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.
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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 § ___.
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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
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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
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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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