
NO. 07-04-0235-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 23, 2004

______________________________


BENNY JOE ALVAREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,644-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.
ABATEMENT AND REMAND
	Following his plea of not guilty, appellant Benny Joe Alvarez was convicted by a jury
of aggravated assault with a deadly weapon, enhanced, and punishment was assessed at
27 years confinement.  Both the clerk's record and reporter's record have been filed. 
Attorney Gerald D. McDougal filed an Anders brief on July 16, 2004, and appellant filed a
pro se response on November 18, 2004. (1)  The State did not favor us with a brief.  Upon
suggestion of death of appellant's attorney, we now abate this appeal and remand the
cause to the trial court.
	Upon remand, the trial court shall immediately cause notice of a hearing to be given
and, thereafter, conduct a hearing to determine the following:
	1.  whether appellant desires to prosecute this appeal; and
	2. whether appellant is indigent and entitled to new appointed counsel.

The trial court shall cause a hearing to be transcribed.  Should it be determined that
appellant does want to continue the appeal and is indigent, then the trial court shall also
take such measures as may be necessary to assure appellant effective assistance of
counsel, which measures may include the appointment of new counsel.  If new counsel is
appointed, the name, address, telephone number, and state bar number of said counsel
shall be included in the order appointing new counsel.  The trial court shall execute findings
of fact, conclusions of law, and such orders as the court may enter regarding the
aforementioned issues, and cause its findings and conclusions to be included in a
supplemental clerk's record.  A supplemental record of the hearing shall also be included
in the appellate record.  Finally, the trial court shall file the supplemental clerk's record and
supplemental reporter's record with the Clerk of this Court by Friday, January 14, 2005.
	Should new counsel be appointed, the Clerk of the Court is instructed to accept and
file any brief or supplemental brief newly appointed counsel desires to file.  Absent a motion
for extension of time, new counsel's brief(s) shall be due within 30 days after filing of the
supplemental clerk's and reporter's records.  The State's brief will be due within 60 days
following filing of the supplemental clerk's and reporter's records or within 30 days following
the filing of new counsel's brief(s), whichever is later.  Tex. R. App. P. 38.6(a) & (b). 
 It is so ordered.

	Per Curiam


Do not publish.
1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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NO. 07-09-0178-CR
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

DECEMBER
15, 2010
 

 
MICHUEL ALLEN REAMY,  
 
                                                                                         Appellant

v.
 
THE STATE OF TEXAS,  
 
                                                                                         Appellee
_____________________________
 
FROM THE 47TH DISTRICT COURT OF POTTER
COUNTY;
 
NO. 58,867-A; HONORABLE HAL MINER,
PRESIDING
 

 
Memorandum
Opinion
 

 
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Michuel Allen Reamy challenges his
conviction of aggravated robbery by contending the evidence is insufficient to
show he 1) intentionally or knowingly threatened another or placed another in
fear of imminent bodily injury or death, 2) used or exhibited a deadly weapon
in the course of committing robbery, and 3) employed a weapon in any manner
that facilitated a robbery.  We disagree
and affirm the conviction.
 
 
Background
On November 18, 2008, Juan Montelongo, the
manager of the Pilot store at Lakeside and I-40 in Amarillo, heard strange
noises and observed appellant acting suspiciously around a case containing electronics.  He then saw appellant walk toward him and
leave the store.  Montelongo went
straight to the glass case which was broken and determined that two radar
detectors were missing.  
            Montelongo
got in his vehicle and followed appellant to Americas Best Value Inn.  He confronted appellant but appellant denied
that he had stolen anything.  




Appellant
then moved towards him so Montelongo attempted to restrain appellant.  The two wrestled with each other and fell
into the door of the motel when it was opened by a person in the motel.  Montelongo kept appellant pinned to the
ground.  While doing so, a knife was
observed in appellants hand.  Montelongo
released appellant after the police arrived.  The two radar detectors were found on
appellant at the police station.
            Sufficiency
of the Evidence
            Although appellant has challenged
both the legal and factual sufficiency of the evidence, we conduct a review
only to determine whether a rational trier of fact could have found the
elements of the crime beyond a reasonable doubt.  Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. Lexis 1240 at *57 (Tex. Crim. App.
October 6, 2010).  To prove aggravated
robbery, the State was required to show that while in the course of committing
theft of property and with intent to obtain and maintain control of that
property, appellant intentionally or knowingly threatened and placed Montelongo
in fear of imminent bodily injury and death and that he used or exhibited a
deadly weapon during the commission of the robbery.  Tex.
Penal Code Ann. §29.02(a)(2) & 29.03(a)(2)
(Vernon 2003).  
Appellant testified at trial. 
In doing so, he admitted to stealing the two items from the Pilot store
and to leaving the store with the intent to maintain control over them and to
avoid capture.[1]  He further admitted that he had denied to
Montelongo and the police that he had stolen anything.  However, he claimed that he never exhibited a
knife or threatened Montelongo.  According
to appellant, he carried his knife clipped on his pocket and, when Montelongo attacked
him, the knife fell out.  
 Nevertheless, there
was evidence that 1) appellant was excited and angry, 2) appellant stepped
toward Montelongo, 3) appellant struggled against Montelongos attempted
restraint of him, 4) Montelongo saw a knife in appellants hand with an open
blade while they were struggling, 5) appellant would not let go of the knife
although Montelongo instructed him to do so more than once, 6) a motel employee
(Luis Rodriguez) testified that another person (Juan Fuentes) removed the knife
from appellants hand, 7) Fuentes testified that he saw the knife in
appellants hand while appellant struggled with Montelongo, 8) the knife was
three to three and a half inches long and was a lock blade knife, 9) Montelongo
stated that the knife used by appellant could have caused serious bodily injury
or death and that he was concerned that appellant might use it on him, and 10)
a police officer testified that such a knife was capable of causing serious
bodily injury or death.  
Actions taken during flight from a theft constitute part of
the offense of aggravated robbery.  Garza v. State, 100 S.W.3d 347, 349
(Tex. App.San Antonio 2002, no pet.); see
also McCall v. State, 113 S.W.3d 479, 481 (Tex. App.Houston [1st
Dist.] 2003, no pet.) (holding that violence
accompanying an escape subsequent to a theft can constitute aggravated
robbery); Rabb v. State, 681 S.W.2d
152, 154 (Tex. App.Houston [14th Dist.] 1984, pet. refd) (holding
that robbery includes violence that occurs in immediate flight from the scene
of a theft).  Moreover, use of a deadly
weapon can be simple possession as long as it facilitates the commission of the
associated offense.  Coleman v. State, 145 S.W.3d 649, 652
(Tex. Crim. App. 2004).  Therefore,
if the jury disbelieved appellant, there was evidence from which it could have
inferred beyond a reasonable doubt that appellant intended to use the knife in
order to escape from Montelongo and maintain possession of the stolen property.[2]  
Accordingly, the issues are overruled and the judgment is
affirmed.
 
                                                            Per
Curiam
 
 
Do
not publish.




[1]Appellant
also admitted to being intoxicated.


[2]Even
if factual sufficiency review was appropriate, we would conclude, from the
entirety of the record, that the evidence is factually sufficient to support
appellants conviction.


