Benny Joe Alvarez v. State ( 2004 )

NO. 07-04-0235-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 23, 2004

______________________________



BENNY JOE ALVAREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,644-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

ABATEMENT AND REMAND

Following his plea of not guilty, appellant Benny Joe Alvarez was convicted by a jury of aggravated assault with a deadly weapon, enhanced, and punishment was assessed at 27 years confinement. Both the clerk's record and reporter's record have been filed. Attorney Gerald D. McDougal filed an Anders brief on July 16, 2004, and appellant filed a pro se response on November 18, 2004. ⁽¹⁾ The State did not favor us with a brief. Upon suggestion of death of appellant's attorney, we now abate this appeal and remand the cause to the trial court.

Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute this appeal; and

2. whether appellant is indigent and entitled to new appointed counsel.

The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. The trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues, and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and supplemental reporter's record with the Clerk of this Court by Friday, January 14, 2005.  

Should new counsel be appointed, the Clerk of the Court is instructed to accept and file any brief or supplemental brief newly appointed counsel desires to file. Absent a motion for extension of time, new counsel's brief(s) shall be due within 30 days after filing of the supplemental clerk's and reporter's records. The State's brief will be due within 60 days following filing of the supplemental clerk's and reporter's records or within 30 days following the filing of new counsel's brief(s), whichever is later. Tex. R. App. P. 38.6(a) & (b).   

It is so ordered.

Per Curiam

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-09-0178-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 15, 2010

MICHUEL ALLEN REAMY,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 58,867-A; HONORABLE HAL MINER, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Michuel Allen Reamy challenges his conviction of aggravated robbery by contending the evidence is insufficient to show he 1) intentionally or knowingly threatened another or placed another in fear of imminent bodily injury or death, 2) used or exhibited a deadly weapon in the course of committing robbery, and 3) employed a weapon in any manner that facilitated a robbery.  We disagree and affirm the conviction.

Background

On November 18, 2008, Juan Montelongo, the manager of the Pilot store at Lakeside and I-40 in Amarillo, heard strange noises and observed appellant acting suspiciously around a case containing electronics.  He then saw appellant walk toward him and leave the store.  Montelongo went straight to the glass case which was broken and determined that two radar detectors were missing. 

            Montelongo got in his vehicle and followed appellant to America’s Best Value Inn.  He confronted appellant but appellant denied that he had stolen anything. 

Appellant then moved towards him so Montelongo attempted to restrain appellant.  The two wrestled with each other and fell into the door of the motel when it was opened by a person in the motel.  Montelongo kept appellant pinned to the ground.  While doing so, a knife was observed in appellant’s hand.  Montelongo released appellant after the police arrived.  The two radar detectors were found on appellant at the police station.

            Sufficiency of the Evidence

            Although appellant has challenged both the legal and factual sufficiency of the evidence, we conduct a review only to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt.  Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. Lexis 1240 at *57 (Tex. Crim. App. October 6, 2010).  To prove aggravated robbery, the State was required to show that while in the course of committing theft of property and with intent to obtain and maintain control of that property, appellant intentionally or knowingly threatened and placed Montelongo in fear of imminent bodily injury and death and that he used or exhibited a deadly weapon during the commission of the robbery.  Tex. Penal Code Ann. §29.02(a)(2) & 29.03(a)(2) (Vernon 2003). 

Appellant testified at trial. In doing so, he admitted to stealing the two items from the Pilot store and to leaving the store with the intent to maintain control over them and to avoid capture.[1]  He further admitted that he had denied to Montelongo and the police that he had stolen anything.  However, he claimed that he never exhibited a knife or threatened Montelongo.  According to appellant, he carried his knife clipped on his pocket and, when Montelongo attacked him, the knife fell out. 

 Nevertheless, there was evidence that 1) appellant was excited and angry, 2) appellant stepped toward Montelongo, 3) appellant struggled against Montelongo’s attempted restraint of him, 4) Montelongo saw a knife in appellant’s hand with an open blade while they were struggling, 5) appellant would not let go of the knife although Montelongo instructed him to do so more than once, 6) a motel employee (Luis Rodriguez) testified that another person (Juan Fuentes) removed the knife from appellant’s hand, 7) Fuentes testified that he saw the knife in appellant’s hand while appellant struggled with Montelongo, 8) the knife was three to three and a half inches long and was a lock blade knife, 9) Montelongo stated that the knife used by appellant could have caused serious bodily injury or death and that he was concerned that appellant might use it on him, and 10) a police officer testified that such a knife was capable of causing serious bodily injury or death. 

Actions taken during flight from a theft constitute part of the offense of aggravated robbery.  Garza v. State, 100 S.W.3d 347, 349 (Tex. App.–San Antonio 2002, no pet.); see also McCall v. State, 113 S.W.3d 479, 481 (Tex. App.–Houston [1^st Dist.] 2003, no pet.) (holding that violence accompanying an escape subsequent to a theft can constitute aggravated robbery); Rabb v. State, 681 S.W.2d 152, 154 (Tex. App.–Houston [14^th Dist.] 1984, pet. ref’d) (holding that robbery includes violence that occurs in immediate flight from the scene of a theft).  Moreover, “use” of a deadly weapon can be simple possession as long as it facilitates the commission of the associated offense.  Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004).  Therefore, if the jury disbelieved appellant, there was evidence from which it could have inferred beyond a reasonable doubt that appellant intended to use the knife in order to escape from Montelongo and maintain possession of the stolen property.[2] 

Accordingly, the issues are overruled and the judgment is affirmed.

                                                            Per Curiam

Do not publish.

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[1]Appellant also admitted to being intoxicated.

[2]Even if factual sufficiency review was appropriate, we would conclude, from the entirety of the record, that the evidence is factually sufficient to support appellant’s conviction.