                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00124-CR
        ______________________________


    CHRISTOPHER LYNN HOWARD, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 188th Judicial District Court
                Gregg County, Texas
             Trial Court No. 37,568-A




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                           OPINION

        A Gregg County jury found Christopher Lynn Howard guilty of aggravated robbery. See

TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). The jury assessed an enhanced punishment of

life in prison.

I.      FACTUAL BACKGROUND

        At around 9:45 p.m. on October 7, 2008, Mukesh Patolia was preparing to close his

convenience store in Longview. Immediately after he finished dealing with the last customer of

the night, he went to the store’s back office to search the Internet for information relating to the

presidential debates that occurred earlier in the evening. After having been in the back office for

approximately one minute, he saw on the security camera monitors a man enter the store wearing a

full-face covering and carrying a large gun.

        Patolia shut and locked the office door, remaining inside the office. He called 9-1-1.

From his position in the office, Patolia was able to watch the gunman by way of the security

camera monitors and a mirrored window facing into the store. He watched the gunman move

about the store and look in the restroom, an action Patolia presumed was done in search of store

employees or customers. At one point, as Patolia remained on the telephone in his hiding place,

he stopped talking to the 9-1-1 dispatcher because he heard the gunman moving outside the office

door.




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            Patolia watched as the gunman took money from beneath the counter and also took

Patolia’s wallet from behind the counter. It appeared the gunman was unable to get into the cash

register. The gunman fled the store, encountering the promptly-responding Longview Police

Department officers who had just arrived outside seconds earlier. Officers Ryan Gibson and

Anthony Minyard got back into their patrol car and gave chase to the running suspect. When

Minyard noticed a man sitting alone in his car parked underneath a covered area at a nearby body

shop, he thought this suspicious because, in the three years that he has worked in that area, no one

has ever been parked there at that time of night.

            Gibson and Minyard got out of their vehicle and approached the suspicious vehicle.

Gibson shone his flashlight into the interior, giving both officers a clear look at the man’s face and

allowing them to note that the man had a tattoo under his right eye. The driver then fled in his

vehicle. Gibson and Minyard provided fellow officers a description of the car and its direction.

Several officers joined the pursuit, and others set up a perimeter around the area. During the

pursuit, an officer was able to get a license plate number and from that information, dispatch

released the possible identification of the suspect: Chris Howard.1 Gibson and Minyard used

their in-car computer to access a photograph of Howard and confirmed that Howard was the man

the two officers had confronted in the body shop parking lot.

            The pursuit was not an extremely lengthy one; the gunman ultimately abandoned his

vehicle at an apartment complex parking lot and again started running. He eluded police that
1
    The vehicle had been stopped a few days earlier and Howard was identified as the driver.

                                                            3
night, but left behind his car and, in his car, a good deal of evidence relating to the robbery.

Howard was arrested a few days later at his residence.

       Howard now appeals his conviction for aggravated robbery. He first challenges the legal

and factual sufficiency of the evidence to support the jury’s verdict. Specifically, he maintains

that since he never came in contact or had any confrontation with Patolia, the State could not prove

that he committed the elements of aggravated robbery. He also challenges the State’s evidence of

identity. We conclude that legally and factually sufficient evidence supports the conviction,

overrule Howard’s points of error, and affirm the trial court’s judgment.

II.    STANDARDS OF REVIEW

       In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light

most favorable to the prosecution and determine whether, based on that evidence and reasonable

inferences therefrom, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009);

Roberts v. State, 273 S.W.3d 322 (Tex. Crim. App. 2008); Johnson v. State, 23 S.W.3d 1, 7 (Tex.

Crim. App. 2000).

       In a factual sufficiency review, we review all the evidence, but do so in a neutral light

instead of the light most favorable to the verdict. We determine whether the evidence supporting

the verdict is either too weak to support the fact-finder’s verdict, or, considering conflicting

evidence, is so outweighed by the great weight and preponderance of the evidence that the jury’s



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verdict is clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts, 220 S.W.3d at 524; Marshall v. State, 210

S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

            The legal and factual sufficiency of the evidence is measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234

(Tex. Crim. App. 1997); Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008). This charge

accurately promulgates the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or restrict the State’s theories of liability, and adequately describes the

particular offense. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

III.        ELEMENTS OF AGGRAVATED ROBBERY

            The Texas Penal Code provides that a person commits the offense of robbery if,

            in the course of committing theft as defined in Chapter 31 and with intent to obtain
            or maintain control of the property, he or she (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.

TEX. PENAL CODE ANN. § 29.02 (Vernon 2003). The offense becomes aggravated robbery, a first

degree felony, when the actor, inter alia, uses or exhibits a deadly weapon. See TEX. PENAL CODE

ANN. § 29.03(a)(2). The hypothetically correct jury charge would contain these requirements. 2




2
    No objection to the jury charge was presented to the trial court, and there is no complaint about it on appeal.

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       We first point out that it is not a specific element of the offense of aggravated robbery that

the actor have a confrontation with another person. The relevant statutes require that the actor

threaten or place another in fear of bodily injury or death. There need not be a physical altercation

to satisfy this element. Under the ―placed in fear‖ language of Section 29.02, the fact-finder may

conclude that an individual was ―placed in fear‖ in circumstances where no actual threats are

conveyed. See Burton v. State, 230 S.W.3d 846, 852 (Tex. App.—Houston [14th Dist.] 2007, no

pet.); Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).

We, therefore, review the evidence to determine whether it sufficiently satisfied the element of

threatening or placing another in fear of imminent bodily injury or death.

       In this context, a person acts knowingly, or with knowledge, with respect to a result of his

or her conduct when the person is aware that his or her conduct is reasonably certain to cause the

result. TEX. PENAL CODE ANN. § 6.03(b). The element of the crime of robbery, ―places another

in fear of imminent bodily injury,‖ differs from an often compared but vastly dissimilar element,

―threatens another with imminent bodily injury.‖ Williams, 827 S.W.2d at 616. The general,

passive requirement that another be ―placed in fear‖ cannot be equated with the specific, active

requirement that the actor ―threatens another with imminent bodily injury.‖ Id. Under the

―placed in fear‖ language, the fact-finder may conclude that an individual perceived fear or was

―placed in fear,‖ in circumstances where no actual threats were conveyed by the accused. Id. To




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commit robbery, the accused need not expressly threaten another or display a weapon. Pitte v.

State, 102 S.W.3d 786, 792–93 (Tex. App.––Texarkana 2003, no pet.).

       Here, Howard entered a convenience store late at night wearing a mask that on video looks

similar to Ku Klux Klan headgear. At all times, he was in possession of a long firearm that was

described as looking like an SKS assault rifle. From his vantage point, Patolia saw the masked

gunman come into the store carrying a ―big gun.‖ The gunman moved about the store in a manner

suggesting to Patolia that the gunman was searching for someone inside the store (i.e., checking

the restroom). Patolia heard the gunman outside the office door. He stopped talking to the 9-1-1

dispatcher out of fear the gunman would hear him. Detective Chris Taylor testified that the door

to the office was rather flimsy and could have ―easily [been] defeated.‖ Patolia testified that he

was concerned that he would be injured or killed, and he testified that such fear led him to be

concerned about the welfare of his wife and elderly parents, who depended on him. He worried

how his family would fare in the event he was killed in the robbery.

       The surveillance footage is consistent with Patolia’s testimony and provides a more precise

time frame in which the gunman remained in the area of the office. The footage shows that

approximately one minute and twelve seconds after Patolia left the front counter to go to the back

office, a masked gunman hastily entered the front door and, within fifteen seconds, checked the

restroom. He moved quickly in a crouched position and constantly looked about the store, always

in possession of the long rifle. After spending approximately one minute behind the counter, the



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gunman headed deliberately to the back of the store where the office is located.                  For

approximately thirty seconds, he remained out of the cameras’ view while he stayed in the general

vicinity of the office. He returned to the register and began trying to get it open. Finally, after an

encounter with an unsuspecting customer in which the gunman crouched lower behind the counter,

disregarded the customer, and continued to try to open the register, the gunman momentarily

looked out the front door and quickly exited the store.

       A jury could reasonably infer that when Howard entered the store so armed and dressed, he

anticipated that some clerk would be on duty; his actions in searching the interior of the store are

consistent with a belief on his part that someone was in some part of the store. The entire series of

events by Howard leads to a reasonable inference that Howard was reasonably certain his conduct,

dress, and possession of a large rifle would place a store attendant in fear of imminent bodily injury

or death. The very purpose of exhibiting a deadly weapon is to produce fear in the mind of the

store attendant so that he or she will comply without resistance. The evidence also fully supports

a finding that Patolia’s fear of imminent bodily injury was a reasonable belief arising from the

conduct of Howard. See Williams, 827 S.W.2d at 616.

       Though there is no evidence that Howard attempted to gain entrance to the office, there is

evidence that he was present outside the office door for some time and that such presence while

bearing a large firearm placed the hiding Patolia in fear of imminent bodily injury or death. The

fact that Patolia made it through the experience without injury and without actually having to be



                                                  8
face to face with the assault-type rifle does not mean that he was not reasonably fearful that the

masked, armed man standing outside the flimsy office door would cause him bodily injury or

death. We conclude that the evidence is both legally and factually sufficient to support the jury’s

verdict.

IV.    IDENTITY

       Patolia testified and the surveillance camera footage shows that the gunman who entered

the store had his entire head covered save his eyes. Patolia admitted that he did not see the

gunman’s face. The surveillance footage shows that the gunman wore a light grey shirt or jacket

with a thick black or dark-colored stripe running across the top of each shoulder; the long facial

covering obscures the front of the shirt or jacket. In-dash cameras from the police pursuit showed

a man leaving the car being pursued wearing a shirt styled in the same manner. After the police

found a man in a nearby suspiciously-parked vehicle during the pursuit of the suspect from the

scene of the crime, the officers made note of the distinct tattoo on the suspect’s face. That same

suspect then fled in a car that was traced to Howard, and police were able to confirm his identity by

a photograph of Howard showing the same facial tattoo. As the pursuit of the vehicle ended, a

police car came in contact with Howard’s car, forcing him to touch the police officer’s car in order

to flee the area. Later testing could not provide a definitive match because the fingerprints taken

from the police car were not clear enough. Howard ran from the car and was able to avoid

immediate arrest.



                                                 9
       In the car from which Howard fled, police officers discovered an assault-type rifle

consistent with the one in the surveillance footage, black socks consistent with the hand coverings

shown in the surveillance footage, Patolia’s wallet, and white T-shirts consistent with the face

covering used in the robbery. Discovery of these items in the car, from which Howard fled, link

Howard directly to the crime. The clothing, the identification through the vehicle, the recognition

of the facial tattoo, and the immediate discovery of items relating to the crime are legally sufficient

evidence to support the jury’s finding as to the element of identity.

       The jury was free to disbelieve the evidence that would suggest someone other than

Howard was driving the car that night. In a custodial statement, Howard maintained that he was

in Dallas the day of the robbery. He maintained that he was with one Brandon McCloud,

although police were never able to locate McCloud to confirm Howard’s story. Howard was

unable to provide police with any contact information for McCloud. Howard also suggested that

he sold the car prior to the date of the robbery. Howard’s sister and his niece testified that

Howard had sold the vehicle in question to a man named Anthony or ―A.D.‖ or ―A.T.‖ Neither

witness was able to provide any more information about ―Anthony,‖ nor any details regarding the

alleged sale other than it may have taken place on a weekday in October. Contradictory to

Howard’s story about having sold the car, Detective Taylor testified that on the dash of the

abandoned car, there was a picture of Howard and an unidentified male, an unlikely automobile

accessory if the car had, in fact, been sold to another person whose last name and contact



                                                  10
information no one connected to the case was able to provide. Also discovered in the car was a

bill of sale bearing Howard’s name as purchaser of the car.

       We conclude that the evidence is not too weak to support the fact-finder’s verdict.

Further, considering this evidence suggesting that someone other than Howard was the person who

was in the car that night, we cannot say that the evidence supporting the verdict is so outweighed

by the great weight and preponderance of the evidence that the jury’s verdict is clearly wrong and

manifestly unjust. We overrule Howard’s point of error.

V.     CONCLUSION

       Having concluded that the evidence is legally and factually sufficient to support the jury’s

verdict, we overrule Howard’s points of error and affirm the trial court’s judgment.




                                             Jack Carter
                                             Justice

Date Submitted:       January 19, 2010
Date Decided:         February 23, 2010

Publish




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