                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00021-CR


KEVIN STEVENSON                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                  I. Introduction

      A jury found Appellant Kevin Stevenson guilty of aggravated robbery with a

deadly weapon and sentenced him to twelve years in prison. The trial court

entered judgment accordingly. In one issue, Appellant challenges the sufficiency

of the evidence supporting his conviction, arguing that acquittal is required



      1
      See Tex. R. App. P. 47.4.
because the evidence at trial showed aggravated assault but not aggravated

robbery. We affirm.

                                II. Background

      During the night of June 18, 2009, Roosevelt Powe, Jr. drove his vehicle,

an El Camino, into a gas station parking lot in east Fort Worth, Texas. Powe

remained inside his vehicle with the windows down for as long as thirty minutes

as he checked voice messages and returned telephone calls. While sitting in the

vehicle, Powe noticed that another vehicle, a GMC Jimmy, parked near his El

Camino and that a woman and man, later identified as Demita Stevenson2 and

Anthony Young, were rummaging through the vehicle as if they were looking for

something. Powe also saw two young men walk up to the GMC Jimmy and

converse with Demita and Young.       The two men went inside the store and

returned to the GMC Jimmy where they further conversed with Demita and

Young.

      Powe testified that shortly thereafter, he saw one of the men pull a

bandana over his face and walk away from the GMC Jimmy. Powe testified that

the man with the bandana, who Powe later identified in a photo lineup and at trial

as Appellant, stood at the driver’s door of his El Camino and pointed a shotgun at

him. The evidence is conflicting as to whether Appellant said anything to Powe



      2
        Because Demita Stevenson and Appellant have the same last name, we
refer to Demita Stevenson as Demita.


                                        2
or not.3 However, Powe testified that he tried to escape by driving away from

Appellant and that Appellant shot him in the shoulder before he could escape.

Although he had been shot, Powe was able to drive away and flag down a Fort

Worth police officer patrolling in the area.

      Demita, who is Appellant’s aunt, was a reluctant trial witness, but she

confirmed that she provided a written statement to the investigating detective. In

that statement, which was admitted into evidence by the defense, Demita wrote,

“Me and my boyfriend Anthony Young [were] sitting in our . . . GMC Jimmy and

my two nephews walked up and ask[ed] me to take them to hit a lick. And I said

no. We were sitting at Conoco on Berry St. about 10:30 p.m. parked next to a

brown El Camino.” Demita identified her other nephew as Gary Lee. Young

testified that “hitting a lick” means “going to get some money.”

      Bobby Davis testified that Appellant is his wife’s relative and that Powe is

also “like family.” Davis testified that he had seen Appellant a day or two before

the shooting and had invited Appellant to his home to shower, eat, cut his hair,

and get a change of clothes because Appellant seemed to be having a difficult

time. Davis further testified that Lee, who is his brother-in-law, was living with

him and his wife at the time and that Lee, Appellant, Davis, and Davis’s wife were

at Davis’s home watching television together on the evening of the shooting.

      3
        For example, Powe initially testified that he did not recall whether
Appellant said anything before shooting him, but he testified on cross-
examination that Appellant said, “Don’t move, don’t do anything.” Powe also
testified that Appellant “didn’t say anything about robbing me.”


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Davis testified that Appellant and Lee announced around 11 p.m. that they were

“fixing to leave to try to go make some money” and that they left his house shortly

thereafter. Appellant returned to Davis’s house around 6 or 7 a.m. the next

morning and told Davis that he had “tried to go make him some money,” that

“[t]he dude tried to pull off,” and that he had “squeezed the trigger.” Appellant

also told Davis later that morning that “[h]e knew somebody needed some parts

for a[n] El Camino and he happened to see one.”

      Appellant’s primary defensive theory at trial related to identity.     In that

regard, Appellant’s attorneys extensively cross-examined Powe concerning his

identification of Appellant as the shooter, the investigating detective about his

alleged failure to investigate the potential involvement of other persons, and

Davis concerning the discrepancies between his testimony at trial and that given

before the grand jury. Their cross-examination of Davis alone covers more than

100 pages of the reporter’s record. They also called two witnesses specifically to

impeach parts of Davis’s testimony, and one of those witnesses testified that

Davis does not have a good reputation in the community for truthfulness.

                             III. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638


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(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

       The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).    Instead, we “determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.” Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at

638.

       The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13. In

determining the sufficiency of the evidence to show an appellant=s intent, and

faced with a record that supports conflicting inferences, we “must presume—

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even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflict in favor of the prosecution, and must defer to that

resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

                                IV. Discussion

      Appellant contends in one issue that the evidence is insufficient to sustain

his aggravated robbery conviction. Specifically, Appellant argues that there is no

credible evidence that he was in the course of committing theft when the

shooting occurred and that there can be no aggravated robbery when the

underlying theft was not completed. Appellant does not challenge whether he

was the person who approached and shot Powe.

A. Applicable Law

      A person commits robbery if, in the course of committing theft and with

intent to obtain or maintain control of property, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death. Tex. Penal

Code Ann. § 29.02(a) (West 2011); see Wooden v. State, 101 S.W.3d 542, 546

(Tex. App.—Fort Worth 2003, pet. ref’d). The robbery is aggravated if a deadly

weapon is used or exhibited during the commission of the offense. Tex. Penal

Code Ann. § 29.03(a)(2) (West 2011); see Wooden, 101 S.W.3d at 546. The

penal code defines “[i]n the course of committing theft” as conduct that occurs in

an attempt to commit theft, during the commission of theft, or in immediate flight

after the commission of theft. Tex. Penal Code Ann. § 29.01(1) (West 2011); see

Sorrells v. State, 343 S.W.3d 152, 155–56 (Tex. Crim. App. 2011). “It is well


                                        6
settled that intent to commit theft can be inferred from the surrounding

circumstances.” Roper v. State, 917 S.W.2d 128, 132 (Tex. App.—Fort Worth

1996, pet. ref’d) (citing Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim. App.

1974)).

B. Application

      Appellant first contends that there is insufficient evidence that he was in

the course of committing theft when he shot Powe. He points to Powe’s initial

testimony that the shooter did not say anything to him before the shooting,

Powe’s subsequent testimony that the shooter said, “Don’t move, don’t do

anything,” and Powe’s statement to the responding officer that “they tried to rob

me.” In doing so, Appellant argues that the “don’t move, don’t do anything”

statement “is certainly no proof that a robbery was taking place” and that Powe’s

belief that Appellant was trying to rob him is speculation.

      The evidence to which Appellant points is similar to that in Reed v. State,

No. 10-11-00158-CR, 2012 WL 662327, at *1, 6 (Tex. App.—Waco Feb. 29,

2012, pet. ref’d) (mem. op., not designated for publication). There, Robert and

Bernice Jackson were traveling in their truck and stopped at a stop sign. Id. at

*1. While they were stopped, Reed tapped on the passenger’s side window with

a silver handgun. Id. Neither victim heard Reed say anything. Id. Mr. Jackson

reacted by “flooring” the truck and driving away, but Reed clung to the tailgate of

the truck and did not let go, climbing into the bed of the truck. Id. Reed did not

flee until after Mr. Jackson drove the truck into a ditch. Id. Mr. Jackson testified,


                                         7
“When I saw the gun, I kn[e]w he . . . wasn’t asking for a ride. I knew that when

he came up to my door with a gun in his hand . . . I thought he was going to take

my vehicle and harm one of us or both of us.” Id. at *6. Noting that a specific

verbal command is not required for there to be sufficient evidence of an intent to

steal and that intent may be inferred from the circumstances, the court held that

“a rational factfinder could conclude that Reed intended to commit theft.” Id.

      There is more evidence of Appellant’s intent to steal in this case than in

Reed. In addition to Powe’s belief, as expressed to the responding officer, that

Appellant tried to rob him and Powe’s conflicting testimony as to whether

Appellant said anything before shooting him, there is evidence that Appellant

expressed to both Davis and Demita before the incident that he was looking “to

make some money” or “hit a lick.”             Davis repeatedly testified on cross-

examination that Appellant said before the shooting that he and Lee were going

to try to “make some money” and that Appellant admitted the next morning to

trying to “make some money” but shooting the man when he tried to drive away.

Davis further testified that Appellant had talked about knowing someone who was

looking for El Camino parts and that Appellant had unexpectedly seen an El

Camino. Also, Demita wrote in her statement that Appellant and Lee had asked

her about “hitting a lick” when they approached her and Young in the

convenience store parking lot just before the shooting.            Although Davis’s

credibility was a hotly disputed issue at trial and Demita disputed the accuracy of

her written statement while testifying, the jury, in its role as the factfinder, could


                                          8
have determined beyond a reasonable doubt from the evidence at trial that

Appellant shot Powe “in the course of committing theft” in that he did so in an

attempt to commit theft. See Tex. Penal Code Ann. § 29.01(1); see Sorrells, 343

S.W.3d at 155–56.

      Appellant also asserts that “even if one could surmise that the shooter’s

motive was to commit theft, since there was no theft, there could not have been a

robbery.” But Appellant’s contention is incorrect. “The [Texas] Court of Criminal

Appeals has stated that although theft is an integral part of the offense of

aggravated robbery, the actual completion of a theft is not necessary for conduct

to constitute robbery.”   Blount v. State, 851 S.W.2d 359, 364 (Tex. App.—

Houston [1st Dist.] 1993, no pet.) (citing Cook v. State, 840 S.W.2d 384, 387

(Tex. Crim. App. 1992), overruled on other grounds by Ex parte Hawkins, 6

S.W.3d 554, 558–59 (Tex. Crim. App. 1999)); see also Young v. State, 283

S.W.3d 854, 862 (Tex. Crim. App.) (stating in a capital murder case that “[t]he

State did not bear the burden of proving that the appellant completed the theft of

the victim in order to establish the underlying offense of robbery or attempted

robbery”), cert. denied, 130 S. Ct. 1015 (2009); Goessler v. State, Nos. 02-03-

00451-CR, 02-03-00452-CR, 2004 WL 1858133, at *9 (Tex. App.—Fort Worth

Aug. 19, 2004, no pet.) (mem. op., not designated for publication) (noting that

robbery conviction did not require that property was obtained during commission

of crime). Thus, it is of no consequence for purposes of Appellant’s aggravated

robbery conviction that he did not complete a theft.


                                         9
       Applying the appropriate standard of review, we hold that the evidence is

sufficient to support the jury’s verdict, and we therefore overrule Appellant’s sole

issue. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at

638.

                                 V. Conclusion

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

judgment.



                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

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

DELIVERED: May 3, 2012




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