April Sound Management Corporation v. Concerned Property Owners for April Sound, Inc.

Opinion

NO. 07-03-0229-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 12, 2004

______________________________

APRIL SOUND MANAGEMENT CORP., APPELLANT

V.

CONCERNED PROPERTY OWNERS FOR APRIL SOUND, INC.,

A TEXAS NON-PROFIT CORPORATION AND DEVELOPER FOR

APRIL SOUND SUBDIVISION, APPELLEE

_________________________________

FROM THE 221^ST DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 01-03-01815-CV; HONORABLE SUZANNE STOVALL, JUDGE

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Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON MOTION FOR REHEARING

Remaining convinced that our original disposition was correct, the motion for rehearing of Concerned Property Owners for April Sound, Inc., is overruled with the following comments.

By its motion for rehearing, Concerned Property Owners for April Sound, Inc., contends that our opinion of March 23, 2004, erroneously suggests that (1) April Sound Country Club Corporation and the April Sound Recreational Corporation are or were the same entity and (2) the original developer of the April Sound Subdivision, Southwest Savings, transferred its rights in the "Management Fund" to April Sound Recreational Corporation. By its response, although arguing that the opinion could be read otherwise, April Sound Management Corp. acknowledges that (1) April Sound Country Club Corporation and April Sound Recreational Corporation are different entities, and (2) Southwest Savings (United Savings) transferred its rights in the Maintenance Fund to April Sound Recreational Corp.

By our original opinion, we reversed the summary judgment and remanded the case to the trial court holding that it erred in denying the plea in abatement of Management Corp., but we did not address the merits of the motion for summary judgment. Considering the response of April Sound Management Corp. and that the references to historical events or the status or identity of parties did not have any substantive impact on our decision regarding the plea in abatement, any inference or suggestion presented by Concerned Property Owners for April Sound, Inc., should not be considered to be a holding of fact by this Court contrary to the official public records of Montgomery County or the record to be shown upon a trial on the merits of the various claims.

Accordingly, the motion for rehearing is overruled.

Don H. Reavis

Justice

;                                                              Appellee

_________________________________

FROM THE 251^ST DISTRICT COURT OF RANDALL COUNTY;

NO. 18139-C; HON. ANA ESTEVEZ, PRESIDING

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Memorandum Opinion

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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          Appellant Derek Wayne Montez challenges the factual sufficiency of the evidence convicting him of robbery. We affirm the judgment.

          Background  

          On June 11, 2006, Bobby Wayne Stubblefield was working as a loss prevention supervisor at the J. C. Penney’s store in Amarillo. He observed appellant roll up seven shirts, wrap them in a pair of jeans, tuck the items in his pants, and exit the south door. Stubblefield followed appellant who observed Stubblefield and then pulled a box cutter from his pocket with the blade extended and stared at Stubblefield. At that point, Stubblefield opted to cease his pursuit of appellant.

          Standard of Review

          We review the legal and factual sufficiency of the evidence under the standards specified in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), respectively. The parties are referred to those cases.

          Next, appellant was charged with aggravated robbery by use or exhibition of a deadly weapon. Tex. Pen. Code Ann. §29.03(a)(2) (Vernon 2003). However, he was convicted of the lesser-included offense of robbery by intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death. Id. §29.02(a)(2). Appellant contends there was no actual or threatened violence and, because the jury failed to find that he used or exhibited a deadly weapon, there was insufficient evidence to show that Stubblefield was threatened or placed in fear of imminent bodily injury or death. We disagree.

          Initially, we note that the statute does not require one to be threatened with serious bodily injury or death to be convicted of robbery. See id. §1.07(a)(17) (A) and (B) (Vernon Supp. 2007) (defining a deadly weapon as required for aggravated robbery to be one made for the purpose of inflicting or one that is capable of causing death or serious bodily injury); see also In re J.A.W., 108 S.W.3d 573, 576 (Tex. App.–Amarillo 2003, no pet.) (stating that a knife can be brandished and place a victim in fear without being a deadly weapon). It is sufficient to constitute robbery if the accused places the complainant in fear of bodily injury to the degree that reason and common experience will induce the complainant to part with his property against his will. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Moreover, threats can be communicated by not only words but by actions and conduct. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984); see also Wilmeth v. State, 808 S.W.2d 703, 706 (Tex. App.–Tyler 1991, no pet.) (holding that the jury may find the requisite fear from a menacing glance and a hand gesture even when no verbal threats are made). Thus, we must determine whether the conduct of appellant was sufficient to place a reasonable person in fear of imminent bodily injury. Welch v. State, 880 S.W.2d 225, 226 (Tex. App.–Austin 1994, no pet.).

          Stubblefield testified that appellant, who was in a fast walk, looked at him at least twice before pulling out the box cutter, and that he “extended the knife out of the box cutter and . . . held it to his right side and up a little to where [Stubblefield] could see it and turned towards [Stubblefield] and . . . stared into [his] eyes.” Stubblefield stopped because he felt his life would be in danger if he got any closer to appellant and he thought appellant “would use that [the box cutter] on [him]” if he tried to stop appellant. Although Stubblefield was 10-15 feet behind appellant at the time the box cutter was drawn, two police officers testified they were trained that if someone has a straight-edged weapon, it would take an officer 21 feet to react to defend himself from that weapon if he did not already have a weapon drawn. An officer also testified he was trained that sharp-edged weapons are dangerous and a slicing motion can cause more damage than some puncture motions.

          We believe a reasonable person in Stubblefield’s position would have been in fear of imminent bodily injury based on this evidence, and that such conduct on the part of appellant induced Stubblefield to end his pursuit of appellant. See Liggens v. State, 50 S.W.3d 657, 661 (Tex. App.–Fort Worth 2001, pet. ref’d) (finding the evidence factually sufficient when the defendant placed a store employee in fear of imminent bodily injury when the defendant started his car, looked right at the employee, “gassed” the car, and the employee believed he was going to get hurt if he didn’t move). In short, the evidence, as tested under the standards of Jackson and Watson is both legally and factually sufficient to sustain the conviction. Not only does some evidence exist upon which a reasonable factfinder could conclude, beyond reasonable doubt, that appellant committed the elements of robbery but also that conclusion is neither supported by weak evidence, manifestly unjust, or undermined when tested against the record as a whole.

          The judgment is affirmed.

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.