NUMBER 13-03-542-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ERIK AREVALO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
In a single issue, appellant, Erik Arevalo, challenges his conviction of aggravated robbery. Appellant argues that the trial court erred in submitting an instruction to the jury on the law of parties. We affirm.
As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.
The record contains the trial court’s certification that the case is not a plea-bargain case and the defendant has the right to appeal. See Tex. R. App. P. 25.2(a)(2).
Analysis
Appellant argues that he was denied a fair jury trial when the trial court submitted an instruction on the law of parties to the jury. Specifically, appellant contends that because the State primarily presented direct evidence of appellant’s guilt as a principal actor, instruction as to the law of parties was unnecessary, and that the trial judge erred in submitting such an instruction to the jury.
We conclude it is unnecessary for us to determine whether the trial court erred in submitting an instruction on the law of parties, because such an instruction is harmless in situations where the evidence clearly supports a defendant’s guilt as a principal actor. See Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (where evidence clearly supports defendant’s guilt as primary actor, error in submitting an instruction on law of parties is harmless); Ladd v. State, 3 S.W.3d 547, 564-65 (Tex. Crim. App. 1999) (quoting Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986)) (same).
To be guilty as a principal actor of aggravated robbery, a person must commit robbery and exhibit a deadly weapon. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). A robbery occurs when, during the course of committing theft, a person intentionally or knowingly places another in fear of imminent bodily injury or death. See id. § 29.02.
Here, appellant and Albert Pina entered a jewelry store owned by George Anna Afram. Shortly thereafter, appellant and Pina brandished firearms, pointed them at Afram, and ordered her to lie on the ground. Appellant then vaulted over one of the showcases and entered an adjoining pawnshop also owned by Afram. Upon his return to the jewelry store, appellant again pointed his gun at Afram, this time as she struggled with Pina over an unloaded shotgun. Afram testified that she was in fear of being shot by appellant both during the struggle for the shotgun and at the time appellant initially exhibited the firearm. See Escobar v. State, 28 S.W.3d 767, 775 (Tex. App.–Corpus Christi 2000, pet. ref’d.) (exhibiting a firearm is sufficient to place another in fear of imminent bodily injury or death). The record also reflects that appellant and Pina exited the store with jewelry and cash. See Tex. Pen. Code Ann. § 31.03(b)(1) (Vernon Supp. 2004) (appropriation of property is unlawful if it is without owner’s effective consent).
We conclude from Afram’s testimony and evidence regarding appellant’s unlawful appropriation of Afram’s property, that the jury properly determined appellant’s guilt as a principal actor, see Ladd, 3 S.W.3d at 565; Cathey, 992 S.W.2d at 466, and that any error in submitting an instruction on the law of parties was harmless. See id.
Accordingly, we affirm the judgment of the trial court.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed this the
19th day of August, 2004.