Robinson v. State

817 S.W.2d 822, 1991 Tex. App. LEXIS 2541, 1991 WL 206816
Court of Appeals of Texas·Decided October 16, 1991·No. 2-89-166-CR·Published·Cited by 11 cases

Opinion

OPINION

HILL, Justice.

Allen Tyrone Robinson appeals from his conviction by a jury of the offense of robbery by threats. The jury assessed his punishment at sixty-six years in the Texas Department of Corrections, now the Texas Department of Criminal Justice, Institutional Division, after finding that Robinson had been convicted of two prior felony offenses as alleged in the indictment.

In six points of error, Robinson contends that the trial court erred: (1) by denying his oral motion for instructed verdict of acquittal since the evidence was insufficient to support his conviction; (2) in admitting his statement because the statement was obtained as a result of a promise of benefit and therefore involuntary, because he was not informed of his constitutional rights, as guaranteed in the opinion of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to making the statement, and because he was denied his request for counsel prior to making the statement, also as guaranteed in Miranda, all of which was in violation of article 38.22 of the Texas Code of Criminal Procedure, the Texas Constitution, and the fifth and sixth amendments to the United States Constitution; (3) by allowing the State to exercise peremptory challenges to eliminate the black veniremen from the jury panel in violation of his rights under the sixth and fourteenth amendments to the United States Constitution, all as set forth in the opinion of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (4) in allowing the State to inform the jury during the voir dire examination that Robinson had previously been convicted of a felony.

We affirm because we hold that the evidence is sufficient to support the conviction; that the trial court’s findings in support of the admission of his statement into evidence are supported by the record; that the record supports the findings of the trial judge that the prosecutor’s peremptory strikes were not racially motivated; and that the prosecutor, as well as the defense, is entitled to question the jury panel on the applicable law relating to enhanced punishments. We further hold that the prosecutor did not inform the jury that Robinson had previously been convicted; that if the prosecutor had made such a representation to the jury any harm was cured by the trial court’s instruction that the prosecutor’s remarks were intended to be in the abstract; and that beyond a reasonable doubt the prosecutor’s remarks did not contribute to Robinson’s conviction or punishment.

Robinson urges in point of error number one that the trial court erred by denying his oral motion for instructed verdict of acquittal because the evidence is insufficient to sustain the jury’s verdict of guilty of the offense of robbery by threats, all of which was in violation of his right to due process as guaranteed by the fourteenth amendment to the United States Constitution.

We will view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985).

On February 27, 1988, Dirk Olson and Linda Miller were working at a convenience *824 store in Fort Worth when a black male entered the store and asked for a book of matches. When Olson opened the cash register to make the sale, the man reached into the cash drawer and began grabbing money. When Olson slammed the drawer on the man’s hands, he reached for an object under his shirt and told Olson, “I’ve got a gun.” Olson, in fear for his life, stepped back and allowed the man to take the money. Although Olson could not identify the man who robbed him, Linda Miller identified Robinson as the man who committed the robbery, after previously identifying him in a lineup.

TEX.PENAL CODE ANN. sec. 29.02 (Vernon 1989) provides that “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he: ... (2) intentionally or knowingly threatens another or places another in fear of imminent bodily injury or death.” Id. We hold that the evidence is sufficient to support Robinson’s conviction for that offense because it shows that while committing theft Robinson intentionally and knowingly threatened Olson and placed him in fear of imminent bodily injury or death.

Robinson refers us to testimony that could possibly lead a finder of fact to a different conclusion, but the credibility of the witnesses .and the weight of the evidence was a question for the jury, and not this court. See Webster v. State, 627 S.W.2d 818, 820 (Tex.App. — Fort Worth), pet. refd, 634 S.W.2d 322 (Tex.Crim.App. 1982), cert. denied, 459 U.S. 1116, 103 S.Ct. 753, 74 L.Ed.2d 970 (1983). We overrule point of error number one.

Robinson contends in points of error numbers two, three, and four that the trial court erred by admitting his written statement into evidence because it was involuntary since it was obtained as a result of a promise of benefit, because he was not informed of his rights as guaranteed by Miranda and article 38.22 of the Code of Criminal Procedure, and because he was denied his request for counsel.

Conflicting testimony as to all of these issues was presented at the hearing on the motion to suppress Robinson’s confession. Robinson testified that the Detective J.J. Lee promised to file only three or four out of twenty-three cases against him, that the Detective did not give him a warning of his rights before the interview, and that he had requested an attorney but none had been appointed until days after he had made the statement.

Detective Lee denied making any promise to Robinson or that Robinson had ever requested an attorney. There was testimony that the day prior to the statement Judge Yolanda Bernal of the Fort Worth Municipal Court had warned Robinson of his rights as those rights are set forth in article 15.17 of the Texas Code of Criminal Procedure. Lee said that he gave Robinson his Miranda rights prior to the taking of the statement, although after his initial interview with Robinson, by reading to him the warning at the top of the statement, a warning that includes the rights required by article 38.22 of the Texas Code of Criminal Procedure. Robinson testified that he had been arrested five times previously, and that this was not the first time he had heard the Miranda warnings. He said that he knew that if he asked them to give him a lawyer they would give him one before he had to make a statement. He said that he knew that he did not have to make a statement. He said that he wanted to talk to Detective Lee to find out what the police intended to do about all his cases.

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Robinson v. State, 817 S.W.2d 822, 1991 Tex. App. LEXIS 2541, 1991 WL 206816 (Tex. Ct. App. 1991).

817 S.W.2d 822 (Robinson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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