                                     NO. 07-06-0297-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                  OCTOBER 8, 2007
                           ______________________________

                           MICHAEL ERIC JONES, APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

               FROM THE 399TH DISTRICT COURT OF BEXAR COUNTY;

      NO. 2005CR4158; HONORABLE JUANITA VASQUEZ-GARDNER, JUDGE
                     _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                           OPINION


       Appellant, Michael Eric Jones, was convicted by a jury of the offense of aggravated

robbery and the same jury, after finding the enhancement portion of the indictment true,

sentenced appellant to 52 years in the Texas Department of Criminal Justice-Institutional

Division. Appellant attacks the judgment of the trial court through four issues claiming error

in that: 1) the trial court ruled that he was only entitled to have new counsel appointed one

time, 2) the trial court refused to allow him to hire counsel of his choice, 3) trial counsel was
ineffective, and 4) the trial court refused to instruct the jury on the lesser included offense

of theft. We reverse.


                            Factual and Procedural Background


       On October 26, 2004, 81 year old Anna Clark, the victim, was waiting at a bus stop

in San Antonio. While waiting, someone came from behind Clark and snatched the purse

off her shoulder. As a result, Clark’s eyeglasses became dislodged from her face and she

began to fall. Clark grabbed a grocery cart she had brought from the grocery store for

support and, by the time she looked up, all she saw was the back of the perpetrator.


       At the same time these events were unfolding, Eduardo Camargo and his wife,

Blanca, were passing by the intersection next to the bus stop. Eduardo observed appellant

walking toward Clark from the rear. Eduardo testified that he observed appellant pull the

purse off of Clark and flee. He followed appellant and watched him enter a red Dodge

Neon automobile and sped off. Eduardo followed the red Neon and Blanca wrote down

the license plate number and called 911 to report what they had observed. The Camargos

eventually lost sight of the red Neon and returned to the bus stop. Blanca gave the

information about the red Dodge Neon to the police at the bus stop. The police checked

the license plate number that Blanca reported and it was to shown to belong on a red

Dodge Neon belonging to Esmeralda C. Vasquez. The records also indicated that, four

days before the offense in question, a male driver matching the general description of the

perpetrator was ticketed in the Neon. Detective Bryan Taylor prepared a photo array,

including a picture of appellant, and showed it to Eduardo. Eduardo immediately identified


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appellant’s photo as the man that took the purse and fled in the red Neon. Appellant was

then arrested and subsequently indicted for the offense of aggravated robbery.


       After appellant’s arrest, on January 23, 2005, he was appointed an attorney. On

July 18, 2005, appellant requested that the court discharge his attorney and appoint him

a new attorney. The court complied with the request with the admonition that the court

would only appoint a new attorney one time. On October 17, 2005, appellant was

appointed another attorney, who served throughout the trial. There was no complaint in

the record about the new attorney, until May 2, 2006, the day the case was set for trial. On

that date, at a pretrial hearing, before bringing in the jury panel, appellant for the first time

complained about his second attorney and requested the court appoint another attorney.

The trial court refused to do so. Appellant then asked if he could hire an attorney. The trial

court said he could, however, the trial was going to proceed as scheduled. The trial

proceeded to verdict, the jury found the appellant guilty of aggravated robbery and this

appeal follows. We will first address the issue of the lesser included charge instruction.


                                  Lesser Included Offense


       Appellant’s third issue contends that the trial court erred by refusing to give a lesser

included charge on the offense of theft.1 Appellant requested the lesser included charge

in a timely manner and the same was refused by the trial court. Therefore, if the trial court

erred, the appellant need only show that the error was one that is “calculated to injure the



       1
        At trial, the request was for the offense of theft of a person, which we have
construed to mean theft.

                                               3
rights of the defendant.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).

When this test is applied, the cogent inquiry is did the error, if any, affect the substantial

rights of the appellant. TEX . R. APP. P. 44.2(b). More recently, the Court of Criminal

Appeals has stated that a conviction should not be overturned and reversed unless, from

an examination of the entire record, we can conclude that the error may have had

substantial influence on the outcome of the proceeding. Burnett v. State, 88 S.W.3d 633,

637 (Tex.Crim.App. 2002).


       To constitute a lesser included offense, an offense must 1) be established by proof

of the same or less than all of the facts required to establish the commission of the offense

charged; 2) differ from the offense charged only in the respect that a less serious injury or

risk of injury to the same person, property, or public interest suffices to establish its

commission; 3) differ from the offense charged only in the respect that a less culpable

mental state suffices to establish its commission; or 4) consist of an attempt to commit the

offense charged or an otherwise included offense. TEX . CODE CRIM . PROC . ANN . art. 37.09

(Vernon Supp. 2005). The State concedes that theft is a lesser included offense of

robbery. See Earls v. State, 707 S.W.2d 82, 84 (Tex.Crim.App. 1986). Further, as alleged

in the indictment, the element that elevates this case to aggravated status is the age of the

victim coupled with actions that threaten or place the victim in fear of imminent bodily injury

or death. See TEX . PENAL CODE ANN . § 29.03(a)(3)(A) (Vernon 2003).2 Therefore, it

follows that theft is a lesser included offense of aggravated robbery, as alleged in the

indictment. See Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007) (holding that


       2
           Further reference to the Texas Penal Code will be by reference to § ___.

                                              4
the “pleadings approach” is the first step in determining whether a party may be entitled to

a lesser included offense instruction). The second step of the analysis requires a review

of the evidence admitted at trial to determine if the appellant is entitled to the lesser

included instruction. Id. at 536. Anything more than a scintilla of evidence may be

sufficient to entitle appellant to the requested charge. Id. The evidence need only establish

the lesser included offense as a valid, rational alternative to the charged offense. Id.


       In the present case, the record discloses that the issue of threatening or placing the

victim in fear of imminent bodily injury or death was hotly contested. Clark testified that she

never saw the appellant until he was running away. Further, she testified that she was

afraid of falling and possibly breaking a bone. Her testimony about being afraid was

capable of differing interpretations. On the one hand she indicated that she had a general

fear of falling and breaking a bone, which was the reason given for having the shopping

cart for stability. Alternatively, she could have been saying that she was afraid of falling

because of the purse being snatched from her shoulder. Camargo testified that, when he

returned to the scene, Clark was scared and was shaking. However, Clark’s fear after the

fact is not conclusive evidence that she was placed in fear of imminent bodily injury at the

time of the taking of the purse. Rather, the testimony and the inferences that a jury may

make from that testimony is a question for the jury to decide under the appropriate

instruction from the court. The initial police officer on the scene indicated that the offense

was one of “purse snatching.” After reviewing the record, it appears there was at least

more than a scintilla of evidence to support the theory that appellant was guilty of only the




                                              5
offense of theft.    Accordingly, appellant was entitled to the lesser included offense

instruction of theft. Id.


       We now turn to the issue of harm. As stated above, the standard of review for such

a situation is that we look at the entire record to determine if the error affected appellant’s

substantial rights. TEX . R. APP. P. 44.2(b). The harm from denying the lesser offense

instruction stems from the potential to place the jury in the dilemma of convicting for a

greater offense in which the jury has reasonable doubt or releasing entirely from criminal

liability a person the jury is convinced is a wrongdoer. Masterson v. State, 155 S.W.3d

167, 171 (Tex.Crim.App. 2005). The lesser offense is an available compromise. Id. In the

present case, appellant was sentenced under the term provided for aggravated robbery,

a first degree felony. § 29.03(b). A first degree felony carries a punishment range from

five to 99 years or life in prison. § 12.32. With the enhancement provision found true by

the jury the punishment range is from 15 to 99 years or life imprisonment. § 12.42(c)(1).

Punishment on the requested lesser included offense of theft is determined by the value

of the property taken. § 31.03(e)(2)-(3). Those offenses carry a term of confinement in jail

for six months and one year, respectively. §§ 12.22, 12.21. With the enhancement

paragraph found true by the jury, the punishment range for a Class A misdemeanor is 90

days to one year confinement. § 12.43(a).          For a Class B misdemeanor, with the

enhancement paragraph, the applicable punishment range is 30 to 180 days confinement.

§ 12.43(b). In this case, the appellant was sentenced to serve a term of confinement of

52 years in the Texas Department of Criminal Justice. Under these facts and with the

issue of fear to Clark being the paramount contested issue, the refusal to grant the lesser


                                              6
included instruction did have a substantial influence on the outcome of the case. Burnett,

88 S.W.3d at 637. The jury was denied the opportunity to evaluate the appellant’s conduct

in light of the lesser criminal offense. Instead, they were faced with the decision to release

a person who had taken advantage of an elderly individual or to convict him of aggravated

robbery. This is the exact moral dilemma for a jury to which Masterson spoke. Masterson,

155 S.W.3d at 171. Accordingly, the decision to deny the lesser included instruction was

reversible error.


       Having concluded that the trial court committed reversible error in connection with

the lesser included offense instruction, we need not address the appellant’s remaining

issues. TEX . R. APP. P. 47.1.


                                         Conclusion


       Having determined that the trial court committed reversible error, we reverse the

judgment of the trial court and remand the case for a new trial.




                                                  Mackey K. Hancock
                                                      Justice




Publish.




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