                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00391-CR


                                ABEL CERVANTES, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 364th District Court
                                      Lubbock County, Texas
             Trial Court No. 2014-401,087, Honorable Bradley S. Underwood, Presiding

                                            June 9, 2015

                                 MEMORANDUM OPINION

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


       Appellant, Abel Cervantes, appeals the trial court’s judgment by which he was

convicted of robbery and sentenced to eight years’ imprisonment.1             On appeal, he

challenges the sufficiency of two aspects of the evidence to support said conviction.

We will affirm.




       1
           See TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011).
                               Factual and Procedural History


       On December 9, 2013, Brandon Sherman was working as an asset protection

associate (APA) at Walmart on Marsha Sharp Freeway in Lubbock, Texas.                 In the

course of his duties that day, he noticed a man, who was later identified as appellant,

dressed in a gray hooded jacket and dark pants and who seemed to Sherman to be

acting in a suspicious manner. Through use of the store’s security camera system,

Sherman was able to follow appellant’s movements throughout the store and saw him

hide some undergarments in his jacket and pants. Sherman alerted fellow APA Kyle

Lininger to the developments, and Lininger waited outside near the doors for appellant

to pass the final point of sale to confront appellant about the stolen items.


       As appellant left through the doors of the store, Lininger approached appellant,

introduced himself by name and title, and asked appellant to come back into the store to

discuss the items appellant had taken.        Appellant impliedly declined and, instead,

attempted to walk around Lininger. By that time, Sherman, one other APA, and the

asset protection manager had also arrived in the vicinity and became involved in the

encounter with appellant. When Lininger put his hands on appellant to “redirect” him

back toward the store and Sherman came from behind him and grabbed his jacket,

appellant began to struggle.


       A physical struggle—described by Lininger as “wrestling”—between the

members of the store’s asset protection staff and appellant then ensued during which

appellant slipped out of his jacket. Lininger testified that, while one of the APAs still had

hold of appellant’s arm, appellant announced, “I’ve got a gun. I’ll shoot you.” He also


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moved his right hand toward the waistband of his pants in a manner the APAs

considered consistent with reaching for a gun, but which appellant characterized as an

attempt to pull up his sagging pants. At that point, all APAs immediately disengaged

with appellant and retreated. Appellant ran into the parking lot, and the staff called the

police.


          With help from the public and following an investigation, appellant was identified

as the alleged robber.       He was charged with robbery by threat, convicted of said

charges by a Lubbock County jury, and sentenced to eight years’ imprisonment.


          On appeal from that conviction, appellant challenges the sufficiency of the

evidence to support the judgment. Appellant advances two arguments in his sufficiency

challenge. First, he contends that “[t]he [APAs’] action in defense of another’s property

was unreasonable because the owner of the property had given the [APAs] explicit

orders to not engage in violent confrontations with theft suspects which placed the

[APAs’] actions outside their express authority as agents of [Walmart].” In the second

part of his sufficiency challenge, appellant maintains that appellant’s threat could not

have “reasonably put the [APAs] in imminent fear of harm because of their numerical

and physical superiority.” We will address appellant’s contentions in turn.


                                     Standard of Review


          In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

                                               3
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                            Reasonableness of APAs’ Actions


       In the first portion of his argument regarding sufficiency, appellant maintains that,

because the APAs’ use of force against him was unreasonable and/or unauthorized by

Walmart’s loss prevention policy, he was justified in using force against them when they

attempted to detain him and redirect him into the store. Appellant attempts to couch his

contention in this regard in terms of the nature of the offense of robbery: “[T]his Court

should not look at this case in terms of [appellant] making a threat while trying to commit

a theft, but [appellant] making a threat to three men attacking him without proper

justification under the law.” However, the nature of his contention is, at its core, a self-



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defense argument2 that he was justified in using force against the APAs, and, therefore,

his contention lies outside the purview of a sufficiency of the evidence contention when

self-defense was not raised at trial. See Pruiett v. State, No. 05-12-00131-CR, 2013

Tex. App. LEXIS 1802, at *5–6 (Tex. App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op.,

not designated for publication) (concluding that the appellant waived self-defense claim

and, therefore, declining to address his complaint that evidence was insufficient under a

hypothetically correct jury charge which included self-defense instruction).


        In support of his contention that the APAs used force in an attempt to detain

appellant that exceeded the force permitted by Walmart’s internal policy regarding loss

prevention, appellant cites Section 9.43 of the Texas Penal Code governing a person’s

right to use force to protect a third party’s property. See TEX. PENAL CODE ANN. § 9.43

(West 2011).         However, it is important to note that Section 9.43 outlines the

circumstances under which the questioned conduct—which would otherwise be a

criminal offense—is justified; the criminality of the APAs’ conduct was simply not the

issue at trial. Whether the APAs’ use of force was assaultive or justified was not the

question being addressed here, and their use of force to protect a third party’s property

was not the offense being tried. Section 9.43 has no application here.


        Nor did appellant raise self-defense in an effort to put the reasonableness of his

actions in relationship to the APAs’ actions against appellant at issue. His failure to


        2
           To illustrate, appellant contends that “a man’s right to defend himself should trump the third-
party protectors[’] wrongful application of the principal’s right to protect its property.” We add that “a
robber has no right of self-defense against his victim. This is especially true when the victim is justified in
acting to recover his property, prevent the offense or save another person.” Westley v. State, 754
S.W.2d 224, 230 (Tex. Crim. App. 1988) (en banc) (characterizing as “ludicrous” the invitation to consider
victim’s justified actions as provocation for appellant’s illegal act).


                                                      5
raise self-defense as a justification for his threat results in a forfeiture of his claim of

self-defense. The Texas Court of Criminal Appeals has held that defensive issues are

not “law applicable to the case” under Texas Code of Criminal Procedure Article 36.14

unless and until the defendant raises the issue by a timely objection or request. See

Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (en banc) (citing TEX. CODE

CRIM. PROC. ANN. art. 36.14 (West 2007)). That being so, because self-defense is not

the “law of the case” here, the trial court had no duty to instruct the jury sua sponte

regarding such an issue, and the failure to instruct cannot be regarded as fundamental

error under Almanza analysis. See id. at 60–62 (referring to Almanza v. State, 686

S.W.2d 157, 171–74 (Tex. Crim. App. 1985) (en banc)). Self-defense was not raised at

trial and is not an issue before us. And recasting the issue and switching perspectives

in an attempt to examine the justifiability of the APAs’ conduct in protection of a third

party’s property does not alter that conclusion. We overrule this sufficiency/justification

issue.


                         Fear of Imminent Bodily Injury or Death


         One manner in which a person may commit the offense of robbery is when, in the

course of committing the offense of theft of property and with intent to obtain or maintain

control of the property, he or she “intentionally or knowingly threatens or places another

in fear of imminent bodily injury or death.” See TEX. PENAL CODE ANN. § 29.02(a)(2).

The plain language of Section 29.02(a)(2) encompasses not only explicit threats, but

also whatever implicit threats may lead to the victim being placed in fear. Howard v.

State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011) (citing Olivas v. State, 203 S.W.3d

341, 345–46 (Tex. Crim. App. 2006)). “So long as the defendant’s actions are ‘of such

                                             6
nature as in reason and common experience is likely to induce a person to part with his

property against his will,’ any actual or perceived threat of imminent bodily injury will

satisfy this element of the offense.” Id. (quoting Cranford v. State, 377 S.W.2d 957, 958

(Tex. Crim. App. 1964)).


        Lininger, the named complainant, testified that, when appellant announced that

he had a gun and would shoot, Lininger was scared that he was going to get shot and

believed he was in immediate danger of bodily injury or death. Lininger and the other

APAs also testified that, as appellant announced that he had a gun and expressed his

intent to shoot them, he made a motion with his right hand toward the waistband of his

pants. The verbal threat and that gesture caused the APAs to immediately disengage

with appellant and retreat from his presence.


        Appellant points out that one of the APAs who was nearby and attempting to

summon police on her phone did not react in the same manner, and neither did other

passersby, suggesting that the APAs who were physically engaged with appellant

fabricated the threat of a gun to justify having permitted appellant to get away from

them.    Appellant also contends that the APAs had both physical and numerical

advantages over him such that it was not reasonable for Lininger to be placed in fear by

such a statement at any rate.       However, common experience dictates that the

announcement of the presence of a gun dramatically shifted the playing field in

appellant’s favor and transformed what seemed to be a wrestling scuffle into a far

different matter. See Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.—Beaumont

1993, no pet.) (observing that “juries are free to use their common sense and apply

common knowledge, observation, and experience gained in the ordinary affairs of life

                                            7
when giving effect to the inferences that may reasonably be drawn from the evidence”).

Any physical or numerical advantages the APAs might have had—assuming arguendo

that such advantages would bear on the reasonableness of Lininger’s individual fear of

imminent bodily injury or death—suddenly disappeared when appellant threatened to

shoot them. As a sister court has noted, “[a]n escaping thief’s announcement that he

has a pistol is enough to inspire fear in the boldest citizen.” See Johnson v. State, No.

12-07-00259-CR, 2008 Tex. App. LEXIS 3960, at *17 (Tex. App.—Tyler May 30, 2008,

no pet.) (mem. op., not designated for publication).


       The jury had before it the testimony of the APAs, the 911 calls from two of the

APAs immediately after the event in which the APAs reported the gun threat, and the

video of the encounter from which the jury could assess the APAs’ retreat as either

consistent or inconsistent with the threat having been issued. Based on the evidence

before it, a rational jury could have found beyond a reasonable doubt that Lininger was

reasonably placed in fear of imminent bodily injury as a result of appellant’s

announcement that he had a gun, his threat to shoot the APAs, and his motion

consistent with reaching for a gun. See Brooks, 323 S.W.3d at 912. We overrule

appellant’s point of error challenging the sufficiency of the evidence.


                                        Conclusion


       Having overruled appellant’s point of error, we affirm the trial court’s judgment of

conviction. See TEX. R. APP. P. 43.2(a).


                                                        Mackey K. Hancock
                                                            Justice
Do not publish.

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