Lee Thomas Jackson, Appellant v. The State of Texas, State

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Court of Appeals of Texas, Fort Worth.

Lee Thomas Jackson, Appellant v. The State of Texas, State

NO. 02–15–00103–CR

Decided: January 28, 2016

PANEL:  LIVINGSTON, C.J.;  MEIER and GABRIEL, JJ.

MEMORANDUM OPINION 1

I. Introduction

Appellant Lee Thomas Jackson appeals his conviction for robbery by threats.  In one issue, Jackson argues that the evidence is insufficient to support his conviction.  We will affirm.

According to Karum Abdelmeseen, as he worked at his Quick Way convenience store on the night of July 26, 2014, a man, later identified as Ruben Mosqueda, ran into the convenience store “screaming ․ call the police, please, somebody has a gun.”  Abdelmeseen said that Mosqueda also tried to hide under a counter.  Abdelmeseen immediately called the police.  By Abdelmeseen's account, Mosqueda had been inside the store “a few second[s]” earlier and purchased beer.  Abdelmeseen said that after Mosqueda ran back into the store, Mosqueda shouted several things in a mix of Spanish and English, but Abdelmeseen said that the word Mosqueda used the most was “gun.”  Abdelmeseen said that Mosqueda's conduct frightened him and a female customer, so much so that Abdelmeseen, fearful that an armed assailant would enter the store in pursuit of Mosqueda, locked the door.

After the police arrived, Abdelmeseen and the police watched video from surveillance cameras.  In the video, Abdelmeseen identified two men, both of whom he knew as “regular customer[s].”  Abdelmeseen identified one of the men as Jackson and said that Jackson had been in his store earlier that day attempting to buy beer by using credit cards that were “not working.”  Jackson never successfully purchased beer.

The State introduced the video from the Quick Way surveillance cameras, and Abdelmeseen described its contents to the jury.  In the video, Jackson can be seen attempting to buy beer and his credit card being rejected.  Later in the video, Jackson can be seen walking toward the front of Quick Way seemingly concealing a gun in his right pocket.  He then can be seen walking away from the Quick Way with a package of beer.

Abdelmeseen averred that even though he had seen the video several times, he could not affirmatively say that Jackson had a gun, only that it appeared he had one.  The State also introduced and published captured still pictures from the video, and Abdelmeseen described their contents.  The first three stills Abdelmeseen described as showing Mosqueda coming into the store and purchasing beer.  The next still then shows Jackson outside, walking with another person who was shirtless.  The next still shows Jackson walking near the store by himself with something in his right hand that appears to be a gun.  The next shows Jackson from a different angle appearing to place the gun-like object into his right pocket.  Two stills later, Jackson can be seen walking away from the store with what Abdelmeseen identified as the beer Mosqueda had purchased.

Officer Sebastian Lemus of the Arlington Police Department testified that he responded to Abdelmeseen's 911 call.  Lemus said that he was the second officer to arrive at Quick Way that night.  According to Lemus, he spoke with Mosqueda and Abdelmeseen.  Lemus said that Mosqueda reported to him that after he purchased his beer, he went outside to get into his vehicle when two black males approached him.  One of them, later identified as Jackson, wore a white tank top.  Lemus averred that Mosqueda told him that Jackson had “raised a weapon,” and “pointed it to his face.”  Mosqueda reported that from there, he dropped his beer and ran into the store.  Mosqueda reportedly told Lemus that he could not give more of a description because he had been “focused on the weapon.”  Lemus said that Mosqueda described the weapon as “a pistol[-]type weapon.”  By Lemus's account, Mosqueda also referred to the weapon as a “gun.”  Lemus said that Abdelmeseen reported that the assailant was Jackson, that he knew Jackson as a frequent customer, and that he knew Jackson's name because Abdelmeseen had written it down earlier that evening when Jackson attempted to use an invalid credit card.

Lemus said that he also watched surveillance video with Abdelmeseen and Mosqueda and that Abdelmeseen identified the person in the video as Jackson and that Mosqueda identified Jackson as the assailant.  Lemus said that after speaking with Abdelmeseen and Mosqueda and after having watched the video, he concluded that a robbery had occurred.

Mosqueda testified that he went to Quick Way on the night in question in order to purchase beer.  Mosqueda averred that he had parked in the corner of the parking lot.  By Mosqueda's account, as he approached his vehicle after purchasing beer and leaving the store, “a person pointed at [him] with a ․ weapon.”  Mosqueda said that even though there were two people near him at the time this occurred, he “only saw the weapon on one person.”  When asked to further clarify what type of weapon he had seen, Mosqueda stated “I saw a gun.”  On cross-examination, however, Mosqueda said that he could not tell exactly what Jackson had in his hand.  But again on redirect examination, Mosqueda said that what Jackson pointed toward him looked like a gun, was black, and was definitely not a knife.  Mosqueda also testified that he was incapable of distinguishing between a “real gun and a fake gun” and that he was incapable of distinguishing between “a semiautomatic and a revolver.”

Through the use of an aerial photograph, Mosqueda explained to the jury where he was in relation to the store and the two men when this occurred.  Mosqueda demonstrated for the jury how Jackson had raised the weapon and pointed it at him.  Mosqueda said that all Jackson said to him was “amigo.”  Mosqueda testified that he interpreted Jackson's actions as an attempt to rob him and that he was “scared” when this occurred.  Mosqueda said that he then “threw” his beer down, immediately ran back into the store, and asked Abdelmeseen to call the police.  Mosqueda also said that all he could remember regarding the two men's clothing was that Jackson wore a white shirt and that the other man was shirtless.  Mosqueda said that he could not remember what he had reported to the police or what exactly he had told Abdelmeseen when he came back into the store.

According to Mosqueda, he went to the police station to give a statement several days later.  In his statement, Mosqueda said that Jackson had pointed a gun at him on the evening of the robbery and that he had told Abdelmeseen that Jackson had pointed a gun at him.  Mosqueda also said that while at the police station, he looked at a photo lineup and said that one of the photographs looked like the person who had robbed him, but that he was not sure because he had not seen the person “well” on the night in question.

Through the use of still photographs from surveillance video, Mosqueda pointed out the “person that was going to rob” him.  Mosqueda also pointed to the stills from the video to show himself running from Jackson and where he had dropped his beer.

In addition to testifying that he was scared when the events at Quick Way occurred, Mosqueda also testified that he was “terrified” to testify at trial and that he was frightened when he went to the police station to file his written statement.  Specifically, Mosqueda said that he feared Jackson would retaliate against him and his family because of him having given his statement and him testifying at trial.  Regarding him testifying at trial, and after the prosecutor pointed out that members of the gallery associated with Jackson had been “coughing” and “laughing” at Mosqueda as he testified, the trial court instructed that anyone in the courtroom making “facial expressions or comments” towards Mosqueda would be “held in contempt of court.”

Detective Shawn Wheatley of the Arlington Police Department testified that after he viewed video from Quick Way's surveillance cameras, he interviewed Mosqueda at the police station.  After interviewing Mosqueda, Wheatley said that his focus turned to Jackson.  Wheatley also said that he obtained additional video surveillance footage from the business next to Quick Way. Wheatley said that the additional video footage corroborated Mosqueda's report that Jackson had raised a gun at him.  Specifically, Wheatley said that the video showed that at one point on the night Mosqueda was robbed, Jackson appeared to have a gun in his right hand and then later placed the gun in his pocket.  Wheatley also said that the additional footage showed that Jackson appeared to be “casing potential victims” to rob prior to his interaction with Mosqueda.  Wheatley further testified that the video footage he reviewed showed Jackson come toward Mosqueda, raise a gun toward Mosqueda, and then later walk away with Mosqueda's beer.

The State charged Jackson with aggravated robbery—robbery while using a deadly weapon.  The jury returned a verdict for the lesser-included offense of robbery by threat.  The trial court heard punishment evidence, and after finding the State's habitual offender charge to be true, the court assessed punishment at sixty years and entered judgment accordingly.  This appeal followed.

III. Discussion

In one issue, Jackson argues that the evidence is insufficient to support the jury's verdict that he committed robbery.  Specifically, Jackson argues that there is no evidence that he committed acts, words, or conduct that would have led a reasonable person to fear imminent bodily injury or death;  instead, Jackson argues that Mosqueda's fear was a product of his own “temperamental timidity.”  We disagree.

A. Standard of Review

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);  Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014).  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.  Jackson, 443 U.S. at 319, 99 S.Ct. at 2789;  Dobbs, 434 S.W.3d at 170.

The trier of fact is the sole judge of the weight and credibility of the evidence.  See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979);  Dobbs, 434 S.W.3d at 170.  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);  see Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App.2013).  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;  Dobbs, 434 S.W.3d at 170.

We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case, not the charge actually given.  Byrd v. State, 336 S.W.3d 242, 246 (Tex.Crim.App.2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997));  see Crabtree v. State, 389 S.W.3d 820, 824 (Tex.Crim.App.2012) (“The essential elements of the crime are determined by state law.”).  Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.  Byrd, 336 S.W.3d at 246.  The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument.  See Daugherty v. State, 387 S.W.3d 654, 665 (Tex.Crim.App.2013);  see also Rabb v. State, 434 S.W.3d 613, 616 (Tex.Crim.App.2014) (“When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.”).

B. Robbery

In this case, the State was required to prove that Jackson, in the course of committing theft, intentionally or knowingly threatened or placed Mosqueda in fear of imminent bodily injury or death.  Tex. Penal Code Ann. § 29.02(a)(2) (West 2014);  see also Boston v. State, 410 S.W.3d 321, 325 (Tex.Crim.App. 2013). This statute, written in the disjunctive, covers both a situation in which the defendant actually threatens the victim and a situation in which the defendant implicitly threatens the victim and places the victim in fear.  See Howard v. State, 333 S.W.3d 137, 138–39 (Tex.Crim.App.2011);  see also Olivas v. State, 203 S.W.3d 341, 346 (Tex.Crim.App.2006) (recognizing that to “threaten” and to “place any person in fear” have two distinct meanings).  The court of criminal appeals has further explained that

[t]he plain language of the statute encompasses not just explicit threats, but whatever implicit threats may lead to the victim being placed in fear.  So long as the defendant's actions are “of such nature as in reason and common experience is likely to induce a person to part with his property against his will,” any actual or perceived threat of imminent bodily injury will satisfy this element of [robbery].

Howard,333 S.W.3d at 138 (internal citations omitted).

As for the culpable mental state, “[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.”  Tex. Penal Code Ann. § 6.03(b) (West 2011);  Howard, 333 S.W.3d at 139 (recognizing that when the jury could have found the appellant guilty for either culpable mental state, “we need only address the less-culpable mental state of knowingly”).  Therefore, robbery-by-placing-in-fear 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.”  Howard, 333 S.W.3d at 140.  That is, any actual or perceived threat of imminent bodily injury will satisfy this element “[s]o long as the defendant's actions are ‘of such nature as in reason and common experience is likely to induce a person to part with his property against his will.’ ”  Id. at 138 (quoting Cranford v. State, 377 S.W.2d 957, 958 (Tex.Crim.App.1964)).

Here, viewing the evidence in the light most favorable to the jury's verdict, the evidence shows that after Jackson had failed in his attempts to purchase beer, he waited outside of Quick Way looking for someone from whom he could take beer.  Indeed, Wheatley testified that Jackson's actions seen on surveillance footage were consistent with someone who was “casing potential victims.”  The evidence showed that as Mosqueda walked outside with his beer, Jackson raised a weapon-like object toward Mosqueda's chest and head.  Mosqueda's response was to drop his beer and flee back into the Quick Way, where he began screaming that someone outside had a gun and that the police needed to be called.  Surveillance video showed that from there, Jackson walked away with Mosqueda's beer.

Jackson argues that Mosqueda's fear was unreasonable in part because there is no evidence that he made verbal threats, but a verbal demand is not necessary to prove robbery.  See Donoho v. State, 39 S.W.3d 324, 329 (Tex.App.—Fort Worth 2001, pet. ref'd) (op. on reh'g) (“[A] threat need not be voiced;  it can also be communicated by the accused's actions or conduct.”);  see also Johnson v. State, 541 S.W.2d 185, 187 (Tex.Crim.App.1976) (“A verbal demand is not the talisman of an intent to steal.  Such intent may also be inferred from actions or conduct.”).  We are also unpersuaded by Jackson's argument that Mosqueda's fear was the sole product of his own “temperamental timidity” because, in addition to testifying to being in fear at the moment Jackson raised the weapon-like object at him, Mosqueda also testified that he feared Jackson might retaliate against him for giving his statement to police or testifying at trial.  See Cranford, 377 S.W.2d at 959 (“The fear [of robbery] must arise from the conduct of the accused however, rather than the mere temperamental timidity of the victim.”).

What is significant is that Jackson's actions of raising a weapon-like object toward Mosqueda's chest and head area were of such a nature that reason and common experience dictate that Mosqueda was going to part with his beer against his will.  See Howard, 333 S.W.3d at 138.  We are also unpersuaded by Jackson's argument that the evidence is insufficient to support his conviction because the evidence did not prove definitively that he had a gun.  It is enough that his actions appeared as though he had one, and multiple witnesses testified that Jackson had pointed a gun-like object toward Mosqueda.  See Cranford, 377 S.W.2d at 959 (“It is also well settled that robbery may be committed where the robber makes his victim believe that he has a weapon.”).

In short, a rational factfinder could have found that Jackson's actions were reasonably certain to place Mosqueda in fear and that he was placed in fear.  Jackson, 443 U.S. at 326, 99 S.Ct. at 2793;  Dobbs, 434 S.W.3d at 170.  We overrule Jackson's sole issue.

IV. CONCLUSION

Having overruled Jackson's sole issue on appeal, we affirm the trial court's judgment.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

BILL MEIER, JUSTICE