Affirmed and Opinion filed October 9, 2018.




                                             In The

                         Fourteenth Court of Appeals

                                    NO. 14-17-00763-CR

                      PHILLIP ANTHONY ZAGONE, Appellant
                                               V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 252nd District Court
                              Jefferson County, Texas
                           Trial Court Cause No. 17-27555

                                       OPINION


      Appellant Phillip Anthony Zagone was convicted of aggravated robbery and
sentenced to five years in prison. In this appeal, appellant complains that the
evidence is legally insufficient to establish that his threatening conduct occurred
while in the course of committing theft of property. Finding that the evidence is
legally sufficient to support appellant’s conviction, we affirm. 1

      1
          The case was transferred to this court from the Ninth Court of Appeals by Texas Supreme
                                        Background

       On September 27, 2016, Stephen Morgan, an employee at Cowboy Harley
Davidson, parked his motorcycle behind the store along with other employees who
rode their motorcycles to work. Eric Sheffield, another employee of Cowboy, was
informed by one of Cowboy’s technicians that “[s]omebody’s messing with the
employee bikes.” The store was not open at that time of the morning. Sheffield went
outside and saw that appellant, who was wearing a helmet, was “messing with the
switches and knobs” on Morgan’s motorcycle. The ignition switch was on because
the lights were on, but the engine was not. A key is not necessary to start the engine
on most Harley Davidson motorcycles, including that particular model. It appeared
to Sheffield that appellant was trying to start Morgan’s motorcycle. When Sheffield
was close enough, he saw that appellant was wearing Morgan’s helmet. Morgan did
not give anyone permission that morning to ride his motorcycle.

       Sheffield asked appellant what he was doing, to which appellant responded
that he was looking at the motorcycles. Sheffield said to appellant that he did not
“need to be touching these bikes” because they belonged to employees and grabbed
Morgan’s helmet off appellant’s head. Sheffield told appellant to leave. Appellant
started to walk away and then turned around and told Sheffield that he was there to
pick up a motorcycle.

       Appellant was wearing a backpack. Sheffield noticed “a big chunk of
aluminum, [which] looked like a motorcycle part in his backpack.” Sheffield
assumed that appellant had stolen a motorcycle part and grabbed the aluminum item.
Appellant said the aluminum item was his and told Sheffield to give it back.

Court Transfer Order Misc. Docket No. 17-9138, issued September 28, 2017. Because of the
transfer, we must decide the case in accordance with the precedent of the Ninth Court of Appeals
if our decisions otherwise would have been inconsistent with that court’s precedent. See Tex. R.
App. P. 41.3.

                                               2
Sheffield threw the item in the grass and told appellant to leave. Appellant headed
towards a Honda dealership, but Sheffield told him that was the wrong direction, so
appellant reversed course.

       As appellant started walking away, Sheffield heard someone yell, “That’s the
guy that stole the Honda last week[.]”2 Sheffield grabbed appellant by both straps on
the backpack and was going to try to hold him on the ground for the police. Sheffield
then heard someone say “Knife.” Sheffield pushed appellant away and saw a knife
in appellant’s hand as appellant was making a “slashing motion towards [him].”
Appellant then stood there for a couple of seconds with the knife in his hand. Other
employees had approached the scene behind Sheffield, and appellant ran away, and
Sheffield and the other employees followed appellant off Cowboy’s property.

       The police apprehended appellant and brought him back to Cowboy about
fifteen to twenty minutes later. Appellant was charged with and convicted of
aggravated robbery and was sentenced to five years’ incarceration.

       In his sole issue in this appeal, appellant argues that the evidence is legally
insufficient to support his conviction.

                                     Standard of Review

       When reviewing sufficiency of the evidence, we consider the combined and
cumulative force of all admitted evidence and any reasonable inferences therefrom
in the light most favorable to the verdict to determine whether the jury was rationally
justified in its decision. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App.
2017) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as a
thirteenth juror and may not substitute our judgment for that of the factfinder by


       2
        There was no objection to this testimony. The prosecutor told Sheffield: “Let’s not worry
about what other people said.”

                                               3
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve
conflicts in testimony, weigh the evidence, and draw reasonable inferences from
basic to ultimate facts. Id. This standard applies equally to both circumstantial and
direct evidence. Id. Each fact need not point directly and independently to the
appellant’s guilt, as long as the cumulative effect of all incriminating facts is
sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).

                                       Analysis

      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
§ 29.02(a). A person commits theft if he unlawfully appropriates property without
the owner’s consent. Id. § 31.03(a), (b)(1). “‘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(1). A person
commits aggravated robbery if he commits robbery and uses or exhibits a deadly
weapon. Id. § 29.03(a)(2). “‘Deadly weapon’” is “a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury; or anything that in the manner of its use or intended use is capable of causing
death or serious bodily injury.” Id. § 1.07 (a)(17).

      Appellant contends that he was not in immediate flight after the attempted
commission, or the commission of the theft of Morgan’s motorcycle when he
threatened Sheffield with the knife. The State disagrees. Both sides cite Sweed v.
State in support of their respective positions. 351 S.W.3d 63 (Tex. Crim. App. 2011).

      In Sweed, in which the sole issue was whether the trial court erred when it
                                           4
refused the appellant’s request to give an instruction in the jury charge on theft as a
lesser-included offense, the Texas Court of Criminal Appeals defined the term
“‘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’” and
applied the definition to the facts of that case. Id. at 69 n.5 (quoting Black’s Law
Dictionary 751 (7th ed. 1999)).

      The complainant in Sweed observed the defendant among his work crew at a
construction site. Id. at 64. Later that day, the complainant heard one of his
employees scream that someone had pulled a knife on him. Id. The employee told
the complainant that the defendant had stolen a nail gun. Id. The complainant saw
the defendant running away with something in his hands. Id. The defendant was seen
entering an apartment, and the complainant and his father positioned themselves to
watch the apartment until the police arrived. Id.

      Between five and twenty minutes after the defendant had entered the
apartment, the complainant saw the defendant leave the apartment empty-handed
and wearing different clothing. Id. at 65. The defendant walked across the apartment
complex parking lot and spoke to a group of men for about five minutes and then
walked back in the direction of the apartment. Id. The defendant, seeing and
recognizing the complainant, approached him and waived a knife at chest level. Id.
When the defendant was about three feet away, the complainant put his hands in his
pockets and acted like he had a gun. Id. Without saying anything, the defendant
walked away and returned to the apartment. Id. These events all occurred over a
period of fifteen to thirty minutes. Id. The police arrived five to ten minutes later,
entered the apartment, located the defendant, and recovered the missing nail gun. Id.

      The defendant was indicted and convicted of aggravated robbery. Id. The trial
court refused the defendant’s request for a lesser-included offense instruction on

                                          5
theft. Id. The defendant argued that the trial court erred in denying his request. The
court of appeals affirmed.

      The Court of Criminal Appeals observed that if the State could not prove that
the defendant was “in the course of committing theft,” then the theft and the assault
were separate events, and the defendant could not be found guilty of robbery or
aggravated robbery. Id. at 69. Because the defendant did not dispute that he
committed the theft, the primary issue was whether he had pulled a knife on the
complainant during or in immediate flight after the commission of the theft. Id.

      The court concluded that the fifteen to thirty-minute delay and the intervening
activities, including the defendant’s act of leaving the apartment, rationally could be
interpreted as evidence that he was no longer fleeing from the theft. Id. A jury
rationally could conclude that the assault was a separate event from the theft, and
the defendant could have been guilty only of the lesser offense of theft, not
aggravated robbery. Id. Therefore, based on the evidence presented at trial, the court
held that a jury instruction on the lesser-included offense of the theft should have
been given and reversed and remanded to the court of appeals to conduct a harm
analysis. Id. at 69–70.

      Appellant argues that under the definition of “immediate” set forth in Sweed,
if he had pulled the knife and threatened Sheffield when Sheffield pulled the helmet
off his head, that would have “occurred without delay” and “not [have been]
separated by other persons or things.” Instead, according to appellant, the
“separation of persons or things” occurred when he started to leave and changed
direction in response to Sheffield’s orders to leave, and Sheffield was the person
who caused “the separation by other persons or things” because he ordered appellant
to leave and appellant initially followed Sheffield’s orders. Appellant then stopped
and engaged Sheffield in further conversation. Appellant further asserts that another

                                          6
employee was an “intervening agency” or caused another “separation” from the
attempted theft of Morgan’s motorcycle by yelling for Sheffield to “grab” appellant,
which resulted in appellant pulling the knife on Sheffield. Although this case is
procedurally different from Sweed, the definition of “immediate” is instructive.
However, the facts of this case are distinguishable from those in Sweed. Here, during
the very short time from when Sheffield first confronted appellant to when appellant
pulled the knife, appellant had not actually left the site of the attempted theft and
continued to be engaged in conversation with Sheffield. There was no intervening
agency such as contemplated by Sweed. Therefore, applying the definition of
“immediate” set forth in Sweed does not render the attempted theft and the assault
separate offenses.

      The facts of this case are more similar to Oggletree v. State, 851 S.W.2d 367
(Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). In that case, two employees of an
AppleTree grocery store, Corley and Eaton, observed the defendant loading
packages of meat in plastic bags. Id. at 367. Another man entered the grocery store
and asked for paper bags with which to clean out his car; he left the store, got into
his car, but did not drive away. Id. Over two hours later, Corley saw the defendant
approach the front of the store carrying plastic bags full of packages of meat. Id.
Corley and Eaton called for the defendant to stop, but he instead began running
across the parking lot. Corley chased the defendant, and Eaton spotted the man who
asked for paper bags sitting in his car and tried to detain the driver. Id. at 367–68.
Corley called 911 and joined Eaton at the car to wait for the police. Id. at 368. The
defendant returned to the car with a knife and told the employees to let the driver go
and approached Corley with the knife threatening, “I’ll get you.” Id.

      The Oggletree court noted that neither the Penal Code nor case law defined
“immediate flight.” Id. at 369. The court stated that the appellant engaged in one

                                          7
continuous, criminal episode, not in a series of independent incidents. Id. The
defendant’s flight across the parking lot and his reappearance to threaten Corley
occurred without intervening circumstances. Id. at 369–70. The court held that a
rational trier of fact could conclude that the defendant displayed the knife during the
immediate flight from theft. Id. at 370.

       Oggletree predates Sweed, but the court used reasoning very similar to that in
Sweed. The court concluded there was an unbroken chain of events with no
intervening circumstances. As in Oggletree, from the time appellant attempted to
take Morgan’s motorcycle to the time he pulled the knife on Sheffield, appellant was
engaged in one continuous criminal episode without any intervening events.
Considering all the evidence in the record, a rational jury could conclude that the
appellant used the knife against Sheffield in a threatening manner during an
immediate flight from the attempted theft. We overrule appellant’s only issue.

                                     Conclusion

       Having overruled appellant’s sole issue in this appeal, we affirm the judgment
of the trial court.




                                        /s/       Martha Hill Jamison
                                                  Justice


Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
Publish — Tex. R. App. P. 47.2(b)




                                              8
