Wilson v. State

750 S.W.2d 364, 1988 Tex. App. LEXIS 1364, 1988 WL 57438

• Court: Court of Appeals of Texas
• Decided: May 5, 1988
• Docket: No. 09-87-118 CR
• Status: Published

Opinions

OPINION

BROOKSHIRE, Justice.

Marvin Lee Wilson was indicted for committing theft of property owned by Earnest Cooper. The indictment alleged Wilson had the intent to obtain and maintain control of the property and that, during the theft, Wilson intentionally and knowingly threatened Cooper, causing him to be in fear of imminent bodily injury and death. The indictment contained one enhancement paragraph.

The principal offense was alleged to have taken place June 3, 1986. The enhancement paragraph averred that, on November 23,1981, the Appellant had been finally convicted of the felony of aggravated robbery.

Texas presented the testimony of the victim and the victim’s wife. Also, a store clerk and investigating officers testified for the prosecution. The victim, Earnest Cooper, and his wife identified the Appellant in open court as the individual who had robbed them. The defense presented numerous witnesses tending to establish a possible misidentification and alibi.

The jury found the Appellant guilty of the offense of robbery, as alleged in the indictment. The Appellant had previously elected for the jury to assess punishment. He withdrew such an election and chose to have the court assess punishment. The Appellant pleaded true to the one enhancement paragraph. A presentence report was ordered by the court. Sentence was imposed at 20 years confinement. At the sentencing hearing, the Appellant recommended that punishment be assessed at 20 years confinement. The State, however, recommended a term of 35 years. The trial judge followed the Appellant’s recommendation. The Appellant’s brief argues only one ground of review, arguing that the evidence was, and is, insufficient to support the conviction.

Appellant had a different attorney at trial. His appellate lawyer takes the position that the State clearly proved the theft from a person but failed to prove robbery. In brief, the Appellant’s counselor argues that there was no threat and no weapon was in the Appellant’s hand. Earnest Cooper was a disabled war veteran, his income being government checks. Cooper was both severely crippled and paralyzed in his back. If he gets out of balance, he will fall. Cooper affirmatively and unequivocally testified that the Appellant knocked him back and Cooper said that he was afraid that he would be hurt, saying that he (Cooper) “was afraid real bad”. Cooper did not know if the assailant had a gun, or knife, or what and Cooper testified that he was in fear of imminent bodily injury. Cooper was also afraid that the Appellant had a weapon that might have even killed him at that time. Cooper said:

“Yes, sir. I was afraid of that.”

Cooper had placed $566 on the counter, near the cash register, to purchase some money orders. After placing the money there, the store clerk asked Cooper and his wife if they would mind waiting while she (the clerk) helped another customer. Cooper and his wife were agreeable.

At that point, Appellant, coming from behind Cooper, seized the currency. In seizing the currency, however, $40 was dropped on the floor and $40 was left upon the counter near the cash register. Appellant absconded with more than $500. He left in a blue Monte Carlo Chevrolet. Cooper and his wife were able to get a “real good look” at the Appellant. Cooper swore he looked the Appellant straight in the face. Cooper made a positive in-court identification of the Appellant.

An investigating officer testified that Mr. and Mrs. Cooper appeared to have been shaken up from what had happened and they appeared to be noticeably and visibly shaken at the time the investigating officer arrived. Earnest Cooper complained to the officer that he had been hurt when he was knocked down and that, at that time, his back was hurting. Earnest Cooper further testified that he was afraid because:

“A. ... I had got afraid after he done done what he had done.”

At the time the Appellant grabbed Cooper’s money, Cooper said:

"... Hey, man, you’re taking my money”.

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At that point, the assailant slung Earnest on or against the counter.

Under the surrounding facts and circumstances of this case, and because of the Appellant’s physical acts, and the condition of Earnest Cooper, Earnest Cooper was placed in fear of imminent bodily injury.

The record shows that a rational trier of facts could have found each element of the alleged offense beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983), Opinion on Rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983), Opinion on Rehearing); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983, Opinion on Rehearing); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983, Opinion on Rehearing).

It should be noted that, in Garcia v. State, 625 S.W.2d 831, 833 (Tex.App.—Houston [14th Dist.] 1981, pet. ref'd), the court wrote:

“Fear of bodily injury means fear of ‘physical pain, illness, or any impairment of physical condition.’ Tex.Penal Code Ann. sec. 1.07(a)(7) (Vernon 1974).”

TEX.PENAL CODE ANN sec. 1.07(a)(7) (Vernon 1974) provides:

“(7) ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

On appeal, the reviewing court analyzes the evidence in the case in the light that is most favorable to the jury’s verdict and the trial court’s judgment. Houston v. State, supra.

It is sufficient to sustain a conviction of robbery that the injured party is put in fear. That fear has been defined as being of such a nature as, in reason and common experience, would induce a person to part with his property against his will. Crawford v. State, 509 S.W.2d 582 (Tex.Crim.App.1974); Jones v. State, 467 S.W.2d 453 (Tex.Crim.App.1971). We affirm the judgment and sentence below.

AFFIRMED.