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                                 MEMORANDUM OPINION

                                        No. 04-08-00167-CR

                                            Robert COOPER,
                                               Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-7870B
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 22, 2008

AFFIRMED

           Robert Cooper was charged by indictment with aggravated robbery. Cooper pled not guilty;

however, following a jury trial, he was found guilty of aggravated robbery. Cooper then pled true to

the enhancement allegations in the indictment and was sentenced to twenty-nine years imprisonment.

In one issue on appeal, Cooper contends the evidence is factually insufficient to support the jury’s

finding that he committed aggravated robbery. We affirm.
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                                      STANDARD OF REVIEW

       The Texas Court of Criminal Appeals has recently set forth the standard on factual

sufficiency of the evidence in detail in Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008):

       There are three basic ground rules that guide a court of appeals in conducting a
       factual-sufficiency analysis. First, the court of appeals must be cognizant of the fact
       that a jury has already passed on the facts and must give due deference to the
       determinations of the jury. While the court of appeals may disagree with the
       factfinder, it should afford the appropriate deference in order to avoid substituting its
       judgment for that of the jury. Second, the court of appeals’ opinion should clearly lay
       out and explain how the evidence supporting the verdict is too weak on its own, or
       state how the contradicting evidence greatly outweighs evidence in support of the
       verdict. This is particularly important because it assists this Court in determining
       whether the court of appeals applied the standard of review properly. Third, the
       appellate court should review all of the evidence in a neutral light, as opposed to a
       legal-sufficiency review in which the evidence is viewed in the light most favorable
       to the verdict. A verdict should be set aside only if the evidence supporting the
       verdict is so weak as to render the verdict clearly wrong or manifestly unjust.

Lancon, 253 S.W.3d at 704-05 (citations omitted). The court in Lancon then continued its

discussion, setting forth the two ways in which the evidence may be insufficient: (1) the evidence

supporting the verdict, though legally sufficient, is nonetheless too weak to support it; and (2) when

considering conflicting evidence, the jury’s verdict is against the great weight and preponderance of

the evidence. Id. at 705.

       Here, Cooper was charged with aggravated 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 or knowingly threatens or places another in fear of imminent bodily injury or death.

TEX . PENAL CODE ANN . § 29.02(a)(2) (Vernon 2003). A person commits aggravated robbery if he

commits robbery, and he uses or exhibits a deadly weapon. Id. § 29.03(a)(2). Further, when a robbery

is committed by threats of bodily injury or by placing another in fear, that fear must be such that in

reason and common experience will be likely to induce a reasonable person to part with his property


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against his will. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). And, displaying a

deadly weapon in and of itself constitutes a threat of the required imminent harm. Robinson v. State,

596 S.W.2d 130, 133 n.7 (Tex. Crim. App. 1980); Sosa v. State, 177 S.W.3d 227, 231 (Tex.

App.—Houston [1st Dist.] 2005, no pet.). Here, Cooper argues that there was factually insufficient

evidence to support the jury’s finding that he threatened Hernandez or placed Hernandez in fear of

imminent bodily injury or death.

                                          THE EVIDENCE

       On April 27, 2007, the complainant, Felix Hernandez, was celebrating his birthday by

watching television at the home he shared with his father and brother. That afternoon, he decided

to call “Nightline,” a chat line for meeting women. As a result of his call to Nightline, he began

talking to a woman who identified herself as “Candy.” Hernandez and Candy arranged to meet at

Candy’s apartment for the purpose of having sex, for which Hernandez would pay Candy $20.00.

Hernandez drove to Candy’s apartment and knocked on the door. After Candy let him in, he

followed Candy into a bedroom and paid her $20.00. Candy appeared to have locked the bedroom

door. Candy removed her bathrobe, Hernandez removed his pants, and they began “messing around.”

At that point, a man, later identified as Robert Cooper, walked into the bedroom holding a twelve-

inch combat knife. Cooper asked what was going on. He then told Hernandez to sit down, not to

move, and not to put his pants on. At first, Hernandez thought Cooper was a husband or boyfriend

who had caught Hernandez and Candy doing something they should not be doing. Hernandez

explained that he had met Candy on Nightline and had agreed to trade sex for money. Hernandez

testified that he was scared. Cooper then said that Candy usually charges more than $20.00 and that

she should have charged Hernandez $300.00. Cooper began searching through Hernandez’s pants



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with one hand while holding the knife in the other. Cooper found another $20.00 in Hernandez’s

pants. Hernandez told Cooper to take the money and let him go. Cooper took the money, but seemed

to want more.

         Hernandez testified he is 6’1” tall and weighs 300 pounds, which makes him “a little bit

bigger” than Cooper. Hernandez did consider trying to escape, but felt he was at an obvious

disadvantage because Cooper had a weapon on him and there were two of them against him.

Additionally, Hernandez testified that Cooper and Candy began arguing about a gun. Cooper told

Candy to go get his gun, but Candy was laughing about it, trying to convince him not to send her to

get the gun. Cooper then told Candy to go search Hernandez’s vehicle for more money and to get

the license plate number from the vehicle. Cooper found Hernandez’s car keys in his pants pocket

and gave them to Candy. When Candy left the room, Cooper continued to hold the knife on

Hernandez. Cooper also displayed his tattoos and told Hernandez that he was “connected.”

Hernandez understood this to mean Cooper wanted him to know that “he knew people” and “he

knew a way to find [him] through [his] license plates.” When Candy returned, she had a piece of

paper with the license plate number written on it, along with about $100. Cooper questioned the

amount of money, to which Hernandez responded there was about $400.00 in the car. Cooper and

Candy then began arguing. But, according to Hernandez, although Candy and Cooper were acting

like they were arguing, Candy was laughing. Hernandez then put on his pants and was allowed to

leave.

         After Hernandez left the apartment, he got in his car, saw that his money was gone, and drove

away. As he drove away, he kept looking behind him because he was afraid Cooper and Candy

would follow him. Hernandez then called the police from his cell phone. He met the police at a gas



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station and told them what had happened at the apartment. The police then followed him back to the

apartment. He pointed out the apartment to the police, but stayed in his own car. The police knocked

on the apartment door, but no one was there. At a later date, a detective contacted Hernandez about

the incident. Hernandez gave a written statement to the detective and identified Cooper in a lineup.

       San Antonio Police Department Officer Jerry Fuller responded to Hernandez’s call reporting

the robbery. When Officer Fuller met Hernandez at a gas station, Hernandez reported he had been

robbed at an apartment complex. A second officer met them, and they followed Hernandez back to

the apartment complex where he said he had been robbed. The two officers knocked on the

apartment door, but there was no answer. An apartment maintenance man gave Officer Fuller the

name of the woman who lived in the apartment. Hernandez did not tell Officer Fuller that he had

been to the apartment for the purpose of purchasing sex. Neither did Hernandez mention that a gun

was involved in the incident.

       Detective Steve Almanza of the San Antonio Police Department testified that Hernandez’s

robbery case was assigned to him to investigate. Detective Almanza contacted Hernandez and then

began trying to locate the suspects. He determined that Diane Brown lived at the apartment where

Hernandez was robbed. The police computer system showed that Diane Brown had filed a

disturbance report against Mark Guy, which was an alias for Cooper. Detective Almanza prepared

a photo lineup, and Hernandez identified Cooper as the man who robbed him.

                                           DISCUSSION

       Cooper argues that the evidence supporting the finding that Cooper committed aggravated

robbery was so weak as to require a reversal because the evidence he threatened Hernandez or placed

him in fear of imminent bodily injury or death is too weak to support the verdict. According to



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Cooper, Hernandez’s testimony was “flawed from the start” because he was “fundamentally

dishonest with the San Antonio Police Department when he reported this case.” In short, Cooper

emphasizes that Hernandez did not tell the officers he had gone to the apartment to purchase sex.

        To further support his argument, Cooper contends that when Hernandez testified that he did

not try to leave the apartment because Cooper was holding a knife on him and there were two of

them (meaning Candy and Cooper) against one, Hernandez was merely “posturing to the jury.”

According to Cooper, Candy was no threat to Hernandez because she was in a “state of undress.”

And, once Candy went to get the money from Hernandez’s vehicle, she was not a threat because she

was no longer present in the apartment.

        Cooper also argues that he did not present much of an obstacle to Hernandez because he was

smaller than Hernandez. And, even though Cooper wielded a knife and asked Candy to get a gun,

Cooper argues that the discussion about the gun was not serious because Candy was laughing about

it. Cooper also points out that Hernandez’s first impression was that he had been caught by an irate

husband or boyfriend doing something he should not have been doing with the man’s wife or

girlfriend. According to Cooper, it would have been implausible to Hernandez that Cooper would

have lured him to his own apartment for the purpose of robbing him. Therefore, Cooper argues that

he did nothing that could have implied a threat to Hernandez.

        Applying the appropriate standard of review, we find the evidence factually sufficient to

support the jury’s finding of aggravated robbery. While the evidence does show that Hernandez

failed to report to the officers that he had been at the apartment to trade sex for money, this omission

did not totally undermine his credibility. Indeed, Cooper acknowledges that Hernandez did not

“outright lie” to the officers. And, there is nothing in the record to contradict the facts Hernandez did



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report to the officers concerning the robbery. We recognize that the jury has already passed on the

facts and, therefore we give due deference to the jury’s determinations. See Lancon, 253 S.W.3d at

704.

        Further, while Candy may not have been much of a threat to Hernandez, Cooper,

nevertheless, continuously held a twelve-inch combat knife on Hernandez. And, although Cooper

may have been smaller than Hernandez, it was Cooper who was wielding the knife while Hernandez

remained partially undressed and, in Hernandez’s words, scared. Further, Hernandez’s testimony that

he initially believed he had been discovered by Cooper as Candy’s husband or boyfriend, doing

something he should not have been doing, was apparently found by the jury not to be of significance.

Instead, the jury likely focused on the evidence that Cooper held Hernandez at knifepoint and took

his money.

        Viewing all the evidence in a neutral light, and considering that Cooper undisputedly

displayed a deadly weapon, we hold that a reasonable person in Hernandez’s situation would have

been placed in fear of bodily injury or death. Therefore, the evidence is factually sufficient to support

the jury’s finding that Cooper threatened Hernandez or placed him in fear of imminent bodily injury

or death.

                                             CONCLUSION

        Because the evidence is factually sufficient, we affirm the judgment of the trial court.



                                                         Karen Angelini, Justice

DO NOT PUBLISH




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