Thomas v. StateThomas v. State
- Reporters:
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- Before:
- Grant
OPINION
GRANT, Justice.Harry Chester Thomas appeals from a conviction for aggravated assault and aggravated robbery. He was sentenced to ninety-nine years’ confinement on each conviction.
On appeal, Thomas contends that the evidence is insufficient to support his conviction of aggravated assault because the alleged victim was not acting in the capacity of a peace officer at the time of the alleged assault and that the evidence was insufficient to support his conviction of aggravated robbery of Paul Wolfe because Paul Wolfe was not shown to be the owner of the three tires that were taken and because the alleged deadly weapon was not used to obtain or maintain control over the three tires.
At trial, the State presented witnesses who testified to the following: At 3:00 P.M. on December 4, 1990, Thomas took three thirteen-inch automobile tires from a Montgomery Ward store in Houston without paying for them and tossed them in the back of a truck. Paul Wolfe, a mechanic employed by the Montgomery Ward store, was instructed to retrieve the tires. When confronted by Wolfe, Thomas threatened Wolfe with a knife. Brandishing a three-foot pipe, Carlin Graff, a fellow employee, came to the aid of Wolfe. Upon seeing Graff and the pipe, Thomas tried to escape on foot.
A.E. Hall, Police Chief for the City of Iowa Colony in Brazoria County, was in the mall area and was flagged down by Graff, who explained the situation. The mall area where Hall was flagged down was in Harris County. Hall got out of his ear, approached Thomas and identified himself. Thomas drew a knife, made a verbal threat, and thrust the knife at Hall several times, cutting his police jacket. Thomas then fled. Hall got back in his car, caught up with Thomas, and got out of his vehicle. Thomas again made a verbal threat and lunged at Hall with the knife. Hall pulled his gun and fired at Thomas, causing Thomas to flee. Hall called for assistance, and Thomas was arrested a short time later by members of the Houston Police Department.
Thomas’s contention that the evidence is insufficient to support the verdict might fairly be said to question whether the evidence is both legally and factually sufficient. In reviewing the legal sufficiency of the evidence, we look at all of the evidence in the fight most favorable to the verdict and determine whether any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Rivera v. State, 808 S.W.2d 80, 91 (Tex.Crim.App.1991). In reviewing the factual sufficiency of the evidence, we look at all the evidence and determine whether the conviction is against the great weight of the evidence. The trier of fact is free to accept or reject any or all of any witness’s testimony. Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App.1992).
Thomas first contends that there was no evidence or insufficient evidence that Hall was functioning as a peace officer at the time of the assault. Hall was outside of the City of Iowa Colony, where he served as Chief of Police. Thomas was indicted under
Article 2.12(3) of the Code of Criminal Procedure provides that marshals or police officers of incorporated cities, towns, and villages are peace officers.
Hall, however, was a peace officer in Iowa Colony, which is located in Brazoria County. The events for which Thomas is charged occurred in Harris County. Therefore, Sections 341.001 and 341.021 of the Local Government Code did not provide Hall with jurisdiction as a peace officer. This limitation is also expressed in
Angel v. State.
Under a 1987 amendment to
The immediate flight from a robbery constitutes a part of the crime. See Lightner v. State, 535 S.W.2d 176 (Tex.Crim.App.1976). We find no ease, however, in which flight, without any other indications that a crime has been committed, is sufficient to fulfill the requirement that the crime be committed in the view or presence of a police officer. The term presence, in the context of a crime being committed in the presence of a police officer, is satisfied if the violation occurs within reach of the officer’s senses. See Taylor v. McDonald, 346 F.Supp. 390 (N.D.Tex.1972). The requirement in this type of statute of the “in presence” test is to prevent warrantless arrests based solely on information from third parties. Previously acquired knowledge and experience when coupled with present personal observations may cause an officer to believe that an offense is being committed in the officer’s presence. Perceived events must be out of the ordinary, suspicious, and tie the suspect to a criminal act. See Stull v. State, 772 S.W.2d 449, 452 (Tex.Crim.App.1989). In the present case, however, we cannot say that there was sufficient personal observation to cause the officer to believe an offense was being committed in his presence. Thomas was not running away, but was walking away from the scene. He did not have the tires with him; therefore, Hall relied solely upon the statement of Graff in determining that a crime had been committed. This did not constitute a felony being committed in Hall’s presence or view; so Hall was acting initially as a citizen, not as a peace officer.
When Hall asked Thomas to stop, Thomas turned and assaulted Hall with a knife. Hall described the knife in his testimony and testified that in his opinion the knife was a deadly weapon. Such an assault on any person (not necessarily a peace officer) with a deadly weapon is a felony under
After this encounter, Hall got back into his car and chased Thomas to a field. Thomas again verbally threatened him and attempted to stab him with the knife. At the point of this second attack, there was no question that Hall was functioning as a peace officer because a felony had been committed in his presence and view. Hall had identified himself as a police officer to Thomas three
The evidence in the present case shows that Hall was a peace officer lawfully discharging an official duty at the time of the last attack with a knife by Hall. Applying the standards we have previously set forth, we find the evidence factually and legally sufficient on these points. These points of error are overruled.
Thomas next contends that the evidence is insufficient to prove the portion of the indictment and the charge alleging that Paul Wolfe was the owner of the three tires appropriated by Thomas. Wolfe’s ownership of the property taken in the robbery may be proved by showing that Wolfe had a greater right to ownership than did Thomas because he was an employee of the company which owns the tires. A store employee has sufficient interest in property taken during the course of a robbery to qualify as owner of the property under the robbery statute. Deloney v. State, 734 S.W.2d 6 (Tex.App.-Dallas 1987, pet. ref‘d). An employee has a greater right to ownership than a person having no connection with the business. Smallwood, v. State, 607 S.W.2d 911 (Tex.Crim.App. [Panel Op.] 1979); Coleman v. State, 699 S.W.2d 598 (Tex.App.-Texarkana 1985, no pet.). Applying the standards we have previously set forth, we find the evidence factually and legally sufficient on these points. These points of error are overruled.
In his final point of error, Thomas contends that the evidence was insufficient to support his conviction because deadly force was not used to obtain or maintain control over the three tires. The robbery statute, Section 29.02 of the Penal Code, requires that in the course of committing theft and with intent to obtain or maintain control of the property, the person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
The court addressed this contention in
White v. State,
671 S.W.2d 40 (Tex.Crim.App.1984). In the
White
case, the Court concluded that a purse snatcher who, while trying to escape, shot a pursuing bystander, could be convicted of aggravated robbery. The Court referred to the practice commentary after
Thomas contends that the rule laid down by the
White
case was changed by
Ibanez v. State,
749 S.W.2d 804 (Tex.Crim.App.1986). In
Ibanez,
the Court, interpreting and applying the capital murder statute, required that
We find that the evidence showing the use of a deadly weapon during the immediate flight after the robbery was both factually and legally sufficient to support the conviction of aggravated assault. This point of error is overruled.
The judgment of the trial court is affirmed.