                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-13-00297-CR


NIMOY TENNISON                                                        APPELLANT

                                          V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      In a single issue, Appellant Nimoy Tennison argues that the evidence is

insufficient to support his conviction for robbery. We will affirm.




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       See Tex. R. App. P. 47.4.
                            II. FACTUAL BACKGROUND

       Robert Edward Stewart Jr., the manager of the Goody Goody Liquor store

in Little Elm, testified that on June 22, 2012, he noticed a woman who was

paying more attention to the people around her than to the products on the

shelves. Stewart checked the security cameras in the store’s office to get a

better view of what the woman was doing. Stewart saw that the woman and a

man were loading bottles of Crown Royal Black into the woman’s purse and that

the man was putting a couple of bottles of Seagram’s into his pants. When

Stewart saw the first bottle being placed into the woman’s purse, he directed his

assistant manager, Paige Bramhall, to call 911.

       When the couple went to the register to check out, Stewart left the office to

go wait on them. At the register, the couple asked Stewart for a pint of Canadian

Hunter, and he retrieved it for them. Stewart chatted with the couple to try to

slow down the transaction in order to give the police time to arrive. The couple

paid for the pint of Canadian Hunter, but they did not pay for the bottles of Crown

or the bottles of Seagram’s. Stewart escorted the couple as they headed toward

the exit.

       About halfway between the registers and the exit, near the store’s atrium,

Stewart got in front of the woman and told her that the police were en route, that

he knew she had bottles of liquor in her purse, and that she needed to stay until

the police arrived. When Stewart mentioned the police, the woman “bull rushed”

straight towards Stewart, and he put his hands out toward her shoulders to keep


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her off him. The man said something like, “Don’t touch my woman; stay away

from her,” and came around and swung at Stewart. Stewart attempted to duck to

avoid a direct hit, but the man landed a “glancing blow” with his fist to Stewart’s

face. When the man hit Stewart, the woman ran past Stewart and exited the

store, but Stewart grabbed her purse and held onto it. Another employee at

Goody Goody came over and was able to help Stewart wrestle the man to the

ground. When the police arrived, they found two bottles of Seagram’s in the

man’s pants. At trial, Stewart identified Tennison as the man who had hit him.

      Bramhall and an employee named Ian Butters both testified that they were

present at Goody Goody on June 22, 2012, but that they could not see from their

vantage points in the store what happened between Stewart and Tennison.

Butters testified that it looked like Stewart “was grabbing ahold of something in

between them,” that there was a struggle, and that he saw Tennison’s shoulder

“rocked back.”   Butters was not sure “if it was a punch or [if Tennison] was

grabbing for something.” Butters testified that Tennison could have been pulling

back for a punch, but Butters could not see the result. Butters admitted that he

did not tell the police that he saw Tennison’s shoulder “rocked back.”

      The tape of Bramhall’s 911 call, the video from one of the store’s security

cameras, and various photos were admitted into evidence. During the 911 call,

Bramhall states, “They’re fighting. . . . They’re at the front door.” The video

shows a struggle, but it does not clearly show what transpired due to glare from




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the atrium. Photos of Stewart’s face reveal that Tennison’s hit did not leave any

marks.

      After viewing the exhibits and hearing the above testimony, along with

testimony from two police officers who responded to the scene, the jury found

Tennison guilty of robbery by intentionally, knowingly, or recklessly causing

bodily injury to Stewart by striking Stewart with Tennison’s hand. At sentencing,

Tennison pleaded true to two enhancement paragraphs, and the trial court

assessed punishment at twenty-five years’ confinement.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his sole issue, Tennison argues that the evidence is insufficient to

support his conviction because the record contains only a “mere modicum” of

evidence of bodily injury.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.

App. 2011).


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      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

      A person commits the offense of robbery if, in the course of committing

theft2 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(a)(1) (West 2011). The penal code defines “bodily injury” as “physical

pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8) (West

Supp. 2013). This definition is broadly construed to encompass even relatively

minor physical contacts so long as they constitute more than mere offensive

      2
        The penal code defines “theft” as “unlawfully appropriat[ing] property with
intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (West
Supp. 2013). Tennison does not challenge the theft element of the offense of
robbery.


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touching; the degree of injury sustained by a victim and the type of violence

utilized by an accused are of no moment. Lane v. State, 763 S.W.2d 785, 786

(Tex. Crim. App. 1989). Direct evidence that a victim suffered pain is sufficient to

show bodily injury. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009).

In the case of robbery, the bodily injury element is satisfied “so long as the

‘violence’ is clearly perpetrated against another ‘for the purpose of . . . preventing

or overcoming resistance to theft.’” See Lane, 763 S.W.2d 787.

      Here, the jury heard Stewart testify as follows:

            Q Okay. Now, when he took a swing at you, you say -- was --
      are you talking about his hand?

             A Yeah. I mean a closed fist.

             Q Okay. And where does his hand contact you?

             A On my face.

             Q And describe it. Was it a clean hit? Was it kind of --

             A Fortunately not. Whenever he -- whenever he swung at me
      and I saw him coming around from behind me out of the corner of
      my eye, I was able to duck and he just landed a glancing blow[3] on
      my face. I mean, it hurt, but it was -- you know, it didn’t knock me
      out or require any doctor’s attention.

                   ....

             Q But you felt it?

             A Absolutely.

      3
       Later in his testimony, Stewart explained what he meant by “glancing
blow”: “When he swung at me, I started to duck and he didn’t hit me squarely on,
which I was very glad of.”


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             Q And it hurt?

             A Yes.

Based on Stewart’s testimony, the jury was justified in finding that Tennison’s

hitting Stewart constituted more than mere offensive touching and was

perpetrated against Stewart for the purpose of overcoming resistance to theft.

See Lane, 763 S.W.2d at 787. Moreover, Stewart’s testimony—that he suffered

physical pain as a result of Tennison’s closed fist hitting his face—suffices, even

in the absence of corroborating physical evidence or corroborating witness

testimony, to satisfy the bodily injury requirement necessary to convict Tennison

of robbery. See Allen v. State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976)

(holding that police officer’s testimony that he experienced pain from kick in the

nose was sufficient to establish bodily injury absent corroborating physical

evidence); see also Laster, 275 S.W.3d at 524 (holding that victim’s testimony

that she felt pain when appellant grabbed her around the waist and pulled her

was legally sufficient to establish that appellant intended to inflict bodily injury on

victim).

       Tennison argues on appeal, just as he did during the trial, that he is guilty

only of theft because the record contains minimal evidence of bodily injury to

Stewart. Tennison points to Stewart’s testimony that he did not seek medical

attention, that the photographs do not reveal bruises on Stewart’s face, that the

surveillance video did not show that Tennison struck Stewart, and that none of

the other store employees testified that Tennison hit Stewart. The jury charge


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contained a lesser-included instruction on theft, so had the jury believed

Tennison’s argument, it would have convicted him of the lesser-included offense.

But the jury, as the trier of fact, believed Stewart’s testimony, and we may not re-

evaluate the jury’s credibility determinations. See Isassi, 330 S.W.3d at 638.

      Viewing the evidence in the light most favorable to the verdict, we hold that

the evidence supports the jury’s determination that Tennison committed robbery

by intentionally, knowingly, or recklessly causing bodily injury—physical pain—to

Stewart by striking Stewart with Tennison’s hand. See Jackson, 443 U.S. at 326,

99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638; see also Tex. Penal Code Ann.

§§ 1.07(a)(8), 29.02(a)(1). We overrule Tennison’s sole issue.

                                 IV. CONCLUSION

      Having overruled Tennison’s sole issue, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 10, 2014




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