Affirmed and Memorandum Opinion filed June 16, 2015.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00386-CR

                           RODNEY ROCHELL, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 176th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1383622

                    MEMORANDUM                         OPINION


      A jury convicted appellant Rodney Rochell of robbery,1 and the trial court
assessed his punishment at 35 years’ imprisonment. Appellant contends that the
trial court committed reversible error in denying his request for a lesser-included
instruction on theft. We affirm.


      1
          See Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2011).
                                   BACKGROUND

      Appellant was indicted for robbery of complainant Diamond Guillory. A
two-day trial was held in May 2014.

      Complainant testified that she went to the ACE Cash Express with her aunt
Tarsha Holmes to buy money orders on April 3, 2013. Complainant waited in line
and observed appellant trying to “cash a fake check.” Unable to cash his “check,”
appellant remained in the ACE Cash Express. Complainant also testified that, as
she was paying for a money order, appellant pushed her to the ground, took her
money, and ran out of the ACE Cash Express. Complainant chased appellant, who
was trying to drive away in a grey Ford Ranger, as she was yelling at Holmes for
help. According to complainant, Holmes was on the phone at the time and did not
hear complainant at first. Complainant further testified that, while appellant tried
to start the grey Ranger with the driver’s side door still open, appellant began to
punch her in the face and head. Once appellant was able to start the grey Ranger,
he backed out and drove away. At that time, Holmes heard complainant yelling
and saw appellant drive off in the grey Ranger. Complainant testified that Holmes
chased after appellant in her vehicle.

      Holmes testified that she did not hear complainant yelling at first and did not
see her come out of the ACE Cash Express because she was sitting in her vehicle
with her four-year-old niece with the windows up. Only after she noticed another
woman exit the ACE Cash Express did Holmes look up and hear complainant’s
yelling. As Holmes got out of her vehicle, appellant fled. Holmes got back in her
vehicle and followed appellant until she was able to give the grey Ranger’s license
plate information to police over the phone. Holmes then returned to the ACE Cash
Express.

      ACE Cash Express teller Chelsea Bankston testified that appellant snatched
                                         2
the money out of complainant’s hands and walked away. Appellant did not run to
the grey Ranger until complainant grabbed appellant at the door of the ACE Cash
Express.    Bankston testified that, after appellant got into the grey Ranger,
complainant grabbed the door and appellant began punching her in the face with a
closed fist. Bankston testified, “I think he hit her so fast that it didn’t quite register
in her head, but she was hit.”        On cross-examination, Bankston testified that
appellant knocked complainant down in the parking lot and that, while she saw
appellant throw punches, Bankston did not see appellant actually hit complainant.

      Houston Police Officer Jose Delacruz testified that he and his partner,
Officer John Gonzalez,2 were dispatched to the ACE Cash Express to respond to a
robbery on April 3, 2013. Officer Delacruz spoke to complainant outside of the
ACE Cash Express and tried to calm her down. Because Officer Delacruz had the
grey Ranger’s license plate number, he and Officer Gonzalez searched for and
located it near the address to which the license plate was registered. Officers
Delacruz and Gonzalez detained Alvin Woods, whom they found driving the grey
Ranger.    Woods told Officer Delacruz that he had lent his grey Ranger to
appellant. Complainant and Holmes confirmed Woods was not the person who
robbed complainant. Woods then led Officer Delacruz and Officer Gonzalez to
appellant’s home.

      Complainant later identified appellant’s photograph in a lineup as the person
who robbed her. When police tried to serve appellant with a warrant, appellant
fled and was later found hiding in an attic.

      At trial, appellant’s counsel requested an instruction for the lesser-included
offense of theft, which the trial court denied. The jury found appellant guilty of

      2
         Officer Gonzalez’s name has been spelled “Gonzalez” and “Gonzales” in the record.
For the purpose of consistency, we will refer to him as “Officer Gonzalez.”

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robbery as charged. After appellant pleaded true to two enhancement paragraphs,
the trial court assessed his punishment at 35 years’ imprisonment. Appellant filed
a timely appeal.

                                     ANALYSIS

      Appellant contends that the trial court erred in denying his request for a
lesser-included instruction on theft because there was more than a scintilla of
evidence that affirmatively established that he did not strike complainant.

      We review a complaint of jury-charge error under a two-step process. See
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine
whether error occurred. See id. If we find error, we then evaluate whether error
caused sufficient harm to require reversal. See id.; Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g).

      A trial court errs in denying a defendant’s request for a jury instruction on a
lesser-included offense if two conditions are satisfied: (1) “the offense is actually a
lesser-included offense of the offense charged” in the indictment; and (2) there is
some evidence in the record “from which a rational jury could acquit the defendant
of the greater offense while convicting him of the lesser-included offense.”
Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004); Delacruz v.
State, 278 S.W.3d 483, 488 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

      Theft from a person can be a lesser-included offense of robbery. Earls v.
State, 707 S.W.2d 82, 84 (Tex. Crim. App. 1986) (“Theft, by whatever method
committed, is necessarily included in the alleged elements of the greater offense of
robbery, when, as in the instant case, the indictment alleged ‘in the course of
committing theft.’”). The first condition is satisfied in this case because theft is a
lesser-included offense of robbery as alleged in the indictment, and the State


                                          4
concedes that “theft is a lesser included offense of appellant’s charged offense of
robbery.”

      In determining whether the second condition is satisfied, we review all of the
evidence presented at trial without considering its credibility or whether it conflicts
with other evidence. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998);
Delacruz, 278 S.W.3d at 488.        Evidence cannot be reviewed in isolation or
“examined in a vacuum.” See Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim.
App. 1986). “A defendant is entitled to an instruction on a lesser-included offense
if some evidence from any source raises a fact issue on whether he is guilty of only
the lesser, regardless of whether the evidence is weak, impeached, or
contradicted.” Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012).
However, it is not enough that the factfinder may disbelieve crucial evidence
pertaining to the greater offense; rather, there must be some evidence directly
germane to the lesser-included offense for the factfinder to consider before an
instruction on a lesser-included offense is warranted. Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011).

      “[A] lesser included offense may be raised if evidence either affirmatively
refutes or negates an element establishing the greater offense, or the evidence on
the issue is subject to two different interpretations, and one of the interpretations
negates or rebuts an element of the greater.” Schweinle v. State, 915 S.W.2d 17, 19
(Tex. Crim. App. 1996) (citing Saunders v. State, 840 S.W.2d 390 (Tex. Crim.
App. 1992)). A witness’s lack of certainty cannot be interpreted as evidence that
affirmatively negates or rebuts. See Massey v. State, 933 S.W.2d 141, 155 (Tex.
Crim. App. 1996) (holding that failure to be 100 percent certain does not raise
evidence for purposes of a lesser-included offense); Arzaga v. State, 86 S.W.3d
767, 780 (Tex. App.—El Paso 2002, no pet.) (failure to observe a cut on the inside

                                          5
of complainant’s mouth does not rebut or negate the fact that she suffered an
injury); see also Lopez v. State, No. 08-05-00032-CR, 2007 WL 258428, at *6
(Tex. App.—El Paso Jan. 31, 2007, pet. ref’d) (not designated for publication)
(“[O]ne witness’s failure to observe an injury does not, in and of itself, rebut or
negate the fact that an injury occurred.”). “‘If a defendant either presents evidence
that he committed no offense or presents no evidence, and there is no evidence
otherwise showing he is guilty only of a lesser included offense, then a charge on a
lesser included offense is not required.’” Bignall v. State, 887 S.W.2d 21, 24 (Tex.
Crim. App. 1994) (quoting Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App.
1985)) (emphasis omitted).

      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. See Tex. Penal Code Ann. § 29.02(a)(1)
(Vernon 2011). A person commits theft if he unlawfully appropriates property
with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a)
(Vernon Supp. 2014).

      According to appellant, Bankston testified that she saw appellant throw
punches but did not see complainant actually get hit. Appellant argues that this
testimony is evidence that appellant in fact did not strike complainant and
complainant was not injured. Additionally, appellant argues that, because Holmes
testified that she did not see the altercation between appellant and complainant, this
is evidence that the altercation did not occur. Appellant also argues that Officer
Gonzalez’s testimony that he did not see any physical injuries on complainant and
complainant refused medical treatment constitutes evidence that complainant was
not injured. Lastly, appellant contends that, because the jury requested to hear
Bankston’s cross-examination testimony during deliberations, some evidence

                                          6
raised an issue of fact as to whether appellant is guilty of only the lesser-included
offense.

      We first address appellant’s contention that Bankston’s testimony constitutes
evidence that he did not strike complainant in this case. Bankston testified as
follows:

      [THE STATE:] All right. Where do you see this person walk out with the
      money? Where does he go?

      [BANKSTON:] To the vehicle parked right there in the front. (Indicating)

      [THE STATE:] Around there?

      [BANKSTON:] Yes. (Indicating)

      [THE STATE:] And what happens? What does the victim do?

      [BANKSTON:] She — as he hopped in the car, he still had his door open
      and the window was down. So she grabbed the door and he was hitting her
      as she was trying — she kept saying, sir, give me my money. And she was
      trying to stop the vehicle. And then an old lady tried to help and he almost
      ran over the old lady.

      [THE STATE:] And how was he — how as the guy punching the victim?
      Like you said, do you remember which hand or do you remember was it a
      close fist? I know it’s been a while.

      [BANKSTON:] It was a closed fist.

      [THE STATE:] And he’s punching her in the face?

      [BANKSTON:] Yes, basically trying to get out of the building.

                         *                    *                 *


                                         7
      [BANKSTON:] I think he hit her so fast that it didn’t quite register in her
      head, but she was hit.

      [THE STATE:] She got punched in the face?

      [BANKSTON:] Yes.

On cross-examination, Bankston testified as follows:

      [DEFENSE ATTORNEY:] And you say that you saw punches. Did you
      actually see the punches or did you —

      [BANKSTON:] I actually seen them.

      [DEFENSE ATTORNEY:] Okay. Did you see anybody get actually hit?

      [BANKSTON:] No, sir. No, sir.

We reject appellant’s argument because Bankston’s failure to observe appellant’s
blows as they struck complainant does not affirmatively rebut or negate the fact
that appellant struck complainant — and, thus, does not negate the element of
“causing bodily injury” required for robbery. Cf. Massey, 933 S.W.2d at 155.
Bankston’s testimony does not tend to show that complainant received no blows;
she merely testified on cross-examination that she did not see complainant get hit.
Further, we cannot view evidence in isolation or examine it in a vacuum. See
Godsey, 719 S.W.2d at 584. Bankston testified on direct-examination that she saw
appellant punch complainant in the face with a closed fist.

      We also reject appellant’s reliance on Holmes’s testimony that she did not
see the altercation between appellant and complainant.             Holmes did not
affirmatively testify to the absence of an altercation; she testified that she did not
see the altercation because she was sitting in her vehicle with her four-year-old
niece with the windows up.


                                          8
      We likewise reject appellant’s reliance on Officer Gonzalez’s testimony
regarding observation of injuries to complainant. The Texas Penal Code broadly
defines “bodily injury” as “physical pain, illness, or any impairment of physical
condition.” See Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2014); Laster v.
State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). Any physical pain, however
minor, will suffice to establish bodily injury. See Laster, 275 S.W.3d at 524. The
definition of “bodily injury” does not specifically require visible manifestation of
pain. See Texas Penal Code § 1.07(a)(8). Additionally, complainant’s refusal to
call for medical treatment is not affirmative evidence that complainant did not feel
pain and was not injured. See Wilkerson v. State, 391 S.W.3d 190, 198 (Tex.
App.—Eastland 2012, pet. ref’d) (instruction of lesser-included offense of theft
was not required when complainant stated he experienced pain but also stated he
was “okay” and no ambulance was called).

      Complainant’s testimony affirmatively establishes that she was hit, and
appellant provides no evidence to rebut or negate her testimony. The jury’s motive
for requesting Bankston’s testimony is not clear and, therefore, does not raise an
issue of fact as to whether appellant is guilty of only the lesser-included offense.

      Based on the record before us, we conclude there is no evidence showing
that appellant is guilty only of the lesser-included offense of theft; there is not a
scintilla of evidence to entitle appellant to an instruction on the lesser-included
offense. See Cavazos, 382 S.W.3d at 383; Bignall, 887 S.W.2d at 24. Therefore,
the trial court did not err in denying appellant’s request for a jury instruction on the
lesser-included offense of theft. We overrule appellant’s sole issue.




                                           9
                                  CONCLUSION

      We affirm the trial court’s judgment.




                                              /s/   William J. Boyce
                                                    Justice



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




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