                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              ___________________

                               NO. 09-16-00426-CR
                               NO. 09-16-00427-CR
                              ___________________

                   TADARION DAQUIN SIMON, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 221st District Court
                      Montgomery County, Texas
          Trial Cause Nos. 16-09-10942-CR & 16-09-10940-CR
__________________________________________________________________

                          MEMORANDUM OPINION

       Arguing that the evidence admitted during his trial cannot support the jury’s

verdicts finding him guilty of the crimes of theft from a person and robbing a

disabled person, Tadarion Daquin Simon seeks to reverse his convictions based on

the issues he presents in his brief. 1 See Tex. Penal Code Ann. § 29.03 (West 2011),


   1
     The judgment in trial court Cause Number 16-09-10942-CR is the judgment
relevant to Simon’s conviction for theft from a person. The judgment in trial court
                                          1
§ 31.03 (West Supp. 2018). 2 Regarding his conviction on the charge of theft from a

person, Simon argues that the evidence admitted in his trial shows that M.M.’s 3 purse

was in her shopping cart and not physically in her possession when he took it. See

id. § 31.03(e)(4)(B) (elevating theft to a felony if the property “is stolen from the

person of another”). According to Simon, without evidence showing that the purse

was on M.M.’s person, the State failed to prove that he committed that form of theft.

      Turning to Simon’s conviction for robbing a disabled person, Simon argues

that the jury could not have found, beyond reasonable doubt, that he placed D.M. in

fear of or caused him to suffer a serious bodily injury, or that Simon exhibited a

deadly weapon while taking M.M.’s purse, or that D.M. is a disabled person. Id. §

29.03 (1)-(3) (setting out the elements that the State must prove the aggravating

element that elevates theft to aggravated robbery).




Cause Number 16-09-10940-CR is the judgment relevant to Simon’s conviction
for robbing a disabled person.
    2
      Although the Legislature amended the theft statute after Simon stole M.M.’s
purse, the Legislature did not change the sections of the statute that are relevant to
issues Simon has raised in his appeals. For that reason, we cite the current version
of the statute when referring to it in the opinion.
    3
      To protect the privacy of the two victims identified in the indictments, we
identify them by using their initials. See Tex. Const. art. I, § 30 (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal justice process[.]”
                                            2
                                     Background

       During the trial, M.M. testified that in December 2015, someone, later

identified by police as Simon, took her purse from a grocery cart while she was

unloading her groceries into her SUV. According to M.M., her son, D.M., 4 saw the

man steal her purse, and he jumped out of the SUV, running after the man who took

her purse. M.M. explained that before D.M. could catch him, someone driving a

getaway car pulled up, stopped, and the man jumped into the car. According to

M.M., when the passenger door to the getaway car opened, it hit D.M. on his head.

       The evidence in the trial shows that D.M. was fifty-six years old when Simon

stole M.M.’s purse. The jury heard M.M. testify about D.M.’s physical and mental

limitations in the trial. For example, M.M. told the jury that D.M. had what she

characterized as a “hard birth” and that he has always lived with her. She explained

that D.M. cannot speak to anyone but her and that he lives with her because he needs

her help. M.M. also testified that D.M.’s developmental problems made it hard for

him, in some ways, to get around. M.M. testified that D.M. has autism, which she


   4
      D.M. did not testify in the trial. In a hearing without the jury present, D.M.
nodded when asked if it was hard for him to talk. He conveyed that it would be too
difficult for him to testify. In the hearing, D.M.’s mother, M.M., told the trial court
that D.M. has autism, suffered injuries when he was born, and that it is difficult for
him to speak to others. Based on the information from the hearing, the trial court
advised the parties that based on what she had seen, D.M. could not effectively
communicate with others so he need not testify in the trial.
                                            3
explained was the reason that D.M. was unable to talk with others about what

happened to him.

      Several witnesses in the case gave testimony that is consistent with M.M.’s

account about D.M.’s limited ability to speak. For instance, the testimony of one of

the paramedics that treated D.M. revealed that D.M. could not communicate with

him when he treated him in the parking lot. The paramedic testified that D.M.

communicated with him through his mother. One of the deputies involved in the

investigation of the incident testified that M.M. told him that “[D.M.] has severe

autism.” The same deputy described D.M. as a frail man who “has a little bit of

trouble walking.”

      The testimony of three witnesses, M.M. and two of the police officers, gave

testimony that led the jury to conclude that D.M. had suffered a bodily injury during

the theft. M.M. testified that she saw the passenger door of the getaway car hit D.M.

on the head while he was chasing Simon. Shortly after that, M.M. noticed that D.M.

had a red spot near his eye where the door hit him on the head. One of the officers

who investigated the theft testified that she noticed that D.M. had a scrape on his

elbow. Another of the investigating officers testified that he understood that a car

door hit D.M. in the head, and he saw D.M., at times, rubbing his head. According

to the officer, D.M. seemed “very confused and stunned.”

                                         4
        There is also evidence in the record tending to show D.M. did not have a major

injury from the blow he suffered on his head. One of the paramedics who treated

D.M. testified that he noticed no marks on D.M.’s body and that he did not think that

D.M. had suffered any major injuries. Another paramedic involved in D.M.’s

treatment agreed that D.M. suffered no major injuries. Even so, the paramedic

testified that D.M., in her opinion, should go to a doctor for a more complete

evaluation.

        The trial court admitted the ambulance records into evidence in the trial. These

records show that D.M. had no subjective or objective indications that he suffered

an injury. Yet the same records do not rule out the possibility that D.M. suffered

some injury: the records state that D.M. received possible injuries “from blunt

trauma that are undetectable by EMS[.]” Nothing in the record shows that the

paramedics who testified in the trial were familiar with the definition used in the

Penal Code for the term bodily injury. 5

                                        Analysis

        In the first two issues of his brief, Simon argues that the evidence presented

at trial failed to prove that he committed the crimes of theft from a person and of

robbing a disabled person. When reviewing claims asserting that insufficient


   5
       Tex. Penal Code Ann. § 1.07(a)(8) (West Supp. 2018).
                                          5
evidence supports a conviction, we apply the standards of review established in

Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the evidence from the

trial, we view the evidence “‘in the light most favorable to the verdict and determine

whether, based on the evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the crime beyond a reasonable doubt.’” 6

We must keep in mind that “[t]he jury is the sole judge of credibility and weight to

be attached to the testimony of witnesses.”7 In its role as the factfinder, a jury may

choose to believe all, some, or none of the testimony that it hears in a trial.8 A jury

may draw several inferences from the evidence if the inferences that it draws are

reasonable and supported by the evidence admitted in the trial. 9 If the record supports

conflicting inferences, we must presume the jury resolved such conflicts in favor of

its verdict, and we must defer to the jury’s resolution of the dispute when the

resolution it reached is supported by the evidence. 10 “Under this standard, evidence

may be legally insufficient when the record contains either no evidence of an



   6
      Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting
Jackson, 443 U.S. at 318-19).
   7
     Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 319).
   8
     Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
   9
     Temple, 390 S.W.3d at 360 (citing Jackson, 443 U.S. at 319).
   10
      Id. (citing Jackson, 443 U.S. at 326).

                                           6
essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt.” 11

                                  Theft from a Person

        In his first issue, Simon argues the evidence failed to prove that he took

M.M.’s purse from her person.12 According to Simon, the evidence shows that the

purse he took was in M.M.’s shopping cart and not on her person when he took it.13

        A person commits the crime of theft from a person if “he unlawfully

appropriates property with intent to deprive the owner of property.” 14 Under the

Penal Code, the appropriation of property by another is unlawful if “it is without the

owner’s effective consent[.]” 15 If the property is stolen “from the person of another,”

the offense is a state jail felony, regardless of the value of the property stolen. 16 The




   11
      Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 320).
   12
      See Tex. Penal Code Ann. § 31.03(e)(4)(B).
   13
      Simon does not argue that the State failed to prove that M.M. was an elderly
person when he took her purse. M.M. testified about her age at the time of the trial,
and her testimony allowed the jury to infer that she was more than sixty-five years
old in December 2015 when Simon took her purse.
   14
      Id. § 31.03(a).
   15
      Id. § 31.03(b).
   16
      Id. § 31.03(e)(4)(B).

                                            7
penalty for the crime is a third-degree felony if the victim of the theft is an elderly

individual, a term defined to mean a person who is “65 years of age or older. 17

        The proof required to prove the crime of theft from a person does not require

evidence that the defendant stole the object from the clothes the victim was wearing

or from her hand if the evidence shows the defendant took the item from an object

like a shopping cart under circumstances that show the cart was in the person’s

immediate possession when the theft occurred.18 In Mack v. State, 465 S.W.2d 941,

941 (Tex. Crim. App. 1971), the victim was standing next to the cart when the

defendant took the victim’s purse from the cart. In his appeal, Mack argued that the

evidence failed to show that he took the purse from the victim because the victim

testified that she had the purse in her cart. 19 The Court of Criminal Appeals sustained

Mack’s conviction, explaining that under the circumstances, the evidence




   17
       Id. § 22.04(c)(2) (West Supp. 2018) (defining elderly individual), § 31.01(10)
(West Supp. 2018) (stating that elderly individual has the meaning assigned to it in
section 22.04(c)), § 31.03(f)(3)(A) (West Supp. 2018) (elevating the offense to the
next higher category if the owner of the property is an elderly individual).
    18
       See Mack v. State, 465 S.W.2d 941, 942 (Tex. Crim. App. 1971) (concluding
that the theft of a purse from a shopping cart is theft from a person when the
circumstances show the object in the cart was within the victim’s reach).
    19
       Id. at 942.

                                           8
established that the purse in the shopping cart, within the victim’s reach, and the

victim immediately noticed that her purse was gone. 20

        Yet if the evidence shows that the defendant took the victim’s property from

behind the victim’s back, the evidence is generally viewed as insufficient to support

a conviction for the crime of theft from a person.21 In Farrell v. State, 837 S.W.2d

395 (Tex. App.—Dallas 1992), aff’d, 864 S.W.2d 501 (Tex. Crim. App. 1993), the

Dallas Court of Appeals reversed and rendered a judgment of acquittal where the

evidence revealed that the defendant stole the victim’s wallet from a shopping cart

while the victim had her back turned and did not immediately realize that her wallet

was missing.22 The Farrell Court explained that the defendant approached the victim

while she was shopping for groceries and asked if she knew where the paper towels

were located.23 The victim turned her back to her shopping cart and took several

steps to find a roll of paper towels. 24 While behind the victim’s back, the defendant

took the victim’s wallet from the victim’s purse, which was sitting in the cart.25



   20
      Id. at 942.
   21
      Farrell v. State, 837 S.W.2d 395 (Tex. App.—Dallas 1992), aff’d, 864 S.W.2d
501 (Tex. Crim. App. 1993).
   22
      Id. at 396.
   23
      Id. at 397.
   24
      Id.
   25
      Id.

                                          9
Shortly thereafter, shopping on the next isle, the victim noticed her wallet was not

in her purse. 26 The Dallas Court of Appeals concluded that, under these

circumstances, “[t]he evidence adduced at trial fails to establish that [the victim’s]

wallet was taken from her person, from her grasp, or from her immediate

possession.”27

        Claiming that the Farrell Court should have convicted the defendant of the

lesser-included offense of theft, the State appealed the decision to the Court of

Criminal Appeals. 28 Concluding that “the State did not raise the [issue asking to

reform the appellate court’s judgment in] the Court of Appeals,” the Court of

Criminal Appeals affirmed the judgment. 29

        Factually, the circumstances under which the theft occurred in the case now

before us on appeal are similar to the situation presented in Mack.30 Here, the

evidence admitted in the trial allowed the jury to infer that the shopping cart was still

in M.M.’s immediate possession when the crime occurred. According to M.M., she

was unloading her cart when she saw the defendant running away from it with her



   26
      Id.
   27
      Id. at 398.
   28
      Farrell v. State, 864 S.W.2d 501 (Tex. Crim. App. 1992).
   29
      Id. at 503.
   30
      See Mack, 465 S.W.2d at 942.

                                           10
purse. Unlike the circumstances in Farrell, the evidence does not show that M.M.

did not immediately realize that someone had stolen her purse.31

        We conclude that the evidence admitted during Simon’s trial supports the

jury’s conclusion that Simon took M.M.’s purse from her immediate possession.32

Because the evidence supports Simon’s conviction under section 31.03(e)(4)(B) of

the Penal Code, we overrule Simon’s first issue.

                     Aggravated Robbery of a Disabled Person

        In issue two, Simon argues the evidence admitted in his trial cannot support

his conviction for robbing a disabled person.33 Under Texas law, an ordinary robbery

can become an aggravated robbery if the State proves that, while committing a theft,

the defendant caused a disabled person to suffer a bodily injury. 34 Under the Penal

Code, a disabled person is “an individual with a mental, physical, or developmental

disability who is substantially unable to protect himself from harm.” 35 The

indictment on which Simon went to trial alleges that Simon, while committing a

theft, caused D.M.—a disabled person—to suffer a bodily injury.



   31
      See Farrell, 837 S.W.2d at 397.
   32
      See Temple, 390 S.W.3d at 360.
   33
      See Tex. Penal Code Ann. § 29.03(a)(3).
   34
      Id. § 29.03(a)(3)(B).
   35
      Id. § 29.03(c).

                                         11
        In his appeal, Simon argues the State failed to prove that D.M. is disabled and

failed to prove that D.M. suffered a bodily injury while Simon committed the theft.

Yet the evidence before the jury in Simon’s trial allowed the jury to conclude that

D.M. suffers from autism, a disorder that witnesses explained left D.M. substantially

without the ability to speak to anyone other than his mother. The definition of the

term disabled person under section 29 of the Penal Code includes developmental

disabilities.36 So the testimony before the jury about D.M.’s autism authorized the

jury to conclude that D.M. qualified as a disabled person if we measure the evidence

about D.M. in the trial based on the definition found in the Penal Code. 37 A disability

in communicating with others is a disability of the type the jury could have

concluded made D.M. “substantially unable to protect himself from harm.” 38 For

example, the jury could have concluded that D.M. could not have called to others

for help had Simon decided to turn around and fight.

        We view the evidence admitted in a trial when reviewing it upon appeal in the

light that most favors the jury’s verdict.39 Because the jury’s inference from the



   36
     See id. § 29.03(c).
   37
     Id.
  38
     Id.
  39
     Jackson, 443 U.S. at 319; Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim.
App. 2011).

                                          12
evidence about D.M.’s condition that he is substantially unable to protect himself is

not one that is irrational based on the evidence about D.M.’s disability, we conclude

that the jury’s finding that D.M. is a disabled person under Chapter 29 of the Penal

Code is a finding that is supported by the evidence.40

        Simon also argues that the evidence does not support the jury’s conclusion

that D.M. suffered an injury while Simon was entering the getaway car. 41 Under the

Penal Code, the term bodily injury means “physical pain, illness, or any impairment

of physical condition.” 42 Simon suggests that because D.M. did not testify in the

trial, the evidence before the jury failed to establish that he suffered a bodily injury

when he took M.M.’s purse. Simon also points to the testimony that D.M. lacked

any visible signs showing that he was injured. Both paramedics testified that when

they examined D.M. in the parking lot, they found no signs of trauma, that he had

no major injuries, and that D.M. did not appear to be in pain. In response, the State

argues that M.M.’s testimony that she saw the door of the getaway car strike D.M.

on the head and saw a red mark on D.M.’s face is evidence that supports the jury’s


   40
       See Temple, 390 S.W.3d at 363 (explaining that the appellate courts do not act
as factfinders in reviewing the evidence the jury considered in a trial).
    41
       See Tex. Penal Code Ann. § 29.03(a)(3) (West 2011) (allowing the State to
establish that an aggravated robbery occurred by proving that the defendant caused
a bodily injury to a person at least sixty-five years old or to a disabled person).
    42
       Id. § 1.07(a)(8).

                                          13
conclusion that D.M. suffered a bodily injury when the evidence in the trial measured

by the definition for bodily injury that is found in the Penal Code. 43

        In evaluating the respective arguments, we note that the definition the

Legislature adopted for the term bodily injury is purposefully broad and can include

minor contacts should those contacts amount to more than a mere offensive

touching. 44 The term physical pain, one of the elements included in the broader

definition of bodily injury, is a term of common use. 45 Ordinarily, jurors can

understand whether an injury occurred based on a description of the events that

caused the injury the State has claimed occurred. 46 And a jury may infer that a victim

experienced physical pain based on a description about the mechanics of how an

injury occurred.47 Thus, evidence describing the mechanics of a blow that left a

victim cut, scraped, or bruised is the type of evidence jurors can use to infer that the

victim also experienced physical pain. 48 To establish that a victim suffered a bodily



   43
      Id.
   44
      See Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
   45
      Id. at 787.
   46
      Id.
   47
      Id.
   48
      See Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981) (explaining
that evidence showing the victim suffered a cut on his arm established that a bodily
injury occurred); Arzaga v. State, 86 S.W.3d 767, 778-79 (Tex. App.—El Paso 2002,
no pet.) (evidence showing the victim had bruised and swollen lips sufficient to
prove that a bodily injury occurred);
                                         14
injury the State need only show that the victim experienced some pain, as “[a]ny

physical pain, however minor, will suffice[.]” 49

      From M.M.’s testimony describing the mechanics of D.M.’s alleged injury—

a car door hitting him on the head—coupled with M.M.’s testimony that she saw a

mark on D.M.’s face, the jury could infer that the blow to D.M.’s head caused D.M.

to experience pain. There was testimony in the trial showing that witnesses saw D.M.

rubbing his head and that D.M. appeared confused. This evidence offers additional

support for the jury’s inference that the blow to D.M.’s head caused him to

experience pain.50 Because the jury could have concluded the type of injury

described resulted in some pain, we overrule Simon’s second issue. 51


App.—Corpus Christi 1988, pet. ref’d) (evidence that victim suffered bruises and a
muscle strain sufficient to prove that a bodily injury occurred).
    49
       Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012).
    50
       See Bin Fang v. State, 544 S.W.3d 923, 927-28 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (evidence of bodily injury sufficient where the testimony of the
officers who responded to a reported altercation observed the victim with scratches,
a bruise, and a bloody mouth and nose even though she told officers when they
arrived that everything was fine); Shah v. State, 403 S.W.3d 29, 35 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d) (explaining that although the victim did not
expressly testify that he experienced pain when the defendant butted him in the head,
evidence showing that the victim bled afterward from the bridge of his nose was
sufficient evidence to support the jury’s finding that a personal injury occurred).
    51
       Given our conclusion that Simon’s conviction is sustainable under section
29.03(a)(3)(B) of the Penal Code, we need not resolve his remaining arguments
claiming the evidence fails to support the jury’s findings on two of the other ways
section 29.03 allows the State to prove that an aggravated robbery occurred. Thus,
we need not address whether the evidence also established that an aggravated
                                          15
      For the reasons we have explained above, we affirm the judgments rendered

in trial court Cause Numbers 16-09-10942-CR and 16-09-10940-CR.

      AFFIRMED.



                                              ______________________________
                                                     HOLLIS HORTON
                                                          Justice


Submitted on May 30, 2018
Opinion Delivered October 24, 2018
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




robbery occurred under either section 29.03(a)(1), which requires proof that a
serious bodily injury occurred, or under section 29.03(a)(2), which requires proof
that the defendant used or exhibited a deadly weapon in committing the robbery. See
Tex. Penal Code Ann. § 29.03(a)(1), (2) (West 2011).

                                         16
