                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-18-00022-CR


                          ANTHONY PRESCOTT, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 16th District Court
                                    Denton County, Texas
              Trial Court No. F15-1942-211, Honorable Sherry Shipman, Presiding

                                   September 19, 2019

                             MEMORANDUM OPINION
                     Before CAMPBELL and PIRTLE and PARKER, JJ.

      Appellant Anthony Prescott appeals from his conviction by jury of two counts of

robbery1 and the resulting ten-year concurrent sentences of imprisonment assessed by

the court. He challenges his convictions through two issues. We will affirm.




      1   TEX. PENAL CODE ANN. § 29.02 (West 2018).
                                           Background


       The two counts of robbery for which appellant was indicted arose from threats he

made against two members of a family, causing them to accede to his demand for the

keys to their car.


       At trial, the State presented evidence to show that in early June 2015, a stepfather,

mother and adult daughter were staying at a Denton hotel. After an outing, the family

returned to the hotel. On their return, the stepfather, Robert, was driving, his wife was in

the passenger seat, and the daughter in the back right-hand seat. The daughter, then

twenty-five, testified she got out of the car first. Appellant approached her and asked her

to give him the car keys. She tapped on her mother’s passenger-side window to get her

attention. Appellant grabbed the daughter’s arm, and told her, “give me the keys or I will

hurt you.” Appellant’s other arm was behind his back and she could not see his hand.

Robert got out of the driver’s seat and reached to get a gun he carried. Then realizing

the gun was in the hotel room, Robert told appellant he could have the car if he would let

his family go. Appellant told him “give me your f**king keys to your car or I’m going to

hurt your daughter.”2


       Robert gave appellant his keys and appellant began to get into the car. As he did

so, Robert slammed the car door on him. Appellant asked him why he was trying to “hurt

my family.”3 Robert testified appellant then either dropped the keys or threw them at him


       2 Robert recounted the events a little differently, but the differences are not
pertinent to appellant’s issues.
       3   Some witnesses said appellant asked, “why he was trying to hurt him.”

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and “went to try to run away.” He chased appellant but stopped when appellant went into

the hotel lobby. Appellant ran into the hotel and, after trying to kick in several doors on

the third floor and yelling “let me in,” finally went into a room.4 Two responding officers

later entered that room and arrested appellant.


       Robert testified that during the incident, appellant said something about his family

and seemed agitated. Other witnesses, including the daughter, a responding officer, and

a bystander, testified appellant said his family had been “kidnapped by police” and was

being “held hostage by the cops.” Some of the witnesses also described appellant’s

demeanor as “aggressive,” “belligerent,” and “real erratic…very agitated, very angry.”

The front desk hotel clerk said appellant “seemed very confused and kind of aimless.”

The clerk also agreed that he believed appellant posed a danger to him and to the guests

of the hotel.


       After the jury heard the evidence presented, it found appellant guilty of each count

of robbery. The court then held a punishment hearing after which it assessed the

punishment noted. This appeal followed.




       4  Before the robbery took place, appellant did something similar. He went to the
third floor and kicked on doors, saying “let me in.”

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                                             Analysis


Issue Two—Sufficiency of the Evidence to Prove Intent to Deprive Owner of Property


       We begin our analysis with a discussion of appellant’s second issue. Through that

issue, appellant argues the jury erred when it found appellant guilty of two counts of

robbery because the State failed to prove, beyond a reasonable doubt, that appellant had

the intent to permanently deprive Robert of his vehicle.


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

proper and improper, 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 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex. Crim. App. 2004). 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. Brooks v. State, 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010)

(plurality op.). Under the Jackson standard, it is the jury’s role to reconcile conflicts,

contradictions, and inconsistencies in the evidence, and to judge the credibility of

witnesses. Id. at 900.


       A person commits robbery if, in the course of committing theft and with intent to

obtain or maintain control of the property, he intentionally or knowingly threatens or places

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

(West 2018). In a prosecution for the offense of robbery, the “intent to deprive an owner

of property” is an element of theft the State must prove. TEX. PENAL CODE ANN. §31.03(a)



                                             4
(West 2018); Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981). “Deprive”

means “to withhold property from the owner permanently or for so extended a period of

time that a major portion of the value or enjoyment of the property is lost to the owner.”

Hoyle v. State, No. 05-96-00827-CR, 1997 Tex. App. LEXIS 4443, at *6-7 (Tex. App.—

Dallas Aug. 21, 1997, no pet.) (mem. op., not designated for publication) (citing TEX.

PENAL CODE ANN. § 31.01(2)(A); Thomas v. State, 753 S.W.2d 688, 691 (Tex. Crim. App.

1988); Roberson v. State, 821 S.W.2d 446, 447-48 (Tex. App.—Corpus Christi 1991, pet.

ref’d)). Deprivation “may not be proven by evidence that the defendant intended only a

temporary withholding of the property.” Id. (citing Griffin, 614 S.W.2d at 158).


       But actual deprivation is not the required element of the offense. Id. (citing Draper

v. State, 539 S.W.2d 61, 68 (Tex. Crim. App. 1976); Kuczaj v. State, 848 S.W.2d 284,

289 (Tex. App.—Fort Worth 1993, no pet.)).            The State is required to prove the

“defendant’s intent to deprive at the time of the taking.” Id. (citations omitted) (italics in

original). The State does not need to prove actual deprivation in order to prove intent to

deprive. Id. Evidence other than actual deprivation may indicate whether intent to deprive

exists. Id. Further, the fact that a “deprivation became temporary does not automatically

mean the defendant had no intent to deprive permanently or for so long as necessary to

satisfy the statutory definition.” Id. (citations omitted). Intent to deprive is determined from

the words and acts of the defendant. Id. (citing Griffin, 614 S.W.2d at 159; Banks v. State,

471 S.W.2d 811, 812 (Tex. Crim. App. 1971); Roberson, 821 S.W.2d at 448).


       Appellant, citing Griffin, 614 S.W.2d at 158 and Kiser v. State, 150 S.W.2d 257

(Tex. Crim. App. 1941), argues that because the theft statute requires that a defendant



                                               5
“intend to permanently deprive the owner of the property, a theft or robbery conviction

cannot be procured if the defendant intended only a temporary withholding of the

property.”   He contends evidence presented at trial supports his assertion because

multiple witnesses testified that appellant “appeared confused, aimless, erratic, and

unstable” on the evening of the robbery. Appellant points also to testimony that it was

possible for a person with mental health issues to display some of the behavior appellant

exhibited. Lastly, appellant points to the testimony of several witnesses that they heard

appellant say his family was being held hostage by the police in one of the hotel rooms.

All of this, appellant asserts, shows appellant was incapable of committing the offense

because no rational factfinder could conclude he had the requisite intent to permanently

deprive Robert of his vehicle.


      We disagree. As the State discusses, appellant’s references to his family were

vague and did not support appellant’s argument that he sought temporary use of Robert’s

car. Appellant’s arguments are, at best, speculative in nature. We do not disagree that

appellant’s use of Robert’s car ended up being of very short duration. But the State was

required to prove appellant’s intent in taking the car. The jury had before it evidence to

show appellant sought the use of Robert’s car. The record does not show appellant

intended anything other than to take Robert’s car for whatever use he had planned. That

might have been to remove his family from the hotel, or it might have been for another

purpose entirely.   There is simply no evidence showing appellant intended only a

temporary use of the car. See Galloway v. State, 71 S.W.2d 871, 872 (Tex. Crim. App.

1934) (use of car was temporary because defendant made it clear he wanted the beer




                                            6
inside the car, not the car itself); Kiser, 150 S.W.2d at 257-58 (use of car was temporary

because there was evidence the defendant sought a car simply for a ride home).


       Accordingly, we find the mere fact that appellant’s deprivation of the car was

temporary does not render the State’s evidence of his intent to deprive Robert of his car

insufficient. Hoyle, 1997 Tex. App. LEXIS 4443, at *7 (citations omitted). Appellant’s

words and actions, while unusual, demonstrated his intent to take the car. The record

does not contain any evidence establishing that appellant did not intend to take the car

for a period sufficiently long to satisfy the requisites of the statute. A rational factfinder

could reasonably infer from the evidence presented that appellant intended to deprive

Robert of the car for a period sufficient under the statute. The evidence is thus sufficient

to support that element and to support appellant’s convictions for robbery.


       We resolve appellant’s second issue against him.


Issue One—Temporary Use Instruction


       We turn now to appellant’s first issue. He argues the trial court erred when it

denied his request for a “temporary use” jury instruction because “not having the specific

intent to deprive the owner of property permanently is an affirmative defense to the

offense of robbery and the jury should have been given the applicable law to apply during

its deliberations.”


       Appellate review of alleged jury charge error is a two-step process. Cortez v. State,

469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citation omitted). If the court concludes

there was jury charge error, we are required to conduct a harm analysis. Id. The nature


                                              7
of the harm analysis depends on whether the purported jury charge error was preserved

for review by a proper objection. Id. If there was a timely objection to the jury charge,

reversal is required if there was some harm to the appellant. Marshall v. State, 479

S.W.3d 840, 843 (Tex. Crim. App. 2016).


       We review the trial court’s denial of a requested jury instruction for abuse of

discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). Under article

36.14, a trial court is required to submit a charge setting forth the law applicable to the

case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2017). In determining whether a

requested jury instruction should have been given, we consider whether the evidence

adduced by either party, when viewed in the light most favorable to the appellant, is

sufficient to raise the defensive issue. Scroggs v. State, 396 S.W.3d 1, 12-13 (Tex. App.—

Amarillo 2010, pet. ref’d, untimely filed) (citing Granger v. State, 3 S.W.3d 36, 38 (Tex.

Crim. App. 1999)). “An accused has the right to an instruction on any defensive issue

raised by the evidence, whether such evidence is strong or weak, unimpeached or

contradicted, and regardless of what the trial court may or may not think about the

credibility of this evidence.” Id. (citing Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.

App. 1991)). However, an instruction is not required when an affirmative defense is

without evidentiary support. Id. (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim.

App. 1984) (self-defense)).


       Appellant cites Griffin, 614 S.W.2d at 158, and older cases, for the proposition that,

if raised by the evidence, a defendant is entitled to a jury instruction that a reasonable

doubt as to whether the defendant intended only a temporary use of property calls for



                                             8
acquittal of a robbery charge. The 1981 Griffin opinion does contain such a statement,

but we think it has been superseded by later holdings of the Court of Criminal Appeals.5


       In Walters v. State, 247 S.W.3d 204, 211-12 (Tex. Crim. App. 2007), the Court of

Criminal Appeals discussed various defenses and stated, “generally speaking, neither the

defendant nor the State is entitled to a special jury instruction relating to a statutory

offense or defense if that instruction (1) is not grounded in the Penal Code, (2) is covered

by the general charge to the jury, and (3) focuses the jury’s attention on a specific type of

evidence that may support an element of an offense or a defense. In such a case, the

non-statutory instruction would constitute a prohibited comment on the weight of the

evidence.”


       In Giesberg v. State, 984 S.W.2d 245, 250-51 (Tex. Crim. App. 1998), the court

concluded that “because the authority to establish what constitutes a defense rests solely

with the Legislature…a defense which is not recognized by the Legislature as either a

defense or as an affirmative defense does not warrant a separate instruction.” (citations

omitted). Temporary use related to the intent to deprive element of the offense of theft

does not appear in the Penal Code as a defense, affirmative defense, or justification. See

TEX. PENAL CODE ANN. §§ 8.01 (Insanity); 8.02 (Mistake of Fact); 8.03 (Mistake of Law);

8.04 (Intoxication); 8.05 (Duress); 8.06 (Entrapment); 9.21 (Public Duty); 9.22

(Necessity); 9.31 (Self-Defense); 9.32 (Deadly Force in Defense of Person); 9.33

(Defense of Third Person); 9.34 (Protection of Life or Health); 9.41 (Protection of One’s


       5See COMM. ON TEXAS CRIMINAL PATTERN JURY CHARGES, STATE BAR OF TEXAS:
TEXAS CRIMINAL PATTERN JURY CHARGES: CRIMINAL DEFENSES, NONSTATUTORY DEFENSIVE
POSITIONS AND JURY INSTRUCTIONS, PJC 20.4 (2015).

                                             9
Own Property); 9.42 (Deadly Force to Protect Property); 9.43 (Protection of Third

Person’s Property); 9.44 (Use of Device to Protect Property) (West 2018).


       Further, a “defensive issue which goes no further than to merely negate an element

of the offense alleged by the State in its indictment does not place a burden of proof upon

a defendant to establish it.” Giesberg, 984 S.W.2d at 250. Appellant’s defense of

temporary use, if believed, simply casts doubt on the State’s proof of appellant’s specific

intent to deprive the victims of their vehicle. Id. The issue of temporary use is thus

“sufficiently embraced in a general charge to the jury that the defendant is presumed

innocent until he or she is proven guilty beyond a reasonable doubt.” Id. Appellant had

the opportunity to present his defensive theory of temporary use to the jury and the

general jury instruction provided would have permitted the jury to consider such an

argument. Id. (citations omitted).6


       Lastly, if we are mistaken and the temporary use instruction would have been

available in a proper case, we agree with the State that nothing in this record supports

appellant’s entitlement to such an instruction.     Any connection between appellant’s

procurement of the car and his use of it to transport his family away from what he may

have believed was a hostage situation was vague and speculative. And, even if the jury

believed appellant sought the car for that use, there is nothing indicating the use would




       6The trial court also included in the charge an instruction authorizing the jury to
find appellant guilty of the lesser-included offense of attempted unauthorized use of a
motor vehicle.



                                            10
have been temporary, thus distinguishing this case from those appellant cites.7 If the trial

court had included a temporary use instruction in its charge to the jury, it would have thus

constituted a prohibited comment on the weight of the evidence.


          For those reasons, we overrule appellant’s first issue.


                                          Conclusion


          Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.8




                                                          James T. Campbell
                                                             Justice


Do not publish.




       Appellant cites Kiser, 150 S.W.2d at 257-58, Galloway, 71 S.W.2d at 872, and
          7

Weeks v. State, 25 S.W.2d 855, 856 (Tex. Crim. App. 1930) as support for his position.
          8
          On the day this opinion was scheduled to be issued, appellant filed with the court
a document entitled, “Ex Parte Motion and Affidavit In Support of Appellant Brief.” Nothing
in that document permits a disposition of the appeal different than the court has ordered.

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