Mendoza v. State, 13-94-133-CR

• Decision Date: 02 May 1996
• Docket Number: No. 13-94-133-CR,13-94-133-CR
• Citation: 923 S.W.2d 760
• Parties: Martin MENDOZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 760

923 S.W.2d 760

Martin MENDOZA, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-133-CR.

Court of Appeals of Texas Corpus Christi.

May 2, 1996.

Rehearing Overruled June 6, 1996.

Larry Warner, Brownsville, for appellant.

Luis V. Saenz, District and County Attorney, Brownsville, Gustavo Ch. Garza, District/County Attorney, Raymondville, for appellee.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

SEERDEN, Chief Justice.

A jury found appellant guilty of robbery, and the trial court assessed punishment, enhanced by two prior felony convictions, at seventy-five years in prison. We reverse and remand.

The evidence established that appellant and companions entered a convenience store known as Coastal Mart, on two occasions, a few hours apart, in the early morning hours of June 1, 1993, taking four twelve packs of beer, two packs of cigarettes and two sticks of beef jerky. The indictment alleged that appellant did "unlawfully, in the course of committing theft and with intent to obtain and maintain control of the property to be stolen, intentionally and knowingly threaten and place FRANK SANCHEZ in fear of imminent bodily injury."

By two points of error and timely trial objection, appellant complains that the charge should have included an instruction on the lesser included offense of theft. We agree.

An instruction on a lesser included offense is warranted if: (i) the lesser included offense is included in the proof necessary to establish the offense charged, and (ii) some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994). Theft can be a lesser included offense of robbery. Parr v. State, 658 S.W.2d 620, 622 (Tex.Crim.App.1983). In light of the indictment ("in the course of committing theft") it is necessarily so in this case. Jacob v. State, 892 S.W.2d 905, 908-09 (Tex.Crim.App.1995). The only remaining question then, is whether some evidence exists in the record that would rationally permit a jury to find appellant only guilty of theft.

While a jury may selectively believe all or part of the evidence at trial, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence affirmatively establishing the possibility that the defendant is only guilty of the lesser offense. Bignall, 887 S.W.2d at 24. Evidence from both the State and the defendant is considered. Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App.1988); Campbell v. State, 571 S.W.2d 161, 162 (Tex.Crim.App.1978) (defendant's testimony alone established his entitlement to instruction on lesser included offense).

Appellant testified on direct as follows:

Q: All right. And where did you go from there?

A: From there, we were going home. Cavazos suggested that we needed more beer, and I said I know where I can get beer easy, those were my exact words. So I said, let's go to Coastal, so we went to Coastal.

Q: What happened at Coastal?

A: We went to Coastal, I was in the truck, I told everybody to stay inside the truck, that I would take care of everything because I didn't want to expose the other people, that was, to Frank Sanchez. So I went inside the store to ask Frank for some beer. At that time, Cavazos came out of the truck, and by the time I know, Cavazos was coming with a twelve pack of beer from the back.

Q: And what do you mean that you didn't want to expose them to Frank Sanchez?

A: I didn't want them to know that Mr. Frank Sanchez would allow me to take beer from the Coastal Mart, sir.

Q: Why?

A: Because then I would be like giving him up, and that was something that I didn't want to do. That was supposed to be just between me and him.

Q: Have you had an occasion prior to this time to go to Coastal Mart and get beer either on credit or--

A: I wouldn't get it on credit, I would just get it, he would allow me to take the beer.

Q: Give it to you?

A: Yes, sir.

Q: And who is he?

A: Mr. Frank Sanchez.

Q: Okay. And on how many occasions before that time?

A: I would say about twice.

Q: Twice. All right. Now, on that occasion, the four of you went in and you said by the time you turned around, that Cavazos was walking with two six packs?

A: With a twelve pack.

Q: With a twelve pack?

A: Yes, sir.

Q: What was the value of that twelve pack, if you know?

A: I would say no more than five or six dollars.

Q: No more than six dollars?

A: No more than six dollars.

Q: And what transpired after that?

A: Nothing really transpired, I just told Frank, man, don't worry about it, I'll take care of this dude, and he said it's all right. And then Henry said, hey, man, I'll pay for it, and Frank Sanchez just stated it's on me, man, don't worry. So I said, let's go man. We got in the truck, we went home to Gloria's house, we drank the twelve pack and we danced and everything, the beer ran out. We went for the same thing, this time only me and Cavazos got off the truck.

Q: What transpired on that occasion?

A: I went inside the store, I told Frank, hey, man, don't worry about this guy, he ain't going to say nothing and nothing is going to happen, ain't nobody going to tell nobody, it's all right. I told him in a slang word, (Spanish spoken) which mean it's under the table, it's just between us. So he says at that time that it was too much heat already. So I said don't worry about it, man, I'll take the heat. If they catch me, I'll just say I took it, so he just give me his back. So Cavazos went to the back and got three twelve packs, came up to the front door to where I was at, and at that time he grabbed two packs of cigarettes and two beef jerkys and he walked out. And I started talking to Frank, and I tried to calm him down cause he looked like he was paranoid. I guess he was paranoid because I exposed him to Henry. So we left, and this was it.

In Cavazos v. State, we affirmed the robbery conviction of appellant's companion on the night in question. 904 S.W.2d 744 (Tex.App.--Corpus Christi 1995, pet. ref'd). Cavazos argued on appeal that he was entitled to an instruction on the lesser included offense of theft. We rejected his contention, noting particularly the absence in the record...