Jones v. State

• Decision Date: 28 October 1998
• Docket Number: No. 101-98,101-98
• Citation: 984 S.W.2d 254
• Parties: Ned JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 254

984 S.W.2d 254

Ned JONES, Appellant, v. The STATE of Texas, Appellee.

No. 101-98.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 28, 1998.

David L. Cook, Stephen Newhouse, Houston, for appellant.

Eric Kugler, Asst. Dist. Atty., Houston, Jeffrey L. Van Horn, Asst. State's Atty., Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

HOLLAND, Judge, delivered the opinion of the Court in which BAIRD, OVERSTREET, PRICE and WOMACK, Judges, joined.

A jury convicted appellant of the robbery of Michelle Yancey. TEX. PENAL CODE ANN. § 30.02(a). Having found both of the enhancement allegations to be true, the jury assessed appellant's punishment at confinement for 99 years. Appellant appealed his conviction to the First Court of Appeals.

The First Court of Appeals reversed appellant's conviction and remanded the case for a new trial. Jones v. State, 962 S.W.2d 96 (Tex.App.--Houston [1st Dist.] 1997). The State petitioned this Court to review the decision of the First Court of Appeals. This Court granted review on the following ground raised by the State in its petition:

The First Court of Appeals has conducted a faulty legal analysis concerning the issue of whether a rational jury could believe that appellant committed only misdemeanor assault or misdemeanor theft and not robbery in conflict with decisions from this Court.

This Court affirms the judgment of the Court of Appeals.

On February 4, 1995, Michelle Yancey worked for Fiesta Market in Houston as a Loss Prevention Investigator. While observing from the store's security monitors, she noticed appellant in the Health and Beauty Aids Department. She saw appellant pick up several items and put them in his pocket. Appellant then left the store without stopping at the registers to pay for the items. Yancey secured the assistance of two other employees and confronted appellant outside the exit of the store. Yancey and her assistants detained appellant and escorted him back into the store. They informed appellant they were taking him to the Loss Prevention Office. Once inside the store, appellant started a fight with Yancey and her two assistants. Appellant punched Yancey in the face, breaking her glasses. He bit one of the assistants in the chest. With the assistance of an off-duty deputy constable, Yancey and her assistants subdued appellant and removed him to the Loss Prevention Office. They recovered deodorant, Ben Gay and Blistex from appellant's pockets. Appellant had not paid for these items before removing them from Fiesta. They detained appellant at the Loss Prevention Office until the police arrived. At trial, both Yancey and the deputy constable testified that appellant was the aggressor in the altercation which occurred in the Fiesta.

Appellant took the stand to testify in his own defense at trial. He denied that he left the store with the items and that he intended to steal from Fiesta. He also denied that he committed an assault in the store. When the State cross-examined appellant, they asked appellant if it was his testimony that he "basically didn't do anything wrong back on February 24th?" Appellant responded, "Absolutely right, sir." When the State asked appellant if there had been an altercation in the store, appellant explained that he "did selfdefense." Appellant then emphasized, however, that he did not assault anyone in Fiesta.

After the close of evidence, appellant requested the jury be instructed on the lesser included offenses of "Class A assault and Class B theft" due to his testimony that he did not commit any robbery. The trial court denied the request, ruling the instructions had not been raised by the evidence.

On appeal, appellant argued the trial court erred when it denied his request for instructions on misdemeanor assault and misdemeanor theft. He contended that evidence was presented at trial that if he was guilty, he was guilty only of the lesser included offenses. The First Court of Appeals agreed with appellant.

The First Court concluded that misdemeanor theft and misdemeanor assault were "included within the proof necessary to establish the charged offense of robbery." Jones v. State, 962 S.W.2d at 98. Citing Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994), the First Court noted there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. To make this determination, they stated they must consider all of the evidence presented at trial. Again citing Bignall, the First Court explained if there is no evidence showing appellant committed only the lesser included offenses, and appellant presented no evidence or presented evidence that he did not commit any offense, appellant would not be entitled to the instruction on the lesser included offense. The First Court then examined whether "there was some evidence that would permit a jury rationally to find that the appellant committed the theft, but not the assault. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on a lesser included offense." Jones, 962 S.W.2d at 98.

Initially, the First Court turned to the issue of the lesser included offense of misdemeanor theft. The First Court noted appellant testified he did not commit an assault in Fiesta and that he "did self-defense". The Court of Appeals cited the State's evidence that appellant was seen taking some items from the store without paying for them. Based on this evidence, the First Court concluded the evidence raised the issue of misdemeanor theft. The First Court found the trial court erred when it denied appellant's requested instruction on misdemeanor theft. Id.

The First Court then handled the issue of misdemeanor assault. They noted appellant denied any intent to steal any items from Fiesta. The First Court also cited the State's evidence that appellant punched Yancey in the face during his altercation with Fiesta's Loss Prevention Officers. The First Court concluded the evidence at trial raised the issue of misdemeanor assault. They also found the trial court erred when it denied appellant's requested instruction on misdemeanor assault. Id.

In its petition for discretionary review, the State argues the Court of Appeals conducted a flawed analysis of whether a rational jury could believe appellant was guilty only of misdemeanor assault or misdemeanor theft. The State claims the decision of the Court of Appeals' decision conflicts with this Court's decision in Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993). In Ramos, this Court explained a "statement made by a defendant cannot be plucked out of the record and examined in a vacuum in a lesser included offense analysis." The State accused the First Court of plucking appellant's testimony apart to conclude there was evidence to show if appellant was guilty, he was guilty only of one of the two lesser included offenses.

The State supports its argument with two examples. First, the State pointed out the First Court "plucked" out appellant's testimony that he did not assault anyone along with his testimony that he "did self-defense" and examined them in conjunction with the State's evidence that he took several items from the Fiesta without paying for them. From this, the First Court concluded that appellant could have been found guilty only of theft. Second, the First Court looked at appellant's testimony that he denied any intent to steal in conjunction with the State's evidence of the assault and concluded that appellant could have been found guilty only of assault.

The State complains the analysis of the First Court misrepresented appellant's defense by taking parts of it out of context. The State claims appellant's testimony as a whole presented the defense that he did not do anything wrong--not robbery, not theft, and not assault. The State argues appellant's testimony, taken in its entirety, does not indicate if appellant is guilty, he is guilty only of the lesser included offenses. Instead, appellant's testimony on the whole indicates he is not guilty at all. In this way, the State argues the First Court failed to comply with this Court's decision in Bignall v. State.

In Bignall, we concluded "if a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing that he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required." Bignall, 887 S.W.2d at 22. The State argues the First Court should not have plucked parts of appellant's testimony out of the context of his defense and combined them with selected parts of the State's proof of separate elements of the offense to conclude the evidence raised the lesser included offenses. The State contends this is not a case where there was evidence which proved appellant, if guilty, was guilty only of the lesser included offenses of assault or theft.

We disagree with the State's argument. This Court analyzes the issue of lesser included offenses in terms of determining whether there is any evidence in the record from any source to indicate if appellant was guilty, he was guilty only of the lesser included offense. "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall, 887 S.W.2d at 23; and cases cited therein. If there is evidence within a defendant's testimony which raises the lesser included offense, it is not dispositive that this evidence does not fit in with the larger theme of that defendant's testimony. Id. Whether there is evidence, within or without the defendant's testimony, which raised the lesser included offense controls the issue of whether an instruction on the lesser included offense should be given.

It does not matter whether the evidence was admitted by the State or the...