
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
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
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
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).  
 
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
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.     
1. The prosecutor did at one point say Riojas 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 fright was that mentioned by Riojas herself, i.e. that she would be "hurt."   
2. No one argued that we could not consider it.  See Tex. R. Evid. 606(b) (prohibiting a juror from
testifying as to any matter occurring during deliberations or the effect of anything on any juror's mind,
emotions, or mental processes).
