Opinion issued August 8, 2019




                                     In The

                              Court of Appeals
                                     For The

                           First District of Texas
                             ————————————
                              NO. 01-18-00769-CR
                            ———————————
                    ROBERT H. MCCRACKEN, Appellant
                                       V.
                         THE STATE OF TEXAS, Appellee


                   On Appeal from the 208th District Court
                           Harris County, Texas
                       Trial Court Case No. 1581630


                           MEMORANDUM OPINION

      Robert McCracken was indicted for aggravated robbery1 but was convicted

by a jury only of the lesser included offense of robbery. 2 On appeal, he contends


1
      See TEX. PENAL CODE § 29.03.
2
      See id. § 29.02.
(1) that the trial court erred by refusing to instruct the jury on the lesser included

offense of theft and (2) that the evidence was insufficient to support the jury’s

guilty verdict. Finding no error, we affirm.

                                    Background

      A. Bradley works at a Target store in west Houston and investigates whether

the store is losing items to shoplifting. He is what’s sometimes called a

loss-prevention investigator. One day at the store, a man carrying a backpack and

wearing a big jacket on a day that wasn’t cold caught Bradley’s attention. Bradley

watched the man through the store’s camera systems. He saw the man putting

several expensive electronics and other merchandise into a shopping cart. He then

saw the man leave the store through the entrance-only doors. The doors would not

have opened to allow the man to leave were it not for other shoppers coming into

the store from outside.

      Bradley followed the man outside, began approaching him, and tried to get

his attention. The man wasn’t running, but he was still pushing the cart containing

the electronics and merchandise until he reached the distance from the storefront

that triggered a sensor on the cart to lock its wheels. The cart stopped at a red,

spherical sidewalk fixture just outside the storefront.

      As the man kept trying to pull the locked cart, he spoke to Bradley “with

threatening words and cursing.” At first, the man warned Bradley, “Don’t come


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close,” and said that he had been having a bad day. The man continued, “Leave me

the hell alone,” and cursed more. Bradley responded, “I need my merchandise

back, and you come back with me. I just need my stuff back.”

      Then, the man said, “If you come any closer, I will whoop your ass with this

bat.” The man put his hand on a small, souvenir-style bat that was poking out of

his backpack but did not pull it out.

      Bradley stopped approaching the man and “stayed [his] distance” about

10 feet away. Bradley didn’t see any other kind of weapon on the man, and the

man was not lunging toward him. But Bradley stopped approaching because he

“didn’t want to get hit.” Bradley believed that the man had a weapon—the bat—

and Bradley was “not going to try to entertain any kind of physical contact.” He

decided not to pursue the man because of the bat, fearing that if he got any closer,

Bradley “could be facing serious bodily injury.” All the while, the man continued

to curse and yell at Bradley.

      Eventually, the man walked away, leaving behind the merchandise and the

cart. Bradley then called law enforcement, and              Bradley’s    co-worker,

A. Gulbadeen, approached him.

      Bradley left in his car for his lunch break, and a law-enforcement officer

arrived at the Target. While driving, Bradley discovered where the man had




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gone—sitting on the curb outside a nearby store in the same shopping center.

Bradley pointed the man’s location out to the law-enforcement officer.

      Gulbadeen works in guest services at the same Target. During Bradley’s

encounter with the man pushing the cart, Gulbadeen was leaving from his shift to

go to his car when the man’s cursing caught his attention. He heard the man

yelling; “using the ‘F’ word”; and saying something like, “If you walk over here, I

will hit you with the bat.” While observing all this, Gulbadeen wasn’t in fear for

Bradley’s safety. He did not call law enforcement or try to find a weapon. But he

was also “substantially farther away” from the man than Bradley was.

      Deputy K. Thompson, with the Harris County Precinct 5 Constable’s Office,

was the law-enforcement officer dispatched to Bradley’s shoplifting call. Deputy

Thompson encountered the man where Bradley had found him and attempted to

detain him. In response, the man pushed Deputy Thompson’s hand away, jumped

up, and clenched his fists. Deputy Thompson then unholstered his taser because of

the man’s “aggressive behavior and the fact that there was a—that he had a

backpack on with a baseball bat sticking out of it.” He called for backup. The other

officers arrived and detained the man without further incident. Deputy Thompson

did not search the backpack.

      On the day of the incident, Deputy D. Devey, also an officer with Precinct 5,

arrived at the Target to discover her colleagues and Bradley outside the store’s


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loss-prevention office. While Deputy Devey spoke with Bradley, the man, who

was handcuffed and within earshot, volunteered: “I threatened him because he

threatened me first.” Deputy Devey helped identify the man as Robert McCracken.

      A Harris County grand jury indicted McCracken for aggravated robbery. He

proceeded to trial before a jury, and the State adduced testimony from Bradley,

Gulbadeen, Deputy Thompson, and Deputy Devey establishing the narrative set

forth above.

      When the State rested, defense counsel moved for a directed verdict on the

“deadly weapon” element of aggravated robbery,3 but the trial court denied the

motion.

      At the charge conference, defense counsel asked for a jury instruction on the

lesser included offense of theft. The trial court denied the request and instructed

the jury on only aggravated robbery and the lesser included offense of robbery.

The jury found that McCracken was guilty of simple robbery.

      On appeal, McCracken contends that the evidence is insufficient to support

the jury’s robbery finding and that the trial court erred by refusing to instruct the

jury on the lesser included offense of theft.




3
      See TEX. PENAL CODE § 29.03(a)(2).

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                              Evidentiary Sufficiency

      McCracken challenges the sufficiency of the evidence supporting his

robbery conviction—specifically, whether he intentionally or knowingly

threatened or placed Bradley in fear of imminent bodily injury and whether he did

so “in the course of committing theft.” See TEX. PENAL CODE § 29.02(a), (a)(2).

Although this is his second appellate issue, we address it first because, if

successful, it could afford McCracken greater relief—an acquittal. See Price v.

State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.);

Cleveland v. State, 177 S.W.3d 374, 387 (Tex. App.—Houston [1st Dist.] 2005,

pet. ref’d) (en banc).

I.    Standard of review and applicable law

      We review evidentiary-sufficiency challenges under the standard set forth in

Jackson v. Virginia, 443 U.S. 307 (1979). See Lee v. State, 537 S.W.3d 924, 926

(Tex. Crim. App. 2017); Buentello v. State, 512 S.W.3d 508, 515 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d). Under this standard, the evidence is sufficient

to support a conviction if, considering the evidence in the light most favorable to

the verdict, a rational factfinder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The standard applies equally


                                          6
to both direct and circumstantial evidence. See King v. State, 895 S.W.2d 701, 703

(Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d).

       There are generally four circumstances in which evidence is insufficient to

support a conviction: (1) when no evidence that is probative of an element of the

offense exists in the record; (2) when only a “modicum” of evidence that is

probative of an element of the offense exists; (3) when the evidence conclusively

establishes a reasonable doubt; or (4) when the alleged acts do not establish the

criminal offense charged. See Buentello, 512 S.W.3d at 515 (citing Jackson, 443

U.S. at 314, 320; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750).

       We do not weigh evidence or evaluate witness credibility; those are for the

factfinder. See Williams, 235 S.W.3d at 750. Instead, we determine whether the

factfinder’s explicit and implicit findings are rational by viewing all the evidence

in the light most favorable to the verdict and resolving any inconsistencies in the

evidence in favor of the verdict. See Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992); Buentello, 512 S.W.3d 515–16.

       A person commits the offense of robbery when, “in the course of committing

a theft as defined in Chapter 31 and with intent to obtain or maintain control of the

property, he: . . . intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” TEX. PENAL CODE § 29.02(a), (a)(2). A person


                                         7
commits the offense of theft when “he unlawfully appropriates property with intent

to deprive the owner of property.” Id. § 31.03(a). “‘In the course of committing

theft’ means conduct that occurs in an attempt to commit, during the commission,

or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1); see

Ulloa v. State, 570 S.W.2d 954, 956–57 (Tex. Crim. App. [Panel Op.] 1978).

II.   The evidence is sufficient to support the jury’s findings that McCracken
      intentionally or knowingly threatened or placed Bradley in fear of
      imminent bodily injury in the course of committing theft.

      The testimony of Bradley, Gulbadeen, Deputy Thompson, and Deputy

Devey addresses whether McCracken intentionally or knowingly threatened or

placed Bradley in fear of imminent bodily injury and whether McCracken did so

“in the course of committing theft.”

      Bradley testified that McCracken yelled and cursed at him and told him, “If

you come any closer, I will whoop your ass with this bat.” McCracken then put his

hand on the bat. All this made Bradley keep his distance, though he had previously

been approaching McCracken. Gulbadeen also heard McCracken yelling, cursing,

and threatening Bradley with reference to the bat. Bradley testified that he stayed

put because he “didn’t want to get hit” and that he was “not going to try to

entertain any kind of physical contact.” He refused to pursue McCracken any

farther because of the bat. And he feared that, if he kept going, he “could be facing

serious bodily injury.”


                                         8
      Deputy Thompson’s later encounter with McCracken sheds further light on

the nature of Bradley’s interaction with McCracken. Deputy Thompson testified

that, while trying to detain McCracken, Deputy Thompson unholstered his taser

because of what Deputy Thompson called McCracken’s “aggressive behavior” and

his ready access to the bat.

      Deputy Devey’s testimony about McCracken’s remark during her

conversation with Bradley reveals that McCracken understood his own comments

to Bradley to be threatening.

      Based on the testimony, we conclude that, viewed in the light most favorable

to the verdict, the evidence is sufficient to establish that McCracken intentionally

or knowingly threatened or placed Bradley in fear of imminent bodily injury. See

TEX. PENAL CODE § 29.02(a)(2); Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at

517; Williams, 235 S.W.3d at 750.

      As to whether the evidence is sufficient to support a finding that McCracken

intentionally or knowingly threatened Bradley “in the course of committing theft,”

the evidence of McCracken’s comments to Bradley while grabbing the bat, and the

other surrounding circumstances, suffices. This part of the encounter took place on

the sidewalk just outside the Target’s storefront, next to one of the red, spherical

sidewalk fixtures. It also took place while McCracken stopped trying to pull the

cart with the wheels locked and started to walk away, which indicates that he was


                                         9
trying to flee from the scene. Even if, as McCracken suggests, his theft was

“completed” by the time of the interaction with Bradley, the statutory definition of

“in the course of committing theft” includes circumstances like these, that is, acts

taken or words said “in immediate flight after the attempt or commission of theft.”

See TEX. PENAL CODE § 29.01(1); Ulloa, 570 S.W.2d at 956–57. We therefore

conclude that the evidence, viewed in the light most favorable to the verdict, is

sufficient to establish that McCracken was “in the course of committing theft.” See

TEX. PENAL CODE § 29.02(a), (a)(2); Jackson, 443 U.S. at 319; Laster, 275 S.W.3d

at 517; Williams, 235 S.W.3d at 750.

      Finally, McCracken urges that Easley v. State, 199 S.W. 476 (Tex. Crim.

App. 1917), involves analogous circumstances and requires a reversal here. In

Easley, “all the circumstances disclosed by the record” led the Court of Criminal

Appeals to reverse a robbery conviction. Id. at 478. Those circumstances included

not only the complainant’s testimony about the alleged robbery but also

(1) references to an extraneous indictment for murder against Easley, (2) the

complainant’s failure to report the alleged robbery soon after it took place, and

(3) Easley’s continuing to meet with the complainant “every day” after the alleged

robbery. See id. at 477–78.

      As to the alleged robbery, the complainant testified that Easley, whom he

knew, “came up behind” him one “night after the stores in town were closed”


                                        10
while he walking home from town. Id. at 477. Easley was carrying something “like

a walking stick,” and nothing else in the record explained any further what it was.

See id. at 478. The complainant testified that Easley said to him, “I want your

pocketbook,” but Easley “did not draw it (the stick) on” him. Id. at 477. The

complainant then turned and, facing Easley, called him by name and asked him,

“Clofus, what in the world do you mean?” Id. The complainant “didn’t think

[Easley] would rob [him] and was certainly surprised when [Easley] did it.” Id.

The complainant gave Easley his pocketbook “because he had a stick in his hand,”

though Easley had “never raised it.” Id. The complainant simply “didn’t want any

trouble” and “was afraid [Easley] would kill [him] if [he] didn’t give it to him.” Id.

The complainant testified that he gave Easley “the pocketbook through fear”; if he

“hadn’t been afraid,” Easley “never would have got it.” Id.

      After the incident, though, the complainant did not report to the police what

had happened. Id. In fact, the complainant testified that he “never would have told”

of the alleged robbery at all “if the grand jury had not got [him].” Id. He did not

remember the exact date of the alleged robbery and therefore “decided that, under

the circumstances, [he] would not say anything about it, and did not try to

remember it.” Id. He did not mention it to anyone until some time later, after he

learned that Easley “had been arrested on suspicion of connection with [a]

homicide.” Id.


                                         11
      The Court of Criminal Appeals held that, under “all the circumstances

disclosed by the record,” the evidence was insufficient to support Easley’s

conviction for robbery because Easley did not “put” the complainant “in fear of life

or bodily injury.” See id. at 478. To support a conviction for robbery, “the ‘putting

in fear’” element of robbery must “be sustained by evidence of acts or conduct or

words or circumstances reasonably calculated to effect that result.” Id. The

complainant’s    testimony    was    insufficient   because,   “notwithstanding   the

[complainant] testified to fear,” (1) he failed “to disclose the robbery,” (2) Easley

“met [the complainant] every day” thereafter, and (3) the disclosure before the jury

that Easley had been indicted for an extraneous murder “was probably a

controlling factor in his conviction” for robbery. Id.

      This case is different. Though McCracken didn’t “draw” his bat, like Easley

didn’t draw his walking-stick-like implement, he did threaten Bradley that he

would “whoop your ass with this bat.” Gulbadeen overheard McCracken’s threat.

By contrast, Easley made no similar threat, telling the complainant only “I want

your pocketbook.” See id. at 477–78. McCracken’s later aggression with Deputy

Thompson, and easy access to a bat in his backpack, also distinguishes his case

from Easley. And McCracken himself admitted that he threatened Bradley.

      Finally, nothing in this case compares to the circumstances following the

alleged robbery in Easley. Those circumstances undermined the sufficiency of the


                                          12
complainant’s testimony to establish a “putting in fear.” Bradley had no prior or

subsequent acquaintance with McCracken and almost immediately called law

enforcement to report McCracken’s conduct. And, though Easley’s extraneous

murder indictment probably drove his robbery conviction, McCracken’s jury heard

no similar evidence. In any event, the trial court instructed McCracken’s jury that

indictments cannot be considered as evidence of guilt, they could not consider “any

matters not in evidence,” their “sole duty . . . is to determine the guilt or innocence

of [McCracken] under the indictment in this cause,” and they should

“restrict . . . deliberations solely to the issue of guilt or innocence.” Easley does not

require a different outcome here.

      Accordingly, we overrule McCracken’s second issue.

                            Refusal of Theft Instruction

      In his first issue, McCracken contends that the trial court erred by refusing to

instruct the jury on theft as a lesser included offense because the jury rationally

could have found that he had completed the theft by the time of his words and

conduct that placed Bradley in fear of imminent bodily injury. This would mean

that the jury could have rationally found a completed theft but not the additional

robbery element that McCracken’s words and conduct toward Bradley were done

“in the course of committing [the] theft.” See TEX. PENAL CODE § 29.02(a).




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      We follow a two-step test for determining whether a trial court is required to

give a requested instruction on a lesser included offense. Bullock v. State, 509

S.W.3d 921, 924 (Tex. Crim. App. 2016). The first step is to determine whether the

requested instruction pertains to an offense that is a lesser included offense of the

charged offense, which is a matter of law. Id. An offense is a lesser included

offense if it is within the proof necessary to establish the offense charged. Id.;

Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); see also TEX. CODE

CRIM. PROC. art. 37.09. Here, we need not address this step because the State

agrees that theft is a lesser included offense of robbery. See Sweed, 351 S.W.3d at

68 & n.4; Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

      The second step asks whether the record contains evidence that supports

giving the instruction. Bullock, 509 S.W.3d at 924–25; Sweed, 351 S.W.3d at 68. A

defendant is entitled to an instruction of a lesser included offense when some

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

is guilty, he is guilty only of the lesser included offense. Bullock, 509 S.W.3d at

925; Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). The evidence

must establish that the lesser included offense is a valid, rational alternative to the

charged offense. Bullock, 509 S.W.3d at 925; Rice, 333 S.W.3d at 145.

      The second step requires examining all the evidence admitted at trial, not

just the evidence presented by the defendant. Bullock, 509 S.W.3d at 925; Goad v.


                                          14
State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). We may not “pluck[] certain

evidence from the record and examin[e] it in a vacuum.” Enriquez v. State, 21

S.W.3d 277, 278 (Tex. Crim. App. 2000); accord Bullock, 509 S.W.3d at 925

(“[A] statement made by the defendant cannot be plucked out of the record and

examined in a vacuum.”).

      Anything more than a scintilla of evidence—regardless of its credibility or

whether it conflicts with other evidence—is adequate to entitle a defendant to a

lesser charge. Bullock, 509 S.W.3d at 925; Goad, 354 S.W.3d at 446–47. Although

this threshold showing is low, it is not enough that the jury may disbelieve crucial

evidence pertaining to the greater offense; the record must contain some evidence

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

the instruction is warranted. Bullock, 509 S.W.3d at 925; Sweed, 351 S.W.3d at 68.

“Accordingly, . . . the standard may be satisfied if some evidence refutes or negates

other evidence establishing the greater offense or if the evidence presented is

subject to different interpretations.” Sweed, 351 S.W.3d at 68.

      In considering whether a lesser offense is a valid, rational alternative to the

charged offense, we compare the statutory requirements between the greater

offense (here, robbery) and the lesser offense (here, theft) to determine whether the

evidence could support a conviction for theft but not robbery. See Bullock, 509

S.W.3d at 925. To have found McCracken guilty only of theft, the jury would have


                                         15
to have found that he stole the merchandise but only threatened or placed Bradley

in fear of imminent bodily injury some time after the “immediate flight after the

attempt or commission of [the] theft,” with some intervening event or circumstance

between the immediate flight and the threat or putting in fear of serious bodily

injury. See TEX. PENAL CODE §§ 29.01(1), 29.02(a), (a)(2); Bullock, 509 S.W.3d at

925; Sweed, 351 S.W.3d at 68–69.

      McCracken contends that his theft of the merchandise was completed and

abandoned by the time of his confrontation with Bradley involving the bat. Like

the appellant in Sweed, he argues, the jury could rationally have found him guilty

of theft but not robbery.

      Sweed, however, is distinguishable. Sweed stole a nail gun from a work area,

then fled the work area and went into an apartment. Sweed, 351 S.W.3d at 69. “He

remained inside the apartment for five to twenty minutes, during which time he hid

the nail gun and changed clothes.” Id. He then left the apartment, walked

elsewhere in the complex, and talked with some people for five to ten minutes. Id.

Only after all this did Sweed encounter the complainant and pull a knife on him.

Id. The Court concluded that “the fifteen to thirty minute delay and the intervening

activities, including Appellant’s act of leaving the apartment, could rationally be

interpreted as evidence that he was no longer fleeing from the theft.” Id.




                                         16
      By contrast, McCracken’s encounter with Bradley while leaving the Target

was not similarly interrupted by some intervening event. Bradley saw McCracken

walk out of the store with a cart full of unpurchased merchandise and followed

him. When the cart’s wheels locked just outside the storefront, McCracken kept

pulling the cart. Without any intervening interruption, Bradley called out to

McCracken. McCracken responded by yelling curses and threats and putting his

hand on the bat. No evidence similar to that in Sweed suggests a break in events

between McCracken’s immediate flight and his threatening words and conduct

toward Bradley. As a result, no theft instruction was warranted. See Bullock, 509

S.W.3d at 925; Sweed, 351 S.W.3d at 68–69. Accordingly, we overrule

McCracken’s first issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                                Gordon Goodman
                                                Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




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