AFFIRM; and Opinion Filed June 20, 2013.




                                                             S
                                                          In The
                                                    Court of Appeals
                                             Fifth District of Texas at Dallas

                                                        No. 05-12-00478-CR

                                         JAMES RONALD HAYNIE, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                 On Appeal from the 363rd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F11-60746-W

                                            MEMORANDUM OPINION
                                         Before Justices Lang-Miers and Fillmore 1
                                              Opinion by Justice Lang-Miers
           A jury convicted appellant James Ronald Haynie of aggravated robbery with a deadly

weapon. The trial court assessed punishment at 30 years in prison. On appeal, appellant argues

that the trial court erred by refusing his requests for jury instructions on lesser included offenses.

For the following reasons, we affirm the trial court’s judgment.

                                                             BACKGROUND

           On the morning of October 7, 2011, a man entered a CVS store on Garland Road near

Peavy Road in Dallas. The man handed the cashier a note and then said, “It says, give me $40.”

The man also said, “I have a knife.” The man raised his shirt, and the cashier saw the hilt of a

knife in the man’s pants. The cashier “screamed bloody murder” and “walked away from [the

     1
       The Honorable Mary Murphy, retired Justice, Court of Appeals for the Fifth District of Texas at Dallas, sat on the panel during submission,
but did not participate in this decision.
man] screaming for one of the employees – the male employee to come and help [her].” She said

“it scared [her],” she was “shaking,” and she was afraid she was going to be hurt. She said she

had to take a Valium to calm her nerves and continue working.

       Meanwhile, the man ran out of the store. A male CVS employee ran from the back of the

store when he heard the complainant scream. He ran out of the store to look for the man or to get

a license plate number. He did not find the man, but he saw an old white truck leaving the area.

When the police arrived, he described the truck for the police. The police found appellant

pushing an old white truck off the road a few blocks from the CVS and arrested him. The crime

scene officer found a knife and a crumpled-up note on the ground in the vicinity where appellant

was arrested. The note stated, “Give me money, $40.” The knife resembled a small steak knife.

The State introduced evidence from CVS’s surveillance cameras showing a man approaching the

counter wearing a long-sleeve shirt, a cap, and sunglasses on top of the cap. The police found

inside the truck a shirt, a hat, and sunglasses matching the description of those worn by the

robber. During questioning by the police, appellant repeatedly denied using or exhibiting a knife

in the CVS store.

       The State charged appellant with aggravated robbery and the use or exhibition of a deadly

weapon, a knife. The court’s charge instructed the jury to find appellant guilty of aggravated

robbery with a deadly weapon if the jury believed that appellant “did unlawfully then and there

intentionally or knowingly, while in the course of committing theft of property and with intent to

obtain or maintain control of said property, threaten or place [the complainant] in fear of

imminent bodily injury or death and the said defendant also used or exhibited a deadly weapon,

to wit: a knife.” The jury charge also contained an instruction regarding the lesser included

offense of robbery. Appellant requested jury instructions on the lesser included offenses of




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attempted robbery and attempted theft. The trial court denied those requests, and appellant

contends that was error.

                                     STANDARD OF REVIEW

       In our review of alleged jury charge error, we first determine whether the charge contains

error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If it does, then we must

determine whether the appellant suffered harm. Id. Because appellant objected to the charge, if

we find error, we review the record for evidence of “some harm.” Warner v. State, 245 S.W.3d

458, 462 (Tex. Crim. App. 2008).

                                        APPLICABLE LAW

       We use a two-prong test to determine whether a defendant is entitled to an instruction on

a lesser included offense. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). The first

prong requires us to determine whether the offense for which the instruction was requested is a

lesser included offense of the charged offense. Id. Because the State concedes the first prong, we

are concerned only with whether the second prong was satisfied.

       The second prong requires us to determine whether the record contains some evidence

that would permit a rational jury to find the defendant guilty only of the lesser included offense.

Id. The evidence must establish that a rational jury could acquit the defendant of aggravated

robbery with a deadly weapon and convict him of the lesser included offense of attempted

robbery or attempted theft. See id. “It is not enough that the jury may disbelieve crucial 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.” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).




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                                             ANALYSIS

       Appellant does not dispute that he went in the CVS store and demanded money from the

cashier. Instead, he argues that there is some evidence to negate his use of a deadly weapon and

to allow the jury to conclude that the complainant was not threatened, entitling him to

instructions on the lesser included offenses of attempted robbery and attempted theft. We

disagree.

       Appellant first argues that he was entitled to an instruction on attempted theft. The

difference between robbery and theft is that theft does not require evidence that appellant

intentionally or knowingly threatened or placed the complainant in fear of imminent bodily

injury. Compare TEX. PENAL CODE ANN. § 29.02(a) (West 2011) (defining robbery) with id.

§ 31.03(a) (West Supp. 2012) (defining theft). Appellant argues that the complainant’s

“credibility was called into question when she testified she had to take a drug after the incident in

order to calm her nerves” and that this is some evidence upon which a rational jury could have

found that the complainant did not feel threatened. But regardless of whether this calls credibility

into question, we do not consider the credibility of the evidence in determining whether the

evidence supports an instruction on a lesser included offense. Hall, 158 S.W.3d at 473. And there

was no evidence disputing or negating the evidence that the complainant was “scared,” “visibly

shaken, frightened,” and was in fear “of being hurt.” See Sweed v. State, 351 S.W.3d 63, 68 (Tex.

Crim. App. 2011); Hall, 158 S.W.3d 474–76. We conclude that there was no evidence upon

which a rational jury could have convicted appellant only of attempted theft. We resolve issue

one against appellant.

       Appellant next argues that he was entitled to an instruction on the lesser included offense

of attempted robbery. One difference between aggravated robbery and robbery is whether a

deadly weapon was used or exhibited during the commission of the offense. Compare TEX.

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PENAL CODE ANN. § 29.03(a)(2) (West 2011) (defining aggravated robbery) with id. § 29.02

(defining robbery). Appellant argues that during the police interrogation he repeatedly denied

using or exhibiting a knife and there was other evidence upon which a rational jury could have

found that he did not use or exhibit a knife during the offense. But evidence that appellant went

in the CVS store, demanded money from the cashier, and placed the cashier in fear of imminent

bodily injury—without using a deadly weapon—is evidence of robbery, not attempted robbery.

Compare id. § 29.02 (defining robbery) with id. § 15.01 (defining criminal attempt). In other

words, the evidence showed an actual, not attempted, robbery. See Gilmore v. State, 822 S.W.2d

350, 352 (Tex. App.—Fort Worth 1992, no pet.) (actual theft not necessary to support robbery

conviction). The trial court instructed the jury on the lesser included offense of robbery without

the use of a deadly weapon and the jury rejected it. We conclude that a rational jury could not

have found appellant guilty only of attempted robbery. We resolve issue two against appellant.

                                          CONCLUSION

       The trial court did not err by denying appellant’s requests to instruct the jury on the lesser

included offenses of attempted robbery and attempted theft. We affirm the trial court’s judgment.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47.4

120478F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES RONALD HAYNIE, Appellant                        On Appeal from the 363rd Judicial District
                                                      Court, Dallas County, Texas
No. 05-12-00478-CR         V.                         Trial Court Cause No. F11-60746-W.
                                                      Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                          Justice Fillmore participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 20th day of June, 2013.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE




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