No. 04-02-00204-CR
Delivered and Filed: May 14, 2003. Do Not Publish.
Appeal From the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-1954, Honorable Juanita Vasquez-Gardner, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
Opinion by: Catherine Stone, Justice
Earl Bailey was indicted for the felony offense of aggravated robbery. He pled not guilty and was convicted of aggravated assault with a deadly weapon, a lesser included offense. After finding the enhancement counts to be true, the court sentenced Bailey to 25 years confinement. Bailey now challenges the factual sufficiency of the evidence to support his conviction as well as the court's denial of his requested jury charge on the lesser included offense of theft. We affirm.
Factual and Procedural Background
Robbie Roberson is a supervisor in the garden department of a San Antonio Home Depot. On January 27, 2001, Roberson noticed Bailey inside the store wearing a heavy camouflage jacket even though the day was not particularly cold. Roberson approached as Bailey examined some work gloves and asked if Bailey needed assistance. Roberson replied that he did not need any help because he found the gloves he needed. Ten to fifteen minutes later, Roberson saw Bailey again and noticed that Bailey was not carrying any gloves. Instead, he carried one floor mat under each of his arms. When Roberson noticed Bailey a third time, Bailey ducked behind a stack of freight, apparently in an attempt to hide from Roberson. Roberson's supervisor, John Donohoe, also witnessed Bailey behaving suspiciously. Donohoe saw Bailey remove rope clips from the hardware department and place them in the pocket of his jacket. Both employees followed Bailey to the parking lot, where they noticed merchandise from the store inside Bailey's truck. When asked if he could produce a receipt for the merchandise, Bailey turned around to face the employees with a two-foot long metal tool he had been using to tighten the straps on his truck. Because of the threatening manner in which Bailey wielded the tool, the employees backed away. However, as Bailey opened the door to his truck, the employees saw the two floor mats on the driver's seat. When Roberson and Donohoe told Bailey he must go back to the store, Bailey said nothing but began walking with the employees towards the store. After they entered the store, however, Bailey abruptly turned and began walking back to the parking lot. When Roberson stepped into Bailey's path to stop him, Bailey pulled a six to eight inch knife from his pants pocket. Bailey opened the knife and swung it from side to side. Because Roberson feared that he would be injured, he backed away, but followed at a distance as Bailey got into his truck. Roberson wrote down Bailey's license plate number before Bailey drove away. Donohoe then called 911 to report that Bailey had shoplifted merchandise from the store and pulled a knife on Roberson. Bailey was stopped by a police officer a short time later, and Roberson identified Bailey as the man who had shoplifted merchandise from the store and threatened him with a knife. Factual Sufficiency Challenge
Bailey challenges the factual sufficiency of the evidence to support his conviction. When conducting a factual sufficiency review, we neutrally evaluate all the evidence, both for and against the finding of guilt, and reverse only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Our "evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001) (quoting Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997)). On appeal, Bailey claims the evidence is factually insufficient to show that he intentionally or knowingly threatened Roberson with "imminent" bodily injury, a required element of assault. On appeal, Bailey asserts he pulled out the knife as he walked away from Roberson rather than toward him, so Roberson could not have been in fear of "imminent" bodily injury. He also claims that Roberson would not have followed him through the parking lot had Roberson truly feared for his safety. However, the evidence shows that Bailey swung the knife erratically toward Roberson as Bailey passed Roberson and walked through the parking lot. Roberson testified that he felt he was in danger of death or serious imminent bodily injury as Bailey passed him. Roberson also testified that although Bailey swung the knife behind his back as he walked away, the knife was repeatedly swung right in front of him. The defense presented no witnesses. After examining all the evidence in a neutral light favoring neither side, we hold the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. Bailey's first issue is therefore overruled. Jury Charge
During the charge conference, the court granted the State's request for a charge on the lesser included offense of aggravated assault with a deadly weapon. Defense counsel likewise requested a charge on the lesser included offense of theft, which was denied. On appeal, Bailey contends this denial constitutes reversible error because he was entitled to a charge on theft. We disagree. Whether a charge on a lesser included offense is required is determined by a two-pronged test. Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App. 1996). First, we must determine whether the offense constitutes a lesser included offense. Id. The Texas Code of Criminal Procedure provides that an offense is a lesser included offense if, inter alia, "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Second, the lesser included offense must be raised by the evidence at trial. Schweinle, 915 S.W.2d at 18. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on a lesser included offense. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). However, evidence must exist that would permit a rational jury to find that the defendant is guilty only of the lesser included offense. See id. (emphasis added). A completed theft can be a lesser included offense of aggravated robbery. See id. However, the evidence in this case does not show that if Bailey was guilty, he was guilty only of theft. Bailey argues that if Roberson was not in fear of imminent bodily injury or death, then the greatest offense for which Bailey could be convicted is theft. However, Roberson's testimony was the only evidence presented on the fear of imminent bodily injury or death element of assault. The evidence in this case did not establish theft as a "valid rational alternative to the charged offense," nor did it permit the jury to find that Bailey had committed only theft. See Arevalo v. State, 943 S.W.2d 887, 889 (Tex Crim. App. 1997); see also Jackson v. State, 992 S.W.2d 469, 474-75 (Tex.Crim.App. 1999) (holding "[a] murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at least, to be guilty of homicide."). Bailey's second issue is therefore overruled. The judgment of the trial court is affirmed in all aspects.