Bignall v. State

887 S.W.2d 21, 1994 Tex. Crim. App. LEXIS 121, 1994 WL 497277
CourtCourt of Criminal Appeals of Texas
DecidedNovember 16, 1994
Docket473-93
StatusPublished
Cited by682 cases

This text of 887 S.W.2d 21 (Bignall v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bignall v. State, 887 S.W.2d 21, 1994 Tex. Crim. App. LEXIS 121, 1994 WL 497277 (Tex. 1994).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of aggravated robbery, Tex.Penal Code § 29.03 (Vernon 1992). The jury assessed punishment, enhanced by two prior convictions, at confinement in the Texas Department of Criminal Justice for twenty-five years. The Court of Appeals affirmed the conviction. Bignall v. State, 852 S.W.2d 682 (Tex.App.—Houston [14th Dist.] 1993). We granted Appellant’s petition for discretionary review to determine whether the Court of Appeals erred in holding that Appellant was not entitled to an instruction on theft as a lesser included offense. We reverse.

A general statement of the facts, as contained in the court of appeals’ opinion, is as follows:

Mr. Augustine Abolade testified that on July 23, 1992, between 5:00 and 5:30 p.m., he was working as a clerk in a Stop-N-Go convenience store in Harris County, Texas. William “Billy” Davis entered the store and inquired about the price of ice cream. Davis signaled to Appellant and another man, Taylor, who were outside, to join Davis inside the store. Appellant and Taylor entered the store. Taylor went to the magazine rack while Appellant approached Davis who was at the beer display. Appellant picked up three cases of beer and stacked them in Davis’ arms. Davis then started walking out of the store. Abolade said, “Excuse me, sir, can I ring you up, sir.” Davis told Abolade to talk to Taylor and walked out of the store with the beer.
Abolade then asked Taylor if he was going to pay for the beer. Taylor pulled a gun from his pants and pointed it at Abo-[23]*23lade. Appellant ordered Abolade to open the cash register. Taylor told Appellant not to do that because if the cash register was opened a camera would take their picture. Appellant then began packing cartons of cigarettes into a nylon bag. Taylor continued pointing the gun at Abo-lade. When Appellant finished filling the bag, he and Taylor left the store. The men left in a car.

Bignall, 852 S.W.2d at 683-84.

In Rousseau v. State, this Court recently refined the Royster1 test that is to be used when determining whether a defendant is entitled to an instruction on a lesser included offense. 855 S.W.2d 666 (Tex.Crim.App.1993). Before an instruction on a lesser included offense is warranted, the following two prongs of the Royster test, as restated in Rousseau, must be satisfied: 1) the lesser included offense must be included within the proof necessary to establish the offense charged, and 2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Id. at 673. In making this determination, this Court should review all of the evidence presented at trial. Id.; Bell v. State, 693 S.W.2d 434, 442 (Tex.Crim.App.1985); Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984) (expressly disapproving of the consideration of solely the defendant’s testimony); Eldred v. State, 578 S.W.2d 721, 723 (Tex.Crim.App. [Panel Op.] 1979). No dispute exists that a completed theft is a lesser included offense of aggravated robbery. Eldred, 578 S.W.2d at 722; Campbell v. State, 571 S.W.2d 161, 162 (Tex.Crim.App.1978). The issue is, therefore, whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty only of theft. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

A comparison of our aggravated robbery and theft statutes indicates that the use or exhibition of a gun elevates theft to aggravated robbery. Compare Tex.Penal Code §§ 29.03 and 31.03. Therefore, if any evidence exists in the record that would permit a rational jury to find that a deadly weapon was not used or exhibited, Appellant is entitled to an instruction on theft.

After reviewing the entire record, the following evidence regarding the presence/absence or use of a deadly weapon was presented:

1. The store clerk testified that one of Appellant’s companions pulled a gun and pointed the gun at him. (Tr.Vol. II, p. 19).
2. The store clerk repeatedly closed his eyes when he allegedly saw a gun and does not remember for how long his eyes were closed. (Tr.Vol. II, p. 51-55, 72).
3. The clerk was scared and unsure of many key facts. (Tr.Vol. II, p. 51-56, 74-75).
4. Officer Reyes did not find any weapons in or around the store. (Tr.Vol. II, p. 86).
5. After searching the vehicle only forty minutes after the incident, Officer Reyes did not find a weapon in the car or on any person. (Tr.Vol. II, p. 93).
6. Officer Rivera also did not find any weapon. (Tr.Vol. II, p. Ill, 113).
7. Officer Grounds, the officer who first came in contact with the suspects after the incident, did not find any weapons. Furthermore, he did not see anyone dispose of anything despite observing them for some period of time prior to stopping the vehicle. (Tr.Vol. II, p. 124-126).
8. While Troy Connelly did not see Appellant and Lonzell Taylor during the time they were in the store and could not affirmatively testify that they did not use a gun in the store, he did testify that no one had a gun that day. (Tr.Vol. II, p. 136, 139).
9. Lonzell Taylor testified that no one had a gun. (Tr.Vol. II, p. 146).
10. Appellant himself testified that no one had a gun. (Tr.Vol. Ill, p. 181). He further testified that he does not carry any weapons as a matter of course. (Tr.Vol. Ill, p. 195).

[24]*24In Bell v. State, this Court held that “a jury, as trier of fact, was entitled to believe all or part of the conflicting testimony proffered and introduced by either side.” 693 S.W.2d at 443. We further held that a jury can selectively believe all or part of the evidence admitted at trial. Id. See also Booth v. State, 679 S.W.2d 498, 501-502 (Tex.Crim.App.1984); Lugo v. State, 667 S.W.2d at 146-147; Thompson v. State, 521 S.W.2d 621, 624 (Tex.Crim.App.1974). Construing the foregoing language, we are satisfied it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted.

From the germane evidence positively admitted at trial, as set out supra,

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Cite This Page — Counsel Stack

Bluebook (online)
887 S.W.2d 21, 1994 Tex. Crim. App. LEXIS 121, 1994 WL 497277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bignall-v-state-texcrimapp-1994.