                                    NO. 07-07-0174-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    MAY 28, 2009
                           ______________________________

                          MICHAEL DON BROWN, APPELLANT

                                              V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

           FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY;

         NO. 07-079-K26; HONORABLE BILLY RAY STUBBLEFIELD, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant Michael Don Brown appeals from his conviction by jury of the offense of

robbery and his resulting sentence of confinement for a term of twenty-five years. Via

three points of error, appellant challenges the legal and factual sufficiency of the evidence

to support his conviction and asserts the trial court erred in failing to properly instruct the

jury. We affirm.
                                        Background


       Appellant was charged by indictment alleging that, in the course of committing theft

and with intent to obtain or maintain control of property, he intentionally or knowingly

threatened or placed another in fear of imminent bodily injury or death.1 Following a plea

of not guilty, the case was tried before a jury.


       Evidence showed that appellant entered a Walgreens store and, after a time,

walked behind a counter. A female employee told appellant he was not permitted in that

area. Appellant then squatted down, placed one of his hands inside his jacket pocket and

pointed at the victim through his jacket pocket. He opened a glass case and removed four

cartons of cigarettes. He placed the cartons in his jacket and left the store.


       After hearing the evidence presented at trial, the jury found appellant guilty of

robbery.   Appellant plead “true” to the two enhancement offenses set forth in the

indictment. The jury assessed punishment at twenty-five years of imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. The court sentenced

appellant accordingly and this appeal followed.




       1
        See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). This is a second degree
felony punishable by imprisonment for any term of not more than 20 years or less than 2
years. The range of punishment for this offense is enhanced pursuant to Penal Code §
12.42 as appellant had been twice before convicted of a felony. Tex. Penal Code Ann.
§ 12.42 (Vernon 2007).

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                                             Analysis


Sufficiency of Evidence


           In appellant’s first two points of error, he contends the evidence was legally and

factually insufficient to support his conviction. Appellant was charged pursuant to Penal

Code § 29.02(a)(2), which provides a person commits an offense if, in the course of

committing theft as defined in Chapter 31 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). Appellant

concedes that he committed a theft;2 however, he denies taking any action that would

threaten the victim or put the victim in fear.


       To prove the offense of robbery as charged, there must have been threatened

violence to the victim, or intimidation of such a nature that the threatened party was put in

fear. See Green v. State, 567 S.W.2d 211, 213 (Tex.Crim.App.1978). The victim's fear

may not arise merely from some temperamental timidity, but must result from some

conduct of the perpetrator. Devine v. State, 786 S.W.2d 268, 271 (Tex.Crim.App.1989).

The fear must be of such a nature as in reason and common experience is likely to induce

a person to part with his property against his will. Id. at 270. The threat or conduct placing

another in fear must be of imminent bodily injury, that is “ready to take place, near at hand,

... menacingly near.” Id. (citations omitted). However, proving robbery by showing the

defendant placed another in fear does not require an actual threat. See Childress v. State,

       2
           At trial, appellant pled guilty to the lesser-included offense of theft.

                                                 3
917 S.W.2d 489, 494 (Tex.App.–Houston [14th Dist.] 1996, no pet.) (“The fact-finder may

conclude that an individual was ‘placed in fear,’ in circumstances where no actual (verbal)

threats were conveyed by the accused”); Williams v. State, 827 S.W.2d 614, 616

(Tex.App.–Houston [1st Dist.] 1992, pet. ref'd) (noting that a fact finder can determine that

an individual perceived fear when accused made no actual threats). Instead, it is sufficient

that the alleged robber engage in some conduct that places another in fear of imminent

bodily injury or death. Burton v. State, 230 S.W.3d 846, 852-53 (Tex.App.–Houston [14th

Dist.] 2007, no pet.). Thus, when evaluating the sufficiency of the evidence a defendant

intentionally or knowingly threatened or placed the victim in fear of imminent bodily injury

or death, we apply an objective standard, asking whether “the words and conduct of the

accused were sufficient to place a reasonable person in the victim's circumstances in fear

of imminent bodily injury or death.” Welch v. State, 880 S.W.2d 225, 226 (Tex.App.–

Austin 1994, no pet.); see Wilmeth v. State, 808 S.W.2d 703, 706 (Tex.App.–Tyler 1991,

no pet.) (determining whether defendant's conduct was such that in “reason and common

experience” the victim would feel fear and be likely to part with property against his will).


Legal Sufficiency


       In reviewing issues of legal sufficiency, an appellate court views the evidence in the

light most favorable to the verdict to determine whether, based on that evidence and

reasonable inference 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



                                              4
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

(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).


Factual Sufficiency


         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. Grotti v. State, 273 S.W.3d 273, 283

(Tex.Crim.App. 2008); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006);

Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). In a factual sufficiency

review, we consider all the evidence, but in a neutral light. Grotti v. State, 273 S.W.3d 273,

283 (Tex.Crim.App. 2008); Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.


Application


       Appellant concedes he committed theft of the cigarettes. Likewise, it is undisputed

the victim was frightened at the time of the incident. The victim testified she “was very

scared” because she thought he had “a gun or something” inside his jacket pocket. The

victim testified her belief was supported by her experience in a previous robbery several

years earlier. The responding officer and the store manager also testified to the victim’s



                                               5
fright. Our inquiry here, then, is whether the evidence presented at trial was factually and

legally sufficient to support the jury’s finding that during the course of the theft, appellant

knowingly or intentionally threatened or placed the victim in fear of imminent bodily injury

or death. In essence, appellant’s contention is that his actions were not sufficient to give

a reasonable person such fear.


       Appellant contends he made no threatening gestures toward the victim, he did not

speak to or look at her, or move closer than eight to ten feet from her. He also emphasizes

one of the statements the victim provided police, in which she stated, “the only reason I

believe he had a weapon was because I had gotten held up a couple years ago . . . and

that man did hold a gun in his jacket.”


        We find the jury rationally could have considered appellant’s actions to be

threatening toward the victim. The victim was at the cash register, at the closed end of the

counter. Appellant was near the open end of the counter. The victim testified that

appellant placed his hand in his jacket and pointed at her with his hand in his pocket when

she told him, “you can’t be back here.” She agreed with the prosecutor that he kept the

pocket pointed in her direction while he removed the cigarette cartons from the display

case. She testified, “when he put his hand in his pocket, to me, it was like he had

something in his pocket.”      Under these circumstances, that the victim’s belief was

influenced by her previous experience in which a robber did have a gun in his pocket does

not detract from the reasonableness of her fear. Too, contrary to appellant’s contention,

the victim said he looked at her during these events. We find the evidence was legally and



                                              6
factually sufficient to support appellant’s conviction, and overrule appellant’s first two points

of error.


Court’s Refusal of Appellant’s Requested Jury Instruction


       In appellant’s last point of error, he challenges the trial court’s denial of his

requested instruction. The trial court is required to give the jury a written charge “setting

forth the law applicable to the case; not expressing any opinion as to the weight of the

evidence, not summing up the testimony, discussing the facts or using any argument in his

charge calculated to arouse the sympathy or excite the passions of the jury.” Tex. Code

Crim. Proc. Ann. art. 36.14 (Vernon 2006). Error in a criminal jury charge is reviewed

under Code of Criminal Procedure Article 36.19. See Tex. Code Crim. Proc. Ann. art.

36.19 (Vernon 2006). In analyzing a jury charge complaint, we first determine whether

error exists in the charge and if so, whether sufficient harm resulted from the error to

compel reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). Where an

objection has been made, reversal is required if the error is “calculated to injure the rights

of defendant.” Id.; Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004); Almanza v.

State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). If a defendant does not object to the

charge, reversal is required only if the harm is so egregious the defendant has not had a

fair and impartial trial. Ngo, 175 S.W.3d at 743-44.




                                               7
           At the charge conference, appellant requested the inclusion of the following

instruction: “You are not to consider sympathy, bias, or prejudice as part of your

deliberations, nor are you to refer to or discuss any matter not in evidence before you.”

The trial court denied appellant’s request3 and submitted the instruction that           “[i]n

deliberating on the cause you are not to refer to or discuss any matter or issue not in

evidence before you.” The latter portion of appellant’s requested charge thus was

duplicative of the language contained in the charge submitted to the jury.


          Appellant contends that his requested instruction was necessary to prevent the jury

from considering what he characterizes as the victim’s “extreme emotional reaction” to her

encounter with appellant in the Walgreens and to her memories of the previous robbery.

However, appellant’s requested instruction did not identify the victim’s testimony

concerning the prior robbery and instead, vaguely requested that the jury not consider

sympathy, bias, or prejudice in their deliberations. Further, even if appellant’s requested

instruction had been included in the court’s charge, it would not have prevented the jury

from considering the victim’s testimony concerning her previous experience as a robbery

victim.


          Finally, appellant did not object to the victim’s testimony regarding her previous

experience, nor did he request a limiting instruction at the time the evidence was admitted.

As a result, the evidence was admitted for all purposes and appellant was not


       3
         Both appellant and the State note that at the outset of trial, the trial court orally
instructed the jury not to be “influenced in any way by sympathy, personal feelings, or
prejudice against the State or the Defense. Each is entitled to a fair and impartial
consideration of the evidence that was brought here in court.”

                                               8
subsequently entitled to a jury instruction limiting the jury’s consideration of that evidence.

Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App. 2001). The trial court did not err

by refusing appellant’s requested instruction. We overrule his last point of error.


       Having overruled appellant’s points of error, we affirm the judgment of the trial court.




                                                         James T. Campbell
                                                              Justice




Do not publish.




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