Slomba v. State

997 S.W.2d 781, 1999 Tex. App. LEXIS 5113, 1999 WL 493299
CourtCourt of Appeals of Texas
DecidedJuly 14, 1999
DocketNo. 06-98-00202-CR
StatusPublished
Cited by16 cases

This text of 997 S.W.2d 781 (Slomba v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slomba v. State, 997 S.W.2d 781, 1999 Tex. App. LEXIS 5113, 1999 WL 493299 (Tex. Ct. App. 1999).

Opinion

OPINION

Opinion by

Justice ROSS.

Dennis Slomba was indicted for the offense of criminal attempt at aggravated robbery. In a trial before the court, he was found guilty of the lesser offense of criminal attempt at robbery. Punishment was assessed at imprisonment for ten years. Slomba appeals, contending that the evidence supporting his conviction is legally and factually insufficient.

In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict and ask 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, 61 L.Ed.2d 560, 573 (1979); Rojas v. State, 986 S.W.2d 241, 246-47 (Tex.Crim.App.1998); Barnes v. State, 876 S.W.2d 316, 321-22 (Tex.Crim.App.1994). In reviewing the factual sufficiency of the evidence, all the evidence is viewed without the prism of “in the light most favorable to the prosecution,” and the verdict is set aside only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Rojas, 986 S.W.2d at 247 (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)); [782]*782Stone v. State, 823 S.W.2d 375, 381 (Tex.App.-Austin 1992, pet. ref'd, untimely filed). “A clearly wrong and unjust verdict is ‘manifestly unjust,’ ‘shocks the conscience,’ or ‘clearly demonstrates bias.’” Rojas, 986 S.W.2d at 247; Santellan v. State, 939 S.W.2d 155, 165 (Tex.Crim.App.1997). It is assumed that the evidence is legally sufficient to support the conviction, and the appellate court then reviews the fact finder’s weighing of the evidence and is authorized to disagree with the jury’s determination. Clewis, 922 S.W.2d at 133; Stone, 823 S.W.2d at 381. The reviewing court must not substitute its judgment for that of the fact finder; the review must be appropriately deferential. Clewis, 922 S.W.2d at 133.

Under the Texas Penal Code, “criminal attempt” is described as follows:

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
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(d) An offense under this section is one category lower than the offense attempted, ....

Tex. Pen.Code Ann. § 15.01 (Vernon 1994).

“Robbery” is described as follows:

(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
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(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second degree.

Tex. Pen.Code Ann. § 29.02 (Vernon 1994).

Chapter 31 of the Penal Code describes “theft” (as relevant to this case) as follows:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent;....

Tex. Pen.Code Ann. § 31.03(a), (b) (Vernon 1994).

All the evidence in this case came from two witnesses called by the State. Susan Summers, an employee of Texas State Bank in Lufkin, was the alleged victim. She testified that on the morning in question, she arrived at the bank between 7:15 and 7:20 and was the first employee there. She parked her car just outside the bank’s back door marked “Employees Only” and exited her car carrying several things, including her purse and keys to the bank. After she unlocked the door and pulled it open, a man dressed totally in black (“from head to toe”) emerged from behind a nearby dumpster and ran full force toward her “kind of hunkered down.” She could not see if he had a gun in his hands because he had his arms “kind of backwards.” He was almost upon her when she slammed the door shut and locked it with a deadbolt. She then ran to a nearby office and immediately dialed 9-1-1 to alert the police, who were on the scene “[wjithin a matter of a couple of minutes.”

Lufkin police officer Bill Murphy was the other witness. He testified that on the date in question, at about 7:20 or 7:25 a.m., a call went out from the police dispatcher concerning a robbery in progress at the Texas State Bank. He was about two-tenths of a mile from the bank at the time. The dispatcher described the suspect as a black male and stated that he was still in the area, believed to be behind a building. Murphy arrived on the scene quickly and found Slomba “crouched down” at the north end of a movie theater about fifty feet from the bank. Slomba was looking around the corner of the building toward the parking lot. Slomba did not immediately respond to Officer Murphy’s command to put his hands on the wall but “fiddled around for a minute” as if he was putting something in his pocket, i.e., “[h]e [783]*783just wouldn’t show me his hands.” After the third command from Murphy to put his hands on the wall, Slomba complied. The police dispatcher informed Murphy that it took forty-one seconds from the moment Murphy reported he was in the area until he had Slomba in custody. A search of Slomba’s person revealed a loaded .25 caliber automatic pistol in his right rear pocket. A green bag lying about six inches from Slomba’s feet, with no identification on it, contained a pair of black gloves; a pullover-type mask/hood “black in color with white face,” a black pullover-type jacket with a hood, and a nine millimeter look-alike toy pistol.

The State relies upon this circumstantial evidence to support Slomba’s conviction for criminal attempt at robbery. The State may prove its case by direct or circumstantial evidence so long as it shoulders its burden of proving all elements of the charged offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 623 (Tex.Crim.App.1997). The standard for appellate review of the evidence is the same for direct and circumstantial evidence. McDuff, 939 S.W.2d at 623-24; Martinez v. State, 880 S.W.2d 72, 77 (Tex.App.-Texarkana 1994, no pet.).

The applicable statutes require Slomba to have acted with intent. Intent is usually established by circumstantial evidence, and is usually inferred from the accused’s acts, words, and conduct. Hilton v. State, 975 S.W.2d 788, 791 (Tex.App.-Texarkana 1998, pet. ref'd).

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Bluebook (online)
997 S.W.2d 781, 1999 Tex. App. LEXIS 5113, 1999 WL 493299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slomba-v-state-texapp-1999.