Jesse Steven Sorrells v. State

NO. 07-04-0287-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 20, 2005 ______________________________ JESSE STEVEN SORRELLS, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY; NO. 9001; HON. WILLIAM D. SMITH, PRESIDING _______________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ. Appellant, Jesse Steven Sorrells, appeals his conviction for aggravated robbery. The two issues before us concern whether the evidence was legally and factually sufficient to support the verdict. Appellant contends that it was neither because the monies he sought from the victim, William Armijo, were proceeds of a drug sale allegedly belonging to the appellant. According to the record, Armijo sold drugs for appellant, and appellant sought to obtain the proceeds from one such sale by striking Armijo on the head with a hammer. We overrule the issues and affirm the judgment. Again, appellant asserts that he could not be convicted of robbery because the money he tried to beat out of Armijo was actually appellant's. In short, according to appellant, one cannot steal (via a robbery) that purportedly belonging to him. We disagree for one need only be in possession of the property sought to be considered an owner. That is, aggravated robbery occurs when a person commits a robbery and causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §29.03 (a)(1) & (2) (Vernon 2003). In turn, one commits robbery when, in the course of committing a theft and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another. Id. §29.02(a)(1). Furthermore, theft occurs when someone unlawfully appropriates property with intent to deprive the owner of property. Id. §31.03(a) (Vernon Supp. 2004-05). And, the appropriation is unlawful if done without the owner's effective consent. Id. §31.03(b)(1). And, finally, an owner includes, among others, someone in "possession of the property, whether lawful or not." Id. §1.07(a)(35)(A); see Brown v. State, 56 S.W.3d 915, 919 (Tex. App.--Houston [14th Dist.] 2001, no pet.) (holding that one method of ownership is possession). To the extent that Armijo had possession of the property appellant desired, and irrespective of whether that possession was lawful, he was deemed an owner of it for purposes of theft, robbery and aggravated robbery. And, no one disputes that appellant thought Armijo had, or possessed, the money in question. And, to the extent that appellant may not have succeeded in obtaining any money from Armijo, that is of no import. Simply put, one need not complete a theft to commit robbery. Woodberry v. State, 547 S.W.2d 629, 631 n.1 (Tex. Crim. App. 1977); Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.--Waco 1997, no pet.). This is so because "the gravamen of robbery is the assaultive conduct and not the theft." Caldwell v. State, 943 S.W.2d at 552. In sum, the evidence of ownership is both legally and factually sufficient to support appellant's conviction for aggravated robbery. So, we affirm the judgment of the trial court. Brian Quinn Justice Do not publish. : 0.416667in; margin-bottom: 0.104167in"> Kelly Kanton Labaj and Third Coast Auto Group, L. P., Appellants, appeal from the judgment entered in Cause No. D-1-GN-08-000492. The judgment was filed on March 13, 2009, a motion for new trial was filed April 6, 2009, and notice of appeal was filed on June 11, 2009. This Court is obligated to determine, sua sponte, its jurisdiction to entertain an appeal. Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.–Amarillo 1994, writ denied), citing New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). A timely notice of appeal invokes this Court’s jurisdiction. See Tex. R. App. P. 25.1 & 26.1. See also Garza v. Hibernia Nat. Bank, 227, S.W.3d 233 (Tex.App.–Houston [1st Dist.] 2007, no pet.). A review of the Clerk’s Record reveals that the case was tried February 23, 2009, and the judgment was submitted to the Court for signature on March 9, 2009. Because the judgment bears no signature date, even though the judgment in question was filed on March 13, 2009, we are unable to determine the date the judgment was signed. The date the judgment was signed is critical to a determination of our jurisdiction because if the judgment was signed prior to March 13, 2009, the notice of appeal was not timely. Provided, however, a notice of appeal filed within fifteen days after the deadline for filing, may still be considered timely if the party filing the notice provides this Court with a reasonable explanation for the late notice. See Tex. R. App. P. 26.3. See also Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998). Because the notice of appeal in this case was potentially filed late, and because the notice of appeal was potentially filed within fifteen days of the deadline for filing, in order to determine its jurisdiction, this Court must determine when the judgment was signed, and if the notice of appeal was untimely, whether Appellants have a reasonable explanation for the late notice of appeal. Therefore, we now abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine the following: 1. the date the judgment was signed; and 2. if the judgment was signed prior to March 13, 2009, any explanation as to why Appellants filed their Notice of Appeal late. On or before September 21, 2009, the trial court shall enter an order containing findings of fact and conclusions of law addressing those issues and it shall cause that order to be included in a supplemental clerk’s record to be submitted to this Court. In addition, upon the filing of that order, the trial court shall cause a copy thereof to be mailed to this Court. It is so ordered. Per Curiam