COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-09-00441-CR
02-09-00442-CR
DEDRICK D. THOMAS, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
A jury convicted Appellant Dedrick D. Thomas, Jr. of two counts of
aggravated robbery and assessed punishment at twelve and fifteen years’
imprisonment and a $1,000 fine for each count. Appellant contends in a single
point that the trial court reversibly erred by refusing to submit a jury instruction on
1
See Tex. R. App. P. 47.4.
the lesser-included offense of robbery by threat in both cases. We affirm.
II. Factual and Procedural Background2
On a Sunday afternoon in 2008, Appellant and another male entered a
MetroPCS store under the pretext of reactivating a wireless phone. The men
appeared to change their minds and wanted a new phone instead, so the clerk
had them complete the required start-of-service form. When the clerk walked to
the back of the store, Appellant followed and pointed a gun at her. While the
other man took the money from the cash register, Appellant ordered the clerk
onto the ground, pressing the gun to the clerk’s head. The clerk called the police
after the men fled the scene.
Five days later, Appellant entered a different MetroPCS store under the
pretext of purchasing a wireless phone as a gift. Appellant began to complete
the start-of-service paperwork while the clerk helped Appellant’s accomplice, who
was pretending to be a customer. Appellant requested a different face plate for
the new phone, but when the clerk returned with the face plate, Appellant pointed
a gun at the clerk and threatened to shoot him if he did not comply. After the men
fled, taking merchandise and money, the clerk called the police.
Appellant eventually became a suspect in both robberies. A search of
Appellant’s room in his mother’s house produced the clothes that Appellant wore
2
Because Appellant does not contest the sufficiency of the evidence to
support his conviction, we set out only so much of the evidence as required to
address Appellant’s point.
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in the first robbery, but police never found a gun or ammunition. Appellant was
indicted on two separate charges of aggravated robbery with the use or
exhibition of a deadly weapon, and he was convicted of both charges. 3 See Tex.
Penal Code Ann. § 29.03(a)(2) (Vernon 2003). The jury assessed punishment at
twelve and fifteen years’ confinement for the two cases and a $1,000 fine in each
case, and the trial court sentenced Appellant accordingly. This appeal followed.
III. Discussion
In his sole point, Appellant argues that the trial court erred by refusing to
submit an instruction on the lesser-included offense of robbery by threat in both
cases. He contends that the complainants’ testimony admitting their lack of
experience with handguns was evidence that ―Appellant could have been guilty
only of two robbery by threat offenses.‖
A. Applicable Law
We use a two-step process to determine whether a jury should be
instructed on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007). First, the requested charge must satisfy the requirements of a
lesser-included offense as defined by article 37.09 of the Texas Code of Criminal
Procedure. Id. ―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 (Vernon 2006).
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The trial court granted the State’s motion to join the two cases.
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Second, there must be evidence in the record that would permit a rational
jury to find that if the defendant is guilty, he is guilty only of the lesser offense.
Hall, 225 S.W.3d at 528; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005). To make this determination, we review all evidence presented at trial, but
we do not consider ―the credibility of the evidence and whether it conflicts with
other evidence or is controverted.‖ Banda v. State, 890 S.W.2d 42, 60 (Tex.
Crim. App. 1994), cert. denied, 515 U.S. 1105 (1995) (citing Marras v. State, 741
S.W.2d 395, 405 (Tex. Crim. App. 1987), overruled on other grounds by Garrett v.
State, 851 S.W.2d 853, 860 (Tex. Crim. App. 1993)); see Bignall v. State, 887
S.W.2d 21, 24 (Tex. Crim. App. 1994). There must be evidence ―affirmatively
negating the element present in the greater offense but absent in the lesser‖
offense, and ―it is not enough to simply rely on the State’s failure to prove the
particular element.‖ Hanson v. State, 269 S.W.3d 130, 133 (Tex. App.—Amarillo
2008, no pet.). ―In this step of the analysis, anything more than a scintilla of
evidence may be sufficient to entitle a defendant to [an instruction on] a lesser
charge.‖ Hall, 225 S.W.3d at 536. Thus, the issue in this case is ―whether any
evidence exists in the record that would permit a rational jury to find that
[Appellant] is guilty only of [robbery by threat].‖ Bignall, 887 S.W.2d at 23.
B. Analysis
The State concedes that robbery by threat is a lesser-included offense of
aggravated robbery under the circumstances of this case. Therefore, Appellant
was entitled to submission of the lesser-included offense if there was affirmative
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evidence in the record establishing that Appellant did not use or exhibit a deadly
weapon. See Hall, 225 S.W.3d at 536.
To support his contention that evidence existed in the record allowing a
jury to conclude he was guilty only of robbery by threat, Appellant points to the
testimony of the two complainants. On cross-examination, both complainants
admitted that they lack experience with handguns and were unfamiliar with
various models and their weight. Appellant’s counsel intimated though questions
directed to the complainants that the gun could have been a toy, but each
complainant affirmatively testified that they believed Appellant exhibited a real
gun.
In Wilhoit v. State, the court of criminal appeals held that Wilhoit was not
entitled to an instruction on a lesser-included offense even though the
investigating officer testified that the victim told him that she ―most likely‖ thought
Wilhoit brandished a ―toy type gun‖ when committing aggravated rape. See 638
S.W.2d 489, 499 (Tex. Crim. App. 1982). Specifically, the court held that the
officer’s concession was ―more in the nature of impeachment than direct
substantive evidence that [the victim] truly believed the pistol was a toy gun.‖ Id.
The San Antonio Court of Appeals also addressed a similar factual
scenario in Covarrubias v. State, No. 04-96-00921-CR, 1998 WL 204911, at *2–3
(Tex. App.—San Antonio Apr. 28, 1998, pet. ref’d) (not designated for
publication). There, the court held that Covarrubias was not entitled to an
instruction on robbery because the fact that he was arrested with a toy gun in his
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waistband did not negate the use of a deadly weapon in the charged offense. Id.
at *2–3; see also In re L.J., No. 04-05-00771-CV, 2006 WL 1895466, at *2 (Tex.
App.—San Antonio July 12, 2006, pet. ref’d) (mem. op., not designated for
publication) (holding appellant not entitled to instruction on lesser offense
because a witness testified that assailant had a gun, appellant did not testify at
trial, and no evidence existed in the record to suggest the gun used in the
robbery was not real); Tijerina v. State, No. 04-01-00526-CR, 2003 WL 183686,
at *1–2 (Tex. App.—San Antonio Jan. 29, 2003, no pet.) (mem. op., not
designated for publication) (holding appellant not entitled to lesser-included
offense instruction because two witnesses testified that assailant had a gun,
appellant did not testify at trial, and there was no evidence to suggest the gun
used in the charged offense was not real). While the complainant in Covarrubias
admitted that she was not familiar with guns, she testified that she thought the
gun was real, and the court concluded there was no evidence disputing that the
gun was a deadly weapon. Covarrubias, 1998 WL 204911, at *3; see Wilhoit,
638 S.W.2d at 499 (holding witness’s concession about possibility that toy gun
used was impeachment evidence rather than direct, substantive evidence that
the pistol was a toy); Hosea v. State, No. 14-08-00337-CV, 2009 WL 6338617, at
*3 (Tex. App.—Houston [14th Dist.] Oct. 6, 2009, pet. ref’d) (mem. op., not
designated for publication) (stating witness’s acknowledgment on cross-
examination that the gun could have been a toy only operated as impeachment
evidence concerning the witness’s credibility); Briscoe v. State, No. 14-89-00713-
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CR, 1990 WL 79845, at *1 (Tex. App.—Houston [14th Dist.] June 14, 1990, pet.
ref’d) (not designated for publication) (stating that rather than establishing that a
firearm was not used, the evidence only showed that the witness could not tell if
the gun was real).
Here, Appellant has similarly failed to point to evidence affirmatively
negating the deadly weapon element of aggravated robbery. The complainants’
testimony that they each lacked experience with handguns is not evidence that
Appellant did not use a firearm in the robberies. See Hosea, 2009 WL 6338617,
at *3 (stating that a witness’s acknowledgment that gun could have been a toy
was not direct, substantive evidence that a gun was not involved) (citing Wilhoit,
638 S.W.2d at 499). Instead of direct evidence negating the use of a deadly
weapon, the complainants’ testimony merely served as impeachment evidence
concerning their credibility. See Wilhoit, 638 S.W.2d at 499. Indeed, both
complainants affirmatively testified that they believed Appellant had used a real
gun during the offense. There is no other evidence in the record suggesting that
the gun was not real, which is required to establish robbery by threat as a valid,
rational alternative to aggravated robbery. See L.J., 2006 WL 1895466, at *2.
Thus, Appellant has failed to show that there is affirmative evidence in the record
permitting a rational jury to find him guilty of robbery by threat and not guilty of
aggravated robbery, and we hold that the trial court did not err by refusing to
charge the jury on robbery by threat. We therefore overrule Appellant’s sole
point.
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IV. Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgments.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 12, 2011
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