JASON RAY PICKETT v. THE STATE OF TEXAS

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Court of Appeals of Texas, El Paso.

JASON RAY PICKETT, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00024-CR

Decided: January 12, 2018

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

Appellant Jason Ray Pickett challenges his three convictions of aggravated robbery.1 In this companion case, Appellant appeals the legal sufficiency of his conviction in cause number 1329666D, in which Cathy Swartz was the named victim.2 In a single issue, Appellant challenges the sufficiency of the evidence to support his conviction for the aggravated robbery of Amara Chan and Cathy Swartz.

BACKGROUND

On the evening of May 29, 2013, Amara Chan and Cathy Swartz were having dinner at Tang's Pacific Bistro in Fort Worth, Texas. Jeff Tang, the Bistro's manager, was also having dinner at the bar. Sometime between 9:00 and 9:30 p.m., Tang saw a pickup truck drive up and park near the side of the Bistro. A man in sunglasses, who Tang identified in court as Appellant, entered the restaurant, walked behind the bar and in front of where Chan and Swartz were sitting.

Appellant stood next to the tending cashier, Jazmine Paredez, and flashed a firearm while keeping it in his right pocket. Appellant, whispering to Paredez, demanded she give him money and Swartz, after seeing Paredez's reaction, exclaimed, “are you f-----g kidding me?” In response to Swartz's statement, Appellant pulled the firearm out of his pocket and pointed it at Swartz's head. Swartz reacted by ducking her head. Appellant then announced that he was committing a robbery and demanded money as he walked around the bar, behind Chan and Swartz.

Appellant then began waiving the gun towards the other Bistro patrons, including Tang and Paradez, as he stood behind Chan and Swartz. When Appellant pointed the gun at Tang, Tang raised his hands. Tang directed Paredez to give Appellant the money from the cash drawer. Paredez removed the cash drawer from the register and handed it over to Appellant. Chan ducked her head as Appellant swung the drawer over her head and then exited the Bistro. The cash drawer contained about $450 dollars. The police released surveillance footage to the public and subsequently received a tip that Appellant was the robber in the video. Appellant's former wife, after being shown the video by police, identified Appellant as the perpetrator.

Trial

At trial, Tang recounted the events of that evening, including the fact that Appellant “scans the bar area” with the firearm and pointed it at Tang. Tang's response to Appellant was to raise his hands to show Appellant he was not a threat. Paredez confirmed that Appellant had pointed the firearm at everyone in the restaurant after first gesturing the firearm at her. Swartz testified she initially did not see the firearm and only realized Appellant possessed a firearm when he pointed it at her. Angelo Puma, was a regular patron of the Bistro, and he saw Appellant “wave[ ] [the firearm] around the entire restaurant.”

Swartz testified that initially she did not see the firearm and only realized that he possessed a firearm when Appellant pointed it towards her. She stated that she feared for her life when Appellant pointed the gun at her head and felt threatened with imminent bodily injury or death.

Chan stated she “thought it was odd for somebody to walk in a restaurant wearing sunglasses.” Chan explained that she only heard portions of Appellant's initial interactions with Paredez, however, remembered hearing the word “cash,” at which point she began to pay more attention. Chan explained that she and Swartz initially believed Appellant was engaged in a prank but after he pointed the gun at Swartz, Chan “got really scared.” Chan became even more frightened when Appellant walked behind her and Swartz since “[she] couldn't see him [.]” She was unsure if Appellant was pointing the gun at Swartz again or at the back of Chan's head.

The trial court submitted three aggravated robbery charges to the jury: the aggravated robbery of Chan, Swartz, and Tang. The jury found Appellant guilty as charged and assessed punishment at five years confinement for the aggravated robbery of Chan, seven years confinement for the aggravated robbery of Swartz, and five years confinement for the aggravated robbery of Tang. The trial court sentenced Appellant in accordance with the jury's verdicts, to run concurrently.

DISCUSSION

In a single issue, Appellant challenges the sufficiency of the evidence to support Appellant's convictions for the aggravated robbery of the Bistro's patrons. Relevant here, Appellant challenges the sufficiency of the evidence for the aggravated robbery of Chan, citing the legal sufficiency standard in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Specifically, Appellant argues that his interactions with Swartz were independent from the robbery, that he only pointed the firearm at Swartz in response to her exclamation, and that Swartz was not a victim of theft.

By citing Jackson v. Virginia, we limit our review to a challenge to the legal sufficiency of the evidence to support the convictions. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007)(“the legal sufficiency standard set out in Jackson v. Virginia”); see also Ramsey v. State, 473 S.W.3d 805, 811 (Tex.Crim.App. 2015)(appl[ying] the “Jackson [v. Virginia] legal sufficiency standard”).

When determining whether there is legally sufficient evidence to support a criminal conviction, “we consider the combined and cumulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.” Tate v. State, 500 S.W.3d 410, 413 (Tex.Crim.App. 2016)(citing Jackson v. Virginia, 443 U.S. at 318-319, 99 S.Ct. 2781). While the State must prove the defendant's guilt beyond a reasonable doubt, “the State's burden does not require it to disprove every conceivable alternative to a defendant's guilt. [Footnote omitted]. Id. at 413. In reviewing the legal sufficiency of a conviction, circumstantial evidence is equally probative as direct evidence. Id.

The jury is the sole judge of the credibility and weight to be attached to the testimony of the witnesses, and juries may draw multiple, reasonable inferences from the facts so long as each is supported by the evidence presented at trial. Tate, 500 S.W.3d at 413 (citing Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781 and Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007)). The jury, however, is not allowed to draw conclusions based on speculation. Hooper, 214 S.W.3d at 16. Speculation is insufficiently based on the evidence and does not support a finding beyond a reasonable doubt. Id. Lastly, “[w]hen the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict.” Tate, 500 S.W.3d at 413 (citing Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. 2781).

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, the person intentionally, knowingly, or recklessly (1) causes bodily injury to another; or (2) threatens or places another in fear of imminent bodily injury or death. TEX.PENAL CODE ANN. § 29.02(a)(West 2011). A person commits theft if he appropriates property without the owner's consent and with intent to deprive the owner of the property. TEX.PENAL CODE ANN. § 31.03(a), (b)(1)(West Supp. 2017). “ ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of theft.” TEX.PENAL CODE ANN. § 29.01(1)(West 2011). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. TEX.PENAL CODE ANN. § 29.03 (West 2011). A deadly weapon is defined, in relevant part, as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” TEX.PENAL CODE ANN. § 1.07(17)(A)(West Supp. 2017).

Appellant challenges the sufficiency of the evidence to support his aggravated robbery conviction of Swartz because: (1) he did not rob or commit any theft from Swartz; (2) Appellant's actions toward Swartz did not involve the theft of the cash drawer, but on the basis of her reaction to the robbery; and (3) Appellant did not use the gun during the flight from the restaurant. The main thrust of Appellant's argument is that the victim of the theft and the robbery victim must be the same individual. In other words, the person who was assaulted in the course of a defendant committing theft must be the intended victim of the theft in order to complete the offense of robbery.

The Texas Court of Criminal Appeals has long held that the unit of prosecution for robbery is not the event or theft of an individual or entity, rather, the unit is the prosecution of each victim threatened. Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App. 1999)(holding that a defendant's prosecution for robbery twice when two victims were assaulted in the course of committing theft did not violate Double Jeopardy Clause of the United State Constitution). Theft is the underlying offense for a robbery. Id. Robbery is a form of assault. Id.; Boston v. State, 373 S.W.3d 832, 839 (Tex.App.--Austin 2012, pet. granted), aff'd, 410 S.W.3d 321 (Tex.Crim.App. 2013). “[T]he offense of robbery includes any violence in the course of effectuating [a] theft as well as any violence while in immediate flight from the scene of the theft.” Lightner v. State, 535 S.W.2d 176, 177 (Tex.Crim.App. 1976)(affirming aggravated robbery conviction of defendant who assaulted a police officer after stealing money from a cash register). To prove robbery, the State is not required to prove that the complainant's property was taken. TEX.PENAL CODE ANN. §§ 29.01(1), 29.02(a). “No completed theft is required in order for the proscribed conduct to constitute the offense of robbery.” White v. State, 671 S.W.2d 40, 41 (Tex.Crim.App. 1984); Sweed v. State, 321 S.W.3d 42, 47 (Tex.App.--Houston [1st Dist.] 2010, pet. granted), rev'd on other grounds, 351 S.W.3d 63 (Tex.Crim.App. 2011). “Nor is it necessary that the victim of the theft or attempted theft and the victim of the robbery be the same.” White, 671 S.W.2d at 41–42 (affirming aggravated robbery conviction of getaway driver who shot pursuing bystander in order to free companion who had attempted to steal a purse); Sweed, 321 S.W.3d at 47.

Reviewing the evidence in the light most favorable to the verdict, the evidence showed that Appellant stole (i.e. committed a theft) the cash drawer and intended to obtain and maintain control of the cash—property of the Bistro. See TEX.PENAL CODE ANN. § 29.03. In addition, the evidence showed, and Appellant concedes in his brief, that Appellant used or exhibited a firearm. See TEX.PENAL CODE ANN. §§ 29.03, 1.07(17)(A). Appellant does not contest the evidence that he pointed the gun at the Bistro's patrons. Appellant does not contest that Swartz was placed in, or at the very least threatened with, fear of imminent bodily injury or death when Appellant pointed his gun at her. Boston, 410 S.W.3d at 326 (“[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.’ ” [Emphasis in orig.] ).

Viewing the evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to prove that Appellant committed an aggravated robbery against Cathy Swartz. We overrule Appellant's sole issue as it pertains to Cathy Swartz.

CONCLUSION

Having overruled Appellant's sole issue, we affirm the conviction in cause number 1329666D.

Hughes, J., Not Participating

FOOTNOTES

1.   As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of that court. TEX.R.APP.P. 41.3.

2.   This appeal, 08-15-00024-CR (cause no. 1329666D) is a companion case to 08-15-00023-CR (cause no. 1329668D) and 08-15-00022-CR (cause no. 1374153R). These cases were tried jointly. Jeff Tang is the named victim in cause number 1374153R (08-15-00022-CR), Amara Chan is the named victim in cause number 1329668D (08-15-00023-CR), and Cathy Swartz is the named victim in cause number 1329666D (08-15-00024-CR).

YVONNE T. RODRIGUEZ, Justice

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