                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-17-00236-CR

                                        Kevin Leland DAVIS,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR10897
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 25, 2018

AFFIRMED

           Kevin Leland Davis appeals his conviction for robbery. He argues that there is legally

insufficient evidence to support his conviction and that he received ineffective assistance of

counsel. We affirm the judgment of conviction.

                                            BACKGROUND

           The facts of this case are undisputed. Davis went to a bank inside of an H-E-B, approached

banker Tiffany Cerda, and said, “This is a robbery,” and “This is not a joke.” Davis also showed

Cerda a note that stated, “This is a robbery.” Davis threw a plastic bag onto the counter and
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instructed Cerda to put money in the bag, and Cerda put approximately $700 in the bag. Davis

took the bag and told Cerda not to touch the alarm. Davis left with the money, and Cerda and

another bank employee, Lawanna Johnson, locked themselves in the vault until the police arrived.

Davis was thereafter arrested.

       Davis was indicted for robbery, specifically by committing theft while intentionally and

knowingly threatening and placing Cerda in fear of imminent bodily injury and death. Davis pled

not guilty, and the case proceeded to a jury trial. Cerda and Johnson testified about the incident,

and San Antonio Police Department officer Christopher Estrada testified about his response to the

report of a robbery. Several other witnesses testified, either to lay the foundation for the admission

of video recordings, or to explain how Davis was caught and identified as the perpetrator of the

offense. The trial court also admitted video recordings of the incident taken by cameras inside the

bank. After hearing the evidence, the jury returned a guilty verdict. The trial court assessed and

imposed Davis’s punishment. Davis timely appealed.

                                       LEGAL SUFFICIENCY

       In his first issue, Davis argues that there is legally insufficient evidence that he committed

robbery. In reviewing the legal sufficiency of the evidence, we ask whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307 (1979); accord Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We review the evidence “in the light most favorable to the verdict.” Merritt v. State, 368

S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal is restricted to guarding against the

rare occurrence when a factfinder does not act rationally,” and we must “defer to the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010).

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           In this case, the State was required to prove Davis, in the course of committing theft,

intentionally or knowingly threatened or placed Cerda in fear of imminent bodily injury or death.

See TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2014); see also Boston v. State, 410 S.W.3d 321,

325 (Tex. Crim. App. 2013). “‘Bodily injury’ means physical pain, illness, or any impairment of

physical condition.” TEX. PENAL CODE ANN. § 1.07(a)(8). Unlike aggravated robbery, robbery

does not require that the State prove additional elements, such as the defendant using or exhibiting

a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2). Davis does not challenge that he was

the individual at the bank who took money from Cerda or that he committed theft. 1

           Davis argues there is no evidence that he intentionally or knowingly threatened or placed

Cerda in fear of imminent bodily injury or death. 2 Cerda testified she was a bank employee, and

Davis approached her and said “This is a robbery,” showed her a note stating, “This is a robbery,”

and said, “This is not a joke.” Cerda testified she went into a state of shock, pressed the bank’s

alarm after Davis turned around to exit the bank, told Johnson the bank had just been robbed, and

hid with Johnson in the vault until the police arrived. She also testified she was afraid Davis could

hurt her, she did not know if he had a weapon, and she interpreted Davis’s note as a threat he would

hurt her if she did not give him the money. Johnson testified Cerda started to cry when she said

they had just been robbed. Officer Estrada also testified Cerda was “very shaken” and said she was

frightened. Davis cites statements from Cerda’s testimony that he argues undermines her

credibility as a witness; specifically, her statements that she was not alarmed when she saw him

standing in line and her ambiguous testimony suggesting she thought Davis was joking. However,

we must defer to the jury’s responsibility to weigh the evidence. See Isassi, 330 S.W.3d at 638.


1
    Having reviewed the record, we would hold the evidence was legally sufficient as to the other elements as well.
2
  Davis also argues there is no evidence he caused any bodily injury, but that argument is misplaced because the
indictment did not allege that he committed robbery by causing bodily injury. We therefore need not address this
contention.

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       Davis further argues there is no evidence that he did anything intentionally or knowingly

to place Cerda in fear of imminent bodily injury. He notes there is no evidence that he was carrying

a weapon, told Cerda he had a weapon, or said he was going to cause any type of injury to Cerda.

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.

       (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 (West 2011). The evidence showed that Davis went into a bank,

told Cerda “This is a robbery,” and “This not a joke,” and handed Cerda a note stating, “This is a

robbery.” The jury rationally could have inferred from this evidence that Davis’s conscious

objective or desire was to threaten or place Cerda in fear of physical pain or an impairment of her

physical condition, he was aware his conduct was threatening, or he was aware the surrounding

circumstances were reasonably certain to cause Cerda to fear imminent physical pain or an

impairment of her physical condition. See Russell v. State, No. 10-13-00032-CR, 2014 WL

2466530, at *2 (Tex. App.—Waco May 29, 2014, no pet.) (mem. op., not designated for

publication) (affirming robbery conviction when appellant told hotel employee “Give me all your

money. This is a robbery” and employee did not think it was a joke and feared appellant might

hurt her, even though appellant did not exhibit a weapon). We hold there is legally sufficient

evidence that Davis committed theft and intentionally, or knowingly threatened or placed Cerda

in fear of imminent bodily injury or death.




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                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Davis also argues he received ineffective assistance of counsel. Sixth Amendment

ineffective assistance of counsel claims are governed by Strickland v. Washington’s two-prong test

under which we determine (1) whether trial counsel’s representation was constitutionally deficient,

and (2) whether the deficient performance prejudiced the defense. 466 U.S. 668 (1984); accord

Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet. ref’d). To satisfy

Strickland’s first prong on direct appeal, the record must demonstrate: (1) trial counsel’s deficient

performance of some act or failure to perform some act, and (2) trial counsel had no reasonable

trial strategy for the act or omission. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.

2011). “Any allegation of ineffectiveness must be firmly founded in the record.” Russell, 90

S.W.3d at 875.

       “There is a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Generally, trial counsel should be afforded an opportunity to explain “his actions before

being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

When trial counsel is not given that opportunity, we will not find trial counsel’s performance

deficient unless the challenged conduct was “so outrageous that no competent attorney would have

engaged in it.” Id. Thus, “[u]nder normal circumstances, the record on direct appeal will not be

sufficient to show that counsel’s representation was so deficient and so lacking in tactical or

strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable

and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

       Davis contends his trial counsel’s performance was deficient in several ways. First, he

argues trial counsel should have objected to the testimony of witnesses who, in explaining how

Davis was apprehended, suggested Davis had a criminal record. For example, Davis’s parole

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officer testified she recognized Davis’s face in a photo she saw on Crime Stoppers and stated Davis

had a Texas Department of Corrections number. Second, he contends trial counsel should have

moved for a directed verdict because there was legally insufficient evidence that he committed a

robbery. Third, Davis argues trial counsel’s performance was deficient because trial counsel failed

to request a lesser included offense instruction on theft.

        We however have held there is legally sufficient evidence to support the jury’s verdict that

Davis committed robbery. Furthermore, Davis’s trial counsel was not afforded an opportunity to

explain his actions, and the record before us is silent as to why he did not request the lesser included

offense instruction or object to the evidence suggesting Davis had a criminal history. Davis also

does not cite to any evidence showing that he would have been entitled to a lesser included offense

instruction on theft had trial counsel requested one. See Hall v. State, 225 S.W.3d 524, 536 (Tex.

Crim. App. 2007) (requiring, for lesser included offense instruction, there be affirmative evidence

that defendant, if guilty, is “guilty only of the lesser-included offense”). Based on the record before

us, we hold Davis has failed to overcome the strong presumption that his trial counsel’s conduct

fell within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 813.

We therefore cannot say Davis received ineffective assistance of counsel.

                                            CONCLUSION

        We affirm the trial court’s judgment of conviction.

                                                    Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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