*2 DUNN, Before DUGGAN and O’CONNOR,JJ.
OPINION
DUNN, Justice. guilty appellant
A found allegations of two enhancement found true, appel- assessed paragraphs to be and at confinement for 60 punishment lant’s years. The issue this case whether ap- was sufficient to the evidence robbery by for threat. pellant’s conviction (Vernon 29.02(a)(2) Tex. Penal Code Ann. 1989). We affirm. 28, 1990, April
On William G. Davis was working manager as the store and washateria called Goodland Food Mart. To shift, prepare for the next Davis removed money register the cash and counted money adjacent at a small table to the register. As he counted the appellant into the front door and saw walk cooler. move toward beer Appellant selected a can of beer from the up register. cooler and walked appellant only Davis observed that on jeans appellant’s eyes were blue and that “red as fire” and that he seemed to be something.” The “under the influence of register, near a money was out of the Appellant directly stood brown towel. register, front of the leaned toward Davis, register, very face close to with his Davis, stated, “We directly looked and this; going do it like me all are towel; and money, put appellant if he I’m Davis asked serious.” saying, what he was were sure about money in the appellant said: “[P]ut towel, it like and we are to do time, During I’m this serious.” him, attempting get a reached behind was afraid pipe. He testified that he metal he felt that because again bodily injury. He cause him of what appellant, you sure asked “[A]re “giggled then you saying?”; appellant are Vandervort, Houston, appellant. Joy for grab and run out funny and the bill real Hudson, place behind Holmes, Jr., run out the Harvey B. J. John giggling Houston, just street Ellis, he down the Attys., and went Mark Asst. Dist. hollering.” appellee.
Houston Police Officer C.E. Turner testi-
another,
such that the threat
fied
patrol
that he was a
officer and was
ened or injured party
put
in fear.
the first law enforcement officer to arrive
(Tex.
Green v.
on the scene.
reported
Turner
that Davis Crim.App.1978);
Jones v.
only
told him
left the store
453, 454 (Tex.Crim.App.1971). The fear
*3
paying
without
for a beer. Turner classi-
likely
must be
to induce
per
a reasonable
report
fied the
as a theft under
$20.
son
property against
his will.
testified that he told Turner about
the
State,
241,
Franklin v.
702 S.W.2d
244
robbery.
threatened
(Tex.App.
1985, no
[1st Dist.]
— Houston
pet.).
error,
In
point
his sole
of
claims the evidence adduced at trial is in-
We note that an element of the
sufficient to
a conviction for rob-
robbery, “places
crime of
another in fear
bery by threat because the record fails to
bodily injury,”
imminent
Tex. Penal
show that
placed
threatened or
(Vernon
29.02(a)(2)
1989) (em
Code Ann. §
complainant
the
in fear
bodily
of imminent
phasis added), differs from an often com
injury or death.
pared,
vastly
dissimilar element for the
appellate
An
court must view the
assault,
crime of
“threatens another with
in
light
evidence
most favorable to the
bodily
imminent
injury,” Tex. Penal Code
verdict to
if any
determine
rational trier of
22.01(a)(2)(Vernon 1989)
(emphasis
§
Ann.
fact could have found the essential ele
added).
general, passive requirement
The
ments of the
beyond
crime
a reasonable
“placed
that another be
in fear” cannot be
State,
234,
doubt. Butler v.
769 S.W.2d
equated
specific,
require
with the
active
(Tex.Crim.App.1989).
239
Sufficiency of
ment that the actor “threaten another with
question
evidence is a
of law. The
bodily
imminent
injury.” Under
appellate
may
court
not
as a
sit
thirteenth
“placed
language
in fear”
in section 29.02
juror
disregard
reweigh
or
the evi
Code,
of the Texas Penal
the factfinder
State,
866,
dence. Moreno v.
755 S.W.2d
may
perceived
conclude that an individual
(Tex.Crim.App.1988).
867
If there is evi
fear,”
“placed
fear or was
in circum
guilt, beyond
dence that establishes
a rea
stances where no actual threats were con
doubt,
if
sonable
the trier
fact
be
veyed by
State,
the accused.
v.
Wilmeth
evidence,
lieves that
this Court is
703,
1991,
(Tex.App —Tyler
808 S.W.2d
706
.
position to
reverse the
on suffi
pet.) (jury may
requisite
no
find
fear from
ciency
867;
grounds.
of evidence
at
Id.
menacing glance
gesture,
and a hand
even
State,
806,
(Tex.
Glass v.
761 S.W.2d
807
made).
where no verbal threats were
App.
1988,
pet.).
[1st Dist.]
— Houston
fact,
The
as the trier of
is the sole
reasoning
The dissent contends that
judge
credibility
of witnesses.
State,
in the case of Devine v.
(Tex.
Sharp v.
614
(Tex.Crim.App.1989),
dispositive
Crim.App.1986).
jury may
believe or
present
In
case.
the defendant
any part
disbelieve all or
of a witness’
formerly
complain
been married to the
testimony. Sharp,
Appellant
dispute
threatening
does not
the theft
him and his
children
wife and
beer,
of a can of
but contends that evidence with
harm or death if he failed to
give
money.
complainant reported
adduced
insufficient
State was
her
placed
police,
show that he
the com
threatened or
these threats
who wired
plainant
complainant
body microphone
in fear of
or death.
with a
for a
29.02(a)(2)(Vernon meeting
with the defendant at a restau
Tex. Penal Code Ann.
1989).
prove
In order to
the offense of
rant. The defendant was arrested
charged
robbery
made actu
under section 29.-
the accused must have
02(a)(2)
juryA
al or threatened
of violence to
of the Texas Penal Code.
overtures
defendant,
weapon
convicted the
and her conviction reached for a
to defend himself
appeal.
affirmed on
appellant.
could
con-
have
pipe
cluded that Davis reached for the
be-
review,
petition
discretionary
On
cause the words and actions of
Court of Criminal
concluded that
placed
being imminently
fear of
the defendant’s threats in
ei-
Devine were
harmed. See
past
pertained
ther made in the
or
to fu-
Cranford
(Tex.Crim.App.1964)
S.W.2d
958-59
conduct;
ture
the threats were not such as
(conduct
fear).
accused
rise to
complainant
in fear of immi-
nent
harm. The court indicated that
Appellant’s point of error is overruled.
once,
complainant
the defendant told the
judgment is affirmed.
meeting,
an earlier
carrying
that she was
*4
Devine,
gun
purse.
in her
786 S.W.2d at
O’CONNOR, J., dissents.
However,
transcripts
269.
the
of record-
ings of the defendant’s conversations with
O’CONNOR, Justice, dissenting.
complainant prior
the
to and
the restau-
at
I
I
any
dissent.
do not think there was
meeting
rant
revealed no evidence of
appellant’s
the
evidence
convic-
threats or conduct that
the
would
robbery
by
tion for
under Tex.
threat
Pe-
complainant
inju-
in fear of
imminent
29.02(a)(2)(Vernon 1989).
§
ry or death at the restaurant when the
nal
Ann.
Code
agree
appellant
I
that the
left the conve-
money
place.
transfer took
Id. at 270 n. 3.
paying
I
nience store without
for the beer.
opinion
The Devine
noted that
no time
“[a]t
disagree
accomplished
that he
the theft
during the encounter
the
[at
restaurant]
threat.
appellant
action,
any
did
take
overt
such as
displaying weapon.”
a
Id. at 271. There
store,
entering
greeted
When
the
he
nowas
evidence that the defendant carried
out,
doing,
by calling
you
Davis
“How are
gun
a
at the
or
restaurant
that she made
nephew by
Mr.
a
Hickman?” Davis has
threatening
any
purse.
movement with her
the name of Hickman. Davis knew the
Id. The Court of Criminal
noted
appellant
nephew.
went to school with his
in Devine that the defendant’s conduct con-
appellant
wearing
jeans
The
was
blue
coercion,
stituted
as defined in section
was
and shirtless.
barefoot
Code,
threat,
31.01 of the Penal
as: “a
appellant
After the
selected a can of beer
communicated,
in-
however
to inflict
cooler,
up
reg-
from the
he walked
person
on the
threat-
future
money
reg-
ister and
the
out of the
saw
distinguished
ened or another ... as
ister,
appellant
near a brown towel. The
Devine,
(em-
robbery.”
Houston Police Officer C.E. Turner testi-
patrol
fied he was a
officer and was the
during
meeting
Cox testified
he was
first law enforcement officer to arrive on
killed,
he
perhaps
afraid that
would be
reported
the scene. Turner
that Davis told
parking
lot. If something
wrong
went
him only
that the
left the store
arrest,
with the
he said he was afraid she
paying
without
for a beer. Turner classi-
shoot him. At
during
no time
report
fied the
as a theft under
$20.
any
encounter did
defendant make
testified that he told Turner about
action,
display
gun.
overt
such as
De-
robbery.
threatened
vine,
meeting,
ended, defendant extorted January In by threatening to kill him.
Cox $2,500 demanded the defendant refused, kill she said she would when Cox something to his his wife and do him and Finally, Cox went to small children. two meeting police, who wired met with the de- the defendant. Cox