                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-08-352-CR
                                 NO. 2-09-185-CR


JUAN ESCOBAR, JR.                                                     APPELLANT

                                            V.

THE STATE OF TEXAS                                                          STATE

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            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      In one point, Appellant Juan Escobar, Jr. challenges the legal sufficiency of

the evidence to support his conviction for aggravated robbery. W e will affirm.




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           See Tex. R. App. P. 47.4.
                                  II. B ACKGROUND

      Escobar entered a W affle House restaurant in Lewisville, Texas, on December

9, 2007, sat down, and ordered lunch. Catherine McNeace and her six-year-old

daughter were sitting nearby eating lunch as well. As Escobar was leaving, he

walked behind McNeace, grabbed her purse, and ran out the door. McNeace

pursued Escobar, grabbed at his jacket, and yelled, “Don’t take my purse.” Escobar

pushed McNeace to the ground and ran away from the W affle House.                The

restaurant’s cook and another customer pursued Escobar as one of the waitresses

called 9-1-1.

      At this time, Juan Brown was approaching the W affle House in his truck and

saw Escobar running with a purse as the two men chased him. Believing that a

crime was being committed, Brown pulled his truck into a nearby parking lot and

intercepted Escobar. According to Brown, when he jumped out of his truck, Escobar

“brandished” a “knife.” Brown testified that Escobar “moved” the knife threateningly:

“He let me know he had the knife.” Brown also said that he “had no doubt” Escobar

was intending to use the knife. Brown further said that he thought Escobar “was

going to attack me, because . . . I was there to stop him.” Brown said he believed

Escobar was going to cut him and that he “felt [his] life was threatened.”         In

response, Brown reached into his truck, grabbed a large metal pipe, and told

Escobar, “It’s a fair fight now.” Escobar allegedly declared “[D]amn,” threw the

purse, and ran away.


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      Although the record does not state the physical proximity between Brown and

Escobar in terms of feet or inches, on three separate occasions during trial Brown

demonstrated before the trial judge and the jury where he stood in relation to

Escobar when Escobar exhibited the knife.         Using an ink pen, Brown also

demonstrated how Escobar motioned the knife at Brown.

      Daniel Martinez testified that he was on his way to get a haircut when Escobar

asked for a ride. Although Martinez said no, Escobar got into the backseat. Escobar

eventually got out and surrendered to police. Officer Duk Lee arrested Escobar and

took him to the W affle House, where McNeace identified him as the assailant.

      At trial, officer Stephen Shaffer testified that he recovered a “blue-handled

box-cutter style knife” from the backseat of Martinez’s truck. Shaffer said that the

knife was “certainly” capable of causing death or serious bodily injury. According to

Shaffer, the box cutter qualified as a deadly weapon and a person would feel

threatened if someone pointed the box cutter at him. A second officer, Michael

Larkin, also testified that based on his experience, the box cutter could “most

definitely” be used as a deadly weapon and was capable of causing serious bodily

injury or death.

      The State charged Escobar with one count of robbery with McNeace as the

alleged victim and two counts of aggravated robbery—one count with Bobby W atkins

as the alleged victim and the other with Brown as the alleged victim. The count with

W atkins as the victim was dismissed prior to trial. A jury found Escobar guilty of


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robbery as to McNeace and aggravated robbery as to Brown. The jury assessed

punishment at fifty years’ incarceration for the robbery and seventy years’

incarceration for the aggravated robbery. The sentences are set to run concurrently.

This appeal followed.

    III. L EGAL S UFFICIENCY OF E SCOBAR’S AGGRAVATED R OBBERY C ONVICTION

      In his sole point, Escobar argues that the evidence is “insufficient” to support

his conviction for aggravated robbery.         Specifically, Escobar argues that the

evidence is insufficient to establish that Brown was in fear of imminent bodily injury

or death or that the box cutter was a deadly weapon. Escobar does not discuss in

his brief a separate issue pertaining to factual sufficiency of the evidence, nor does

he discuss the applicable standard, analyze any disputed material facts, or attempt

to explain why the evidence supporting his conviction is factually insufficient. And

Escobar asked only that this court render “an acquittal.” Thus, Escobar has not

properly raised a factual sufficiency point, and we will conduct only a legal sufficiency

review. See Cardenas v. State, 30 S.W .3d 384, 386 n.2 (Tex. Crim. App. 2000)

(conducting only a legal sufficiency review when appellant made no reference to the

factual sufficiency of the evidence nor the applicable standard); Chavero v. State,

36 S.W .3d 688, 693 (Tex. App.—Corpus Christi 2001, no pet.) (en banc) (conducting

only a legal sufficiency review when defendant argued only that his “conviction

should be vacated and a judgment of acquittal entered because there was




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insufficient evidence to establish all of the necessary elements” of the offense but

failed to reference factual sufficiency or the applicable standard of review).

      A.     Legal Sufficiency Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine 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, 319, 99

S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007).

      B.     Applicable Law

      The State is required to prove every element of an offense beyond a

reasonable doubt. See Tex. Penal Code Ann. § 2.01 (Vernon 2003). The penal

code describes robbery under section 29.02 as follows:

      (a) A person commits an offense if, in the course of committing theft as
      defined in Chapter 31 2 and with intent to obtain or maintain control of
      the property, he:

             (1) intentionally, knowingly, or recklessly causes bodily
             injury to another; or

             (2) intentionally or knowingly threatens or places another
             in fear of imminent bodily injury or death.

Id. § 29.02(a) (Vernon 2003).

      2
         Under section 31.03, theft is defined as “unlawfully appropriat[ing] property
with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03 (Vernon
Supp. 2009).

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       Penal code section 29.01 defines the phrase “[i]n the course of committing

theft” as “conduct that occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft.” See id. § 29.01 (Vernon

2003). Thus, proof of a completed theft is not required to establish robbery. Wolfe

v. State, 917 S.W .2d 270, 275 (Tex. Crim. App. 1996), cert. denied, 544 U.S. 1037;

see also Purser v. State, 902 S.W .2d 641, 647 (Tex. App.—El Paso 1995, pet. ref’d),

cert. denied, 525 U.S. 838 (1998) (stating that the actual commission of theft “is not

a prerequisite” for robbery, as the “gravamen of robbery is the assaultive conduct

and not the theft”).

       Because robbery is a form of assault, the allowable unit of prosecution for

robbery (for double jeopardy purposes) is the same as that for an assault, and in

Texas the allowable unit of prosecution for an assaultive offense is each victim. Ex

parte Hawkins, 6 S.W .3d 554, 560 (Tex. Crim. App. 1999). Thus, even though only

one attempted theft might occur, the State can prosecute a defendant for multiple

robberies that stem from that single attempted theft when there are multiple assault

victims. Ex parte Padron, 16 S.W .3d 31, 34 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d).

       Under section 29.03, aggravated robbery occurs when a person commits

robbery as defined in section 29.02 and (1) causes serious bodily injury to another

or (2) uses or exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03

(Vernon 2003).


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      The penal code defines “[d]eadly weapon” as

             (A) a firearm or anything manifestly designed, made, or adapted
             for the purpose of inflicting death or serious bodily injury; or

             (B) anything that in the manner of its use or intended use is
             capable of causing death or serious bodily injury.

Id. § 1.07(a)(17) (Vernon Supp. 2009).        Factors that a jury may consider in

determining whether an object used in the commission of a theft is a deadly weapon

include (1) words of the accused, (2) the intended use of the weapon, (3) the size

and shape of the weapon, (4) testimony by the victim that he feared death or serious

bodily injury, (5) the severity of wounds—if inflicted, (6) the manner in which the

assailant allegedly used the object, (7) physical proximity of the parties, and

(8) testimony as to the weapon’s potential for causing death or serious bodily injury.

See Brown v. State, 716 S.W .2d 939, 946–47 (Tex. Crim. App. 1986) (discussing

factors used to determine whether an object qualifies as a deadly weapon); see also

Bui v. State, 964 S.W .2d 335, 341–42 (Tex. App.—Texarkana 1998, pet. ref’d.)

(same).

      C.     Legal Sufficiency Analysis

      In this case, the State provided evidence of Escobar’s acts toward Brown

during Escobar’s immediate flight from the W affle House after he had absconded

with McNeace’s purse and pushed her to the ground. The State offered testimony

by Brown that Escobar had “brandished” the box cutter and that Escobar “let [Brown]

know he had the knife.” Brown also testified that Escobar made it clear that he


                                          7
intended to use the box cutter on Brown because Brown attempted to stop Escobar.

Brown said that he feared Escobar “was going to attack” him, that he believed that

Escobar was going to cut him, and that he feared for his life. Ultimately, Brown

demonstrated his encounter with Escobar before both the trial judge and the jury,

allowing both the judge and the jury to thoroughly familiarize themselves with the

distance between Brown and Escobar and to also grasp the manner in which

Escobar exhibited the weapon toward Brown.

      Additionally, the State introduced multiple pictures of the box cutter and

displayed them to the jury. Furthermore, two police officers testified that the box

cutter was capable of causing death or serious bodily harm. See Bui, 964 S.W .2d

at 341–42.

      Viewing the evidence in a light most favorable to the prosecution, the jury

could have found beyond a reasonable doubt that, “in immediate flight after the

attempt or commission of theft,” Escobar intentionally or knowingly placed Brown in

fear of imminent bodily injury or death when he displayed the box cutter toward

Brown. See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a)(2), 29.03(2). W e hold that

the evidence is legally sufficient to support Escobar’s conviction for aggravated

robbery. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at

778. Thus, we overrule Escobar’s sole point.

                                 IV. C ONCLUSION




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      Having overruled Escobar’s sole point, we affirm the trial court’s judgment

pertaining to Escobar’s aggravated robbery conviction in cause no. 02-08-00352-CR.

Because Escobar does not challenge his robbery conviction, we also affirm the trial

court’s judgment pertaining to Escobar’s robbery conviction in cause no. 02-09-

00185-CR.



                                            BILL MEIER
                                            JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 15, 2010




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