                                   NO. 07-08-00298-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      MAY 28, 2010


                          JAMES RAY BARROW, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

             NO. B4148-0710; HONORABLE EDWARD LEE SELF, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

       Appellant James Ray Barrow appeals from his jury conviction of the offense of

robbery and the resulting sentence of ten years imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. Through two issues, appellant

contends the evidence is legally and factually insufficient to support his conviction.

Finding the evidence sufficient, we affirm the judgment of the trial court.
                                       Background


       Appellant was charged by an indictment alleging he committed robbery by

intentionally or knowingly threatening or placing his victim in fear of imminent bodily

injury or death.1 After his not-guilty plea, the State presented its case through four

witnesses. The defense cross-examined each of the State=s witnesses and presented

two defense witnesses, including appellant.


       Evidence showed that at around 10:00 on the night of September 3, 2007, two

teenage males visited a convenience store in Tulia, Texas. They arrived at the store in

the driver=s pick-up truck and as they parked, appellant, a man in his late thirties,

approached the passenger side of the truck, opened the door, and asked for money.

Appellant then offered to give the boys a gold pendulum chain in exchange for money.

The complainants told appellant they did not have any money.


       The driver of the pick-up truck decided to move to another parking space

because he was Areally scared.@ The passenger testified the driver moved Abecause

[they] were scared...[b]ecause someone opened my door I didn=t know. I didn=t know if

he was going to hurt me orByou know, just opened the door without asking or anything;

just opened the door.@ As the driver prepared to pull into another space, appellant said,

AI=ll just get in. I=ll just get in.@ Appellant Agot on top of [the passenger=s] lap….” The




       1
           See Tex. Penal Code Ann. ' 26.02(a)(2) (Vernon 2003).



                                              2
passenger testified appellant had his hand in his sweater2 Aand I didn=t know if he may

have had a weapon, if I was going to get hurt orBI didn=t know what was happening,

because he jumped in.@ The driver testified he Awas really pretty scared because I

didn=t want somebody I didn=t know in my pickup.@ The driver also testified he believed

Aa little bit@ that appellant could hurt him.


       Appellant then asked the driver and passenger for cigarettes, which they told him

they did not have. Appellant asked again for money but the complainants again told

them they had none.        In response, as appellant opened the door of the truck, he

reached over to the console of the truck and took three dollars that were in the cup

holder. He got out of the truck and left. The passenger closed the door of the pick-up

truck and they left Abecause we were scared. We didn=t want to stay there.@


       The driver took the passenger to a nearby friend=s house. About five to ten

minutes after the incident, the passenger complainant observed appellant on the street

near the home. He told his friend Athat=s the guy.@ His friend identified him as appellant,

calling him ABaby James.@ The passenger then talked to the driver of the pick-up truck

and the boys went to the police department.          The complainants provided written

statements and identified appellant in a line-up.


       The defense provided evidence to show appellant did not intend to commit theft

but merely asked the complainants if they had any money he could borrow. He also
       2
         The passenger later testified appellant was wearing Aa little hoodie@ with Alittle
pockets.@



                                                3
testified he offered to sell a necklace to the boys in exchange for ten dollars. He further

contended the driver offered him the three dollars.


       After hearing the evidence presented, the jury found appellant guilty of robbery

and sentenced him to imprisonment for a term of ten years. This appeal followed.


                                           Analysis


       Through two issues, appellant challenges the legal and factual sufficiency of the

evidence to support his conviction for robbery. He argues that at most he is guilty only

of misdemeanor theft.3


Applicable Law


           Reviewing its legal sufficiency, we view the evidence in the light most favorable

to the verdict to determine whether, based on that evidence and reasonable inferences

therefrom, a rational jury could have found each element of the offense beyond a

reasonable doubt.       Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003);

Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If, given all of the evidence,

a rational jury would necessarily entertain a reasonable doubt of the defendant=s guilt,

due process requires that we reverse and order a judgment of acquittal.

Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423



       3
        The court’s charge to the jury included an instruction on the lesser-included
offense of misdemeanor theft.

                                               4
(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L.Ed.2d 791

(1993).


       A factual sufficiency review of the evidence is Abarely distinguishable@ from the

legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618,

625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence

supporting guilt, though legally sufficient, is so weak that the jury=s verdict seems clearly

wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury=s

verdict is against the great weight and preponderance of the evidence. Id.; Watson v.

State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1,

11 (Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the

evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d

at 414. We must also discuss the evidence that, according to the appellant, most

undermines the jury's verdict. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.

2009); Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The jury is the

exclusive judge of the credibility of witnesses and of the weight to be given their

testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000) (citing Barnes v.

State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994)). Likewise, "reconciliation of conflicts

in the evidence is within the exclusive province of the jury." Wyatt, 23 S.W.3d at 30

(citing Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986)). The jury may

choose to believe some testimony and disbelieve other testimony, Wyatt, 23 S.W.3d at

30.




                                             5
       As pertinent here, a person commits robbery Aif, 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 the offense of theft if

he unlawfully appropriates property with intent to deprive the owner of property. Tex.

Penal Code Ann. ' 31.03 (Vernon 2007). Proving robbery by showing the defendant

placed another in fear does not require an actual threat. Burton v. State, 230 S.W.3d

846, 852 (Tex.App.BHouston [14th Dist.] 2007, no pet.), citing Childress v. State, 917

S.W.2d 489, 494 (Tex.App.BHouston [14th Dist.] 1996, no pet.) (A[t]he fact-finder may

conclude that an individual was >placed in fear= in circumstances where no actual

(verbal) threats were conveyed by the accused@). Under the Aplaced in fear@ language

in section 29.02 of the Penal Code, the factfinder may conclude that an individual

perceived fear or was Aplaced in fear,@ in circumstances where no actual threats were

conveyed by the accused. Williams v. State, 827 S.W.2d 614, 616 (Tex.App.BHouston

[1st Dist.] 1992, pet. ref=d).


Application


       Appellant argues the evidence presented at trial was insufficient to prove he was

guilty of robbery because the complainants were not placed in fear and because the

State did not prove appellant intended to, or knew his conduct would, place the

complainants in fear. We disagree.




                                              6
        First, appellant argues the evidence did not show the complainants were placed

in fear. However, each complainant here testified they were scared when appellant, a

man they did not know, opened the door, asked for money, and jumped into the truck.

The passenger testified he was afraid appellant had a gun because his hand was in his

pocket.4 The driver testified similarly. Both complainants testified they were scared of

being hurt by appellant. The driver testified he was Areally scared@ because he Adidn=t

know what [appellant] was going to do, what he had on him, you know. Maybe I felt a

little threatened.@ Appellant was Areally, really persistent@ about asking for money and

was Akind of not going to let us leave.@ The driver testified the three dollars appellant

took out of the cup holder in the console of the truck belonged to him and he did not

give appellant permission to take it. The three dollars were never returned to him.


        On appeal, appellant refers us to specific testimony he argues supports his

contention that the evidence is insufficient to support the complainants were placed in

fear:


              Q. (by defense counsel): And isn=t it true, [passenger], that [appellant]
                                       never made any threat to harm you or [driver]?
              A. (by passenger):         No, sir.
              Q.                         That=s not true, or that is true?


        4
       At trial, the defense examined a police officer to establish that when the officer
saw appellant that night, he was wearing plaid shorts and a Ablack sleeveless-type
undershirt@ but was not wearing a hoodie. He further established that the shirt appellant
was wearing did not have pockets that the officer saw.



                                            7
              A.                          That is true, that he did not ever....@
                            ***
              Q. (by defense counsel)     Now, did [appellant] ever say anything to you
                                          or to [passenger] to give you the idea that he
                                          would do something to you if you didn=t give
                                          him any money?
              A. (by driver)              No, sir.
                            ***
              Q.                          And did he ever act like heBdid he make any
                                          overt or any direct acts like he was wanting to
                                          hurt either you or [passenger]?
              A.                          No, sir.
              Q.                          Did he say anything like, you know, AGuys, if
                                          you don=t give me some money, I=m going to
                                          take you out in the parking lot and beat the
                                          snot out of you@?
              A.                          No, sir.
              Q.                          Did he make any statements of any kind that
                                          wouldBthat you would take as a threat?
              A.                          No, sir.


       Appellant further argues that the State=s evidence of the driver complainant=s

emotions, ranging from feeling a Alittle threatened@ to being a Alittle bit@ afraid of

imminent bodily injury is not legally sufficient evidence he was placed in fear of robbery.

We nevertheless find the jury reasonably could have found, based on the complainant’s

testimony, the complainants were placed in fear.


       Appellant also argues there is no evidence to support the jury=s implicit finding

appellant intended by his conduct to put the driver complainant in fear of imminent

                                             8
bodily injury to induce him to part with his money. He testified he took a walk that

evening after having an argument with his wife. He acknowledged having the chain

necklace in his pocket and approaching the complainants.          He said he saw the

passenger get out of the truck and asked for money. He stated AI have a nice necklace

on me maybe one of you young guys would like to have.@ He asked for ten dollars in

exchange for the necklace, which he said he believed was worth eighty or ninety

dollars. The passenger told appellant he did not have any money but took the necklace

and asked the driver if he wanted to buy it. The driver told the passenger he had only

three dollars. The passenger returned the necklace to appellant.         The driver then

offered appellant the three dollars he had in the truck. Appellant testified he never

threatened the complainants, never intended to take anything from them, and never got

into the pick-up. He also testified he thanked the boys for the money when he saw

them at a nearby house. He crossed the street and waved Ahello@ to them and the

passenger=s friend said hello, referring to appellant as ABaby James.@


      In making his argument that he did not intentionally or knowingly act in a way to

place the complainants in fear, appellant also points to the driver complainant=s

testimony agreeing that no harm was done to either complainant, no aggressive

movements were made by appellant to them, and appellant gave them no Amean looks.@

During redirect, however, the driver agreed with the prosecutor that opening the truck

door uninvited and jumping in on the passenger=s lap were aggressive movements.


      As noted, the jury was free to believe the complainants’ version of the events

rather than appellant’s. Wyatt, 23 S.W.3d at 30; Chambers, 805 S.W.2d at 461. From


                                            9
the testimony the jury heard, we conclude the jury could have inferred from appellant’s

conduct that he intended to, or knew his conduct would, place the complainants in fear.

See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); Beltran v. State,

593 S.W.2d 688, 689 (Tex.Crim.App. 1980); Dominguez v. State, 125 S.W.3d 755, 761

(Tex.App.—Houston [1st Dist.] 2003, pet. ref’d) (a jury may infer intent from any facts

that tend to prove its existence, such as the acts, words, and conduct of the defendant).


       Viewing the evidence in the light most favorable to the verdict, we find the

evidence is legally sufficient to establish appellant intentionally or knowingly acted in

such a way to place the complainants in fear. The evidence is likewise legally sufficient

to show the complainants were placed in fear. Viewing all the evidence in a neutral

light, we conclude the proof of appellant’s guilt is also neither so obviously weak as to

undermine confidence in the jury’s determination, nor such that it is greatly outweighed

by contrary proof. The evidence is factually sufficient.


       We overrule appellant=s issues and affirm the trial court=s judgment.




                                                           James T. Campbell
                                                                Justice


Do not publish.




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