      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00072-CR



                                    Xavier Coffee, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-12-203283, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Xavier Coffee appeals his conviction for robbery, for which he was

sentenced to six years’ imprisonment. See Tex. Penal Code § 29.02. In a single point of error,

appellant challenges the trial court’s denial of his request for a jury instruction regarding the

lesser-included offense of Class B misdemeanor theft. See id. § 31.03(e)(2)(A)(i). We will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               The jury heard evidence that at the time of the incident in question, the victim,

Pastor Ibarra-Flores, was walking through the ground-floor parking lot of the Budget Inn in Austin

on the way back to his second-floor motel room after getting ice from the vending machine when

he was confronted by appellant, whose genitals were exposed. Ibarra-Flores, a Spanish-speaker,

allegedly could not understand what appellant was saying to him in English, but noticed that

appellant kept gesturing to Ibarra-Flores’s genitals. Ibarra-Flores, who had his cell phone in hand,
told appellant in Spanish that he was going to call the police, at which point appellant reached over

and “snatched” his cell phone away from him. Ibarra-Flores then asked appellant, in English, to

return his phone. The State and appellant are in dispute as to what happened next. Ibarra-Flores

testified that upon being asked to return Ibarra-Flores’s phone, appellant responded by demanding

money and forcefully grabbing Ibarra-Flores by the neck, leaving a visible injury and causing pain.

Appellant testified, however, that upon being asked to return the phone, appellant simply refused and

proceeded to climb the stairway to his own room, which by coincidence was located on the second

floor next to Ibarra-Flores’s room. It is undisputed that Ibarra-Flores then followed appellant up the

staircase. Once the two men reached the second floor, they were seen by Richard Green, one of the

motel’s employees who was patrolling the property. Green testified that he saw appellant from

approximately 20 feet away with his hand around Ibarra-Flores’s throat, aggressively pressing him

against the wall between their two rooms. Green observed Ibarra-Flores attempting to push appellant

off of him in order to avoid appellant’s efforts to force him into appellant’s motel room. Green

approached the two men and ordered appellant to turn Ibarra-Flores loose, at which point appellant

released him. Ibarra-Flores then went to his room and used his cousin’s phone to call 911.

                At trial, appellant’s counsel twice requested a specific jury instruction on Class B

misdemeanor theft, which pertains to theft of property valued between $50 and $500, as a

lesser-included offense of robbery. See id. § 31.03(e)(2)(A)(i). Although the trial court denied these

requests, it did instruct the jury on the lesser-included offense of “theft from the person,” a state-jail

felony pertaining to theft of property from the person of another. See id. § 31.03(e)(4)(B). The jury

ultimately found appellant guilty of robbery.



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                                             DISCUSSION

                Whether a defendant is entitled to a jury instruction on a lesser-included offense is

subject to a two-pronged test: (1) the lesser-included offense must be included within the proof

necessary to establish the offense charged, and (2) some evidence must exist in the record that would

permit a jury rationally to find that if defendant is guilty, he is guilty only of the lesser offense. Goad

v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (citing Rice v. State, 333 S.W.3d 140, 144

(Tex. Crim. App. 2011)); Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).


Prong 1: Whether Class B Misdemeanor Theft is a Lesser-Included Offense of Robbery

                “An offense is a lesser-included offense if it is established by proof of the same or

less than all the facts required to establish the commission of the offense charged.” Goad,

354 S.W.3d at 446. A person commits theft “if he unlawfully appropriates property with intent to

deprive the owner of property.” Tex. Penal Code § 31.03(a). Theft of property valued between

$50 and $500 is a Class B misdemeanor. Id. § 31.03(e)(2)(A). As charged in this case, a person

commits robbery “if, in the course of committing theft . . . and with intent to obtain or maintain

control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another.”

See id. § 29.02(a)(1) (emphasis added). “[I]n the course of committing theft” is defined as “conduct

that occurs in an attempt to commit, during commission, or in immediate flight after the attempt or

commission of theft.” Id. § 29.01(1).

                There is no dispute in the present case that Class B misdemeanor theft is a

lesser-included offense of robbery. A robbery, by definition, can only be committed “in the course

of committing theft . . . .” Id. § 29.02(a). Additionally, the Texas Court of Criminal Appeals has

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held that when theft is alleged as part of an indictment for robbery, “[t]heft . . . is necessarily

included in the alleged elements of the greater offense of robbery.” Earls v. State, 707 S.W.2d 82,

84-85 (Tex. Crim. App. 1986). In the present case, the indictment stated that appellant, “while in

the course of committing theft of property, and with the intent to obtain or maintain control of said

property, intentionally, knowingly, or recklessly caused bodily injury to [the victim] by grabbing the

neck of [the victim].” (Emphasis added.) Therefore, the first prong of the lesser-included offense

analysis is met with regard to an instruction on Class B misdemeanor theft.


Prong 2: Whether Evidence Exists in the Record that Would Permit a Jury Rationally to Find
that if Appellant is Guilty, He is Guilty Only of the Lesser Offense of Class B Misdemeanor Theft

               Because the first threshold prong of the lesser-included offense test has been satisfied,

we must consider whether evidence exists in the record that would permit a jury rationally to find

that appellant was guilty of only Class B misdemeanor theft and not robbery. See Sweed v. State,

351 S.W.3d 63, 68 (Tex. Crim. App. 2011). To that point, “there must be some evidence directly

germane to the lesser-included offense for the finder of fact to consider before an instruction on a

lesser-included offense is warranted.” Id. (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant

to a lesser charge.” Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). While this

threshold is relatively low, the evidence must establish that the lesser-included offense on which

defendant requests an instruction is “a valid, rational alternative to the charged offense.” Rice,

333 S.W.3d at 145.




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                In the present case, appellant challenges the denial of his specific request for an

instruction on Class B misdemeanor theft as a lesser-included offense to robbery. The theft statute

makes clear, however, that in the event that property is “stolen from the person of another,”

regardless of value, the theft is a state-jail felony, not a misdemeanor.           Tex. Penal Code

§ 31.03(e)(4)(B). We need not analyze the propriety of the instruction that the court gave on “theft

from the person” because that instruction is not at issue on appeal. We need only consider whether

any affirmative evidence exists in the record to suggest that appellant is guilty only of the

lesser-included offense of Class B misdemeanor theft as opposed to robbery.

                In this regard, appellant points to two pieces of evidence: (1) the 911 call that

Ibarra-Flores made to report the incident, and (2) a statement made by an Austin Police Department

(APD) robbery detective. Appellant contends that the first part of Ibarra-Flores’s 911 call, in which

he stated that “a black guy took [his] telephone and [didn’t] want to give it back,” calls into question

the sequence of events surrounding the theft and assault. Appellant takes issue with the fact that it

was only after the 911 operator handling Ibarra-Flores’s call asked him if the phone had been taken

from his hand that Ibarra-Flores answered affirmatively, stating that appellant took the phone “by

force” and hit him and tore his shirt. Appellant argues that the jury could have rationally believed

that Ibarra-Flores’s description of appellant’s assaultive behavior was a reference only to what

happened on the second floor of the motel after the theft had been effectively completed. Under

these circumstances, appellant contends, the jury could have rationally concluded that the theft and

the assault were two separate events, in which case appellant would not have been guilty of robbery

because the assaultive behavior did not occur “in the course of committing a theft.” Id. § 29.02(a).



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Even if this were true, however, it is not affirmative evidence that appellant committed only Class B

misdemeanor theft, as the uncontroverted evidence showed that appellant took the phone from

Ibarra-Flores’s person.

                Appellant also contends the jury could have rejected the portion of the 911 tape they

heard at trial in which Ibarra-Flores confirmed that appellant took the phone from his hand, in favor

of the more vague statement that Ibarra-Flores made at the beginning of the 911 call when he said

simply that appellant “took [his] phone and [wouldn’t] give it back.” While appellant is certainly

correct in his contention that a jury can selectively believe all or part of the evidence admitted at trial,

Bell v. State, 693 S.W.2d 434, 443 (Tex. Crim. App. 1985), the Texas Court of Criminal Appeals

recognized in Skinner that “[i]t 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.”

956 S.W.2d at 543. Here appellant produced no affirmative evidence from which a jury could

rationally conclude that he was guilty only of Class B misdemeanor theft. Again, the uncontroverted

evidence showed that appellant took Ibarra-Flores’s phone from his hand, thereby committing at

least “theft from the person,” on which the jury in fact received instruction as a lesser-included

offense to robbery.

                Appellant next points to an APD robbery detective’s statement that a robbery did not

seem to have occurred, but that the incident sounded to him more like a theft and a separate assault

than robbery. Appellant asserts that this statement constitutes evidence from which a jury could

rationally conclude that appellant was guilty of the lesser-included offense of Class B misdemeanor



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theft rather than robbery. It is a logical fallacy, however, to suggest that the robbery detective’s

offhand statement of opinion constitutes affirmative evidence from which a jury could rationally

have concluded that appellant committed only Class B misdemeanor theft. It is merely evidence that,

based on what he had been told at the time, he believed that an assault had occurred, which, if

anything, would support an instruction on assault, not misdemeanor theft. In fact, the APD detective

who responded to the crime scene, Heather Schouest, testified at trial that the determination was

made that the incident was initially classified as “misdemeanor assault and theft from person.”

Moreover, the robbery detective’s conclusion was based neither on observations he made at the

crime scene nor on discussions he had with either Ibarra-Flores or appellant personally. Rather, his

opinion was based on a preliminary account of the incident relayed by Schouest, who was on the

scene and personally believed based on her own independent investigation that a robbery had in fact

occurred. Schouest further testified that the robbery detective’s opinion was based on an incomplete

account of the incident, as she had not conveyed all of the information surrounding the incident to

him before he determined that his expertise was not needed on the scene.

               For the reasons stated above, appellant’s requested jury instruction on the lesser-

included offense of Class B misdemeanor theft therefore fails the second prong of the analysis.

Accordingly, we overrule appellant’s single point of error.




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                                          CONCLUSION

               The trial court did not err in refusing to grant appellant’s request for a jury instruction

on the lesser-included offense of Class B misdemeanor theft. We therefore affirm the trial court’s

judgment of conviction.



                                           _____________________________________________

                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 19, 2014

Do Not Publish




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