Opinion issued February 25, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00349-CR
MELVIN CHARLES SWEED JR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1132101
DISSENTING OPINION
I respectfully dissent from the majority opinion’s decision to affirm the conviction of appellant, Melvin Charles Sweed, for aggravated robbery. I would reverse and remand the case because the trial court harmfully erred by failing to instruct the jury on the lesser-included offense of theft.
The dispute between the majority and dissenting opinions centers on whether the appellant threatened Sixto Mondragon, the complainant, with assault with a deadly weapon while appellant was in the immediate flight after the attempt or commission of theft. See Tex. Penal Code Ann. § 29.01(1), 29.02(a)(2), 29.03(a)(2) (Vernon 2003) (emphasis added). “‘Immediate flight’ is not specifically defined in the Penal Code,” but it has been defined as follows:
Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time.
Thomas v. State, 708 S.W.2d 580, 581 (Tex. App.—Eastland 1986, writ ref’d) (describing definition from dictionary).
Although I agree with the majority opinion that the first prong for establishing lesser-included offenses is met here due to the elements of theft being subsumed by the elements of aggravated robbery, unlike the majority opinion I conclude the second prong for establishing a lesser-included offense is met because there is more than a scintilla of evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offenses of theft and assault. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) (explaining two prongs for establishing lesser included offenses). Here, the evidence gives rise to at least two, reasonably equal, plausible inferences: either that appellant committed aggravated robbery because the assault occurred while in the immediate flight from theft or, alternatively, that he committed separate offenses of assault and theft because he assaulted the complainant when he was not in immediate flight from the theft. See Evans v. State, 202 S.W.3d 158, 165 (Tex. Crim. App. 2006) (stating, “[I]t is clearly the jury that makes the choice of which inference to accept” when the evidence “gives rise to at least two, reasonably equal, plausible inferences”).
There is more than a scintilla of evidence from which the jury could determine appellant was not guilty of aggravated robbery and instead guilty of an assault plus a theft because the assault was not in the immediate flight from the theft. The record shows the events transpired over approximately 30 minutes. Mondragon testified that his work crews were at an apartment complex when he heard one of his workers, Jose, screaming that someone had pulled a knife on him. Jose did not state why the person had pulled a knife on him, and the indictment does not list Jose as a complainant. When Mondragon reached Jose, Mondragon saw appellant and another man walking toward him, as the unknown man acted as if he did not know what was going on. Appellant left alone with a nail gun in his arms and entered an apartment. As they awaited the arrival of police officers, Mondragon and another person positioned themselves on the side of the building to make sure appellant did not leave the apartment. After a short while, appellant left the apartment wearing different clothes. Appellant left the area, walked past the pool, and walked to another building that was about 150 feet away, where he spoke to a group of men for about five minutes before he started walking back toward the apartment where he had been staying. Appellant saw Mondragon, who had remained watching him the entire time. Appellant recognized him and threatened him with a knife causing him to fear that he would be stabbed. Appellant then fled into the apartment. When police officers arrived later, they arrested appellant and found a knife and the nail gun in the apartment.
These events show that after the theft of the nail gun from the work crew, eight activities occurred before appellant threatened the complainant with a knife: (1) appellant left the area where the crew was working, (2) entered the apartment, (3) left the stolen item inside the apartment, (4) changed clothes, (5) left the apartment, (6) walked across a parking lot, (7) spoke to a group of people, and (8) walked back across the parking lot towards the apartment. The jury could have reasonably decided the assault was not in the immediate flight after the theft because:
•the theft occurred at the crew’s work site at the apartment, but the assault occurred in a parking lot;
•there was a 30 minute gap of time between the time appellant stole the nail gun and the time appellant assaulted the complainant with a knife; and
•the many intervening activities by appellant that occurred between the theft and assault—leaving the stolen item inside the apartment, changing clothes, and leaving the apartment to speak with a group of people across the parking lot—are intervening circumstances showing a gap in the events.
The jury, therefore, reasonably could have determined the theft and assault were two separate events because the assault did not occur in the immediate flight from the commission of the theft, as required for aggravated robbery. See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a)(2), 29.03(a)(2); Thomas, 708 S.W.2d at 581 (immediate means “at once; without delay; not deferred by any interval of time”).
The situation here is procedurally distinguishable from cases on which the majority opinion relies because those cases address only whether the evidence is legally sufficient to establish aggravated robbery and are silent on whether a lesser- included-offense instruction should have been given. See White v. State, 671 S.W.2d 40, 41–42 (Tex. Crim. App. 1984); Lightner v. State, 535 S.W.2d 176, 177–78 (Tex. Crim. App. 1976); McCall v. State, 113 S.W.3d 479, 480–81 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Oggletree v. State, 851 S.W.2d 367, 369–70 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (establishing test for legal sufficiency of evidence by viewing evidence in light most favorable to jury’s verdict). As noted above, I agree the evidence is legally sufficient to uphold appellant’s conviction for aggravated robbery. The issue here is whether a lesser-included-offense instruction should have been given, which is a topic not addressed by any of these cases.
Importantly, each of the cases cited by the majority opinion are also factually distinguishable in that they fail to show the type of intervening circumstances present here. In McCall, McCall ran out of a store when he stole cigarettes; he was chased by the cashier and customer who subdued him until he managed to escape into his car; and he then drove directly toward the cashier and customer, who feared for their lives as they fled. McCall, 113 S.W.3d at 480. In holding the evidence was legally sufficient to establish aggravated robbery in Oggletree, we said,
[A]ppellant engaged in one continuous, criminal episode, not in a series of incidents. He did not accomplish a successful escape; rather, for reasons unclear in the record, he remained in the vicinity and reappeared to attempt to liberate his confederate. His flight across the parking lot and his reappearance to threaten [the employees] occurred without intervening circumstances. Appellant himself chose to continue his criminal episode by returning to assist his accomplice. A rational trier of fact could conclude that appellant displayed his knife during immediate flight from the theft.
Oggletree, 851 S.W.2d at 369–70. In White, when Carl Sherlock tried to take the complainant’s purse, he let go when she refused to release it, and he was chased by two bystanders, who were shot by appellant who was in a waiting getaway car. White, 671 S.W.2d at 41. In Lightner, Lightner stole money from a cash register, he was immediately followed by a store employee as he ran to his car, and he got into his car and drove it towards the officer who was immediately attempting to arrest him. Lightner, 535 S.W.2d at 176–77. As the court in Lightner stated,
Appellant contends that he was not in immediate flight when apprehended by Officer Collins. Officer Collins caught appellant about 100 yards from the scene of the theft. He started to follow appellant to the back of the shopping center shortly after appellant had entered the rear of the parking lot. Appellant was handcuffed and in custody within seven to nine minutes after the theft.
Id. at 178. In contrast to each of these cases that show immediate events with no intervening circumstances, the jury could have reasonably decided that here the assault was not in the immediate flight after the theft because of the combination of circumstances that show the theft and assault occurred at different locations thirty minutes apart after appellant had left the stolen item behind in his apartment, changed clothes, and left his apartment to speak to a group of people at another location at the apartment complex.Although this case is in the same procedural posture as Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981), this situation is factually distinguishable from it. In Royster, the Court of Criminal Appeals held the trial court did not err by refusing the lesser-included offense instructions of assault and theft when Royster was charged with aggravated robbery. Royster, 622 S.W.2d at 447. After he snatched a purse from a woman, Royster cut the man who chased him immediately following the theft. Id. at 446. Unlike Royster, the jury could have reasonably decided that appellant was not in immediate flight from the theft because after the theft and before the assault, appellant left the stolen property in an apartment, changed clothes, walked across a parking lot, and conversed with a group of people. See id.
The situation here is similar to a case recently reversed by the Amarillo Court of Appeals. Jones v. State, 280 S.W.3d 294, 297–98 (Tex. App.—Amarillo 2007, pet. ref’d). There, the court stated,
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. . . . [T]he 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 offense of theft.
Id. This case is similar to Jones in that the matter of whether the assault was in the immediate flight from theft is properly a question for the jury to decide based on the evidence and the inferences made by the jury. See id.
As the United States Supreme Court long ago explained when reversing a conviction for failure to instruct on a lesser-included offense,
The question is whether the court erred in refusing this request. The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. . . . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self defence [sic], and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.
Stevenson v. United States, 162 U.S. 313, 314–15, 16 S. Ct. 839, 839 (1896).
As Stevenson shows, the error here is one that has been happening repeatedly for over one hundred years. See id. This error is easily preventable by one simple rule: Judges should not refuse to allow juries to decide questions of fact. See id. The question of whether the assault was in the immediate flight from the theft is a matter for a jury to decide based on what inferences may be drawn from circumstantial evidence. See Evans, 202 S.W.3d at 165 (holding court must defer to jury when there are two reasonable inference that can be drawn from circumstantial evidence). I conclude there is more than a scintilla of evidence from which the jury reasonably could determine that theft is a valid, rational alternative to aggravated robbery. I, therefore, would hold that the trial court erred by refusing to instruct the jury on the lesser-included offense of theft.
Elsa Alcala
Justice
Panel consists of Justices Keyes, Alcala, and Hanks.
Justice Alcala, dissenting.
Publish. Tex. R. App. P. 47.2(b).