Affirmed and Opinion Filed December 17, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-19-00063-CR

                             TEKLEA GEBREYESUS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1855502-V

                              MEMORANDUM OPINION
                      Before Justices Bridges, Molberg, and Partida-Kipness
                               Opinion by Justice Partida-Kipness

       Appellant Teklea Gebreyesus appeals from his conviction for robbery. In one issue,

appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm the

judgment. Because the issues are settled in law, we issue this memorandum opinion. See TEX. R.

APP. P. 47.4.


                                           Background

       Shortly after 1:00 a.m. on July 1, 2018, appellant walked into the Kwik Trip gas station

and convenience store located near Greenville Avenue and Park Lane in Dallas County, Texas.

Appellant testified that he went to the Kwik Trip with the intent to steal beer from the store.

       Justin Hershberger was the night manager at the Kwik Trip on July 1 working the overnight

shift from 9:30 p.m. to 7:00 a.m. Hershberger had worked for Kwik Trip for approximately four
months at the time of the robbery, but July 1 was only his second shift at the Greenville Avenue

location. He was alone in the store when appellant entered the store. Hershberger testified that he

heard a voice and when he saw appellant, he said hello and welcomed appellant to the store.

Hershberger testified that appellant made a threat by lifting up his shirt and saying he had a firearm.

Appellant then went to the back of the store, grabbed some beer, and started walking out.

Hershberger challenged appellant before allowing him to leave the store, something he admitted

at trial was not a good idea. He testified, however, that he “was pretty intimidated and I just – I

was taught when you’re frightened to fight.”

          Kwik Trip’s security system recorded video and audio surveillance footage of the robbery.

In the footage, appellant can be seen walking into the store through the front doors. Hershberger

says hello, and appellant says something to Hershberger that sounds like motherf***er as he walks

in front of the counter and to the back of the store. Appellant then stops walking, turns back to

Hershberger and says “I’ll show you my pistol.” Appellant then lifts his shirt to show his stomach

and waistband. He then walks off screen briefly. When appellant comes back on screen, he has a

box of beer and walks toward the front door. As he is walking toward the door and toward

Hershberger, appellant again says “I’ll show you my pistol.” Hershberger says “Go ahead. Go

ahead. Come on,” but the video shows that appellant kept walking with the beer and left the store.

Hershberger followed him out the door, yelling “Put the beer down,” but appellant did not stop.

Hershberger explained at trial that he followed appellant out of the store because he was trying to

see where appellant was going so he could get the best description possible.

          Hershberger also told the court that he considered appellant’s words and actions to be a

threat:

          Q. Justin, when the defendant came in and was mouthing something, lifted up his
          shirt, and said, “I’ll show you my pistol,” what did you take that to mean?



                                                 –2–
       A. I just -- I took it as an overall threat. That late at night in that area, and I’m by
       myself and somebody just starts screaming, and I’ve seen enough to know that
       when somebody lifts their shirt up like that, it typically means they’re going to show
       a weapon. I didn’t understand what he said originally, but it was -- it was really
       intense.

At the time, Hershberger thought he saw a handle of either a firearm or a knife in appellant’s

waistband when appellant raised his shirt. This was the first time this had ever happened to

Hershberger.

       Hershberger alerted an internal Kwik Trip security team to the incident, but he did not

immediately contact the police because he thought the security team would decide if police

involvement was necessary. Several hours later, however, appellant returned to the store, and that

prompted Hershberger to contact the police directly. When the police responded to that call, they

learned that a man matching the appellant’s description was nearby. The responding officers

located appellant, spoke to him briefly and, after appellant attempted to run away from the officers,

tackled him and placed him under arrest.

       Appellant was indicted for robbery under section 29.02 of the Texas Penal Code. The

indictment alleged:

       [On or about July 1, 2018, Gebreyesus] intentionally and knowingly, while in the
       course of committing theft of property and with intent to obtain or maintain control
       of said property, threaten or place JUSTIN HERSHBERGER in fear of imminent
       bodily injury and death.

The indictment included one enhancement paragraph for a 2014 robbery conviction.

       Following a bench trial, the trial court found appellant guilty of robbery as alleged in the

indictment. Appellant plead true to the enhancement, the trial court accepted that plea and assessed

punishment at ten years’ confinement. On appeal, appellant argues the evidence is legally

insufficient to support the conviction for robbery. Specifically, appellant maintains the evidence is

legally insufficient to establish that appellant intentionally or knowingly threatened or placed

Hershberger in fear of imminent bodily injury or death.

                                                –3–
                                       Standard of Review

       A challenge to the sufficiency of the evidence is evaluated under the standards established

in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex.

Crim. App. 2010). We review the evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 894–95. This standard

of review for legal sufficiency is the same for both direct and circumstantial evidence. Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). We must presume that the factfinder resolved any conflicting inferences in

favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326.

       For the evidence to be sufficient, the State need not disprove all reasonable alternative

hypotheses that are inconsistent with appellant’s guilt. Wise, 364 S.W.3d at 903. Rather, we

consider only whether the inferences necessary to establish guilt are reasonable based upon the

cumulative force of all the evidence when considered in the light most favorable to the verdict.

Hooper, 214 S.W.3d at 13.

                                             Robbery

       A person commits theft if he unlawfully appropriates property with intent to deprive the

owner of property. TEX. PENAL CODE ANN. § 31.03(a). A person commits robbery if, in the course

of committing theft, 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 ANN. § 29.02(a)(2). This statute, written in the disjunctive, covers both a situation in which

the defendant actually threatens the victim and a situation in which the defendant implicitly

threatens the victim and places the victim in fear. Howard v. State, 333 S.W.3d 137, 138–39 (Tex.

Crim. App. 2011).


                                                –4–
       It is not necessary for an alleged robber to display a weapon or make an express threat to

support a finding that the victim was threatened or placed in fear. See Cranford v. State, 377

S.W.2d 957, 958–59 (Tex. Crim. App. 1964); Davis v. State, 796 S.W.2d 813, 816 (Tex. App.—

Dallas 1990, pet. ref’d). The victim of a robbery may reasonably perceive fear in circumstances

where no actual threats were conveyed by the defendant. See Welch v. State, 880 S.W.2d 225, 226–

27 (Tex. App.—Austin 1994, no pet.) (appellant was not armed and did not expressly threaten

victim—generally aggressive manner was sufficient to place bank teller in fear); Knight v. State,

868 S.W.2d 21, 24–25 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (pushing convenience

store clerk’s hands away, having what appeared to be a gun handle in his pocket); Wilmeth v. State,

808 S.W.2d 703, 706 (Tex. App.—Tyler 1991, no pet.) (menacing glance and a hand gesture, no

verbal threats). Further, a defendant can accomplish the threat of bodily injury by causing the

complainant to believe in some way that the defendant has a weapon. Rose v. State, 672 S.W.2d

639, 640 (Tex. App.—Fort Worth 1984, pet. ref’d) (citing Anderson v. State, 221 S.W.2d 268, 270

(1949); Bartley v. State, 205 S.W.2d 600, 601 (1947)). The defendant’s actions are sufficient to

satisfy the threat element of the offense if they are “of such nature as in reason and common

experience is likely to induce a person to part with his property against his will.” Howard, 333

S.W.3d at 138 (quoting Cranford, 377 S.W.2d at 958).

                                             Analysis

       Appellant admitted to committing theft. During his direct examination, appellant admitted

to walking into the store, taking the beer, and not paying for it. During closing argument, defense

counsel told the court there was “no doubt that the defendant stole beer.” The only issue contested

below was whether appellant’s actions satisfied the threat element that would turn his theft into

robbery. On appeal, appellant argues the evidence was legally insufficient to support the robbery

conviction. We conclude, as the trial court did, that the evidence was legally sufficient.


                                                –5–
       Hershberger testified that appellant made a threat by lifting his shirt and saying he had a

firearm. Hershberger also testified that he felt “pretty intimidated” by appellant’s actions. The

store’s surveillance footage captured appellant walking into the store, turning back to Hershberger

and saying “I’ll show you my pistol,” and lifting his shirt to show his stomach and waistband. The

video also shows appellant walking toward the front door with a box of beer and captured appellant

telling Hershberger again “I’ll show you my pistol” before he leaves the store without paying for

the beer. Hershberger testified that when someone lifts their shirt to show their waistband like

appellant did, that usually means the person has a weapon in the waistband and is threatening you

by showing the weapon. He further testified that he thought he saw a handle of a knife or gun in

appellant’s waistband.

       The evidence showed that appellant displayed a weapon or, at a minimum, appeared to

display a weapon. Further, viewing the evidence in the light most favorable to the prosecution, the

evidence showed that appellant’s threatening body language placed Hershberger in actual fear and

caused him to believe appellant intended his words and actions as an overt threat. From that

evidence, the trial court judge, acting as fact-finder, could have rationally found appellant placed

Hershberger in fear of imminent bodily injury or death. Accordingly, Hershberger’s testimony and

the surveillance footage constituted legally sufficient evidence to support the trial court’s

determination that appellant was guilty of robbery.

                                           Conclusion

       We resolve appellant’s single issue against him and affirm the judgment.




                                                   /Robbie Partida-Kipness/
DO NOT PUBLISH                                     ROBBIE PARTIDA-KIPNESS
TEX. R. APP. P. 47                                 JUSTICE
190063F.U05

                                                –6–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 TEKLEA GEBREYESUS, Appellant                       On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-19-00063-CR        V.                       Trial Court Cause No. F-1855502-V.
                                                    Opinion delivered by Justice
 THE STATE OF TEXAS, Appellee                       Partida- Kipness. Justices Bridges and
                                                    Molberg participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of December, 2019.




                                             –7–
