Affirmed and Memorandum Opinion filed February 7, 2013.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-11-00920-CR


                 PERCY BENJAMIN SMITH, III, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 412th District Court
                         Brazoria County, Texas
                      Trial Court Cause No. 65,134


                 MEMORANDUM OPINION

      In two issues, appellant Percy Benjamin Smith, III challenges his robbery
conviction. We affirm.

                               I. BACKGROUND

      At approximately 9:00 a.m. on April 7, 2011, appellant entered a Wal-Mart
in Lake Jackson, Texas (the “store”). Brent Dumoit, a twenty-one year old loss-
prevention employee with the store who was dressed in plain clothes and wearing a
baseball cap,1 observed appellant enter. According to Dumoit, appellant appeared
suspicious because he was wearing sunglasses and talking on a cell phone and
walked quickly and directly to the electronics department. Appellant placed a
television in a shopping cart and then proceeded to the store exit via an unusual
route, bypassing several cash registers. When appellant arrived at the exit, a store
greeter asked for appellant’s receipt and even attempted to grab his arm, but
appellant ignored the greeter and continued to leave the store. As appellant pushed
the television through the exit, a security device activated a light, indicating that
appellant had not paid for the television.

       According to Dumoit, the following events then occurred.                           Dumoit
announced, “Stop, loss prevention.” Appellant immediately pushed the shopping
cart holding the television into the wall and ran; Dumoit pursued appellant.
Appellant stopped and faced Dumoit approximately 65 yards from the store exit
near the store’s garden center (however, another witness testified that the distance
from the store exit to the garden center was 100 yards). Appellant said, “Don’t
come any closer. I’ll hurt you,” began walking backwards, and acted as though he
intended to draw a weapon from the back of his pants. Dumoit told appellant he
intended to detain him and asked, “[H]ow do you want to do this?” After Dumoit
was satisfied appellant did not actually possess a weapon, Dumoit reached for
appellant, who began swatting Dumoit’s hands. When Dumoit attempted to grab
appellant’s shoulder, appellant punched him in the teeth and pulled him to the
ground by his shirt; the assault caused Dumoit’s teeth to bleed and injured his
knee. Prior to the assault, appellant never surrendered.


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         Dumoit was not a peace officer. Furthermore, he was not wearing any badge or clothing that
would identify him as a store employee.

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        Appellant then started running again, and Dumoit stood and resumed the
chase. Appellant attempted to enter a car which Dumoit believes was being driven
by a conspirator, but the driver left without appellant. Eventually, Dumoit caught
appellant by gas pumps sixty yards from the location where appellant had punched
Dumoit (however, another witness testified the distance from the garden center to
the gas pumps was 150 yards). Appellant raised his hands, but Dumoit punched
appellant in the jaw. At that moment, a police officer arrived in his patrol car and
approached the men.               The officer knew Dumoit from past shoplifting
investigations at the store. Dumoit informed the officer that appellant had struck
Dumoit. After a brief investigation, the officer arrested appellant. Subsequently,
Dumoit resigned from his position at the store in lieu of being terminated for
violating store policy regarding apprehension of criminals.

        Appellant was charged with robbery. The jury found appellant guilty and
sentenced him to twenty-five years’ confinement.2

                             II. SUFFICIENCY OF THE EVIDENCE

        In his first issue, appellant contends the evidence is legally insufficient to
support his robbery conviction.

A. Standard of Review

        When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). We do not sit as a thirteenth juror and may not substitute our
        2
          During the punishment phase, the State established that appellant had been convicted previously
of nine felonies and four misdemeanors, and appellant was sentenced as a habitual offender.

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judgment for that of the fact finder by re-evaluating weight and credibility of the
evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather,
we defer to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Id. This standard applies equally to both circumstantial and direct
evidence. Id. Our duty as reviewing court is to ensure the evidence presented
actually supports a conclusion that the defendant committed the crime. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B. Robbery

      A person commits robbery if, in the course of committing theft and with
intent to obtain or maintain control of the property, he intentionally, knowingly, or
recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02 (West
2011).    A person commits the offense of theft if that person unlawfully
appropriates property with intent to deprive the owner of the property. Id. §
31.03(a) (West Supp. 2012).

      The phrase “in the course of committing theft” means “conduct that occurs
in an attempt to commit, during the commission, or in immediate flight after the
attempt or commission of theft.” Id. § 29.01 (West 2011). “Immediate flight” is
not defined in the Penal Code, but the Court of Criminal Appeals has defined
“immediate” as “[o]ccurring without delay; instant,” “[n]ot separated by other
persons or things,” or “[h]aving a direct impact; without an intervening agency.”
Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (quoting Black’s Law
Dictionary 751 (7th ed. 1999)); see also Thomas v. State, 708 S.W.2d 580, 581
(Tex. App.—Eastland 1986, pet. ref’d) (quoting previous edition of Black’s Law
Dictionary, in which “immediate” definition includes, “A reasonable time in view
of particular facts and circumstances of case under consideration”).

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C. Analysis

      Appellant contends the evidence is legally insufficient to support his robbery
conviction because any bodily injury he caused to Dumoit did not occur during
appellant’s immediate flight from the commission of the theft.           According to
appellant, the distance between the store door where the theft occurred and the
location where he allegedly punched Dumoit—approximately 65 to 100 yards—is
too great to fall within the meaning of immediate flight.

      In support, appellant cites a recent case in which the Court of Criminal
Appeals held the defendant’s attack on a victim did not occur during the
defendant’s immediate flight from his theft. Sweed, 351 S.W.3d 63. However, the
facts in Sweed are clearly distinguishable from appellant’s situation.

      In Sweed, the defendant stole a nail gun from a construction site and was
secretively followed to his apartment by a construction worker. Id. at 64. Between
five and twenty minutes later, the defendant exited his apartment empty-handed
and walked to a group of men 150 feet away. Id. at 65. Five minutes later, the
defendant walked back toward his apartment. Id. The defendant then saw and
recognized the construction worker and threatened him with a knife. Id. The
Court of Criminal Appeals held that the jury could have reasonably found the
defendant’s threat did not occur in the immediate flight from the theft. Id. at 69.
We note that the Sweed court did not conclude the evidence was legally
insufficient to support a finding that the defendant made the threat in immediate
flight from the theft; instead, the court held the defendant was entitled to
submission of the lesser-included offense of theft (an issue we address in the next
section).

      Here, as appellant was leaving the store with the television, he was ordered
to stop by Dumoit, who identified himself as a loss-prevention employee.
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Appellant discarded the television and ran from Dumoit. After 65 to 100 yards,
appellant turned and faced Dumoit, eventually punching Dumoit in the face while
he was attempting to detain appellant for the theft. These facts clearly support a
finding that appellant caused Dumoit bodily injury during the immediate flight
from the theft. See, e.g., Lightner v. State, 535 S.W.2d 176, 176–78 (Tex. Crim.
App. 1976) (holding assault occurred during immediate flight from theft when,
after committing theft, defendant left in vehicle, stopped approximately 100 yards
from the scene of the theft, was ordered to exit by an officer, then struck officer
during pat-down search).3 Accordingly, we overrule appellant’s first issue.

                            III. LESSER-INCLUDED OFFENSE

       In his second issue, appellant contends the trial court erred by refusing to
submit an instruction on the lesser-included offense of theft.

A. Lesser-Included Offense Standard

       In determining whether the trial court should have granted a defendant’s
request for a lesser-included offense, we apply the two-prong Rousseau test.
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); see also
Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). First, we determine
whether the offense is a lesser-included offense of the alleged offense.
Rousseau, 855 S.W.2d at 672–73.

       If so, we then determine whether there is some evidence in the record that
would permit a jury rationally to find that, if the defendant is guilty, he is guilty
only of the lesser-included offense. Id. The evidence must establish that the

       3
         Appellant also appears to argue that the theft and assault were separate incidents
because he abandoned the television before striking Dumoit. However, the Court of Criminal
Appeals held long ago that abandonment of stolen items does not automatically mean a
subsequent assault no longer occurred during immediate flight from the theft. See Ulloa v. State,
570 S.W.2d 954, 957–958 (Tex. Crim. App. 1978).

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lesser-included offense is a valid, rational alternative to the charged offense.
Goad, 354 S.W.3d at 446. Anything more than a scintilla of evidence is sufficient
to entitle the defendant to a lesser charge. Id. We review all of the evidence in the
light most favorable to the requested lesser-included offense, whether the evidence
was   produced    by   the     State   or   the   defendant,   and   whether    it   be
strong, weak, unimpeached, or contradicted. Id. at 446–47; Bufkin v. State, 207
S.W.3d 779, 782 (Tex. Crim. App. 2006). Although this threshold showing is low,
it is not enough that the jury may disbelieve crucial evidence pertaining to the
greater offense, but rather, there must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted. Sweed, 351 S.W.3d at 68. This standard may
be satisfied if some evidence refutes or negates other evidence establishing the
greater offense or if the evidence presented is subject to different interpretations.
Id.

C. Analysis

      We conclude the first prong of the Rousseau test is satisfied: theft is a lesser-
included offense of robbery as charged. See Neelys v. State, 374 S.W.3d 553, 560
(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Appellant contends the second
prong of the test is met because there is more than a scintilla of evidence
supporting a finding that he did not commit the assault during his immediate flight
from the theft. We disagree.

      We acknowledge that appellant abandoned the television before running
from Dumoit, and that Dumoit was dressed in plain clothing, wore a baseball cap,
and did not have a badge.        Nevertheless, no jury could reasonably conclude
appellant was simply running to escape from a rogue pursuer, unconnected to his
theft of the television. See Grey v. State, 298 S.W.3d 644, 649–50 (Tex. Crim.

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App. 2009) (explaining that, under the second prong of the Rousseau test, “we
view the rationality of the lesser offense, not in isolation, but in comparison to the
offense described in the charging instrument”). Moreover, due to the uninterrupted
nature of appellant’s fleeing from, and then striking, Dumoit, no jury could
reasonably find the distance—whether 65 yards or 100 yards—between the
location of the theft and the location of the assault means the assault did not occur
“in immediate flight after the attempt or commission of theft.” Tex. Penal Code
Ann. § 29.01. As noted above, these facts are clearly distinguishable from the
facts in Sweed, where there were several intervening events and a greater duration
of time between the moment the defendant stole the property and the moment he
threatened the complainant with a knife. 351 S.W.3d at 64–65.

      There is no evidence in the record that would permit a rational jury to find
that, if appellant is guilty, he is guilty only of theft. Accordingly, the trial court did
not err by refusing to submit an instruction on the lesser-included offense of theft.
We overrule appellant’s second issue.

      We affirm the trial court’s judgment.


                                               /s/       Margaret Garner Mirabal
                                                         Senior Justice


Panel consists of Justices Boyce, McCally, and Mirabal.4
Do Not Publish — Tex. R. App. P. 47.2(b).




      4
          Senior Justice Margaret Garner Mirabal sitting by assignment.

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