Steele v. State

• Decision Date: 23 March 2000
• Citation: 22 S.W.3d 550
• Parties: (Tex.App.-Fort Worth 2000) THOMAS RAY STEELE, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-99-250-CR
• Court: Texas Court of Appeals

Page 550

22 S.W.3d 550 (Tex.App.-Fort Worth 2000)

THOMAS RAY STEELE, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-99-250-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS, FORT WORTH

March 23, 2000.

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Thomas Ray Steele appeals his conviction for the offense of aggravated robbery with a deadly weapon. Appellant pled guilty and a jury sentenced him to ninety-nine years' confinement. In a single point, Appellant complains that despite his guilty plea, the evidence the jury heard fairly raised the issue of his innocence, and therefore, the trial court erred by not withdrawing Appellant's plea of guilty sua sponte. We affirm Appellant's conviction.

BACKGROUND

On March 10, 1998, Appellant entered a Winn-Dixie supermarket. He presented Rani Stom, a cashier at the store, a check payable to Winn-Dixie in the amount of $60.45. Appellant wanted to cash the check in order to purchase a carton of cigarettes with the proceeds. The cashier became suspicious of Appellant's identification and took the check and the identification to the store manager for approval.

The manager called the telephone number printed on the face of the check, learned that the check had been stolen, and that Appellant had no authority to cash it. The manager asked Appellant to accompany him to the store office. Appellant refused and started to leave. Appellant resisted when store employees tried to detain him, and a struggle ensued. Appellant threatened the employees with a knife during the struggle and then fled in a car.

THE INDICTMENT

The indictment charges that Appellant:

INTENTIONALLY OR KNOWINGLY, WHILE IN THE COURSE OF COMMITTING THEFT OF PROPERTY AND WITH INTENT TO OBTAIN . . . SAID PROPERTY AND THREATEN[ED] OR PLACE[D] [VICTIM'S NAME] IN FEAR OF IMMINENT BODILY INJURY OR DEATH AND THE DEFENDANT DID THEN AND THERE USE OR EXHIBIT A DEADLY WEAPON . . . A KNIFE, THAT IN THE MANNER OF ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS BODILY INJURY . . . . [Emphasis added.]

See Tex. Penal Code Ann. § 29.03 (Vernon 1994) (defining aggravated robbery).

There was no trial on guilt-innocence because the trial court accepted Appellant's plea of guilty and then instructed the jury to find him guilty as charged in the indictment, which, for enhancement purposes, alleged that Appellant had previously been finally convicted of two felony offenses. In its charge on punishment, the court instructed the jury to answer "true" to the indictment's enhancement notice, paragraph one, and habitual offender notice, paragraph one, and to set his punishment at either life in prison or any term of years from twenty-five to ninety-nine. The jury chose ninety-nine years.

ISSUE

The sole issue is whether the evidence heard by the jury reasonably and fairly raised a question of Appellant's innocence so that the trial court, sua sponte, should have withdrawn his guilty plea and replaced it with a plea of not guilty. Appellant contends that he cannot be guilty as charged in the indictment because the evidence shows that he never possessed any property belonging to Winn-Dixie, and he did not use his knife in an attempt to gain control of any property.

To offset possible pressures that might lead an innocent person to voluntarily plead guilty before a jury and upon the plea be convicted of a felony the pleader did not commit, our courts adhere to the rule that if the trial's evidence reasonably and fairly raises the issue of the accused's innocence, and the accused does not withdraw the evidence of innocence, the trial court sua sponte must withdraw the accused's guilty plea and replace it with plea of not guilty. See Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986) (op. on reh'g). This is true even though the defendant makes no effort during the trial to withdraw the plea of guilty, makes no objection to the court's charge instructing the jury to render a verdict of guilt, and even though the defendant's testimony shows him to be guilty of the offense. See Montalvo v. State, 572 S.W.2d 714, 715-16 (Tex. Crim. App. [Panel Op.] 1978).

Nevertheless, to require a trial court's sua sponte withdrawal of the guilty plea, the evidence at trial must do more than merely tend to raise a defensive issue. See Griffin, 703 S.W.2d at 197; Jones v. State, 634 S.W.2d 61, 62 (Tex. App. Fort Worth 1982, pet. ref'd). The purpose of the sua sponte plea-withdrawal rule is to help insure that guilty pleas are voluntarily and knowingly given. See Griffin, 703 S.W.2d at 197. Appropriately, the trial court has the sound discretion to make that determination. See id. Accordingly, whether the issue of Appellant's innocence was reasonably and fairly raised at his trial will require us to consider whether the trial court abused its discretion. See id. We will make that evaluation "in light of [the case's] unique circumstances and the offense charged," by reviewing all of the evidence and applying a "totality of the circumstances test." Id.

THE EVIDENCE

Several people who were Winn-Dixie employees at the time and place of the alleged aggravated robbery offense testified before the jury in the punishment phase of the trial. Rani Stom had been the store's cashier. She testified that Appellant handed her false identification with a $60.45 check, represented that he was its payor, and told her to cash it. Appellant instructed Stom to give him a carton of cigarettes, to deduct the cost from the check proceeds, and to give him the remaining proceeds in cash. The store's check verification procedure determined that the check did not belong to Appellant but was a check stolen with several hundred other blank checks from the checkbook of a woman named Shirley Fyvie. During the check verification procedure, a store employee entered a "Code 13" call on the store's loudspeaker. Stom testified that a "Code 13" alarm means "someone is trying to steal." Anthony Applebee was a produce handler on duty in the store's produce department when the alleged aggravated robbery occurred. The indictment names Applebee as one of Appellant's victims in the aggravated robbery. Applebee testified that during the alleged offense, he heard the "Code 13" announcement on the store's loudspeaker and hurried to Stom's cashier counter, where Appellant was engaged in a physical struggle with the store's customer service manager, Jason Wilson. Applebee grabbed Appellant from behind and heard someone say "he's got a knife."

Applebee saw the knife and estimated that its blade was six inches long. Applebee retreated as Appellant swung the knife, because Applebee was concerned that the knife would cause him serious bodily injury or kill him. Before the jury, Applebee identified Appellant as the person who swung the knife and with whom he struggled. When the struggle ended, both Applebee and Appellant ran out of the store. Applebee watched Appellant run toward a car but did not see where he went after that. Wilson's testimony about the struggle and the knife was consistent with Applebee's. Wilson described the knife as having a six-inch blade, capable of causing death or serious bodily injury in the manner in which Appellant used it during the struggle. Wilson told the jury his shoulder cartilage was torn during the struggle with Appellant and Wilson later had surgery for that injury.

James Langley, a special agent of the Federal Bureau of Tobacco, Alcohol, and Firearms (ATF), testified that during the time he was spending as an undercover agent, about two weeks after the aggravated robbery involved in this case, he met with Appellant about an unrelated matter. Unaware that Langley was a federal law enforcement officer, Appellant began to brag about Appellant's recent robbery of a store, demonstrating with a knife how he had used it in the robbery and saying that he was challenged by three people during the incident and "threw one of them off of him." Langley testified that Appellant said that he went out and got in his car and he could hear the police coming, so he drove out of the parking lot, went around several blocks, then back to a parking lot across the street from the store and watched the police from his car. Langley immediately reported the details of the conversation to robbery investigators at the Fort Worth Police Department. Langley identified Appellant before the jury.

Mark Demas, an undercover ATF officer who was present during the conversation between Langley and Appellant at a "covert location," identified Appellant before the jury, named the other persons who were present at the site during the conversation, and testified that Appellant said:

[Demas:] that he had committed a robbery, that he had gone into a store and as he was attempting to leave, they tried to stop him. He pulled a knife on them. Some of the employees tried to stop him and he threw one of them off, pulled a knife and threatened them with the knife. At that time, the police were called and when he heard the police come, got in his car and drove and hid from the police.

. . . .

[Demas:] . . . [H]e actually got up and reenacted it in front of us, to show us how he had done this. That was recorded on videotape on the covert cameras that we had."

Without objection from Appellant, the videotape was admitted into evidence as State's Exhibit 8 and was played for the jury, with Demas providing the jury an unobjected-to narration about the content of the tape they were watching in court.

DISCUSSION AND CONCLUSION

By statutory definition, theft is completed when an accused unlawfully appropriates property with intent to deprive the owner of it. See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2000). For the penal code's purposes, the legislature has defined the word unlawful as conduct that would be criminal or tortious in the absence of some applicable...