Loville v. State
| Decision Date | 02 May 2013 |
| Docket Number | NO. 14-12-00297-CR,14-12-00297-CR |
| Parties | REGINALD TYRONE LOVILLE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Court of Appeals of Texas |
Affirmed and Memorandum Opinion filed May 2, 2013.
On Appeal from the 262nd District Court
Harris County, Texas
Appellant Reginald Tyrone Loville was convicted by a jury of robbery. On appeal, he presents five issues: (1) whether the trial court violated appellant's confrontation clause right during the punishment phase by admitting testimonial hearsay; (2) whether the trial court committed reversible error by not allowing appellant to ask certain venire members a particular question during voir dire; (3) whether the jury charge violated appellant's right to a unanimous jury verdict; (4)whether the trial court committed reversible error by including surplusage in the jury charge that negated the mental state required to commit robbery by threat; and (5) whether the evidence is legally insufficient to support appellant's conviction for robbery by threat. We affirm.
Appellant was indicted for the felony offense of robbery, alleged to have been committed on or about May 21, 2011.
At trial, the complainant Lisa Madrid, an asset protection coordinator employed by Wal-Mart, testified that on May 21, 2011, she followed appellant, a suspected thief, toward the store's garden center exit. Appellant was pushing a shopping cart filled with unboxed monitors and a flat-screen television. Madrid approached appellant in an attempt to stop him from exiting the store. According to Madrid, when she grabbed appellant's cart, she saw a stun gun or taser "on the left side of his hand[sic]." Madrid also heard "the buzzing sound of the taser." Madrid testified that when she saw and heard the taser, she "was scared of being hurt." Appellant then thrust at Madrid with the taser and made contact "on the side of [her] leg." As Madrid jumped back, one of her co-workers was attempting to follow appellant to a vehicle in order to get the license plate number. Madrid tried to tell her co-workers and "everybody" to "stay back because [appellant] had a weapon." Appellant also "tased" a Wal-Mart customer who was attempting to prevent appellant from loading the television into the vehicle. Later, Madrid realized that she had been shocked when she felt her "pocket was burning her leg." When Madrid retrieved her cell phone from her pocket, the phone was "steaming" hot, she saw "smoke" when she flipped open the phone, and two numbers on the pad were melted.
Based on the license plate information, Officer Hardy with the HoustonPolice Department's robbery division determined that the vehicle was a white Pontiac Sunfire; Reginald Loville was listed on the purchase agreement. Police then discovered that the Sunfire had been repossessed. Further investigation by Detective Braune, the division officer assigned to lead this case, resulted in appellant's arrest. When appellant was arrested, he had a taser in his pants pocket.
According to the jury charge, which tracked the indictment, the jury could convict appellant of robbery if it found that appellant, while in the course of committing theft of property owned by Madrid, and with intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed Madrid in fear of imminent bodily injury or harm: by threatening to shock Madrid with an electroshock weapon; by attempting to shock Madrid with an electroshock weapon; by threatening to shock Madrid with a stun gun; or by attempting to shock Madrid with a stun gun. The jury returned a verdict of guilty.
During the punishment phase, appellant pleaded true to two prior felony enhancement paragraphs for robbery and cocaine possession. The State presented evidence of appellant's other prior convictions, including four for theft, two for burglary of a motor vehicle with intent to commit theft, burglary of a vehicle, three for unauthorized use of a motor vehicle, possession of a controlled substance with intent to deliver, delivery of a simulated controlled substance, evading arrest, and resisting arrest. Both Hardy and Braune testified regarding their involvement in an investigation of approximately ten robberies occurring within a one-week period in May 2011; the May 21 incident for which appellant was on trial was the "master" case. According to the officers, almost all the robberies under investigation involved a white Pontiac Sunfire, most involved a suspect fitting appellant's description, and approximately seven involved use of a taser. The State also presented testimony from various individuals, including Wal-Mart and Sam's Clubstore employees and managers, as well as other victims, regarding the string of robberies occurring during that same time period in May. Some of these individuals identified appellant as the perpetrator, while others provided testimony regarding the involvement of a white Pontiac Sunfire and/or a taser. The trial court provided a limiting instruction indicating that the State was required to prove appellant's involvement in any extraneous offenses beyond a reasonable doubt. The jury assessed appellant's punishment at life in prison.
On appeal, appellant presents the following issues: (1) whether the trial court violated his confrontation clause right by allowing testimonial hearsay during the punishment phase; (2) whether the trial court committed reversible error by not allowing appellant to ask certain venire members an additional question during voir dire; (3) whether the jury charge violated appellant's right to unanimity; (4) whether the jury charge included surplusage that improperly negated the mental state required for robbery by threat; and (5) whether the evidence is legally insufficient to support appellant's conviction for robbery by threat.
We address appellant's fifth issue first because, if sustained, it would require us to reverse and render an acquittal, not remand for a new trial and/or a new punishment phase, as would appellant's other issues. See Campbell v. State, 125 S.W.3d 1, 5 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
In evaluating a legal insufficiency claim attacking a jury's finding of guilt, we review all the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Burton v. State, 230 S.W.3d 846, 852 (Tex.App.—Houston [14th Dist.] 2007, no pet.). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt, but instead we only determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Burton, 230 S.W.3d at 852. We accord great deference "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; Burton, 230 S.W.3d at 852. The legal sufficiency of the evidence is a question of law, and we may not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. See Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
Legal "sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). That is, "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which [appellant] was tried." Id. This standard "ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted." Id.1 We apply the Jackson standard of review to the hypothetically correct jury charge. Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (2012).
An individual commits a robbery if, in the course of committing a theft, he "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2)intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." TEX. PENAL CODE ANN. § 29.02(a) (West 2012). In this case, the indictment did not allege that appellant caused bodily injury to Madrid under section 29.02(a)(1), but rather that appellant intentionally and knowingly threatened and placed Madrid in fear of imminent bodily injury and death under section 29.02(a)(2). For purposes of section 29.02(a)(2), "[s]o long as the defendant's actions are 'of such nature as in reason and common experience is likely to induce a person to part with his property against his will,' any actual or perceived threat of imminent bodily injury will satisfy this element of the offense." Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011) ().
In addition, the indictment described how appellant allegedly threatened and placed Madrid in fear: by threatening to shock Madrid with an electroshock weapon, by attempting to shock Madrid with an electroshock weapon, by threatening to shock Madrid with a stun gun, and by attempting to shock Madrid with a stun gun. Therefore, in this case, a hypothetically correct jury charge—one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which appellant was tried2 —would...
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