Opinion filed April 21, 2011




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-09-00332-CR
                                        __________

                      NATHAN JOE TALAMANTEZ, Appellant

                                              V.

                                STATE OF TEXAS, Appellee


                           On Appeal from the 244th District Court

                                      Ector County, Texas

                                 Trial Court Cause No. C-36,131


                               MEMORANDUM OPINION
       A jury convicted Nathan Joe Talamantez of aggravated robbery.         Punishment was
assessed at twenty-five years confinement. We affirm.
                                         I. Background
       At around 7:00 p.m. on January 14, 2009, Maria Pacheco was cashing payroll checks for
customers at the N-N-Out Grocery Store.       As she was cashing Barbara Dickens’s check,
Talamantez ran around the counter and demanded the money that she was holding. Both
Pacheco and Dickens testified that he pulled up his hoodie jacket to reveal a gun in his pants
pocket. Pacheco testified that Talamantez warned her, “[D]on’t make me use this.” Dickens
recalled him saying, “I would hate to use this, but I need that right there.” Seeing the gun scared
Pacheco. She froze. Terrified, Dickens ran behind some display cases to hide.             Talamantez
grabbed the money and left the store. Johnny Woods was sitting in his pickup in the store’s
parking lot. He saw Talamantez run away. Woods testified that he spotted the butt of a pistol in
Talamantez’s jacket pocket.
       Later that evening, police arrested Talamantez for the robbery. He informed the officers
that he wanted to talk with a detective.        Detective Michael Liverett of the Odessa Police
Department interviewed Talamantez. Detective Liverett made a DVD of the interview, and it
was played for the jury. During the interview, Talamantez admitted to having committed the
robbery. He claimed, however, that he did not have a gun. Instead, Talamantez said that he put
his hand in his jacket pocket to make Pacheco think he had a gun. He recalled telling her,
“[D]on’t make me shoot you, I need the money.” He explained that his intent was to make her
afraid so that she would cooperate.
       At trial, Talamantez again admitted to having committed the robbery. However, he
testified that he did not use a gun and that he did not try to make it look like he had a gun. He
testified that he ran up to Pacheco, showed her his fist, and acted as if he would hit her if she did
not give him the money. Talamantez admitted to threatening Pacheco and admitted that his
intent was to scare her so that she would give him the money.
       Talamantez later requested that a lesser included instruction for the offense of theft be
submitted to the jury. The trial court refused to give this instruction.
                                              II. Issue
       In his only issue on appeal, Talamantez contends that it was reversible error for the trial
court to deny him a lesser included instruction for the offense of theft.
                                           III. Discussion
       To determine if an instruction on a lesser included offense is warranted, we first ask if the
lesser included offense is included within the proof necessary to establish the offense charged.
Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). The State concedes that theft is
a lesser included offense of aggravated robbery. We next ask if there is some 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. Rousseau, 855 S.W.2d at 673. We must review all of the evidence presented
at trial in making this determination. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

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1994). We do not consider the credibility of the evidence or whether it conflicts with other
evidence. Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim. App. 2009). The fact that the
State, in the course of proving the offense charged, may also have proved a lesser offense does
not entitle Talamantez to a charge on the lesser included offense. Gibbs v. State, 819 S.W.2d
821, 832 (Tex. Crim. App. 1991). Rather, evidence from some source must affirmatively raise
the issue of the lesser offense. Bignall, 887 S.W.2d at 24.
        A person commits the offense of theft if he unlawfully appropriates property with intent
to deprive the owner of the property. TEXAS PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2010).
A person commits the offense of 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. Id. § 29.02(a)(2) (Vernon 2003). A person commits
the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon.
Id. § 29.03(a)(2). A firearm is a deadly weapon. Id. § 1.07 (Vernon Supp. 2010).
        Talamantez argues that evidence presented at trial that he did not have a gun shows that
he was entitled to a lesser included instruction on theft. However, this evidence would more
directly undermine the deadly weapon finding that was an element of the charge of aggravated
robbery. See id. § 29.03(a)(2). Based on this evidence, Talamantez might have been entitled to a
lesser included instruction on the offense of robbery. In fact, the trial court submitted such an
instruction to the jury.
        In order to be entitled to a lesser included instruction on theft, there would have to be
some evidence that Talamantez did not threaten or place another in fear of imminent bodily
injury or death. See id. § 29.02(a)(2). The pertinent question is whether “the accused’s words
and conduct were sufficient to place a reasonable person in the victim’s circumstances in fear of
imminent bodily injury.” Hayden v. State, 155 S.W.3d 640, 643 (Tex. App.—Eastland 2005,
pet. ref’d). Under any version of the facts, it is undisputed that Talamantez threatened Pacheco.
The witnesses to the robbery testified that Talamantez showed Pacheco a gun and demanded the
money, saying, “[D]on’t make me use this,” or “I would hate to use this, but I need that right
there.” Both Pacheco and Dickens testified that his actions scared them. During his interview
with Detective Liverett, Talamantez admitted to putting his hand into his jacket pocket to make it
look like he had a gun in order to scare Pacheco into giving him the money, telling her, “[D]on’t
make me shoot you, I need the money.” At trial, Talamantez testified that he showed Pacheco

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his fist and acted as if he would hit her if she did not hand over the money. At several points
during his testimony, he reiterated that he threatened Pacheco and that he wanted to scare her
into giving him the money. In short, no evidence was presented that would permit a rational jury
to find that, if Talamantez was guilty, he was only guilty of theft. See Rousseau, 855 S.W.2d at
673. Moreover, Talamantez admitted at trial to having committed robbery. Thus, the trial court
did not err in refusing him a lesser included instruction on the offense of theft. Accordingly, we
overrule Talamantez’s only issue on appeal.
                                                        IV. Conclusion
         The judgment of the trial court is affirmed.




                                                                        TERRY McCALL
                                                                        JUSTICE
April 21, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2




         1
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         2
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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