COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00399-CR
JEFF P. WRIGHT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1405168D
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury convicted Appellant Jeff P. Wright of two counts of aggravated
robbery with a deadly weapon and assessed his punishment at twenty years’
confinement for each count. In three issues, Wright argues that the evidence is
1
See Tex. R. App. P. 47.4.
insufficient to support his convictions and that the trial court committed reversible
charge error and deprived him of his right to compulsory process. We will affirm.
II. BACKGROUND
On March 3, 2015, Matthew Spencer and Dmarcus Ottey were working as
asset protection specialists at the Home Depot in Euless. Ronald Hayward was
working at the same location but was in training to become an asset protection
specialist.
At around 11:30 a.m. that day, Spencer was walking around the store
when he observed Wright grab two DeWalt batteries and try to open their
packaging. Spencer called Ottey, who headed over and saw Wright doing the
same thing. Unable to open the batteries’ packaging with a knife, Wright walked
to the back of the store and concealed one of the batteries in the front of his
pants. He then walked to the garden center and concealed the other battery in
his pants. Wright then walked to the store’s main entrance. When he got there,
he looked around several times before exiting the store, passing all points of sale
without paying for the batteries.
Wright made it approximately three to four feet outside the door before
Spencer ran around him and approached him from the front. Ottey was right
behind Spencer. Spencer and Ottey identified themselves, and although Wright
immediately apologized and offered to return the batteries, he pushed Spencer
and tried to run away. A struggle ensued, during which Wright, Spencer, and
Ottey fell to the ground. Wright was “fighting . . . like crazy” and kept trying to
2
reach into his pocket; Spencer pulled Wright’s left arm behind his back in an
effort to handcuff him; Ottey tried to secure Wright’s legs; and Hayward, who
arrived after Spencer and Ottey had confronted Wright, tried to help secure him.
At some point, Wright pulled an open knife from his right pocket and thrust it at
Spencer, who yelled “knife, knife, knife.” Ottey saw the knife, and when he
grabbed Wright’s wrist, the knife was jarred loose and fell near Ottey, who kicked
it away. Spencer and Ottey then handcuffed Wright, who was arrested by police.
Although the store had three cameras located outside, none of them captured the
struggle, which occurred under an awning above the main entrance.
III. EVIDENTIARY SUFFICIENCY
Wright argues in his first issue that the evidence is legally insufficient to
prove that he committed aggravated robbery as charged in count two of the
indictment.2 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 v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). 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 facts to ultimate
facts. Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
2
Count two alleged that Wright committed aggravated robbery against
Ottey.
3
136 S. Ct. 198 (2015). The standard of review is the same for direct and
circumstantial evidence cases; circumstantial evidence is as probative as direct
evidence in establishing guilt. Dobbs v. State, 434 S.W.3d 166, 170; Acosta v.
State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
A person commits robbery if, in the course of committing theft and with
intent to obtain or maintain control of property, he intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death. 3 Tex.
Penal Code Ann. § 29.02(a)(2) (West 2011). The offense becomes aggravated
robbery if the person uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (West
2011).
Wright first argues that there was no evidence that Ottey either felt
threatened or feared imminent bodily injury or death. He directs us to this
testimony from Ottey:
Q. . . . When you saw that knife, did it get your attention?
A. At the moment, I think my adrenaline was going so --
was so high that I didn’t even think about the fact. Once I pushed it
away, I was just trying to get him into custody.
....
Q. And were you concerned about the fact that he had a
knife in his hand?
A. Not at the moment. It wasn’t until after the fact like, oh,
wow, he actually had a knife and this could have been a lot worse.
3
The indictment charged Wright with committing robbery by threat and by
placing in fear.
4
Wright contends that there was no evidence that he used or attempted to use the
knife against Ottey and that Ottey never said that he felt threatened by Wright,
that he was afraid of bodily injury or death, or that he believed injury or death was
imminent. Wright ignores evidence that the jury could have reasonably relied
upon to infer that Ottey either felt threatened or feared imminent bodily injury or
death.
The court of criminal appeals has explained the distinction between when
a robber threatens a person with imminent bodily injury or death and when a
robber places a person in fear of imminent bodily injury or death. See Boston v.
State, 410 S.W.3d 321, 325‒26 (Tex. Crim. App. 2013). Specifically,
[R]obbery-by-placing-in-fear does not require that a defendant know
that he actually places someone in fear, or know whom he actually
places in fear. Rather it requires that the defendant is aware that his
conduct is reasonably certain to place someone in fear, and that
someone actually is placed in fear.
Id. at 325 (quoting Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App.
2011)). Alternatively,
[O]ne can threaten without necessarily placing another in fear of
imminent bodily injury. A logical inference . . . is that “threatening,”
as used in the Penal Code, does not require that the intended victim
perceive or receive the threat, but “placing another in fear of
imminent bodily injury does.”
Id. at 326 (quoting Olivas v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006)).
The evidence viewed in the light most favorable to the verdict showed that
Wright became engaged in a physical struggle with both Spencer and Ottey
when they confronted him just outside of the main entrance to the store. During
5
the struggle, Wright pulled an open knife from his pocket and swung it at
Spencer, who yelled “knife, knife, knife.” At that point, Ottey, who was on the
ground with Wright and Spencer attempting to control Wright’s legs, grabbed for
Wright’s wrist and knocked the knife onto the ground. Spencer testified that this
was by far the scariest interaction that he had had involving someone who was
attempting to steal from the store and that he later thanked Ottey because he
had feared for his life.
Officer Ed Peitrowski responded to the call and testified that both Ottey
and Spencer “showed visible signs of elevated awareness. They were both
nervous. Hands were shaking, very sweaty, very uppy, coinciding with an
adrenaline from what they just experienced.” He later elaborated, “They [Ottey
and Spencer] were very excited, speaking very quickly as though they had just
gone through a pretty traumatic experience that I’m sure . . . many people
[don’t] . . . experience on a daily basis.” Hayward, who helped Spencer and
Ottey detain Wright to some extent, testified that they were both scared because
the confrontation involved a knife, a deadly weapon.
Although Ottey testified that he was not concerned about the
consequences at the very moment that he was responding to Spencer’s
declaration that Wright had a knife, the jury nevertheless could have reasonably
inferred from all of the evidence above that Ottey was actually placed in fear of
imminent bodily injury or death. See Clark v. State, No. 03-12-00042-CR, 2013
WL 6459504, at *3‒4 (Tex. App.—Austin Nov. 27, 2013, pet. ref’d) (mem. op.,
6
not designated for publication) (holding that victim’s conduct and subjective
feelings necessarily indicated that she was placed in fear of bodily injury). Wright
also argues that the evidence is insufficient to prove that he acted intentionally or
knowingly, but based on the evidence above, the jury could have rationally
inferred that Wright was aware that his conduct was reasonably certain to place
Ottey in fear of imminent bodily injury or death. See Dues v. State, 634 S.W.2d
304, 305 (Tex. Crim. App. [Panel Op.] 1982) (“Intent can be inferred from the
acts, words, and conduct of the accused.”); see also Tex. Penal Code Ann.
§ 6.03(b) (West 2011) (defining knowingly); Howard, 333 S.W.3d at 140
(discussing mental state of knowingly in context of robbery by placing in fear).
The evidence is legally sufficient to prove that Wright committed
aggravated robbery as charged in count two of the indictment. We overrule
Wright’s first issue.
IV. JURY CHARGE
In his second issue, Wright argues that the trial court’s charge on
guilt/innocence “did not properly instruct the jury regarding mens rea because
aggravated robbery is a result of conduct offense, nature of the conduct offense,
and circumstances surrounding the conduct offense and the jury charge
contained only the definitions of ‘intentionally’ and ‘knowingly’ for result of
conduct offenses.” The State agrees that the charge was erroneous but
contends that the error was not reversible.
7
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id.
There are three “conduct elements” that may be involved in an offense:
(1) the nature of the conduct; (2) the result of the conduct; and (3) the
circumstances surrounding the conduct. Tex. Penal Code Ann. § 6.03; Young v.
State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). An offense may contain any
one or more of these “conduct elements,” which alone or in combination form the
overall behavior that the legislature intended to criminalize, and it is those
conduct elements to which a culpable mental state must apply. McQueen v.
State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). The culpable mental state
definitions in the charge must be tailored to the conduct elements of the offense.
Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A trial court errs by
failing to limit the definitions of the culpable mental states to the conduct element
or elements of the offense to which they apply. Patrick v. State, 906 S.W.2d 481,
492 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996); Cook, 884
S.W.2d at 491.
The trial court included the following definitions of intentionally and
knowingly in the abstract portion of the charge, which included only the language
8
applicable to the placing-in-fear element of aggravated robbery, which is a result-
of-the-conduct element:
A person acts intentionally or with intent, with respect to a
result of his conduct when it is his conscious objective or desire to
cause the result.
A person acts knowingly, or with knowledge, with respect to a
result of his conduct when he is aware that his conduct is reasonably
certain to cause the result. [Emphasis added.]
See Gutierrez v. State, 446 S.W.3d 36, 40‒41 (Tex. App.—Waco 2014, pet.
ref’d). But aggravated robbery by threat, as Wright was also alleged to have
committed, is a nature-of-the-conduct offense. See Garfias v. State, 424 S.W.3d
54, 60 (Tex. Crim. App.) cert. denied, 135 S. Ct. 359 (2014); Tex. Penal Code
Ann. § 6.03 (including additional conduct-elements language in definitions of
“intentionally” and “knowingly”). By including incomplete abstract definitions, the
trial court erred in its charge to the jury.4
Wright concedes that the error was not preserved but argues that he
suffered egregious harm. Unpreserved charge error warrants reversal only when
the error resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex.
Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
Wright argues that the application paragraph did not “instruct the jury that
4
the knife had to have been used or exhibited intentionally or knowingly,” but a
second culpable mental state was not required to be included with the deadly-
weapon element of the offense. See Bilbrey v. State, 594 S.W.2d 754, 758–59
(Tex. Crim. App. [Panel Op.] 1980); Butler v. State, 928 S.W.2d 286, 288 (Tex.
App.—Fort Worth 1996, pet. ref’d); Chandler v. State, 855 S.W.2d 38, 41 (Tex.
App.—Fort Worth 1993, no pet.).
9
1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).
The appropriate inquiry for egregious harm is fact specific and must be
performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710
(Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.
2011). In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at
708–10 (applying Almanza). Errors that result in egregious harm are those “that
affect the very basis of the case, deprive the defendant of a valuable right, vitally
affect the defensive theory, or make a case for conviction clearly and significantly
more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at
172). The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174.
When the application paragraph of the charge correctly instructs the jury
on the law applicable to the case, this mitigates against a finding that error in the
abstract portion of the charge was egregious. Medina v. State, 7 S.W.3d 633,
640 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000). Although the
definitions contained in the abstract portion of the charge were incomplete, the
application paragraph nevertheless tracked both the language in the indictment
and the corresponding statutory language, such that the intentionally or
10
knowingly mens rea clearly applied to the threaten or place-in-fear elements.5
See Tex. Penal Code Ann. § 29.02(a)(2).
As for the state of the evidence and the arguments of counsel, Wright’s
theory of the case was that he did not use or exhibit a knife during the struggle
with Spencer and Ottey, not that he did not intentionally or knowingly use or
exhibit a knife during the struggle. Indeed, Wright called two witnesses:
Hayward and Stacey Harvey, a Home Depot employee who witnessed part of the
struggle. Hayward testified that he did not see a knife during the struggle, and
Harvey testified that although she saw a knife on the floor, she did not see Wright
use or exhibit a knife or swing or thrust a knife toward anyone. Consistent with
that theory, during Wright’s closing argument, counsel focused on whether
Wright used or exhibited the knife, not on whether he did so intentionally or
knowingly. Thus, the incomplete definitions contained in the abstract portion of
the jury charge did not vitally affect Wright’s unrelated defensive theory.
5
The relevant application paragraph states,
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 3rd day of March, 2015, in Tarrant County,
Texas, Jeff P. Wright, did then and there intentionally or knowingly,
while in the course of committing theft of property and with intent to
obtain or maintain control of said property, threaten or place
Dmarcus Ottey in fear of imminent bodily injury or death, and the
defendant used or exhibited a deadly weapon, to-wit: a knife, that in
the manner of its use or intended use was capable of causing death
or serious bodily injury, then you will find the defendant guilty of
aggravated robbery with a deadly weapon as charged in count two
of the indictment.
11
Applying the proper standard, we cannot conclude that Wright suffered egregious
harm. We overrule his second issue.
V. COMPULSORY PROCESS
In his third issue, Wright argues that he was denied his right to compulsory
process under the federal and state constitutions because the trial court granted
Home Depot’s motion to quash a subpoena duces tecum that his trial counsel
had issued for Ricky Hood, Home Depot’s district manager for loss prevention.
Wright requested that Hood provide him with Home Depot’s loss prevention
policies and procedures.6
Criminal defendants have a right to compulsory process for obtaining
witnesses. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to
compulsory process is “the right to present a defense [and] the right to present
the defendant’s version of the facts as well as the prosecution’s to the jury so it
may decide where the truth lies.” Coleman v. State, 966 S.W.2d 525, 527 (Tex.
Crim. App. 1998) (op. on reh’g). However, the right to compulsory process is not
absolute. It does not guarantee the right to secure evidence from any and all
witnesses; rather, compulsory process is guaranteed only for obtaining evidence
that would be both material and favorable to the defense. Id. at 527‒28. To
exercise this right, the defendant must make a plausible showing to the trial
6
Wright also requested a copy of Home Depot’s video surveillance and
Spencer’s, Ottey’s, and Hayward’s loss prevention training and employee
records, but the video was unavailable, and Wright waived the request for the
employee records.
12
court, by sworn evidence or agreed facts, that the witness’s testimony would be
both material and favorable to the defense. Id. at 528. We review a claim that
the trial court improperly quashed a subpoena for an abuse of discretion.
Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort Worth 2006, pet.
ref’d).
Home Depot’s counsel argued at a pretrial hearing that the subpoena
duces tecum should be quashed because Wright had subpoenaed Hood instead
of Home Depot, and Hood “as an individual does not have the ability to bring with
him proprietary and confidential documents belonging to Home Depot. And at
this time, Home Depot has not authorized Mr. Hood to do so.” As Hood had no
authority to turn over Home Depot’s loss prevention policies and procedures, the
trial court could have reasonably concluded that the subpoena duces tecum
should have been quashed on that basis.
Additionally, Wright’s trial counsel vaguely noted at the pretrial hearing that
she wanted Home Depot’s loss prevention policies and procedures “so that it will
put us in a position when we talk about the procedures at Home Depot to be
prepared to do a proper cross-examination and proper impeachment if
necessary.” In the absence of any more specific explanation, the trial court could
have reasonably concluded that mere cross-examination and impeachment of
Spencer and Ottey regarding Home Depot’s loss prevention policies and
procedures would not have been material or favorable to Wright, who was
accused of committing aggravated robbery as alleged in counts one and two of
13
the indictment.7 See Weaver v. State, 657 S.W.2d 148, 151 (Tex. Crim. App.
1983) (“Appellant presented nothing but the bare assertion that the witnesses
were material and necessary as favorable character witnesses.”); Castillo v.
State, 901 S.W.2d 550, 553 (Tex. App.—El Paso 1995, pet. ref’d) (“Counsel’s
mere belief that a witness would support the defendant’s alibi is insufficient to
establish the witness’s materiality to the defense.”).
Wright argues that the trial court should have conducted an in camera
review of the policies and procedures to determine whether Home Depot properly
claimed that the subpoenaed documents were privileged trade secrets. See Tex.
R. Evid. 507(a). Notwithstanding that Wright never requested an in camera
inspection, and therefore failed to preserve this subargument for appellate
review, see Tex. R. App. P. 33.1(a), Home Depot did not assert a trade secrets
privilege against disclosure; it merely argued that Wright had subpoenaed Hood
individually and that Hood did not have the authority to turn over the requested
documents in his individual capacity.
We hold that the trial court did not abuse its discretion by quashing the
subpoena duces tecum requesting Home Depot’s loss prevention policies and
procedures. We overrule Wright’s third issue.
7
Wright advances an additional reason in his brief—“whether [Spencer and
Ottey] complied with the policies and procedures and whether the risk of
termination would have given [them] a reason to lie about the events in order to
keep their employment”—but this reason was not presented to the trial court for
consideration.
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VI. CONCLUSION
Having overruled each of Wright’s issues, we affirm the trial court’s
judgments of conviction.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 3, 2016
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