                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-18-00184-CR
                                __________________

                   TARRELL DONALD NOWLIN, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee

__________________________________________________________________

                 On Appeal from the 9th District Court
                     Montgomery County, Texas
                   Trial Cause No. 17-04-05123-CR
__________________________________________________________________

                           MEMORANDUM OPINION

      A jury convicted appellant Tarrell Donald Nowlin of robbery, and the trial

court assessed punishment at thirty years of confinement as a habitual offender. In

two issues on appeal, Nowlin argues that the evidence was legally insufficient to

support his conviction, and that the trial court abused its discretion by failing to have

testimony read back in response to a jury question. We affirm the trial court’s

judgment.
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                          PERTINENT BACKGROUND

      A grand jury indicted Nowlin for robbery, a second-degree felony. The

indictment alleged that Nowlin

      while in the course of committing theft of property and with intent to
      obtain or maintain control of said property, intentionally or knowingly
      threaten[ed] or place[d] [R.G.] in fear of imminent bodily injury or
      death[.]

R.G. testified that in April 2017, she was working at a bank when Nowlin

approached her teller window and said, “‘Give me all your hundreds.’” R.G. testified

that Nowlin was aggressive and firm, and that, although she did not see a weapon in

Nowlin’s hands, she had the impression that Nowlin had some sort of weapon and

that he was ready to use it. R.G. testified that during the robbery she was frightened

and afraid of immediate bodily injury or death. R.G. explained that Nowlin told her

not to mess with him, so she gave him all her hundreds.

      Three of R.G.’s co-workers testified at trial. B.B. testified that the robbery

was a scary event and that she was scared for her co-workers, because she heard

Nowlin threaten the teller and say, ‘“Don’t make me use this.”’ B.B. testified that

she believed Nowlin had a weapon. T.A. testified that during the robbery, R.G.

looked shocked and scared, and when R.G. ran out of hundreds, Nowlin told R.G.

not to mess with him. T.A. testified that she thought Nowlin had a weapon because


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he said, ‘“Don’t make me use this.”’ S.P. also testified that she heard Nowlin say,

‘“Don’t make me use this.”’

      Nowlin moved for a directed verdict, arguing, among other things, that the

evidence failed to show that he had placed anyone in fear. The trial court denied

Nowlin’s motion. The jury found Nowlin guilty of robbery, and the trial court

sentenced Nowlin to thirty years of confinement as a habitual felony offender.

Nowlin appealed.

                                      ANALYSIS

      In issue one, Nowlin challenges the legal sufficiency of the evidence. Nowlin

argues that the evidence failed to show that in the course of committing theft of

property, he knowingly and intentionally threatened or placed R.G. in fear of

imminent bodily injury or death. According to Nowlin, his words and conduct are

clearly insufficient to place a reasonable person in the victim’s circumstances in fear

of imminent bodily injury or death.

      In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). The factfinder is the ultimate authority on the credibility of

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witnesses and the weight to be given their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give full deference to the

factfinder’s responsibility to fairly resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must

presume that the factfinder resolved such facts in favor of the verdict and defer to

that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also “‘determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17).

      A person commits the offense of robbery if, in the course of committing theft

and with the 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 Ann. § 29.02(a)(2) (West 2019); Boston v. State, 410 S.W.3d 321,

325 (Tex. Crim. App. 2013). The Texas Penal Code defines intentionally and

knowingly as follows:

      (a) A person acts intentionally, or with intent, with respect to the nature
      of his conduct or to a result of his conduct when it is his conscious
      objective or desire to engage in the conduct or cause the result.

                                          4
      (b) A person acts knowingly, or with knowledge, with respect to the
      nature of his conduct or to circumstances surrounding his conduct when
      he is aware of the nature of his conduct or that the circumstances exist.
      A person acts knowingly, or with knowledge, with respect to a result of
      his conduct when he is aware that his conduct is reasonably certain to
      cause the result.

Tex. Penal Code Ann. § 6.03(a), (b) (West 2011). Because the robbery statute

includes implicit threats that may lead the victim to being placed in fear and to

parting with property against her will, any actual or perceived threat of imminent

bodily injury will satisfy this element of the offense. Howard v. State, 333 S.W.3d

137, 138 (Tex. Crim. App. 2011).

      R.G. testified that although she did not see a weapon during the robbery, R.G.

had the impression that Nowlin had a weapon and that he was prepared to use it.

R.G. testified that when she ran out of money to give Nowlin, he told her not to mess

with him, and R.G. explained that she was afraid of immediate bodily injury or death.

B.B. testified that she was scared for her co-workers and she believed that Nowlin

had a weapon, because she heard Nowlin threaten the teller. T.A. testified that during

the robbery, R.G. looked scared, and T.A. thought Nowlin had a weapon. T.A. and

S.P. testified that they heard Nowlin say, ‘“Don’t make me use this.”’

      Based on our review of the record, there was sufficient evidence for a rational

jury to infer that Nowlin threatened R.G. by his actions, that R.G. perceived the

threatening behavior, and that R.G. was placed in fear of imminent bodily injury or
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death because of Nowlin’s threatening behavior. See Boston, 410 S.W.3d at 326-27.

A rational jury could have also inferred from this evidence that Nowlin was aware

that it was reasonably certain that his actions would place someone in fear of

imminent bodily injury or death. See Howard, 333 S.W.3d at 140. Viewing all the

evidence in the light most favorable to the verdict, the jury could conclude, beyond

a reasonable doubt, that Nowlin committed the offense of robbery. See Tex. Penal

Code Ann. § 29.02(a)(2); Jackson, 443 U.S. at 319; see also Hooper, 214 S.W.3d at

13. Accordingly, we overrule issue one.

      In issue two, Nowlin argues that the trial court abused its discretion by failing

to read back testimony in response to one of the jury’s questions about R.G.’s

testimony. According to Nowlin, the trial court should have read back R.G.’s entire

testimony consisting of seventeen pages instead of giving a generic answer advising

the jury that it could not locate testimony responsive to the request. Nowlin did not

object to the trial court’s response.

      Article 36.28 of the Texas Code of Criminal Procedure governs the

circumstances under which a trial court may read a potion of the reporter’s record to

the jury during deliberations. Tex. Code Crim. Proc. Ann. art. 36.28 (West 2006).

To preserve a complaint that the trial court failed to comply with article 36.28, a

defendant must either object or file a bill of exception. Hollins v. State, 805 S.W.2d

                                          6
475, 476 (Tex. Crim. App. 1991); Williamson v. State, 771 S.W.2d 601, 605 (Tex.

App.—Dallas 1989, pet. ref’d). When a defendant fails to preserve error, the trial

court’s actions are presumed to comply with the requirements of article 36.28, and

any alleged error is waived. Hollins, 805 S.W.3d at 476-77; Maldonado v. State, 425

S.W.2d 646, 648 (Tex. Crim. App. 1968); Williamson, 771 S.W.2d at 605.

      Because Nowlin failed to make a timely objection or file a bill of exception

concerning the trial court’s alleged failure to comply with the requirements of article

36.28, he has failed to preserve this issue for our review. See Hollins, 805 S.W.2d at

476-77; Maldonado, 425 S.W.2d at 648; Williamson, 771 S.W.2d at 605. We

overrule issue two. Having overruled each of Nowlin’s issues, we affirm the trial

court’s judgment.

      AFFIRMED.

                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice

Submitted on June 6, 2019
Opinion Delivered July 10, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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