SWEED v. State

351 S.W.3d 63, 2011 Tex. Crim. App. LEXIS 1395, 2011 WL 4976094
CourtCourt of Criminal Appeals of Texas
DecidedOctober 19, 2011
DocketPD-0273-10
StatusPublished
Cited by216 cases

This text of 351 S.W.3d 63 (SWEED 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
SWEED v. State, 351 S.W.3d 63, 2011 Tex. Crim. App. LEXIS 1395, 2011 WL 4976094 (Tex. 2011).

Opinions

OPINION

HERVEY, J.,

delivered the opinion of the Court in which

KELLER, P.J., MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, and COCHRAN, JJ., joined.

Appellant, Melvin Charles Sweed, Jr., was convicted of aggravated robbery, and punishment was assessed at thirty-eight years’ imprisonment. The First Court of Appeals affirmed the judgment, holding that the trial court did not err by failing to submit a lesser-included-offense jury instruction for theft. Sweed v. State, 321 S.W.3d 42 (Tex.App.-Houston [1st Dist.] 2010). We granted Appellant’s petition for discretionary review to address whether there was trial evidence that supported giving a theft instruction to the jury. We will reverse the judgment of the court of appeals and remand the case for a harm analysis.

I. FACTS

The complainant, Sixto Mondragon, and his construction crew were working on a remodeling project at a Houston apartment complex. Mondragon observed Appellant, who was not one of his employees, among the work crew throughout the morning. That afternoon, one of Mondra-gon’s employees, Jose, started screaming that somebody had pulled a knife on him. When he got over to that area, Mondragon saw Appellant running away, holding a bundle of something. Mondragon testified, “I couldn’t see what he had in his hands. He had it covered up.” Mondra-gon followed Appellant, thinking that he had stolen something, and Jose informed Mondragon that Appellant had stolen a nail gun. Another employee saw Appellant go into an apartment.

The police were called, and Mondragon and his father positioned themselves to watch the apartment until the police ar[65]*65rived. Between five and twenty minutes after Appellant entered the apartment, Mondragon saw Appellant leaving the residence empty-handed and wearing different clothing. Appellant walked across the apartment complex parking lot, a distance of approximately 150 feet, where he spoke with a group of men for about five minutes. Then, Appellant started walking back in the direction of the apartment that he had previously entered. At some point, he saw Mondragon and recognized him. Appellant approached Mondragon, waving a knife at chest level. When Appellant was about three feet away, Mondragon put his hands in his pockets and acted like he had a gun or “something.” Appellant, without saying anything, walked away and returned to the apartment. All of this occurred over a period of fifteen to thirty minutes.

The police arrived five to ten minutes later and proceeded to the apartment that Appellant was seen entering. A woman who answered the door gave the officers consent to search. Appellant was located in the bedroom, and the missing nail gun was recovered.

Appellant was indicted for the felony offense of aggravated robbery, enhanced with two prior felony convictions.1 See Tex. Penal Code § 29.03. At trial, Appellant requested a jury instruction on the offense of theft. The State then requested that, if the trial court granted Appellant’s request for a jury instruction on theft, it also provide an instruction on the offense of aggravated assault. The trial court denied both requests. Subsequently, the jury found Appellant guilty. It also found the allegations in the enhancement paragraphs2 true and assessed punishment at 38 years’ confinement. The trial court sentenced Appellant, in agreement with the jury’s assessment, to 38 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. FIRST COURT OF APPEALS

In his sole point of error on direct appeal, Appellant argued that “the trial court erred in denying his request to instruct the jury on the lesser-included offense of theft because there was more than a scintilla of evidence negating the State’s allegation that he threatened Mondragon ‘in the course of committing theft.’” Sweed, 321 S.W.3d at 45. The First Court of Appeals disagreed and affirmed the trial court’s judgment.3 Id. at 48, 49.

The court of appeals began by identifying the two-step approach for analyzing whether the jury should receive a lesser-included-offense instruction. See Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App. [66]*662007). For the first step, the court determined that theft “was included in the alleged elements of the greater offense of robbery,” as alleged in this case. Sweed, 321 S.W.3d at 47. It stated, “when the elements of aggravated robbery as alleged in the indictment are compared with the elements of theft, it is evident that the elements of theft are ‘established by proof of the same or less than all the facts required to establish the commission of the offense charged.’ ” Id. (quoting Hall, 225 S.W.3d at 536). For the second step of the inquiry, the court discussed the evidence presented, and it concluded that there was no evidence that would permit a rational jury to find that Appellant’s threat to Mon-dragon did not occur in the course of committing or in immediate flight after committing the theft. Id. at 47-48.

The dissent would have held that “the trial court harmfully erred by failing to instruct the jury on the lesser-included offense of theft.” Id. at 49. It explained that the issue was whether Appellant threatened Mondragon with assault with a deadly weapon while in immediate flight after the attempt or commission of theft. Id. (citing Tex. Penal Code §§ 29.01(1), 29.02(a)(2), 29.03(a)(2)). The dissent contended that

the evidence gives rise to at least two, reasonably equal, plausible inferences: either that appellant committed aggravated robbery because the assault occurred while in the immediate flight from theft or, alternatively, that he committed separated offenses of assault and theft because he assaulted the complainant when he was not in immediate flight from the theft.

Id. Hence, the dissent determined that the jury “reasonably could have determined that theft and assault were two separate events because the assault did not occur in the immediate flight from the commission of the theft, as required for aggravated robbery.” Id. at 50. As support, it highlighted a series of intervening events occurring during the thirty minutes after the theft of the nail gun and before Appellant threatened Mondragon with a knife.

We granted Appellant’s petition for discretionary review to address the court of appeals’s holding that there was no evidence in the record to support a jury-charge instruction for theft.

III. ARGUMENTS OF THE PARTIES

A. Appellant’s Argument

Appellant argues that whether he threatened Mondragon with a knife while he was in immediate flight after the commission of theft was a fact issue for the jury to decide. In refusing to instruct the jury on the lesser offense of theft, the trial court, in essence, took the position that Appellant was still in immediate flight from the theft as a matter of law.

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Cite This Page — Counsel Stack

Bluebook (online)
351 S.W.3d 63, 2011 Tex. Crim. App. LEXIS 1395, 2011 WL 4976094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweed-v-state-texcrimapp-2011.