STEVEN TYRONE DEAMON v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Morris

A jury convicted Steven Tyrone Deamon of capital murder.   He now complains in a single issue that the trial court erred by refusing his request to charge the jury on the lesser-included offense of murder.   We affirm the trial court's judgment.

At trial, the State introduced into evidence a surveillance video recording that shows appellant committing murder in the course of robbing a pawn shop with another man.   Eric Rangel, an employee of the pawn shop, testified about how the offense occurred.   The State also introduced into evidence appellant's videotaped statement to police in which he admitted to shooting the deceased and claimed he did so under duress.   For the defense, Michael Hammer testified that while he was incarcerated in the Dallas County Jail with appellant, he overheard appellant say that the “B & B Pawn Shop robbery was an inside job involving a Hispanic man that [sic] worked at the establishment.”

In his sole issue on appeal, appellant claims the trial court erred in refusing his request for a jury instruction on the lesser-included offense of murder because Hammer's testimony shows he committed murder only and not murder in the course of committing robbery.   Appellant argues that if Rangel “authorized” the robbery, the property was not taken without his consent and therefore no actual robbery occurred.

A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense.   Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007).   Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge, but the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense.   See id.

For appellant in this case to have committed the robbery element of capital murder, he had to have taken property from the pawn shop without the owner's effective consent.   See Tex. Penal Code Ann. §§ 29.02;  31.03(b)(1) (West 2003 and Supp.2009).   Appellant argues that because Rangel had greater right to possession of the property than he had, Rangel was an owner.¹  See id. § 1.07(a)(35) (Vernon Supp.2009).   He further contends that because Rangel, as an owner, allegedly planned the robbery, he consented to it, negating the robbery element of the capital murder.

Even if Rangel participated in the planning of the robbery, however, there is nothing in the record showing the deceased had any part in it or consented to it.   Accordingly, the evidence shows, at a minimum, that appellant took the property without the deceased's effective consent.   The deceased, as an employee of the pawn shop, was also an owner of the shop's property under the penal code.   See id.   There is no evidence in the record showing appellant did not commit the murder in the course of committing robbery.   Thus, the trial court did not err in denying appellant's request for a jury instruction on the lesser-included offense of murder.   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. The record shows that Rangel is Hispanic and the deceased was not..  FN1. The record shows that Rangel is Hispanic and the deceased was not.

JOSEPH B. MORRIS JUSTICE