                                          NO. 07-07-0193-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL D

                                       JANUARY 4, 2008
                               ______________________________

                                     DEREK WAYNE MONTEZ,

                                                                            Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                           Appellee
                             _________________________________

               FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                       NO. 18139-C; HON. ANA ESTEVEZ, PRESIDING
                           _______________________________

                                     Memorandum Opinion
                               ______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Appellant Derek Wayne Montez challenges the factual sufficiency of the evidence

convicting him of robbery.1 We affirm the judgment.

        Background

        On June 11, 2006, Bobby Wayne Stubblefield was working as a loss prevention

supervisor at the J. C. Penney’s store in Amarillo. He observed appellant roll up seven

        1
         Though appellant states that he questions the “factual sufficiency” of the evidence, he nonetheless
contends that “no evidence” established his guilt for robbery. Suggesting that no evidence exists to support
an elem ent of the offense is an attack on the legal, as opposed to the factual, sufficiency of the record. See
Godsey v. State, 989 S.W .2d 482, 488 (Tex. App.–W aco 1999, pet. ref’d). So, given that both standards are
m entioned in one way or the other, we will consider appellant’s argum ent under both.
shirts, wrap them in a pair of jeans, tuck the items in his pants, and exit the south door.

Stubblefield followed appellant who observed Stubblefield and then pulled a box cutter

from his pocket with the blade extended and stared at Stubblefield.              At that point,

Stubblefield opted to cease his pursuit of appellant.

       Standard of Review

       We review the legal and factual sufficiency of the evidence under the standards

specified in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), respectively. The parties are

referred to those cases.

       Next, appellant was charged with aggravated robbery by use or exhibition of a

deadly weapon. TEX . PEN . CODE ANN . §29.03(a)(2) (Vernon 2003). However, he was

convicted of the lesser-included offense of robbery by intentionally or knowingly threatening

or placing another in fear of imminent bodily injury or death. Id. §29.02(a)(2). Appellant

contends there was no actual or threatened violence and, because the jury failed to find

that he used or exhibited a deadly weapon, there was insufficient evidence to show that

Stubblefield was threatened or placed in fear of imminent bodily injury or death. We

disagree.

       Initially, we note that the statute does not require one to be threatened with serious

bodily injury or death to be convicted of robbery. See id. §1.07(a)(17) (A) and (B) (Vernon

Supp. 2007) (defining a deadly weapon as required for aggravated robbery to be one made

for the purpose of inflicting or one that is capable of causing death or serious bodily injury);

see also In re J.A.W., 108 S.W.3d 573, 576 (Tex. App.–Amarillo 2003, no pet.) (stating that



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a knife can be brandished and place a victim in fear without being a deadly weapon). It is

sufficient to constitute robbery if the accused places the complainant in fear of bodily injury

to the degree that reason and common experience will induce the complainant to part with

his property against his will. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989).

Moreover, threats can be communicated by not only words but by actions and conduct.

McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); see also Wilmeth v.

State, 808 S.W.2d 703, 706 (Tex. App.–Tyler 1991, no pet.) (holding that the jury may find

the requisite fear from a menacing glance and a hand gesture even when no verbal threats

are made). Thus, we must determine whether the conduct of appellant was sufficient to

place a reasonable person in fear of imminent bodily injury. Welch v. State, 880 S.W.2d

225, 226 (Tex. App.–Austin 1994, no pet.).

       Stubblefield testified that appellant, who was in a fast walk, looked at him at least

twice before pulling out the box cutter, and that he “extended the knife out of the box cutter

and . . . held it to his right side and up a little to where [Stubblefield] could see it and turned

towards [Stubblefield] and . . . stared into [his] eyes.” Stubblefield stopped because he

felt his life would be in danger if he got any closer to appellant and he thought appellant

“would use that [the box cutter] on [him]” if he tried to stop appellant. Although Stubblefield

was 10-15 feet behind appellant at the time the box cutter was drawn, two police officers

testified they were trained that if someone has a straight-edged weapon, it would take an

officer 21 feet to react to defend himself from that weapon if he did not already have a

weapon drawn. An officer also testified he was trained that sharp-edged weapons are

dangerous and a slicing motion can cause more damage than some puncture motions.



                                                3
      We believe a reasonable person in Stubblefield’s position would have been in fear

of imminent bodily injury based on this evidence, and that such conduct on the part of

appellant induced Stubblefield to end his pursuit of appellant. See Liggens v. State, 50

S.W.3d 657, 661 (Tex. App.–Fort Worth 2001, pet. ref’d) (finding the evidence factually

sufficient when the defendant placed a store employee in fear of imminent bodily injury

when the defendant started his car, looked right at the employee, “gassed” the car, and the

employee believed he was going to get hurt if he didn’t move). In short, the evidence, as

tested under the standards of Jackson and Watson is both legally and factually sufficient

to sustain the conviction. Not only does some evidence exist upon which a reasonable

factfinder could conclude, beyond reasonable doubt, that appellant committed the

elements of robbery but also that conclusion is neither supported by weak evidence,

manifestly unjust, or undermined when tested against the record as a whole.

      The judgment is affirmed.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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