COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00027-CR
MARC ALEXANDER GARCIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1227488D
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MEMORANDUM OPINION1
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Introduction
A jury found Appellant Marc Alexander Garcia guilty of robbery by threats
and assessed his punishment at 18 years’ confinement, and the trial court
sentenced him accordingly.2 Appellant claims that the trial court erred by
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See Tex. R. App. P. 47.4.
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Appellant’s punishment was enhanced by a prior robbery conviction.
(1) limiting his cross-examination of the complainant and (2) not instructing the
jury on a lesser-included offense and that (3) the evidence is insufficient to
support the verdict. We affirm.
Facts
Amberly Herrell was the sole employee working at the 7-Eleven on the
corner of Las Vegas Trail and the West Freeway in Fort Worth when Appellant
walked in late one night in January 2011. She greeted him when she heard the
“beeping noise” that indicated that the door had opened, and then she returned
to stocking merchandise.
The store is equipped with three security cameras inside and two outside.
State’s Exhibit 40 is a video recording showing what Appellant did to Amberly
while he was in the store.
Appellant approached her from behind, grabbed her shirt and the skin on
her back, and shoved her from the stockroom, to the office, and toward the front
of the store while pulling her shirt over her head.
When he asked her about the safe, she replied that she could not open it.
So he ordered her to open the cash register, but when she did, instead of taking
the money, he picked her up and forced her back into the office, where he bound
her wrists with a men’s undershirt. From the office, she once again heard the
“beeping” sound indicating that someone had walked into the store. But whoever
had come in left immediately and Amberly had stayed quiet, fearing that
Appellant would do her harm.
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He left her in the office, briefly, squatting down under the computer desk
with her shirt halfway over her head. He had said that everything was going to
be okay, but she did not believe him. She assumed that he had gone to
investigate whether anyone else was coming in.
When Appellant returned to the office, he hoisted her back up by her shirt
and forced her to the cash register, from which he withdrew cash and a roll of
receipt tape. But rather than leaving with the money, Appellant again re-
deposited Amberly in the office. She testified that he continued to push her down
and try to pull her shirt over her head, which scared her and made her nervous.
Finally, a man whom she had seen several times before entered the store
and did not immediately leave. Heartened by his calling, “hello, hello,” she
screamed for help. The man followed her screams into the office and chased
Appellant out of the store. Amberly dashed to the register and hit the panic
button.
The police arrived within seconds, broadcast Appellant’s description and
deployed a helicopter equipped with night-vision technology. Officers in the
helicopter detected Appellant’s “heat signature” east of the store, and he was
arrested shortly thereafter.
Later that night, Amberly identified Appellant from a photo spread. As
Detective Edward Raynsford interviewed her, she noticed a spot of blood on her
sweatshirt, which the detective collected for analysis. A forensic scientist
compared a buccal swab taken from Appellant with cuttings from Amberly’s
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sweatshirt and the undershirt used to bind her hands during the robbery. DNA
profiles from the cuttings matched each other and matched Appellant’s DNA
profile.
Sufficiency of the Evidence
In his third point, Appellant argues that the evidence is insufficient because
there is none showing that he verbally or physically did anything to threaten or
cause Amberly any type of harm. He also denies that there is any evidence that
she was actually in fear of imminent bodily injury or death. He further asserts that
it is uncontroverted that he had no weapon, never alluded to or claimed to have a
weapon, and never attempted to use anything as a weapon. Finally, he claims
that he did not cause her any pain and did not threaten, physically or verbally, to
cause her pain.
The Jackson v. Virginia standard is the sole standard for reviewing
sufficiency of the evidence in criminal cases. 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In
our due-process review of the sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). This standard gives
full play to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
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facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v.
State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. Tex. Code Crim. Proc. Ann. art 38.04 (West 1979); Wise, 364 S.W.3d
at 903. Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). Instead, we determine whether the necessary inferences are reasonable
based upon the cumulative force of the evidence when viewed in the light most
favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Wise, 364 S.W.3d at 903.
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). In determining the sufficiency of the evidence to
show an appellant’s intent, and faced with a record that supports conflicting
inferences, we “must presume––even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflict in favor of the prosecution,
and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex.
Crim. App. 1991).
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Penal code section 29.02 provides, in pertinent part, that 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. Tex. Penal Code Ann. § 29.02(a)(2)
(West 2011).
Appellant argues that there is no evidence he made any overt threats or
displayed any weapon. It is not necessary that threats be overt in order to place
another in fear of imminent bodily injury. See Williams v. State, 827 S.W.2d 614,
616 (Tex. App.––Houston [1st Dist.] 1992, pet. ref’d) (“Under the ‘placed in fear’
language in section 29.02 of the Texas Penal Code, the factfinder may conclude
that an individual perceived or was ‘placed in fear,’ in circumstances where no
actual threats were conveyed by the accused.”); Wilmeth v. State, 808 S.W.2d
703, 706 (Tex. App.—Tyler 1991, no pet.) (holding that the jury may find requisite
fear from a menacing glance and a hand gesture, even where no verbal threats
were made). The court of criminal appeals has explained that
It is well established that threats can be conveyed in more varied
ways than merely a verbal manner. A threat may be communicated
by action or conduct as well as words.
McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984).
Although Amberly denied feeling any pain while Appellant dragged her
around the store, she admitted that she feared being hurt, that she was “scared
to death”, and that he grabbed her from the back of her shirt with “skin and shirt
and yanked [her] back and pushed [her] where he wanted [her] to go.” Further,
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she testified and audio from the surveillance video confirms that she screamed
for help when she heard the man who eventually rescued her walking into the
store. She also testified that after she got home from the police station that night,
her boyfriend noticed scratches “all over [her] back.” The jury reasonably could
have concluded from this evidence that Amberly was placed in fear of imminent
bodily injury.
Applying the appropriate standard of review, and considering the entire
record, we hold the evidence sufficient to support the jury’s verdict as to each
essential element of robbery under section 29.02 of the penal code. Accordingly,
we overrule Appellant’s third point.
Limit on Cross-Examination
Relying on Easley v. State, Appellant notes in his first point that fear of
imminent harm or death must be of such nature that in reason and common
experience would likely induce a reasonable person to part with his property
against his will. 199 S.W.476, 478 (Tex. Crim. App. 1917). That fear must arise
from the conduct of the accused rather than the mere “temperamental timidity” of
the victim. Cranford v. State, 377 S.W.2d 957, 959 (Tex. Crim. App. 1964).
Appellant argues that the trial court denied his constitutional rights of
confrontation and cross-examination by preventing his asking questions relevant
to showing Amberly’s “temperamental timidity.”
Appellant proffered to the trial court the questions he wanted to ask the
witness. They dealt with Amberly’s prior knowledge of other similar robberies
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that had occurred in the neighborhood and whether she had been or was under
treatment for any kind of nervous disorder.
It is well-established that the right of confrontation includes not only the
right to face-to-face confrontation, but also the right to meaningful and effective
cross-examination and that the main and essential purpose of confrontation is
the opportunity for cross-examination through the process of putting direct and
personal questions to the witnesses and the obtaining of immediate answers.
Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim. App. 2011). Indeed, it is
that personal presence of the defendant and the right to ask probing, adversarial
cross-examination questions that lies at the core of an American criminal trial’s
truth-seeking function. Id. As the Supreme Court stated in California v. Green,
the right of confrontation forces the witness to submit to cross-examination, the
“greatest legal engine ever invented for the discovery of truth.” 399 U.S. 149,
158, 90 S. Ct. 1930, 1935 (1970).
The State argues that Appellant failed to preserve his claim under rule of
evidence 103 by making an offer of proof because the record does not reflect
what answers he expected to get. But even if we were to assume for the sake of
argument that Appellant preserved his claim, he would not prevail because he
has not been harmed.
Although Appellant now frames his point as a violation of the Confrontation
Clause, he did not raise the issue of constitutional error before the trial court. He
made no reference to the constitutional right of confrontation or to any other
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constitutional claim in the trial court relative to this point on appeal. Therefore,
were we to hold that the trial court erred, our review for harm would be governed
by rule 44.2(b), which provides, “Any other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.” Tex. R. App. P.
44.2(b).
Thanks to the security system video, the jury had the opportunity see what
transpired as the robbery was being committed. The jury had the opportunity to
view Appellant’s conduct and demeanor and to view Amberly’s conduct and
demeanor, as well. It also had the opportunity to view Amberly’s demeanor in
court as she testified on the witness stand. Other than the inquiry into other
influences that might have affected her perception of the events during the
robbery, Appellant was not denied his right of personal confrontation and cross-
examination of the witness who testified against him. The jury saw him grab,
push, and drag her through the store. It heard testimony that she was afraid but
felt no pain. The jury also heard testimony that she suffered scratches on her
back that were visible when she returned home after the robbery.
Considering the record as a whole, we hold that Appellant suffered no
violation to his substantial rights as a result of the limitations the trial court
imposed on cross-examination. Accordingly, we overrule Appellant’s first point.
Lesser-Included-Offense Instruction
In his second point, Appellant argues that the trial court erred by denying
his requested jury instruction on the lesser-included offense of theft. An
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appellate court employs a two-step analysis to determine whether an appellant
was entitled to a lesser-included offense instruction. Ex parte Watson, 306
S.W.3d 259, 262–63 (Tex. Crim. App. 2009). First, the lesser-included offense
must fall within article 37.09 of the code of criminal procedure. Second, some
evidence must exist in the record that would permit a jury rationally to find that if
the appellant is guilty, he is guilty only of the lesser offense. Hall v. State, 225
S.W.3d 524, 536 (Tex. Crim. App. 2007).
Appellant was charged with the offense of robbery in the course of
committing theft. Theft is a lesser-included offense of robbery when, as in this
case, the facts at trial show a completed theft. Earls v. State, 707 S.W.2d 82,
84–85 (Tex. Crim. App. 1986). We have addressed the sufficiency of the
evidence to support those elements of robbery that distinguish that offense from
the offense of theft. The jury was able to watch the video from the store
surveillance camera, to examine still photographs from the video, to hear
Amberly’s testimony about the robbery, and to assess its observations and the
testimony in determining whether Appellant placed her in fear of imminent bodily
injury. We find nothing in the record that would allow a rational juror hearing the
facts adduced at trial and examining the evidence to conclude that Appellant’s
actions did not place Amberly in fear of imminent bodily injury or to conclude that
her fear was unreasonable.
It is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense. Rather, there must be some
evidence directly germane to a lesser included offense for the
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factfinder to consider before an instruction on a lesser included
offense is warranted.
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
We hold that the trial court did not err when it denied Appellant’s requested
jury instruction. Accordingly, we overrule Appellant’s second point.
Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 10, 2014
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