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
OPINION
A jury found appellant, Melvin Charles Sweed, Jr., guilty of aggravated robbery and assessed punishment at thirty-eight years’ imprisonment. Appellant stipulated to two prior felony convictions, which enhanced his punishment. In a single point of error, appellant argues that the trial court erred by failing to grant his request for theft to be included in the jury charge as a lesser-included offense. In the judgment, the enhancement paragraphs created by appellant’s prior felonies were marked N/A, or “not applicable,” rather than true. The State asks that this Court correct the judgment by modifying it to reflect that appellant pled true to the State’s two enhancement paragraphs.
We modify the judgment and as modified affirm.
Background
On September 6, 2007, appellant went to the Haverstock Apartments at 5619 Aldine Bender Road, Harris County, Texas. On that day, several work crews under the supervision of Sixto Mondragon were at the apartment complex. Mondragon observed appellant, who was not one of his employees, among the work crews throughout the morning. At some point that morning, a second person arrived and spoke with appellant. After this unidentified second person arrived, Mondragon saw one of his employees, Jose, running and yelling, “[H]e’s got a knife.” Mondragon saw appellant walking off with “quick strides”and carrying something covered up, but he did not see what it was. Mondragon and others followed appellant at a distance because “[w]e thought he probably had something.” Jose told Mondragon that appellant had stolen a nail gun, and Mondragon called the police. Other workers saw appellant enter an apartment. Mondragon and his father positioned themselves so that they could watch the apartment until the police arrived.
Appellant remained in the apartment between five and twenty minutes. While he was on watch waiting for the police to arrive, Mondragon saw appellant leave. When appellant left the apartment, he had changed his clothes. Appellant walked across the apartment complex parking lot, approximately one-hundred and fifty feet, to a group of unidentified men and spoke with them for approximately five minutes. Mondragon testified that as appellant was returning to the apartment he saw Mondragon and recognized him. Mondragon stated, “So, when he got to about halfway to the point where the parking lot was, he pulled out a knife and opened it.” Appellant then approached Mondragon and waved the knife at Mondragon’s chest level. Mondragon thought appellant was going to stab him and was afraid. When appellant was about three or four feet away, Mondragon put his hand in his pocket, “acting like I had a gun or something.” Appellant looked at him, walked away, and went back to the apartment. He did not exit again before the police arrived five or ten minutes later.
When the deputies arrived, they were directed to the apartment in which appellant was hiding. They knocked on the door and obtained the consent of the tenant to enter. The deputies found appellant hiding in the bedroom. They also found a knife near appellant and a nail gun belonging to Mondragon, but they never found the toolbox or other tools that Mondragon later accused appellant of stealing. The deputies arrested appellant, and a grand jury indicted him for the aggravated robbery of Sixto Mondragon.
At appellant’s trial, Mondragon testified regarding the events of the morning appellant stole the nail gun. He testified that he noticed appellant around the work crew most of the morning. However, he never saw appellant approach Jose with the knife. Rather, he only saw Jose running and exclaiming, “[H]e’s got a knife.” Mondragon also testified that he did not originally know what was in the bundle appellant carried away from the work site, but he stated that he believed that the bundle contained a large nail gun, a toolbox, drills, and smaller nail guns. Mondragon testified that the large nail gun was worth around three hundred dollars “brand new.”
During the charge conference, appellant’s trial counsel requested an instruction on the lesser included-offense of theft. The State opposed the request and argued that if the theft instruction were given, the court should provide an instruction on aggravated assault as an additional lesser-included offense. The trial court denied both requests. Appellant’s trial counsel objected and preserved the error by explaining his objection to the trial judge and asking that the desired charge be included in the record.
The jury found appellant guilty of aggravated robbery. His sentence was enhanced because of his prior felony convictions for possession of a controlled substance and for burglary of a motor vehicle. Appellant also had three prior convictions for assault. Appellant stipulated to two prior felony convictions, distribution of a controlled substance and burglary of a motor vehicle. The judge instructed the jury on these. Although appellant stipulated to these and the judge instructed the jury on them, in the judgment these are marked “N/A,” or “not applicable.”Instruction on Lesser-Included OffenseIn his sole point of error, appellant argues that the trial court erred in denying his request to instruct the jury on the lesser-included offense of theft because there was more than a scintilla of evidence negating the State’s allegation that he threatened Mondragon “in the course of committing theft.” Appellant does not contest the theft of the large nail gun.
1. Standard of Review
An offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 2006). A defendant is entitled to an instruction on a lesser-included offense when (1) the proof for the offense charged includes the proof necessary to establish the lesser-included offense and (2) some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). The first step in the analysis is a question of law. Id. at 535. It requires comparison of the elements of the offense as alleged in the indictment with the elements of the potential lesser-included offense. Id. at 535–36. If the elements of the lesser offense are “established by proof of the same or less than all the facts required to establish the commission of the offense charged,” the first prong of the test is satisfied. Id. at 536 (quoting Tex. Code Crim. Proc. Ann. art. 37.09(1)).
The second step in the analysis asks whether there is evidence that supports giving the instruction to the jury. Id. In this step of the analysis, anything more than a scintilla of evidence may suffice to entitle the defendant to a charge on the lesser-included offense. Id. The evidence produced must establish the lesser-included offense as “a valid, rational alternative to the charged offense.” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)).
2. Discussion
Here, the indictment alleged that appellant, “while in the course of committing theft of property owned by Sixto Mondragon . . . and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] SIXTO MONDRAGON in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to wit: A KNIFE.” Appellant argues that the trial court committed reversible error by failing to grant appellant’s request for the lesser-included charge of theft.
A person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). A person commits robbery if, “in the course of committing theft” 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.” See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). To prove aggravated robbery, the State must prove robbery plus an aggravating factor. See Tex. Penal Code Ann. §29.03(a) (Vernon 2003). Aggravated robbery occurs when “a person commits robbery as defined in Section 29.02,” and he “uses or exhibits a deadly weapon.” Id. §29.03(a)(2).
The Penal Code defines “in the course of committing theft” as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). Thus, “the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft.” White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984) (emphasis added) (quoting Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim. App. 1976)). This definition “proscribes the use of violence not only in the taking of the property, but also in the immediate efforts of the thief to keep the stolen property.” Id. (emphasis omitted). No completed theft is required for the proscribed conduct to constitute the offense of robbery; nor is it necessary that the victim of the theft or attempted theft and the victim of the robbery be the same. White, 671 S.W.2d at 41–43(affirming aggravated robbery conviction of driver of getaway car who shot pursing bystander in order to free companion who had attempted theft of purse); see Lightner, 535 S.W.2d at 177–78 (affirming aggravated robbery conviction of appellant who drove car towards officer flagged down by women who discovered money missing from cash register when appellant left cleaners).
“The element ‘intent to obtain or maintain control of the property’ in [Section 29.02] ‘deals with the robber’s state of mind regarding the property’ involved in the theft or attempted theft, and not his state of mind in the assaultive component of the offense of aggravated robbery.” White, 671 S.W.2d at 42 (quoting Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim. App. 1980)); see McCall v. State, 113 S.W.3d 479, 481 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating that “the element of ‘intent to obtain or maintain control of the property’ addresses the robber’s state of mind during the theft or attempted theft, not his state of mind during the assault”). Thus, “violence accompanying an escape immediately subsequent to an attempted theft can constitute robbery under [Section 29.02].” White, 671 S.W.2d at 42; see McCall, 113 S.W.3d at 481(affirming aggravated robbery conviction of appellant who ran out of store with cigarettes when asked to produce identification with credit card, punched cashier who pursued him, and attempted to run down cashier and customer); Oggletree v. State, 851 S.W.2d 367, 369–70 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (affirming aggravated robbery conviction of appellant who stole meat from grocery store, avoided immediate capture, but returned to store where employees held accomplice and threatened them with a knife; holding that appellant’s departure from scene of crime and his return to threaten employees in attempt to liberate confederate “without intervening circumstances” meant that “[a] rational trier of fact could conclude that appellant displayed his knife during immediate flight from the theft”).
Here, when the elements of aggravated robbery as alleged in the indictment are compared with the elements of theft, it is evident that the elements of theft are “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” See Hall, 225 S.W.3d at 536. Theft, by whatever method committed, is necessarily included in the alleged elements of the greater offense of robbery when, as in the instant case, the indictment alleges that the accused threatened another or place him in fear of imminent bodily injury or death “in the course of committing theft.” Earls v. State, 707 S.W.2d 82, 84–85 (Tex. Crim. App. 1986). Therefore, the first prong of the test for inclusion of an instruction on the lesser-included offense of theft is satisfied. See Hall, 225 S.W.3d at 535–36.
The next question is whether some evidence exists in the record of this case that would permit a rational jury to find that if appellant is guilty, he is guilty only of theft, satisfying the second prong of the test for a lesser-included-offense instruction. See Tex. Code Crim. Proc. Ann. art. 37.09; Hall, 225 S.W.3d at 536. In order for appellant to have been entitled to an instruction on the lesser-included offense of theft, some evidence in the record had to negate the jury’s finding that appellant intentionally or knowingly “use[d] or exhibit[ed] a deadly weapon in the course of committing theft.” See Tex. Penal Code Ann. § 29.03 (emphasis added); see Robinson v. State, 174 S.W.3d 320, 333 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); see also Holiday v. State, 14 S.W.3d 784, 788 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“To be entitled to a jury instruction on the lesser included offense of theft, there must have been evidence proving appellant committed a theft of [the complainant’s] property, but did not . . . threaten him in any way.”)
Because there is unrebutted evidence in the record that appellant threatened Mondragon with a knife, causing him to be in fear of imminent bodily injury or death, appellant can show that he was entitled to an instruction on the lesser-included offense of theft of the nail gun only if there is evidence in the record from which a jury rationally could conclude that appellant’s threat to Mondragon did not occur in the course of committing or in immediate flight after committing the theft.
Here, Mondragon learned of the theft of his nail gun when Jose came running towards him yelling, “[H]e’s got a knife.” At that point, Mondragon saw appellant carrying something he could not identify, and he called the police. After appellant went into an apartment, Mondragon and his father “posted up on the side of the building making sure [appellant] didn’t leave while the police got there.” When appellant walked out of the apartment five to twenty minutes later, Mondragon was still “posted up” to wait for the arrival of the deputies. Appellant walked over to a group of unidentified men and spoke with them for approximately five minutes. Then, as appellant passed Mondragon and his father on his return to the apartment, appellant saw Mondragon watching him, approached him, and waved his knife at Mondragon’s chest. Appellant walked off after Mondragon put his hand in his pocket and pretended he had a gun. Approximately fifteen minutes to half an hour passed between the theft and the assault. The police arrived five to ten minutes later and found appellant hiding in the bedroom of the apartment in possession of both the knife and the nail gun.
We conclude that there is no evidence that would permit a rational jury to find that appellant did not have the intent to maintain control over the nail gun he had stolen from Mondragon when he “use[d] or exhibit[ed] a deadly weapon,” namely a knife, to threaten Mondragon on his way back to the apartment where he had left the nail gun, and thus appellant could not have been found guilty only of theft. See Tex. Penal Code Ann. § 31.03(a) (providing that person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property”) Hall, 255 S.W.3d at 536; White, 671 S.W.2d at 42; McCall, 113 S.W.3d at 480-81. We hold that appellant was not entitled to a lesser-included instruction on theft in the jury charge. See Hall, 255 S.W.3d at 536.
We overrule appellant’s sole issue.
Correction of the Judgment
The State requests that this Court correct the written judgment to reflect that appellant entered pleas of true to two prior felony convictions in the enhancement paragraphs and the jury found the allegations in the enhancement paragraphs true.
A Court of Appeals may modify a trial court’s judgment and affirm it as modified. Tex. R. App. P. 43.2(b); see Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (holding that courts of appeals may modify judgments); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding that “an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source”).
Here, appellant entered pleas of true to the two enhancement paragraphs, and the jury found these enhancement paragraphs true. The written judgment, however, incorrectly states “N/A” for appellant’s “Plea to 1st Enhancement Paragraph” and for his “Plea to 2nd Enhancement Paragraph.” The written judgment also incorrectly states “N/A” for the jury’s “Findings on 1st Enhancement Paragraph” and its “Findings on 2nd Enhancement Paragraph.”
We modify the written judgment to reflect that appellant entered a plea of true to the two enhancement paragraphs and that the jury found these enhancement paragraphs true. See Tex. R. App. P. 43.2(b) (allowing courts of appeal to modify judgments and affirm as modified); Bigley, 865 S.W.2d at 27–28 (holding that courts of appeal may modify judgments).
Conclusion
We modify the judgment to reflect that appellant entered a plea of “true” to each of the two enhancement paragraphs and that the jury found each of the enhancement paragraphs true. We affirm the judgment as modified.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Alcala, and Hanks.
Justice Alcala, dissenting.
Publish. Tex. R. App. P. 47.2(b).