                                  NO. 07-05-0288-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 MARCH 23, 2006
                         ______________________________

                          DAVID ALLEN VIGIL, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

              FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                     NO. 3569; HONORABLE RON ENNS, JUDGE
                        _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, David Allen Vigil, appeals from a judgment of conviction for the offense

of robbery and sentence of 20 years in the Institutional Division of the Texas Department

of Criminal Justice. Overruling appellant’s issues, we affirm.


                          Factual and Procedural Background


      On December 11, 2003, an Allsup’s convenience store in Dumas, Texas was

robbed. Two attendants were at the store at the time of the robbery. The robber ordered
one of the attendants, Geovany Ortega, to lay on the floor. The robber then took the

money from both cash registers, while holding a black-colored pistol on the other attendant,

Leslie Vance.1 After getting the money, the robber ordered Vance to the floor and advised

both attendants that a man outside would shoot them if they got up from the floor. Later,

when the police arrive, Vance was able to provide a description of the robber. During the

subsequent investigation of the robbery, the police were unable to recover the pistol used

in the robbery.


       Prior to trial, appellant filed a motion for a list of State’s witnesses. The trial court

granted the motion and ordered the State to furnish appellant a subpoena list of witnesses

the State intended to call at trial. At trial, appellant objected to each witness called by the

State contending that the State had not furnished the witness list as ordered.


       By four issues, appellant contends that the trial court erred by (1) allowing

witnesses to testify after the State failed to comply with the court’s pretrial ruling to furnish

a list of proposed witnesses; (2) allowing into evidence a “similar” handgun as a

demonstrative exhibit; (3) refusing appellant’s requested charge on the lesser included

offense of theft; and (4) cumulating appellant’s sentence.


                                         Witness Lists


       The State is required to give notice of its intended witnesses when requested.

Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993). The standard of review for


       1
         The complaining witness’ name at the time of trial was Leslie Martin, however, she
is referred to throughout appellant’s and the State’s briefs as Leslie Vance.

                                               2
the decision of the trial court to allow non-identified witnesses to testify is abuse of

discretion. See Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). In reviewing

the decision to allow the witnesses to testify, the reviewing court considers a number of

factors including bad faith on the part of the prosecutors in failing to disclose the name of

the witnesses ahead of time and whether the defendant could reasonably anticipate the

witnesses would testify. Id. at 514-15.


       The record before us shows that the State filed on February 28, 2005, a request for

subpoenas with the District Clerk for all witnesses that subsequently testified. When the

first trial setting did not result in a trial, the State filed an identical request on May 3, 2005.

Initially, the State takes the position that the request for subpoenas was the same as

providing a witness list to appellant. However, the State cites no authority for this

proposition. The record clearly shows that a witness list was not provided to the appellant.

However, appellant does not direct us to anything in the record that shows the State’s

failure to produce a list of witnesses was due to any bad faith on part of the State’s

attorneys. Id. at 514. Likewise, appellant never claims, nor does the record show, that the

State’s failure to list the witnesses resulted in surprise or an inability to reasonably

anticipate that the witnesses would testify. Id.


       In fact, a review of the record shows that counsel for appellant had open access to

the entire State’s file before trial. Counsel for appellant agreed with that proposition during

the hearing on the objection to the witnesses’ testimony. During the same hearing, counsel

for appellant likewise agreed he had seen the State’s list of subpoenaed witnesses several

times prior to the trial date. In fact, counsel stated to the Court, “Had they run off – taken

                                                3
time to run off another copy of their subpoena list and given it to me, I don’t think I could

be standing here saying this, but they didn’t even go to that trouble.” When questioned

about claims of undue surprise, counsel for appellant stated, “That’s not my objection.”

Finally, at no point after the trial court overruled his objection did appellant request a

continuance to interview or otherwise question the witness. Barnes v. State, 876 S.W.2d

316, 328 (Tex.Crim.App. 1994). Considering all of the facts, we conclude that the ruling

of the trial court was not an abuse of discretion.2


       As appellant has failed to show that the State acted in bad faith or that he was

unduly surprised by the State’s witnesses, we overrule his first issue.


                                   Introduction of Handgun


       Appellant next contends that the trial court erred when it allowed the introduction of

a handgun that was similar to the handgun allegedly used in the robbery. Appellant was

indicted for the offense of aggravated robbery, pursuant to section 29.03 of the Texas

Penal Code, which provides, “(a) A person commits an offense [of aggravated robbery] if

he commits robbery as defined in Section 29.02, and he: . . . (2) uses or exhibits a deadly

weapon;. . . .”3 TEX . PEN . CODE ANN . § 29.03 (Vernon 2005).


       2
         Appellant cites the court to Buchanan v. State, 911 S.W.2d 11 (Tex.Crim.App
1995) contending that the failure to give notice of intent to call a witness is reversible error,
if that witness subsequently testifies. However, Buchanan is a Texas Rule of Evidence
404(b) case and as such the notice of intent to use evidence is part of the statutory
scheme. Such is not the case in the trial court’s allowance of non-listed witnesses to
testify. See Sullivan v. State, 997 S.W.2d 374, 376 (Tex.App.–Beaumont 1999, pet ref’d).
       3
        Further reference to the provisions of the Texas Penal Code will be by reference
to “§ __.”

                                               4
       Section 29.02 provides that:

       (a) A person commits an offense [of robbery] if, in the course of committing
       theft as defined in Chapter 31 and with intent to obtain or maintain control of
       the property, he:

              (1) intentionally, knowingly, or recklessly causes bodily injury to
              another; or

              (2) intentionally or knowingly threatens or places another in fear of
              imminent bodily injury or death.


§ 29.02. The State alleged, in its indictment, that appellant

       while in the course of committing theft of property and with intent to obtain
       or maintain control of said property, [did] intentionally or knowingly threaten
       or place LESLIE VANCE in fear of imminent bodily injury or death, and the
       defendant did then and there use or exhibit a deadly weapon, to-wit: a
       firearm. . . .

A firearm is “per se” a deadly weapon for purposes of aggravated robbery. Young v. State,

806 S.W.2d 340, 343 n.1 (Tex.App.–Austin 1991, pet. ref’d). It is clear from a review of

the statutes that the only difference between robbery and aggravated robbery, as alleged

in the indictment, is the use or exhibition of a firearm. Compare § 29.03 with § 29.02. After

hearing the evidence and arguments of counsel, the jury returned a verdict of guilty as to

the lesser included offense of robbery. The effect of the verdict was the rejection of the

State’s proof on the issue of the use or exhibition of a firearm. Therefore, even if we

assume, arguendo, that the admission of the handgun as demonstrative evidence was

error, there is no reasonable possibility that the demonstrative exhibit contributed to the

conviction or affected the punishment assessed. Johnson v. State, 660 S.W.2d 536, 538

(Tex.Crim.App. 1983). The jury so found by its verdict. Appellant’s second issue is

overruled.


                                             5
                              Lesser Included Offense – Theft


       Appellant next contends that the trial court erred when it failed to charge the jury on

the lesser included offense of theft. Initially, we note that theft is a lesser included offense

of robbery. See Campbell v. State, 571 S.W.2d 161, 162 (Tex.Crim.App. 1978). However,

the fact that theft is a lesser included offense is only the first step in the analysis to

determine if a lesser included charge is required. Additionally, there must be some

evidence in the record that would permit a jury rationally to find that if the defendant is

guilty, he is guilty only of the lesser included offense. Lofton v. State, 45 S.W.3d 649, 651

(Tex.Crim.App. 2001). When a defendant either presents evidence that he committed no

offense or presents no evidence and there is no evidence otherwise showing that he is

guilty only of a lesser included offense, then a charge on a lesser included offense is not

required. Id. at 652.


       In the case before this court, the State alleged that appellant placed Leslie Vance

in fear of imminent bodily injury or death.4 Therefore, the State was required to prove that

the victim’s fear was reasonable under the circumstances. Welch v. State, 880 S.W.2d

225, 227 (Tex.App.–Austin 1994, no pet.) To meet this burden, the State offered the

testimony of Leslie Vance and the affidavit of Geovany Ortega, the two attendants present

during the robbery. Each attendant told of being forced to lie down on the floor and of

being threatened by appellant. From this record the question becomes whether there is

any evidence that would permit a jury to rationally find that the appellant did not



       4
           The jury having discounted the deadly weapon by its verdict.

                                               6
intentionally or knowingly commit an act that placed the victims in reasonable fear of

imminent bodily injury. Lofton, 45 S.W.3d at 651. It is not enough that the jury may

disbelieve some evidence pertaining to the greater offense, rather there must be some

evidence directly germane to a lesser included offense for the factfinder to consider before

an instruction on a lesser included offense is warranted. Cantu v. State, 939 S.W.2d 627,

646 (Tex.Crim.App. 1997).


       From the record before us there is no evidence that appellant, if guilty, was guilty

only of the lesser included offense of theft.        Accordingly, appellant’s third issue is

overruled.


                                   Cumulative Sentences


       Appellant’s last contention is that the trial court erred in cumulating his sentence with

another conviction. Appellant’s sole contention is that he was given no notice of the State’s

intent to request the court to cumulate the sentences and was, therefore, denied due

process. The applicable statute provides that the decision to cumulate sentences for a

defendant with multiple convictions is in the discretion of the trial court. TEX . CODE CRIM .

PROC . ANN . art. 42.08 (Vernon Supp. 2005). The statute makes no provision for notice to

either the State or the appellant of the intent of the trial court to cumulate the sentences.

Additionally, the Texas Court of Criminal Appeals has answered appellant’s assertion,

finding that the statute is constitutional and that article 42.08 does not deprive appellant

of due process.     Hammond v. State, 465 S.W.2d 748, 752 (Tex.Crim.App. 1971).




                                               7
Appellant has cited this court to no competent authority. Accordingly, the fourth issue is

overruled.


                                       Conclusion


      Having overruled appellant’s four issues, the trial court’s judgment is affirmed.




                                                Mackey K. Hancock
                                                    Justice



Do not publish.




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