      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00849-CR



                               Thomas Chris Alonzo, Appellant

                                                 v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-05-202808, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Thomas Chris Alonzo guilty of robbery with bodily injury.

See Tex. Pen. Code Ann. § 29.02 (West 2003). The court assessed punishment at eight years in

prison. In four issues, Alonzo contends that the evidence was legally and factually insufficient to

support the conviction, that the trial court fundamentally erred by not instructing the jury on a

defensive issue, and that the assistance of his counsel was constitutionally ineffective. We affirm.

               On the evening of June 6, 2005, Richard and Brenda Gibson were asleep in their

home in Austin, Texas. Sometime after midnight, they were awakened by the sound of a car alarm

in their driveway. Mr. Gibson testified that he looked out the bedroom window and saw someone

taking items from his wife’s car and then moving quickly towards the front of the house. Due to the

small size of his house, Mr. Gibson was able to get outside his front door within two or three

seconds. Mr. Gibson testified that he came upon Alonzo standing outside at the corner of his house
holding some of his wife’s belongings. Mrs. Gibson testified that when she followed her husband

outside, she saw Alonzo holding some of her possessions, including a makeup bag and a handbag,

that she had left in her car on the night of the robbery. Other items from Mrs. Gibson’s car were on

the ground at Alonzo’s feet.

                Mr. Gibson testified that Alonzo told him that two other guys had broken into the car

and then pointed in the direction in which he claimed they had run. Not believing Alonzo’s story,

Mr. Gibson grabbed Alonzo to hold him until the police came. According to Mrs. Gibson, Alonzo

struck Mr. Gibson’s head with his hand several times and stomped on Mr. Gibson’s feet in an

apparent attempt to get away. Mrs. Gibson called the police, and Mr. Gibson held Alonzo on the

ground until the police arrived.

                On July 22, 2005, Alonzo was indicted on one count of robbery with bodily injury

under Texas Penal Code section 29.02. The indictment alleged that Alonzo “while in the course of

committing theft of property and with intent to obtain or maintain control of said property,

intentionally, knowingly, or recklessly cause[d] bodily injury to Richard Gibson by hitting Richard

Gibson with [Alonzo’s] hand.” The matter was tried to a jury beginning December 13, 2005.

Alonzo did not testify or call any witnesses. The jury charge mirrored the indictment, and the jury

returned a guilty verdict on one count of robbery with bodily injury. The court sentenced Alonzo

to eight years in prison.

                In his first and second issues, Alonzo contends that the evidence is legally and

factually insufficient to support the jury’s verdict. In a legal sufficiency review, we examine the

evidence in the light most favorable to the verdict and determine whether any rational trier of fact



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could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).

In a factual sufficiency challenge, we view the evidence in a neutral light and determine whether the

fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144

S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when the evidence

supporting the verdict, considered alone, is too weak to support the finding of guilt beyond a

reasonable doubt, or the evidence contrary to the verdict is so strong that the standard of beyond a

reasonable doubt could not have been met. Id. at 484-85.

               A person commits the offense of robbery with bodily injury if, during 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. See Tex. Pen.

Code Ann. § 29.02. Alonzo contends that there is no evidence that he caused bodily injury to Mr.

Gibson in “the course of committing theft” as required for the offense of robbery. See Tex. Pen.

Code Ann. § 29.02 (West 2003). He asserts that the evidence was to the effect that the commission

of the theft was over and that he was merely standing in Mr. Gibson’s yard and not in the immediate

flight from the commission of the theft.

               The penal code defines “in the course of committing theft” as “conduct that occurs

in an attempt to commit, during the commission, or in immediate flight after the attempt or

commission of theft.” See Tex. Pen. Code Ann. § 29.01(1) (West 2003). Where the theft, detention,

and effort to escape have all occurred without the intervention of any other events, the requirement

that the bodily injury have occurred during the course of committing theft has been fulfilled. Thomas



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v. State, 708 S.W.2d 580, 581 (Tex. App.—Eastland 1986, pet. ref’d). In Thomas, the defendant was

observed committing theft in a store and was taken into an office by a security guard to await the

arrival of police. Id. at 580. After waiting approximately 15 minutes, the defendant attempted to

flee the office, assaulting the security guard as a result. Id. The court affirmed the robbery

conviction, finding that the bodily injury occurred during appellant’s attempted flight after the theft

and that the flight was sufficiently immediate after the attempted theft to meet the definition of in

the course of committing theft. Id. at 581.

               In this case, the evidence shows that Alonzo had items belonging to Mrs. Gibson that

were taken from her car in his hands when Mr. Gibson came outside of his house. Mr. Gibson then

grabbed Alonzo to detain him after the theft. Alonzo hit Mr. Gibson in the head and stomped on Mr.

Gibson’s feet in an attempt to escape. Alonzo did not introduce evidence of any intervening events

between the alleged theft and the bodily injury caused to Mr. Gibson. The evidence was, therefore,

legally and factually sufficient to support a jury finding beyond a reasonable doubt that the bodily

injury caused to Mr. Gibson occurred in the course of committing theft as required for a conviction

of robbery.

               Alonzo also contends that the evidence is legally and factually insufficient to show

that he had the requisite “intent to maintain or obtain control of the property” to establish robbery.

See Tex. Pen. Code Ann. § 29.02. The “intent to obtain or maintain control of the property” deals

with the robber’s state of mind regarding the theft or attempted theft, and not the assaultive

component of robbery. Lawton v. State, 913 S.W.2d 542, 552 (Tex. Crim. App. 1995). There is no

requirement that appellant retain the intent to control property when the assaultive act is committed.



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The required violence may occur after the offender has abandoned the theft and is escaping. Id.

Intent to maintain control over property can be proven by circumstantial evidence. See Wolfe v.

State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996). In a sufficiency review, the jury’s inference

of intent is afforded more deference than the evidence supporting proof of conduct. See Margraves

v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

               Here, the evidence shows that Mr. Gibson witnessed an individual break into his

wife’s car. Mr. Gibson apprehended Alonzo outside of his house a few seconds later, and Alonzo

was holding several items that had been removed from Mrs. Gibson’s car. Although several of the

items removed from Mrs. Gibson’s car were on the ground near Alonzo’s feet when Mr. Gibson

approached him, the jury was free to infer from the evidence that Alonzo harbored an intent to

maintain or obtain control over the items he removed from Mrs. Gibson’s car. Alonzo did not

introduce evidence contradicting this reasonable inference. Accordingly, we overrule Alonzo’s

challenge to the legal and factual sufficiency of the evidence of intent as required to establish the

offense of robbery.

               In his third issue, Alonzo argues that the district court committed fundamental error

resulting in “egregious harm” by not including an instruction on self-defense in the jury charge. He

argues that, because the evidence shows that he was defending himself from Gibson’s unprovoked

attack, such a fundamental error requires reversal under Almanza v. State. 686 S.W.2d 157, 171

(Tex. Crim. App. 1985). An appellate court’s first step in evaluating a jury charge is to decide

whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found,

the next step is to analyze that error for harm. Id.

               The trial court must submit a charge to the jury “setting forth the law applicable to

                                                  5
the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp. 2005). The purpose of the jury charge

is to guide the jury in the application of the law to the case at hand. Hutch v. State, 922 S.W.2d 166,

170 (Tex. Crim. App. 1996). The inclusion of defensive issues is a discretionary strategic decision

for the defendants and their counsel. Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998);

Howard v. State, 972 S.W.2d 121, 126 (Tex. App.—Austin 1998, no pet.). Article 36.14 does not

impose a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. Posey,

966 S.W.2d at 62.

               In the instant case, Alonzo did not request that the jury charge include an instruction

on self-defense nor object to its absence from the jury charge. Because he did not request the

instruction, the trial court was not required to sua sponte charge the jury on the law of self-defense.

See Posey, 966 S.W.2d at 62, note 10 (an unrequested defensive issue is not “applicable to the case”

and not required to be included in a jury charge). Therefore, the trial court did not err in not

including the instruction. Finding no error in the jury charge, we do not reach a harm analysis under

Almanza. See 686 S.W.2d at 174; Posey, 966 S.W.2d at 62; Howard, 972 S.W.2d at 126.

               In his fourth and final issue, Alonzo claims that his representation at trial was

ineffective because his counsel failed to request that an instruction on the law of self-defense be

included in the jury charge. The right to counsel guaranteed by the Sixth Amendment is the right

to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

proper standard for attorney performance is that of reasonably effective assistance. Id. at 687.

Alonzo’s claim that his counsel’s assistance was so defective as to require reversal of his conviction

requires a showing that (1) counsel’s performance fell below an objective standard of reasonableness

under prevailing professional norms and (2) this deficient performance prejudiced the defense by

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more likely than not altering the outcome of the case. Id. at 687-94; Hernandez v. State, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986) (adopting the standard set forth in Strickland).

                Alonzo must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. See Strickland, 466

U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. An allegation of ineffectiveness must be firmly founded in the record with the record

affirmatively demonstrating the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). In a direct appeal, a reviewing court is rarely provided with a record capable of

providing a fair evaluation of the merits of such an allegation of ineffective assistance as the record

does not adequately reflect the failings of trial counsel. Id. at 813-14. As such, we indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Id.

                In the instant case, Alonzo’s trial counsel did not request a special instruction on self-

defense, nor did he object to the court’s charge. The court of criminal appeals has recognized that

deciding which defensive issues to request is a strategic decision left to the lawyer and the client. See

Posey, 966 S.W.2d at 63 (and cases cited therein). We find nothing in the record to suggest that this

was not a strategic decision on the part of defense counsel. For example, Alonzo and his attorney

might have decided for strategic reasons not to request the instruction on self-defense because of the

risk of alienating the jury by arguing a point that, if supported by any credible evidence at all, was

certainly weak. Furthermore, there is nothing in the record to indicate that the issue was sufficiently

raised by the evidence to require such an instruction. In giving the level of deference required by



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Strickland to trial counsel’s performance, we find that under the circumstances, Alonzo was provided

with effective assistance of counsel.

               Having overruled all of appellant’s issues on appeal, we affirm the judgment of the

trial court.




                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Justices Patterson, Puryear and Waldrop

Affirmed

Filed: September 8, 2006

Do Not Publish




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