                                    NO. 07-03-0282-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                    JUNE 10, 2004
                           ______________________________

                                   GILBERT VASQUEZ,

                                                           Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                     NO. B14800-0301; HON. ED SELF, PRESIDING
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Appellant Gilbert Vasquez challenges his conviction for robbery by contending that

1) the trial court erred in failing to instruct the jury on the lesser-included offense of theft

from the person, 2) the trial court erred by including language in the jury charge that

allowed the jurors to convict if they found he threatened or placed his victim in fear of

imminent death, 3) the State wrongly referred to appellant having taken a life in the past

in its closing argument during the punishment phase, and 4) he received ineffective

assistance of counsel. We affirm the judgment of the trial court.
                                       Background

       On January 4, 2003, at approximately 4:30 a.m., Christina Riojas, a clerk at an

Allsup’s convenience store in Plainview, observed appellant enter the store and go into the

restroom. Shortly thereafter, he came out, went around behind her without her knowledge

in an area off-limits to customers, and placed something against her back. He then told

her to go to the register, open it, step back, and go into the restroom. She complied with

all four directives. Furthermore, Riojas waited in the restroom until she heard the bell from

the door. The police were called and informed of the incident. Thereafter, the investigating

detective recognized appellant from the store video of the robbery, and placed his picture

in a photographic line-up for Riojas to peruse. She selected appellant’s photo from the

line-up. Ultimately, a jury convicted appellant of robbery and assessed the maximum

sentence of 20 years confinement and a $10,000 fine.

                        Issue One - Lesser-Included Instruction

       In his first issue, appellant argues that he was entitled to an instruction on the

lesser-included offense of theft from a person. We overrule the issue.

       No one argues that appellant’s victim handed appellant any money. Nor does

anyone contend that appellant took anything from the victim’s immediate body. Rather,

the evidence illustrates that appellant directed the store clerk to open the cash register and

then leave. Sometime thereafter, appellant removed approximately $39 from the drawer

of the register. Removing money from a cash register while or after the clerk departed is

not theft from a person. Sims v. State, 731 S.W.2d 951, 952-53 (Tex. App.--Houston [14th




                                              2
Dist.] 1987, pet. ref’d).   Consequently, the trial court did not err in withholding the

instruction.

                            Issue Two - Language in Charge

       In his second issue, appellant contends that the trial court erred by including in its

instruction a reference to death. That is, the trial court told the jury that it could convict

appellant if it determined that he “intentionally or knowingly threaten[ed] or plac[ed] . . .

Riojas in fear of imminent bodily injury or death . . . .” However, because there was no

evidence that she feared imminent death, that passage should have been omitted from the

charge, according to appellant. We overrule the issue.

       Assuming arguendo that appellant is correct, we would find the purported error

harmless. When charge error is preserved through objection and the objection is found

meritorious, reversal is mandated if the appellant suffered “any harm, regardless of degree

. . . .” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). In assessing whether

“any harm” had been suffered, the reviewing court may consider 1) the charge, 2) the state

of the evidence, including contested issues, 3) the argument of counsel, and 4) any other

relevant information revealed by the record. Id. Here, appellant did object to the charge.

So, if appellant suffered any injury due to the purported mistake, then reversal would be

warranted. However, the trial court did not simply inform the jurors that they had to find

that Riojas feared or received a threat of death. It also told them that they could convict

upon finding that she was threatened with or feared imminent bodily injury. Moreover,

ample evidence appears of record upon which a rational jury could find, beyond reasonable

doubt, that Riojas feared, at the very least, bodily injury. That evidence consists of the time

of the robbery (approximately 4:30 a.m.), the absence in the store of anyone other than

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appellant and Riojas, appellant’s intrusion into an area in which only store employees were

authorized to enter, appellant’s close physical proximity to Riojas when he placed

something against her back, Riojas’ belief that she was being robbed, Riojas’ statement

that she complied with appellant’s directives because she “felt threatened that he’d hurt

[her] if [she] didn’t,” and the investigating officer’s testimony that appellant’s victim was

“very shaken, very scared . . . close to the point of tears . . . afraid” and “very shook up; still

very afraid.”

        Next, perusal of the closing arguments revealed the absence of argument by the

State urging the jury to convict on the basis that Riojas feared death or felt threatened with

imminent death. The prosecutor did read that portion of the charge to the jury wherein the

court informed it that Riojas had to be threatened with or feared imminent bodily injury or

death. But, the latter element was not highlighted or otherwise focused upon in his

argument. Rather, the prosecutor urged the jury to conclude that the victim was “scared”

and “shaken” due to the conduct of appellant.1

        Moreover, it is reasonably clear that a threat to kill encompasses a threat of serious

bodily injury. Selvog v. State, 895 S.W.2d 879, 882 (Tex. App.--Texarkana 1995, pet.

ref’d). And, to the extent that a threat of death encompasses a threat of serious bodily

injury, it similarly follows that a fear of death caused by the action of a potential assailant

includes a fear of bodily injury as well. So, even if the jury somehow concluded that

appellant committed robbery by instilling in his victim the fear of or by threatening her with



        1
          The pro secutor did at one point say R iojas was “scared to death.” Yet, given its context, we read
the statement not as suggesting that she feared for her life but that appellant’s actions in general caused her
fright. And, the frigh t was that m ention ed b y Riojas he rself, i.e. that she would be “hurt.”

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death, implicit therein would be the finding that he also caused her to fear or be threatened

with bodily injury. And, that would support the conviction.

         Simply put, we cannot say that the purported error complained of by appellant

caused him to suffer any harm. Thus, issue two provides no basis upon which to reverse

the judgment.

                               Issue Three - Jury Argument

         Appellant next complains about that portion of the State’s closing argument during

the punishment phase wherein the prosecutor twice referred to appellant previously having

taken a life. The utterance was made when alluding to one of appellant’s three prior felony

convictions, i.e. the one involving attempted voluntary manslaughter. We overrule the

issue.

         Though objections to the comment were made and ultimately sustained, appellant

never requested an instruction from the trial court to disregard the utterance. That was

necessary to preserve the complaint for review. Cooks v. State, 844 S.W.2d 697, 727-28

(Tex. Crim. App. 1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732

(1993).    And, to the extent appellant argues that a request for an instruction was

unnecessary since it would not have cured the error, he provides us with no authority

addressing argument identical or analogous to that uttered at bar. Nor does he afford us

any explanation or analysis to support his conclusion.          Thus, the contention was

inadequately briefed, and therefore waived. Cardenas v. State, 30 S.W.3d 384, 393 (Tex.

Crim. App. 2000).




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                           Issue Four - Ineffective Assistance

       In his fourth and last issue, appellant argues that his trial counsel provided him with

ineffective assistance due to his failure to preserve the error broached in issue three. And,

the issue was not preserved because counsel requested neither an instruction to disregard

or a mistrial. We overrule the contention.

       The standard of review requires appellant to prove, by a preponderance of the

evidence, not only that counsel’s representation fell below the objective standard of

professional norms but also that it prejudiced his defense. Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002); see Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.

1999) (holding that this same standard applies to error arising in the punishment phase of

the trial). Furthermore, to satisfy the latter prong, it must be shown that there exists a

reasonable probability that but for the misconduct the result would have differed. Id. This

is satisfied if the circumstances undermine our confidence in the outcome. Id.

       For purposes of this issue we assume arguendo that the failure to request an

instruction amounted to deficient performance. Nonetheless, and as described under issue

two, there exists ample evidence supporting appellant’s conviction. Furthermore, the

evidence illustrated that prior to his felony conviction for robbery, appellant had been thrice

convicted of other felonies. The most recent involved attempted voluntary manslaughter

through the use of a deadly weapon; he received a sentence of 20 years imprisonment.

Another involved his unauthorized use of a motor vehicle for which he was sentenced to

ten years imprisonment and fined $500. The third conviction entailed the offense of

burglarizing a habitation which resulted in a sentence of ten years imprisonment and a fine



                                              6
of $1,000. So too did a witness testify, without objection, that appellant’s reputation in the

community for being a peaceful, law abiding person was bad. Given these prior felonies,

some of which implicated violent behavior with a deadly weapon, we cannot say that

levying upon him the maximum sentence of 20 years imprisonment and a fine of $10,000

smacks of the unordinary or excessive.

        Finally, appellant refers us to testimony provided by a juror regarding the effect, if

any, the prosecutor’s comment had upon her mental processes.2 Though she indicated

that the utterance helped complete the “puzzle,” she did not believe that appellant should

have been assessed the maximum sentence. Yet, she changed her mind; why she did so

went unexplained. That the juror originally opted not to assess the maximum sentence

despite being aware of the prosecutor’s comments hardly suggests that those comments

impermissibly swayed her, or anyone else, to assess the maximum sentence.

        Simply put, we have reviewed the purportedly deficient conduct in the context of the

record before us and hold that it does not undermine our confidence in the verdict

rendered. Accordingly, appellant failed to establish, by a preponderance of the evidence,

that he was prejudiced by his attorney’s performance.

        The judgment of the trial court is affirmed.



                                                            Brian Quinn
                                                               Justice

Do not publish.


        2
          No one argu ed that we cou ld not c ons ider it. See T EX . R. E VID . 606(b) (prohibiting a juror from
testifying as to any m atter occurring during deliberations or the effect of anything on any juror’s mind,
em otions, or men tal processes).

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