Ted Lloyd Lawrence v. State ( 2003 )

NO. 07-01-0455-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 3, 2003
______________________________
TED LLOYD LAWRENCE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 44,115-E; HONORABLE RICHARD DAMBOLD, JUDGE
_______________________________
Before JOHNSON, C.J., REAVIS, J. and BOYD, S.J.1
OPINION
Appellant Ted Lloyd Lawrence appeals from his conviction by a jury for aggravated
robbery. We reverse and render judgment of acquittal.
1
John T. Boyd, Chief Justice (ret.), Seventh Court of Appeals, sitting by assignment.
BACKGROUND
Appellant was indicted for aggravated robbery for causing bodily injury to Bobby
Weis, a person 65 years of age or older, during the course of committing theft of property.
See TEX . PEN . CODE ANN . § 29.03 (Vernon 1994). The indictment was based on an
incident of July 18, 2001.
The case was called for jury trial on October 8, 2001. On October 9th the evidence
was concluded and the jury was charged only on aggravated robbery.2 Appellant was
convicted.
By four issues appellant challenges the conviction. He first challenges the legal
sufficiency of the evidence to prove that the victim of the alleged bodily injury was 65 years
of age or older at the time of the incident. Issues two and three, respectively, challenge
the factual sufficiency of the evidence to support findings that bodily injury to the victim
occurred in the course of the robbery and that appellant knowingly or intentionally caused
bodily injury to the victim. Issue four urges charge error because the trial court failed to
2
Neither of the parties asked for a lesser-included instruction. The State and
appellant agree that we must render judgment of acquittal if the evidence is legally
insufficient to support conviction of aggravated robbery. See Collier v. State, 999 S.W.2d
779, 782 (Tex.Crim.App. 1999) (plurality opinion).
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limit the definitions of “intentionally” and “knowingly” to the conduct elements of the
offense.
ISSUE 1: Legal sufficiency of evidence to
prove the victim was 65 years of age or older
As an appellate court reviewing a challenge to the legal sufficiency of the evidence,
we consider all the record evidence, including direct and circumstantial, both admissible
and inadmissible, in the light most favorable to the jury’s verdict. We then determine if a
rational jury could have found all the essential elements of the offense beyond a
reasonable doubt based upon such record evidence. See Jackson v. Virginia, 443 U.S.
307, 319-20, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Johnson v. State, 967 S.W.2d
410, 411 (Tex.Crim.App. 1998). If, based on all the evidence, a reasonably-minded jury
must necessarily entertain a reasonable doubt of the defendant’s guilt, we are required to
reverse the conviction and order a judgment of acquittal. See Clewis v. State, 922 S.W.2d
126, 133 (Tex.Crim.App. 1996).
The evidence at trial on October 8, 2001, included the following testimony by the
victim, Bobby Weis, as to his age:
Q: Now, Mr. Weis, how old are you?
A: Sixty-five.
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Bobby’s brother, Byron, testified. Byron was sixty-two. Byron’s testimony referenced “my
older brother Bob.” Other than the foregoing, Bobby’s age was not the subject of any
testimony or evidence.
Appellant urges that such testimony is legally insufficient proof of Bobby’s age on
July 18, 2001. The State maintains that the evidence is legally sufficient for a rational jury
to have inferred that Bobby was 65 on July 18th.
The cases cited by the State are inapposite. For example, in Gonzalez v. State,
966 S.W.2d 804 (Tex.App.--Amarillo 1998), aff’d 3 S.W.3d 915 (Tex.Crim.App. 1999), a
witness testified that she received a telephone call on the date of the crime from her
mother “who was over 65" and who was the victim. And, in Reed v. State, 991 S.W.2d 354
(Tex.App.--Corpus Christi 1999, pet. ref’d), the victim testified as to his birthdate; the issue
on appeal was whether evidence was sufficient to prove whether the date of the crime was
before or after the victim’s 14th birthday.
In the case before us, there is no evidence of Bobby Weis’ birthdate or of his age
on July 18, 2001. Bobby’s testimony that he was 65 at the time of trial does not support
an inference that he did not have a birthday between July 18th and October 8th. A finding
that Bobby was 65 years old on July 18th could be based only on speculation, and thus
the evidence is legally insufficient to support such a finding. See Stewart v. State, 933
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S.W.2d 555, 556-57 (Tex.App.--San Antonio 1996, pet. ref’d). We sustain appellant’s first
issue.
CONCLUSION
Having sustained appellant’s first issue, we reverse the judgment of conviction and
render judgment of acquittal. See Clewis, 922 S.W.2d at 133; Stewart, 933 S.W.2d at 558,
560. Our determination of appellant’s first issue is dispositive of the appeal and we will
not address his remaining issues. See TEX . R. APP . P. 47.1.
Phil Johnson
Chief Justice
Publish.
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