                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-038-CR


JON RICHARD ORLANDO                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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I.    Introduction

      Appellant Jon Richard Orlando appeals his conviction for robbery causing

bodily injury. Appellant argues that the evidence is both legally and factually

insufficient to support his conviction because there is a lack of evidence to

show he possessed the necessary mental state alleged in the indictment.



      1
          … See Tex. R. App. P. 47.4.
Appellant specifically argues that (1) his convicted offense is not a lesser

offense of the indicted offense, and (2) there is a fatal variance between the

indicted offense and the proof adduced at trial. We affirm.

II.   Factual and procedural background

      Appellant was indicted for robbery on July 26, 2007. The indictment

alleged that Appellant “intentionally or knowingly, while in the course of

committing theft of property and with intent to obtain or maintain control of

said property, cause[d] bodily injury to Dwayne Sakaguchi by hitting Dwayne

Sakaguchi with his hand.” 2 Appellant waived trial by jury, and after a bench

trial, the court found Appellant guilty of the lesser included offense of robbery,

“based on the reckless culpable mental state.”

      The alleged offense occurred on June 6, 2007, at 7:40 p.m. Dwayne

Sakaguchi, a loss prevention investigator working at the Eastchase Target store

in Fort Worth, was watching a live closed-circuit security monitor and noticed

Appellant and an individual acting suspiciously. He went to the sales floor to

closely observe the two individuals.        Sakaguchi saw Appellant remove a

Polaroid multimedia player from its package with a knife and place the item in




      2
      … The indictment also contained a repeat offender notice for Appellant’s
past burglary conviction.

                                        2
his back left pocket.   Sakaguchi testified that he followed Appellant as he

attempted to leave the store without paying for the multimedia player.

      As Appellant passed the electronic security towers at the exit door,

Sakaguchi approached him from behind and identified himself as Target

security.   When they both were outside the exit doors, Sakaguchi asked

Appellant to come back into the store.3 Sakaguchi testified that he had his

hand on Appellant’s stomach to coax him back into the store. Sakaguchi stated

that Appellant resisted and “got combative.” As the two were closer to the

inside of the store, Appellant allegedly struck Sakaguchi.       As Sakaguchi

described the incident, when he blocked Appellant from exiting, Appellant hit

him with an open palm on the bottom of his right eye and also hit him with his

elbow as they fell to the ground. Sakaguchi described Appellant’s strike as one

full motion, with his right palm and elbow, as he tried to evade apprehension.

When asked by the trial court if it was “like a football player would push a

blocker,” Sakaguchi responded, “No.       Like an intentional hit.”   After this

response, the trial court suggested to Sakaguchi that Appellant’s strike seemed




      3
       … Sakaguchi explained that, for his loss prevention duties at Fort Worth
stores, he must wait until the suspicious individual exits the store to detain
them.

                                      3
“like someone [] trying to push a tackler out of the way, like a pop,” and

Sakaguchi agreed with the court’s characterization.

      After this blow, Sakaguchi said that he felt pain and his vision started to

blur. Sakaguchi stated that he tried to hold Appellant’s upper body and get him

on his knees, but he could not place handcuffs on him. Sakaguchi stated that

he and a trainee, present throughout the scuffle, tried to talk to Appellant. He

described the guidelines he must follow when he cannot restrain a person by

stating he was allowed to use “enough [force] to get [a person] into handcuffs,”

but only enough to “get the subject under control.” Sakaguchi stated that he

was able to get Appellant back into the store within a minute and a half.

      At trial, the State offered the store video of the incident containing two

camera views: the electronics area of the store and the inside portion of the

store entrance. Sakaguchi stated that Appellant’s strike to his face was not

caught on camera because it occurred outside the store, when he and Appellant

were out of the camera’s view.          Sakaguchi explained that there were no

cameras focused on the exterior area of the store’s front doors. Sakaguchi

confirmed he was visible in the videotape “wrestling around” with Appellant

after the injury to his eye occurred.

      Police officer Scott Sikes of the Fort Worth Police Department testified

that he arrived after the incident with Sakaguchi occurred and immediately

                                          4
handcuffed Appellant.     Officer Sikes stated that Appellant was “pretty

agitated,” and was “flailing his arms, trying to twist away from us.” Officer

Sikes stated that he spoke with Sakaguchi about the event and noticed swelling

and redness beneath one of Sakaguchi’s eyes. Officer Sikes also stated that

Appellant moved around and yelled while waiting in the police car. Officer

Sikes took Appellant to the police station where Detective Brent Johnson, a

robbery detective for the Fort Worth Police Department, interviewed him.

      Detective Johnson testified that on the day of the altercation, Appellant

gave a statement. The State offered Appellant’s signed, dictated statement,

which contained a paragraph with an acknowledgment of the Miranda warnings

and a second paragraph with Appellant’ summary of what occurred. In the

second paragraph, Appellant stated that he went to Target with a friend and

saw that friend purchase an iPod mp3 player. Appellant stated that he “went

to the little Ipods and cut the package and took it out of the package and put

it in [his] back pocket.” He then stated, “As I went toward the door, 2 dudes

came up and grabbed me[;] one looked about 16 years old 85-90 lbs[.] He

grabbed my arm and I threw my elbow forward to get away from him.”

      After receiving all the testimony and hearing closing arguments, the trial

court found Appellant guilty of recklessly causing bodily injury in the course of

committing theft. The trial court explained that there was no question that

                                       5
Appellant’s conduct in trying to escape was intentional. The trial court stated

that the conduct, as shown in the video, was intentional or knowing, but that

“a conviction for robbery requires a result to be intentional or knowing as far

as the bodily injury element of the offense.” [Emphasis added] The trial court

described the rule of transferred intent and stated that when an individual

shoves a person to get them out of the way, his elbow and palm hit the right

cheek, whereas when an individual intentionally hits a person, the individual’s

hand or elbow hits that person’s left cheek.4 The trial court concluded that if

an individual person tries to elbow his way out of a predicament and hits

someone causing injury, at minimum the individuals’s conduct is reckless,

because “a reasonable person under the circumstances is aware of the nature

of their conduct and of the risk.” See Tex. Penal Code § 6.02(c) (Vernon Supp.

2008).

      During the punishment phase, Appellant pleaded true to the repeat

offender notice.    The trial court sentenced Appellant to twenty years’

confinement.




      4
       … In this case, Sakaguchi’s injury was on his right cheek, indicating more
of a “shove,” according to the trial court.

                                       6
III.   Legal and factual sufficiency of the evidence

       Appellant argues that the evidence is legally and factually insufficient to

prove robbery causing bodily injury and, because the trial court found Appellant

guilty based on a mental state not alleged in the indictment, there is a fatal

variance between the indictment and the proof at trial.

       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).

       The trial judge, when sitting as the sole trier of facts, is the exclusive

judge of the credibility of the witnesses and the weight to be given to their

testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

Thus, when performing a legal sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of

the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999),

cert. denied, 529 U.S. 1131 (2000).         Instead, we “determine whether the

necessary inferences are reasonable based upon the combined and cumulative

                                        7
force of all the evidence when viewed in the light most favorable to the

verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (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, 99 S.

Ct. at 2793; Clayton, 235 S.W.3d at 778.

      b.    Factual sufficiency standard of review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the judgment. Watson, 204 S.W.3d at 417.




                                        8
      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently.

Id. We may not simply substitute our judgment for the factfinder’s. Johnson

v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a

different result is appropriate, we must defer to the trial court’s determination

of the weight to be given contradictory testimonial evidence because resolution

of the conflict often turns on an evaluation of credibility and demeanor.

Johnson, 23 S.W.3d at 8. Unless we conclude that it is necessary to correct

manifest   injustice,   we   must   give       due   deference   to   the   factfinder’s

determinations, “particularly those determinations concerning the weight and

credibility of the evidence.” Id. at 9.

      c.    Applicable law

            1.     The robbery offense

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

reasonable doubt. Tex. Penal Code § 2.01 (Vernon 2003). Texas Code of

Criminal Procedure Article 21.03 commands that “[e]verything should be stated

                                           9
in an indictment which is necessary to be proved.” Tex. Code Crim. Proc. Ann.

art. 21.03 (Vernon 2009). The penal code describes robbery as,

      (a) A person commits an offense if, in the course of committing
      theft as defined in Chapter 31 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.

Tex. Penal Code § 29.02(a) (Vernon 2003).

            2.     The culpable mental states

      Culpable mental states are classified according to degrees, from highest

to lowest, as follows: (1) intent, (2) knowledge, (3) recklessness, and (4)

criminal negligence. See id. § 6.02(d). A person acts intentionally, or with

intent, with respect to a result of his conduct when it is his conscious objective

or desire to cause the result. See id. § 6.03(a) (Vernon 2003). A person acts

knowingly, or with knowledge, with respect to a result of his conduct when he

is aware that his conduct is reasonably certain to cause the result. See id. §

6.03(b).   A person acts recklessly when he is aware of, but consciously

disregards, a substantial and unjustifiable risk that the result will occur. See id.

§ 6.03(c). The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person

                                        10
would exercise under all the circumstances as viewed from the actor’s

standpoint. Id.

      By its definition, “reckless” is a lesser culpable mental state than

“intentional or knowing.”    See id. § 6.02(d); see also Rocha v. State, 648

S.W.2d 298, 302 (Tex. Crim. App. 1982) (op. on reh’g) (holding that, for the

purpose of submitting to the jury the lesser included offense of aggravated

assault, “reckless” is included under the canopy of higher culpable mental

states of “intentional” and “knowing” alleged in the indictment for the greater

offense of attempted murder).

            3.    The trial court’s authority to find guilt for lesser included
            offenses

      In a bench trial, a trial judge is authorized to find a defendant guilty for

any lesser included offense for which the evidence provides the required proof.

See Shute v. State, 877 S.W.2d 314, 314 (Tex. Crim. App. 1994) (holding that

the double jeopardy clause does not bar retrial on a lesser included offense

when the first trial was a bench trial and there was sufficient evidence for the

trial judge to find defendant guilty of the lesser offense); Donohoe v. State, No.

08-04-00105-CR, 2007 WL 528554, at *1 (Tex. App.—El Paso 2007, pet.

ref’d) (not designated for publication).    The prosecution is not required to

submit a lesser included offense charge to the trial judge in order for the trial



                                       11
court to be authorized to find guilt of any lesser offense. Shute, 877 S.W.2d

at 314; Leach v. State, 35 S.W.3d 232, 237 (Tex. App.—Austin 2000, no

pet.); Watson v. State, 923 S.W.2d 829, 832 (Tex. App.—Austin 1996, pet.

ref’d). This process differs from a jury trial, where the court must decide if

instructions on a lesser offense in the jury charge are required. 5

            4.    Determining lesser included offenses

      Whether one offense is a lesser included offense of another is determined

on a case-by-case basis. Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim.

App. 1995). The starting point in the analysis of a lesser included offense is

Texas Code of Criminal Procedure Article 37.09, which lists four ways an

offense can be the lesser included offense of a charged offense. See id.

      An offense is a lesser included offense if:

      (1) it is established by proof of the same or less than all the facts
      required 6 to establish the commission of the offense charged;


      5
       … There is a two-step analysis to determine when a charge on a lesser
offense should be given. See Hall v. State, 225 S.W.3d 524, 535–36 (Tex.
Crim. App. 2007); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
The first step is to determine whether the offense is a lesser included offense
under article 37.09, and the second step is to evaluate the evidence to
determine whether there is evidence that would permit a rational jury to convict
a defendant of only the lesser offense. See Moore, 969 S.W.2d at 8. There
must be evidence that a jury could acquit the defendant of the charged greater
offense. Id.
      6
      … Facts “required” means the evidence legally required to prove the
elements. Hall, 225 S.W.3d at 534.

                                       12
      (2) it differs from the offense charged only in the respect that a
      less serious injury or risk of injury to the same person, property, or
      public interest suffices to establish its commission;

      (3) it differs from the offense charged only in the respect that a
      less culpable mental state suffices to establish its commission; or

      (4) it consists of an attempt to commit the offense charged or an
      otherwise included offense.

See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

      The constitutional validity of article 37.09 rests in part on its reference

to the charged offense and to the restricted or reduced culpability of the lesser

included offense as compared to the charged offense. Jacob, 892 S.W.2d at

908 (citing Day v. State, 532 S.W.2d 302, 315 (Tex. Crim. App. 1976) (op.

on reh’g)).    Otherwise, a defendant could be convicted of an offense not

subsumed in the charged offense, but shown by the evidence presented. Id.

The determination of a lesser included offense is made without regard to

punishment; one offense may be a lesser included offense even if it carries the

same penalty. Nejnaoui v. State, 44 S.W.3d 111, 118 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d).

      d.      Analysis

      Appellant does not contest the sufficiency of the evidence showing that

he stole the multimedia player or the evidence that he injured someone during

this theft; rather, his argument focuses on (1) the sufficiency of the evidence

                                       13
for his conviction based on a lesser culpable mental state not alleged in the

indictment and (2) a potential variance between the allegations and the proof

adduced at trial. We will discuss each part of his argument in turn.

            1.     The lesser included offense

      In part of his argument, Appellant asserts that he was convicted for the

same offense as the offense charged in the indictment, rather than a lesser

offense. However, Appellant’s conviction for recklessly causing bodily injury

in the commission of theft constituted a lesser included offense under article

37.09(1) and (3). Tex. Code Crim. Proc. Ann. art. 37.09(1), (3).

      First, under article 37.09(1), the convicted offense was established by the

same or fewer than the same facts required to establish the charged offense:

for the convicted offense, the evidence only had to establish that, during the

commission of the theft, when Appellant hit Sakaguchi, he acted with

conscious disregard to a substantial or unjustifiable risk that the resulting bodily

injury to Sakaguchi would occur. See Tex. Penal Code § 6.03(c). This offense

was established with similar or fewer facts than the indicted charge that during

the theft, Appellant hit Sakaguchi and acted with a conscious objective or

reasonable certainty to cause the resulting bodily injury. See id. § 6.03(a), (b);

Tex. Code Crim. Proc. Ann. art. 37.09(1). Also, in this case, the “hitting”

conduct and “bodily injury” result constituting the lesser included “reckless”

                                        14
robbery offense are the same conduct and result alleged in the indictment for

robbery with an “intentional or knowing” mental state; the two offenses require

the State to prove the same elements and only differ in regard to mental states.

See Gay v. State, 235 S.W.3d 829, 832 (Tex. App.—Fort Worth 2007, pet.

ref’d) (lesser included offense of reckless bodily injury to child differed only in

mental state to the indicted offense of intentional or knowing bodily injury to

child); cf. Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App. 2005)

(holding that the conduct in the lesser included offense jury instruction for

assault was not the same as the two theories of conduct charged in the

indictment for aggravated assault). This leads to the other applicable definition:

under article 37.09(3), the convicted offense of robbery with a reckless mental

state differs from the offense charged only in the respect that the reckless

culpable mental state suffices to establish its commission. Tex. Code Crim.

Proc. Ann. art. 37.09(3); see also Rocha, 648 S.W.2d at 302 (stating the

additional culpable mental state of “reckless” submitted in jury charge was a

lesser culpable mental state of the alleged “intentionally” and “knowingly”

mental states); Gay, 235 S.W.3d at 832.

      Both the indictment and the State asserted an ”intentional or knowing”

mental state for the robbery offense, but the trial court weighed the evidence

and determined that Appellant’s manner of striking Sakaguchi was more akin

                                        15
to “shoving” or “elbowing his way out of a predicament,” rather than

intentionally causing injury to Sakaguchi with the palm and elbow blow to

Sakaguchi’s right cheek. The trial court concluded that if, while elbowing his

way out of a predicament, an individual hits a person with the palm and causes

injury, “at minimum the conduct is reckless, because a reasonable person under

the circumstances is aware of the nature of their conduct and of the risk.”

Thus, the trial court properly decided,7 based on Appellant’s manner of shoving

Sakaguchi out of the way while striking him with his palm, that Appellant acted

recklessly, rather than intentionally or knowingly, under the robbery statute.

See id., In re R.H., No. 02-05-00340-CV, 2006 WL 1653171 at *1 (Tex.

App.—Fort Worth 2006, no pet.) (mem. op., not designated for publication)

(stating that committing assault recklessly under penal code section 22.01(a)(1)

is a lesser included offense of committing assault intentionally or knowingly

under that section).




      7
       … The previously-noted two step analysis is unnecessary in this case
because this was a bench trial and the State was not obligated to submit jury
instructions for this lesser offense. See Shute, 877 S.W.2d at 314.

                                      16
            2.    Variance

      Appellant argues there was a fatal variance between the indicted offense

and the proof adduced at trial, violating his due process right of notice. A

variance is defined as a discrepancy between the allegations in the charging

instrument and the proof at trial. See Gollihar v. State, 46 S.W.3d 243, 246

(Tex. Crim. App. 2001). The Texas Court of Criminal Appeals has recently held

that an offense is denominated a “lesser included” offense when the proof of

the lesser offense is “included” in the offense described in the charging

instrument. Wasylina v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009).

The court stated that, if the State proves the charged offense, it necessarily

proves all lesser included offenses. It added that “[this] is why the submission

of a lesser-included offense does not violate a constitutional due[-]process right

to notice of the crime of which he is accused.” Id.

      In this case, the State provided evidence from physical exhibits and

Sakaguchi’s 8 and Officer Sikes’s testimony that tended to prove Appellant

intentionally or knowingly struck Sakaguchi with his hand during the

commission of a theft, which is the same offense described in the allegations

in the indictment. There is no detectable variance when the allegations are the



      8
       … Sakaguchi at one point asserted that Appellant’s strike at his face was
“an intentional hit.”

                                       17
same as the proof adduced at trial; the State pursued the indicted offense

throughout its case and closing argument, rather than asserting Appellant’s

culpable mental state was “reckless.” 9 At the end of closing arguments, the

trial court was entitled to find Appellant guilty of the lesser included offense of

robbery with a reckless culpable mental state, despite the absence of that

mental state in the State’s arguments. See Shute, 877 S.W.2d at 314.

IV.   Conclusion

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

court could have found beyond a reasonable doubt that, in the course of

committing a theft, Appellant recklessly caused bodily injury to Sakaguchi when

he struck Sakaguchi with his palm and elbow.           Tex. Penal Code Ann. §

29.02(a)(1). We hold that the evidence is legally sufficient to support the trial

court’s judgment and we overrule Appellant’s first point. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

      Viewing the evidence in a neutral light, we cannot say that the evidence

is so weak that the trial court’s determination that, in the course of committing

a theft, Appellant recklessly caused bodily injury to Sakaguchi is clearly wrong

or manifestly unjust.   We also cannot say that the conflicting evidence so



      9
        … Appellant’s counsel, however, did assert in closing arguments that
Appellant’s acts could “possibly” be deemed “reckless,” however, and
acknowledged the trial court’s response that it was authorized to convict on the
lesser included offense.

                                        18
greatly outweighs the evidence supporting the conviction that the trial court’s

determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson,

204 S.W.3d at 414–15, 417. We therefore hold that the evidence is factually

sufficient to support the trial court’s judgment, and we overrule Appellant’s

second point.

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.

                                           PER CURIAM

PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.

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

DELIVERED: June 4, 2009




                                      19
