d 853, 860 (Tex. Crim. App. 1993)); see Bignall v. State, 887

S.W.2d 21, 24 (Tex. Crim. App. 1994). There must be evidence ―affirmatively

negating the element present in the greater offense but absent in the lesser‖

offense, and ―it is not enough to simply rely on the State’s failure to prove the

particular element.‖ Hanson v. State, 269 S.W.3d 130, 133 (Tex. App.—Amarillo

2008, no pet.). ―In this step of the analysis, anything more than a scintilla of

evidence may be sufficient to entitle a defendant to [an instruction on] a lesser

charge.‖ Hall, 225 S.W.3d at 536. Thus, the issue in this case is ―whether any

evidence exists in the record that would permit a rational jury to find that

[Appellant] is guilty only of [robbery by threat].‖ Bignall, 887 S.W.2d at 23.

B. Analysis

      The State concedes that robbery by threat is a lesser-included offense of

aggravated robbery under the circumstances of this case. Therefore, Appellant

was entitled to submission of the lesser-included offense if there was affirmative


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evidence in the record establishing that Appellant did not use or exhibit a deadly

weapon. See Hall, 225 S.W.3d at 536.

       To support his contention that evidence existed in the record allowing a

jury to conclude he was guilty only of robbery by threat, Appellant points to the

testimony of the two complainants. On cross-examination, both complainants

admitted that they lack experience with handguns and were unfamiliar with

various models and their weight. Appellant’s counsel intimated though questions

directed to the complainants that the gun could have been a toy, but each

complainant affirmatively testified that they believed Appellant exhibited a real

gun.

       In Wilhoit v. State, the court of criminal appeals held that Wilhoit was not

entitled to an instruction on a lesser-included offense even though the

investigating officer testified that the victim told him that she ―most likely‖ thought

Wilhoit brandished a ―toy type gun‖ when committing aggravated rape. See 638

S.W.2d 489, 499 (Tex. Crim. App. 1982). Specifically, the court held that the

officer’s concession was ―more in the nature of impeachment than direct

substantive evidence that [the victim] truly believed the pistol was a toy gun.‖ Id.

       The San Antonio Court of Appeals also addressed a similar factual

scenario in Covarrubias v. State, No. 04-96-00921-CR, 1998 WL 204911, at *2–3

(Tex. App.—San Antonio Apr. 28, 1998, pet. ref’d) (not designated for

publication).   There, the court held that Covarrubias was not entitled to an

instruction on robbery because the fact that he was arrested with a toy gun in his


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waistband did not negate the use of a deadly weapon in the charged offense. Id.

at *2–3; see also In re L.J., No. 04-05-00771-CV, 2006 WL 1895466, at *2 (Tex.

App.—San Antonio July 12, 2006, pet. ref’d) (mem. op., not designated for

publication) (holding appellant not entitled to instruction on lesser offense

because a witness testified that assailant had a gun, appellant did not testify at

trial, and no evidence existed in the record to suggest the gun used in the

robbery was not real); Tijerina v. State, No. 04-01-00526-CR, 2003 WL 183686,

at *1–2 (Tex. App.—San Antonio Jan. 29, 2003, no pet.) (mem. op., not

designated for publication) (holding appellant not entitled to lesser-included

offense instruction because two witnesses testified that assailant had a gun,

appellant did not testify at trial, and there was no evidence to suggest the gun

used in the charged offense was not real). While the complainant in Covarrubias

admitted that she was not familiar with guns, she testified that she thought the

gun was real, and the court concluded there was no evidence disputing that the

gun was a deadly weapon. Covarrubias, 1998 WL 204911, at *3; see Wilhoit,

638 S.W.2d at 499 (holding witness’s concession about possibility that toy gun

used was impeachment evidence rather than direct, substantive evidence that

the pistol was a toy); Hosea v. State, No. 14-08-00337-CV, 2009 WL 6338617, at

*3 (Tex. App.—Houston [14th Dist.] Oct. 6, 2009, pet. ref’d) (mem. op., not

designated for publication) (stating witness’s acknowledgment on cross-

examination that the gun could have been a toy only operated as impeachment

evidence concerning the witness’s credibility); Briscoe v. State, No. 14-89-00713-


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CR, 1990 WL 79845, at *1 (Tex. App.—Houston [14th Dist.] June 14, 1990, pet.

ref’d) (not designated for publication) (stating that rather than establishing that a

firearm was not used, the evidence only showed that the witness could not tell if

the gun was real).

         Here, Appellant has similarly failed to point to evidence affirmatively

negating the deadly weapon element of aggravated robbery. The complainants’

testimony that they each lacked experience with handguns is not evidence that

Appellant did not use a firearm in the robberies. See Hosea, 2009 WL 6338617,

at *3 (stating that a witness’s acknowledgment that gun could have been a toy

was not direct, substantive evidence that a gun was not involved) (citing Wilhoit,

638 S.W.2d at 499). Instead of direct evidence negating the use of a deadly

weapon, the complainants’ testimony merely served as impeachment evidence

concerning their credibility.   See Wilhoit, 638 S.W.2d at 499.        Indeed, both

complainants affirmatively testified that they believed Appellant had used a real

gun during the offense. There is no other evidence in the record suggesting that

the gun was not real, which is required to establish robbery by threat as a valid,

rational alternative to aggravated robbery. See L.J., 2006 WL 1895466, at *2.

Thus, Appellant has failed to show that there is affirmative evidence in the record

permitting a rational jury to find him guilty of robbery by threat and not guilty of

aggravated robbery, and we hold that the trial court did not err by refusing to

charge the jury on robbery by threat. We therefore overrule Appellant’s sole

point.


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                             IV. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgments.



                                              ANNE GARDNER
                                              JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 12, 2011




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