Terrance Deandre Short v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00016-CR ______________________________ TERRANCE DEANDRE SHORT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th Judicial District Court Harris County, Texas Trial Court No. 987389 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Terrance Deandre Short appeals from his conviction by a jury for aggravated robbery. The trial court assessed punishment at twenty-five years' imprisonment. Short contends on appeal that, on a number of elements, the evidence was legally and factually insufficient to support the verdict. We affirm the judgment of the trial court. Standard of Review We review the evidence for legal and factual sufficiency under the usual standards. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we look to see whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Facts The sequence of events and their importance is in question in this case. There is evidence the three occupants of a vehicle (Justin Byrd, Isaiah White, and Short) stopped and robbed a homeless man, Jesse Valdez, at gunpoint at a Texaco station. A police officer was patrolling nearby when the call came in, and he (and other officers) chased the vehicle Byrd, White, and Short were occupying until it crashed. All three were arrested in a field near the crash, and a pistol and shotgun were found in the wrecked vehicle. Valdez testified that, when the three stopped him, Short was in the front passenger seat and that Short had the pistol, while a person in the back seat had the shotgun. There was testimony that Byrd demanded Valdez's possessions while White and Short pointed their weapons toward Valdez. Valdez had no money, but was carrying a pouch with his medications, which he emptied onto the ground. Byrd got out of the driver's seat and, while he was picking up the pills, Valdez went to a pay telephone and called the police. Short testified and set out a different sequence of events. He testified that he was inside the Texaco station with the others and that Valdez came up to them and asked if he could trade his pills for crack cocaine. Short testified he directed Valdez to Byrd and White. Short testified that, when he left the station to walk home, he hitched a ride with Byrd and White, that a police car came up behind them, and the driver "took off," and that he ran away after the crash because he was frightened. There was also some discussion about the time involved: Valdez stated he had gone to the Texaco station to catch a bus, but there was evidence that the buses stopped running shortly after midnight and that the incident occurred at approximately two in the morning. Valdez explained he knew there was a late bus, but did not know exactly when it ran and that he missed it. There is also one unusual factor seen in the demand made by Byrd of Valdez: the testimony is that he told Valdez to "unask it" as a demand for his property. Although that is an odd turn of phrase, it is also clear that both of them understood what was meant: Valdez dropped his possessions, and Byrd promptly got out of the vehicle to pick them up. Issues Short contends the evidence was factually and legally insufficient to support his conviction because the evidence does not show he obtained or maintained control of, or attempted to obtain or maintain control over, property belonging to Valdez. He also argues the evidence does not support that conclusion, either as a principal or as a party. He further argues the evidence is insufficient on the element of the intent to commit theft or attempted theft. Legal Sufficiency In the context of these facts, Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003) provides that a person commits robbery if, in the course of committing a theft, and with intent to obtain or maintain control of property, he or she intentionally or knowingly places another in imminent fear of bodily injury or death. That offense is raised to aggravated status if, while committing a robbery, the actor uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). "'In the course of committing theft' within the robbery statute, means conduct which occurs in an attempt to commit, during commission, or in immediate flight after the attempt or commission of theft . . . . The actual commission of the offense of theft is not a prerequisite of the offense of robbery." Chastain v. State, 667 S.W.2d 791, 795 (Tex. App.—Houston [14th Dist.] 1983, pet. ref'd) (citing Autry v. State, 626 S.W.2d 758 (Tex. Crim. App. 1982)). Theft is committed when one unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004–2005). The jury was also charged with the law of parties, which provides that a person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). There is evidence that Short pointed a gun at Valdez while another person in the car gave Valdez a command, which Valdez interpreted as a demand for his property. Even if the demand is considered ambiguous, the intention of Short may be inferred by his action. A verbal demand is not the talisman of an intent to steal. See Johnson v. State, 541 S.W.2d 185, 187 (Tex. Crim. App. 1976); King v. State, 157 S.W.3d 873, 874 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). According to the testimony of Valdez, he was approached by Short and two other men, who drew firearms and held them on Valdez. Valdez understood the command given meant for him to "[g]ive them what I had." He considered that the "guns were doing more talking than anything." The incident made Valdez "scared for [his] life." Valdez then dropped his pills on the ground, and one of the three men began picking them up. Valdez called 9-1-1 and reported that he had "just gotten robbed." Intent to steal may be inferred from action or conduct. See Johnson, 541 S.W.2d at 187 (the defendant pointed a gun at grocery store manager's booth, but officers in the store apprehended him before any demand or attempted taking of property—defendant's actions were sufficient to allow a jury to find he was acting with intent to obtain property.); Chastain, 667 S.W.2d at 794 (the defendant shot a gasoline station attendant who ran from the booth stating, "They shot me, but they didn't rob me." The evidence was sufficient to find the defendant acted with intent to obtain property even though no money was taken and no one heard a demand.). Here, the evidence is legally sufficient for the jury to find that Short, acting as a party, attempted to unlawfully deprive Valdez of property and intended to obtain the property. Factual Sufficiency There are two ways in which we may find the evidence to be factually insufficient. Zuniga, 144 S.W.3d at 484. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484–85. In our review, however, we must employ appropriate deference to avoid substituting our judgment for that of the fact-finder, and any evaluation should not substantially intrude on the fact-finder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Thus, we can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Johnson, 23 S.W.3d at 8. We must therefore defer to the jury's conclusion based on matters beyond the scope of our ability to fully discern the credibility of the witness. Id. In our review, we defer to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The result of this is typically that jury resolutions of conflicts between witnesses will generally be inviolate, but that we can treat the validity of testimony as questionable because of other factors, such as adverse conditions affecting the ability of the witness to observe an assailant. Johnson, 23 S.W.3d at 9. In this case, there is evidence which, if believed by the jury, would support its conclusion that Short, acting as a party, attempted to obtain property of Valdez with the requisite intent to commit theft. Short's testimony gave an entirely different version of the events of that night. The jury chose to believe beyond a reasonable doubt that Valdez's account of the events was correct. We have reviewed the evidence contrary to the verdict, and after deferring to the jury's determinations based on the credibility of the witnesses and the weight of the evidence, we cannot conclude that the contrary evidence is so strong the State could not meet its burden of proof. Accordingly, the evidence is factually and legally sufficient to support the jury's verdict. The contentions of error are overruled. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: August 10, 2005 Date Decided: August 26, 2005 Do Not Publish e offense carrying the less severe punishment, count two. See Patterson v. State, 96 S.W.3d at 433. As reformed, the judgment below is affirmed in all respects. William J. Cornelius Justice* *William J. Cornelius, Chief Justice, Retired, Sitting by Assignment Date Submitted: March 8, 2007 Date Decided: May 16, 2007 Publish