COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00076-CR
ANTHONY CARL CRAVER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY TRIAL COURT NO. 1272901D
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Anthony Carl Craver appeals his conviction for robbery causing
bodily injury.2 In six points, Craver argues that the trial court erred by overruling
his motion to quash the State’s indictment; that the evidence is insufficient to
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 29.02 (West 2011). support his conviction; that the trial court erred by not including in the jury charge
an instruction for the lesser-included offense of theft; that there was error in the
jury charge; and that the trial court erred by allowing the State to admit evidence
at the punishment phase that he had committed prior, sequential felonies. We
will affirm.
II. BACKGROUND
Mike Vasquez, a loss-prevention detective for Sears, was monitoring
security cameras at Hulen Mall in Fort Worth on February 8, 2012, when, at
approximately 6:10 p.m., he noticed Craver in the department store. Vasquez
said that at this time he witnessed Craver “concealing merchandise into a bag.”
Vasquez notified another loss-prevention agent, Kevan Holmes, of Craver’s
activity. By Vasquez’s account, as Craver left the store without paying for the
items he had secreted in his bag, Holmes followed [him], stopped him, and tried
to “convince him to come back” into the store. Vasquez testified that he too
came out to meet Craver shortly after Holmes had done so.
Vasquez said that at this time, Craver handed Holmes an “Xbox controller”;
“toss[ed his] bag over” the nearby railing; and then “lung[ed] over the railing.”
Vasquez averred that when he looked over the railing to see how Craver had
“landed,” he saw that Craver had “landed on a lady customer in the mall.” And
according to Vasquez, because of the time and day, people were at the mall
walking around and shopping. Vasquez said that he and Holmes then “ran down
2 the stairs” in an attempt to apprehend Craver. Craver, however, continued
running and fled from the mall by using a nearby exit.
During Vasquez’s time on the stand, the State introduced photographs of
the department store’s entry and railing where this incident occurred. Through
the aid of these photographs, Vasquez again described Craver’s actions to the
jury. The State also introduced, and played for the jury, a video from in-store
cameras which displays Craver ducking down behind a display in the store,
taking items and placing them in his bag, and then Craver leaving the store
without paying for the items. Further, the video displays Holmes stopping Craver
after he left the store, Craver walking back and forth in front of the store’s
entrance as Holmes and others seemingly attempted to corral him, and Craver
jumping over the railing with his bags.
Holmes testified that he had encountered Craver shortly before Craver put
the unpaid-for items in his bag. Holmes said that Craver drew his attention
because he was carrying multiple bags and because Craver asked him whether
he worked at the store. Holmes said he left the area and called Vasquez so that
he would watch Craver from the camera control booth. By Holmes’s account,
Vasquez informed him that Craver had “put some things in a bag, controllers,
[etcetera].” Vasquez then told Holmes that Craver had left the store. In short
order, Holmes approached Craver, told him that he worked for the store, and
asked Craver to return to the store with the unpaid-for items. Holmes said that
Craver told him that he had not stolen anything and refused to return to the store.
3 As the two spoke, Holmes said that he could see an Xbox controller sticking out
of Craver’s bag. Holmes told Craver that the controller belonged to the store. At
that time, other store employees, including Vasquez, joined in.
After the others arrived, Holmes testified that Craver then handed him the
Xbox controller and then “he jumped over the railing.” Holmes said that Craver
did so because “he was trying to get away.” Holmes said that as he looked
down, he could see that Craver had “landed on an elderly woman” and that the
woman appeared to be injured. Holmes said that the woman required medical
assistance and that an ambulance was needed to transport her away from the
mall. Holmes averred that after landing on the woman, Craver “took off running.”
Police Cadet Mike Ford of the Fort Worth Police Department, who was
working as a security supervisor for Hulen Mall on February 8, 2012, also
testified. Ford said that after receiving a call for security assistance, he went
toward Sears, at which point he saw Craver “on top of a female in the lower level
with a bunch of [Sears’s] loss prevention officers standing up on the upper level
pointing down [toward Craver].” Ford testified that he later learned the female’s
name, Kathleen Culp. Ford said that as he looked over the railing, he saw
Craver “frantically trying to get up and get away from that area.” Ford said that
Culp appeared to be in “extreme pain” and that she was “grabbing her lower back
and asking for help.” From there, according to Ford, Craver fled from the area
and Ford radioed “mobile units” to search for Craver. Ford said that Craver left a
bag containing some of the items he had taken from Sears. Craver also testified
4 that the mall was open and that customers and mall employees were in the area
where Craver had landed.
Mary Feherty testified that she and Culp were walking at Hulen Mall on
February 8, 2012. Feherty said that as the two walked past Sears’s lower level,
she felt something “falling higher above [her] down behind.” As she turned to see
“what it was” that had fallen, she saw Craver getting up off of Culp and Culp
“crying.” Feherty said that she grabbed hold of Craver and that she could see
security personnel coming down the stairs toward her area. Feherty said that her
attempts to hold Craver were futile and that he ran off. According to Feherty, a
licensed vocational nurse, medical personnel took Culp to an ambulance after
placing her on a backboard, lifting her from the ground, and strapping her to a
stretcher. Medical personnel then transported Culp to a nearby hospital, where
she spent several days in the intensive care unit. Feherty testified that as a
result of Craver landing on her, Culp suffered a “fracture of her thoracic
vertebrae.”
Culp testified that on February 8, 2012, she and Feherty were walking at
the mall for “physical fitness.” She said that shortly after the two began walking,
she “got hit from behind.” Culp said that upon being struck, she was immediately
in pain. Culp averred that she was “[j]ust in shock” and “didn’t know what was
going on” except to say that she was transported to the hospital where she
learned that her “back was broken and fractured.” Culp said that her injuries
required her to stay in intensive care for about two days and then in a “regular
5 room” for another “three to four days.” Culp said that she wore a hard back
brace after leaving the hospital and that doctors ordered her to “bed rest” for nine
months. Culp described her injuries as painful.
Because the State had indicted Craver for aggravated robbery, Craver
requested at the charge conference that the jury charge include instructions on
the lesser-included offenses of robbery, theft, and assault. The court granted
Craver’s request for an instruction on robbery but denied his requests for the
inclusion of instructions regarding theft and assault.
A jury found Craver guilty of robbery causing bodily injury. After the trial
court heard evidence at punishment, it found the State’s enhancements to be
true and sentenced Craver to thirty-eight years’ incarceration. This appeal
followed.
III. DISCUSSION
A. Motion to Quash
In his first point, Craver argues that the trial court erred by overruling his
motion to quash the State’s indictment. Specifically, Craver argues that the
indictment failed to allege that he acted recklessly in that it did not allege facts
sufficient to show that he had knowledge of, or was aware of, the fact that people
might have been in the area where he landed when he jumped over the railing at
the mall. The State argues that the indictment adequately informed Craver of the
acts upon which it was relying to prove that Craver acted recklessly. We agree
with the State.
6 Here, the indictment read that Craver had:
Then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, recklessly cause serious bodily injury to another, Kathleen Culp, by jumping over the second floor railing to the ground floor of a mall during business hours and landing on Kathleen Culp with his body when there were persons in the area of his landing.
We review a trial judge’s decision to deny a motion to quash an indictment
de novo. See Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010). A
motion to quash should be granted only when the language concerning the
defendant’s conduct is so vague or indefinite as to deny the defendant notice of
the acts he allegedly committed. Miller v. State, 333 S.W.3d 352, 356 (Tex.
App.—Fort Worth 2010, pet. ref’d) (citing DeVaughn v. State, 749 S.W.2d 62, 67
(Tex. Crim. App. 1988)). Article 21.15 of the Texas Code of Criminal Procedure
requires specific language be in the charging instrument when, as in this case, it
is alleged that the accused acted recklessly. See State v. Rodriguez, 339
S.W.3d 680, 682 (Tex. Crim. App. 2011); see also Tex. Code Crim. Proc. Ann.
art. 21.15 (West 2009). It is unnecessary, however, for the State to allege
evidentiary facts. Stadt v. State, 120 S.W.3d 428, 442 (Tex. App.—Houston
[14th Dist.] 2003) aff’d, 182 S.W.3d 360 (Tex. Crim. App. 2005) (“[I]t was only
required [that an indictment] allege conduct a jury could rationally find to be
reckless under the circumstances of this case.”) Id.; see also Juba v. State,
No. 14-12-00770-CR, 2013 WL 5423080, at *1 (Tex. Crim. App.—Houston [14th
Dist.] Sept. 23, 2013, pet. ref’d) (mem. op, not designated for publication.
7 The culpable mental state of “reckless” is satisfied by evidence indicating
that the defendant consciously disregarded a known, substantial, and
unjustifiable risk that serious bodily injury would occur—a risk that if disregarded
constitutes a gross deviation from the standard of care an ordinary person would
exercise under the same circumstances. See Davis v. State, 955 S.W.2d 340,
348–49 (Tex. App.—Fort Worth 1997, pet. ref’d) (citing Hernandez v. State, 819
S.W.2d 806, 810 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992)); see
also Tex. Penal Code § 6.03(c) (West 2011). Reckless conduct “involves
conscious risk creation, that is, [that] the actor is aware of the risk surrounding
his conduct or the results thereof, but consciously disregards that risk.” Davis,
955 S.W.2d at 349 (quoting Aliff v. State, 627 S.W.2d 166, 171 (Tex. Crim. App.
1982)).
In Rodriguez, a reckless discharge of a weapon case, the court of criminal
appeals gave several examples of what would be considered sufficient
allegations in a charging instrument to constitute proper notice of recklessness to
a defendant. 339 S.W.3d at 683–84. The Court stated:
For example, the State might allege “by shooting into the ground in a crowd of people,” or “by shooting a gun in the air in a residential district,” or “by shooting at beer bottles in his backyard in a residential district,” or “by shooting a gun on the grounds of an elementary school,” or “by shooting at a Stop sign in a business district,” or “by shooting into the bushes at a city park.” These are the sorts of actions that might entail a known and unjustifiable risk of harm or injury to others, risks that the ordinary person in the defendant’s shoes probably would not take.
Id. (footnotes omitted and emphasis added).
8 Here, the indictment alleged that Craver had jumped over a railing at the
mall “during business hours” and “when there were persons in the area of his
landing.” These allegations are similar to the court of criminal appeals’ examples
of “in a crowd of people,” or “in a business district.” Jumping over a rail at the
mall during business hours when there are people in the area where one would
land entails a known and unjustifiable risk of harm or injury to others, and an
ordinary person in Craver’s shoes probably would not have taken the same risk.
Thus, the State adequately informed Craver of the acts he allegedly committed
and the circumstances that constituted recklessness. See Miller, 333 S.W.3d at
356; see also Rodriguez, 339 S.W.3d at 683–84.
Because the indictment alleged the circumstances—jumping over the
second floor railing to the ground floor of a mall during business hours and
landing in an area where there were people—that gave rise to the acts
constituting aggravated robbery—recklessly causing serious bodily injury to
another during the commission of theft—we are constrained to conclude that the
State’s indictment was sufficient and that the trial court did not err by overruling
Craver’s motion to quash the indictment. See Stadt, 120 S.W.3d at 441–43
(holding that the indictment adequately informed appellant of the acts the State
planned to rely upon to constitute “recklessness” in a manslaughter charge when
it stated that he operated his vehicle at an unreasonable speed, failed to keep a
9 proper lookout, failed to maintain a single lane of traffic, and changed lanes
unsafely). We overrule Craver’s first point.
B. Sufficiency of the Evidence
In his second point, Craver argues that the evidence is insufficient to
support the jury’s verdict that he committed robbery. Specifically, and much like
his first point, Craver argues only that there is insufficient evidence to support the
jury’s verdict that he acted recklessly. We disagree.
1. 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. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex.
Crim. App. 2011). The standard of review is the same for direct and
circumstantial evidence cases; circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
10 2. Robbery and Recklessness
A person commits robbery if, in the course of committing theft, the person
intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal
Code Ann. § 29.02(a)(1) (West 2011). An actor’s culpable mental state is
generally shown by circumstantial evidence. See Moore v. State, 969 S.W.2d 4,
10 (Tex. Crim. App. 1998). Culpability may be inferred from the acts, words, and
conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
1995), cert. denied, 906 S.W.2d 481 (1996). As discussed above, the culpable
mental state of “reckless” is satisfied by evidence indicating that the defendant
consciously disregarded a known, substantial, and unjustifiable risk that serious
bodily injury would occur—a risk that if disregarded constitutes a gross deviation
from the standard of care an ordinary person would exercise under the same
circumstances. Davis, 955 S.W.2d at 348–49.
Here, viewing the evidence in the light most favorable to the jury’s
determination that Craver acted recklessly, the evidence shows that Craver’s
conduct occurred on a Wednesday night when it was known that customers were
shopping and employees were working at the mall. Testimony at trial indicated
that the people on the lower level were visible from where Craver leaped over the
railing. Despite the presence of these people, Craver attempted to avoid Sears’s
loss-prevention employees by jumping over the railing of the second floor down
onto the first floor. And even after landing on Culp, Craver fled the area despite
Culp’s crying in pain and Feherty’s attempts to hold him there.
11 We hold that the jury could have reasonably inferred that Craver
consciously disregarded a known risk that he would injure another person when
he leaped over the railing to the first floor of the mall during business hours while
visible customers and employees were shopping and walking around, and that
he grossly deviated from the standard care an ordinary person would have
exercised under the same circumstances. See Davis, 955 S.W.2d at 348–49.
We overrule Craver’s second point.
C. Theft as a Lesser-Included Offense
In his third point, Craver argues that the trial court erred by denying his
requested instruction on the lesser-included offense of theft in the jury charge.
The State argues that Craver was not entitled to the lesser-included offense of
theft because there was no evidence at trial of the stolen items’ value. We agree
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
12 Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be
evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There
must be some evidence from which a rational jury could acquit the appellant of
the greater offense while convicting him of the lesser-included offense. Id. The
court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Both the State and Craver agree that in this case theft is a lesser-included
offense of aggravated robbery, and we agree with both parties. See Bignall v.
State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (holding that because evidence
from which jury could find that defendant and his accomplices had committed
lesser-included offense of theft rather than aggravated robbery, defendant was
entitled to instruction on theft). The only issue, then, is whether the record
contains some evidence to support an instruction for theft.
A person commits a theft “if he unlawfully appropriates property with intent
to deprive the owner of property.” See Tex. Penal Code Ann. § 31.03(a) (West
Supp. 2014). The Penal Code describes several grades of theft ranging from a
Class C misdemeanor to a felony of the first degree. See id. § 31.03(e). With
few exceptions not applicable here, the only element distinguishing one grade of
theft from another is the value of the property taken. See id. Under Texas law,
the value of the property taken is an essential element of the offense. See
Simmons v. State, 109 S.W.3d 469, 478–79 (Tex. Crim. App. 2003); Sowders v.
13 State, 693 S.W.2d 448, 450 (Tex. Crim. App. 1985); Christiansen v. State, 575
S.W.2d 42, 44 (Tex. Crim. App. [Panel Op.] 1979); McKnight v. State, 387
S.W.2d 662, 663 (Tex. Crim. App. 1965).
Here, neither party introduced any evidence of the value of the items
Craver took from Sears; thus, without evidence of the value of the property taken,
Craver was not entitled to an instruction on theft. See Ramirez v. State, 422
S.W.3d 898, 903 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (holding that
defendant convicted of robbery was not entitled to instruction on lesser-included
offense of theft, where there was no testimony as to the value of the truck that
the defendant took, as required to determine the grade of the theft).
Craver attempts to distinguish Ramirez from his case by arguing that
Ramirez stands for the proposition that it was the trial court’s lack of knowledge
of the value of the vehicle stolen in that case that foreclosed Ramirez from being
entitled to the lesser-included offense instruction, and here, Craver argues, the
State’s indictment states that a single Xbox controller is valued at less than
$1500.3 Ramirez does not stand for this proposition; rather, Ramirez stands for
the well-established rule that the value of property taken is an essential element
3 The State’s indictment originally included two counts against Craver. Count one, the count the State pursued at trial, was for aggravated robbery. Count two, a count the State waived prior to trial, alleged that Craver had committed theft of “a video game controller of the value of less than $1500.” Although there is no record evidence of the value of the items Craver took from Sears, there is evidence that he attempted to abscond with more than one video game controller.
14 of the offense and that without evidence at trial of the value of the property taken,
a defendant is not entitled to an instruction on theft. See id. Because there was
no evidence introduced at trial from any source revealing the value of the
property Craver took, the jury could not have found an essential element of theft.
Id. Thus, the trial court did not err by denying Craver’s request for the lesser-
included instruction of theft because there was no evidence whereby a rational
jury could have acquitted him of the greater offense of robbery while convicting
him of the lesser-included offense of theft. Moore, 969 S.W.2d at 8. We overrule
Craver’s third point.
D. The Jury Charge
In his fourth point, Craver argues that the “jury charge was erroneous in
that it failed to require the [S]tate to prove every element beyond a reasonable
doubt.” Craver’s argument is predicated on the same notion posited in his first
and second points, namely, that the State’s charge did not contain a required
culpable mental state.
As discussed in points one and two, the State’s allegation that Craver
jumped over the railing “during business hours” and “when there were persons in
the area of his landing” is sufficient language to describe the culpable mental
state or recklessness. See Davis, 955 S.W.2d at 348–49 (“The culpable mental
state of ‘reckless’ is satisfied by evidence indicating that the defendant
‘consciously disregarded a known[,] substantial[,] and unjustifiable risk that . . .
serious bodily injury would occur.”) (citing Johnson v. State, 915 S.W.2d 653,
15 658) (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). The trial court
paraphrased this language in the jury charge. And recklessness is a statutorily
defined culpable mental state. See Tex. Penal Code § 6.03(c). We overrule
Craver’s fourth point.
E. State’s Exhibits 43 and 44
In his fifth and sixth points, Craver argues that the trial court erred by
allowing the State, at punishment, to introduce “two felony judgments which
purported to demonstrate that Craver had two prior, sequential felony
convictions.” These judgments were introduced as State’s Exhibits 43 and 44.
Craver’s argument is that the judgments should not have been admitted because
they were not linked to him through fingerprints but, according to him, only
through name, date of birth, and street address. But as the State points out,
there is far more evidence that Craver was the person convicted in these
judgments.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists,
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is
required to prove these two elements. See id. at 921–22; Banks v. State, 158
S.W.3d 649, 651–52 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing
Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986)). While evidence of
a certified copy of a final judgment and sentence may be a preferred and
16 convenient means, the State may prove both of these elements in a number of
different ways, including “documentary proof (such as a judgment) that contains
sufficient information to establish both the existence of a prior conviction and the
defendant’s identity as the person convicted.” Flowers, 220 S.W.3d at 922.
Here, State’s Exhibits 43 and 44 are linked to Craver by more than just his
name, date of birth, and address. State’s Exhibit 38, which was admitted without
objection, contains a certified copy of a final judgment and supporting documents
and was verified by fingerprint. State’s Exhibit 38 contains Craver’s full name;
his date of birth; an address associated to Craver, both in the judgment’s
supporting documents and verified at trial through phone records linking Craver
to the address; a specific State identification number; and a specific Dallas
county identification number. State’s Exhibit 38 also shares the same full name,
date of birth, and physical address with State’s Exhibits 43 and 44.
Furthermore, State’s Exhibit 42 contains the same identifying State
identification number, Craver’s full name, and his address as was in State’s
Exhibit 38. State’s Exhibit 42 further contains a judicial confession detailing two
convictions. The first conviction found in State’s Exhibit 42 details Craver’s full
name, the court in which the conviction was had, a cause number, the county of
the offense, and the date of conviction. These identifiers found in the first
conviction of State’s Exhibit 42 are the same name, court, cause number, county,
and date of conviction found in State’s Exhibit 43. State’s Exhibit 42 and 44 also
share the description of the conviction found in State’s Exhibit 43. The second
17 conviction found in State’s Exhibit 42 details Craver’s full name, the court in
which the conviction was had, a cause number, the county of the offense, and
the date of conviction. These identifiers found in the second conviction of State’s
Exhibit 42 are the same name, court, cause number, and county of the offense
found in State’s Exhibit 44.
We hold that the State met its burden of linking State’s Exhibit 43 and 44
with sufficient information to establish both the existence of the prior convictions
and Craver’s identity as the person convicted. See id.; see also Doby v. State,
454 S.W.2d 411, 413–14 (Tex. Crim. App. 1970). We overrule Craver’s fifth and
sixth points.
IV. CONCLUSION
Having overruled all six of Craver’s points on appeal, we affirm the trial
court’s judgment.
/s/ Bill Meier
BILL MEIER JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
LIVINGSTON, C.J., and GABRIEL, J., concur without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 25, 2015