Jean De Dieu Ndatabaye v. the State of Texas

Opinion filed May 13, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00181-CR
__________
JEAN DE DIEU NDATABAYE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 13011-D
MEMORANDUM OPINION
After a short bench trial, the trial court convicted Jean De Dieu Ndatabaye of
robbery. The trial court assessed Appellant’s punishment at confinement for a term
of seven years in the Institutional Division of the Texas Department of Criminal
Justice. In a single issue, Appellant challenges the sufficiency of the evidence
supporting his conviction. Specifically, Appellant contends that he did not possess
the requisite intent to commit theft. We affirm.
Background Facts
The indictment alleged that Appellant committed robbery by intentionally,
knowingly, and recklessly causing bodily injury to Kayla Christianson “while in the
course of committing theft of property and with intent to obtain and maintain control
of said property.” See TEX. PENAL CODE ANN. § 29.02 (West 2019). Christianson
is a customer of First Financial Bank in Abilene. On October 16, 2017, Christianson
visited the bank’s main location in downtown Abilene. After depositing a check in
the first floor lobby of the bank, she proceeded from the lobby to the elevators to
meet with a client on the second floor. As Christianson walked toward the elevators,
Appellant approached her and asked her for coins. Although Christianson denied
having any coins, Appellant continued to ask, saying that he was young, hungry, and
homeless. Appellant asked Christianson for money three times before the elevator
arrived on the first floor.
Once the elevator arrived, Christianson entered, and Appellant followed her
into the elevator. Christianson testified that Appellant attempted to prevent her from
pressing the buttons in the elevator by taking his arm with a closed fist and hitting
her hand away from the buttons. Christianson further testified that, at the time, she
carried a wristlet purse and that Appellant told her to open the purse to prove that
she had no coins to give him. Christianson said that she believed that Appellant was
reaching for her purse on her wrist and that, when Appellant hit her, she suffered
pain in her hand.
Christianson was unable to press any buttons in the elevator, but the elevator
ascended to the sixth floor. When the elevator doors opened on the sixth floor,
Christianson was able to duck under Appellant’s arm and exit. Two people boarded
the elevator with Appellant, and Christianson waited for another elevator. She then
returned to a lower floor and reported the incident to the bank and law enforcement.
2
Analysis
In his sole issue, Appellant argues that the evidence was insufficient to support
his conviction because the State did not establish that Appellant intended to commit
theft. We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319.
In our review, we consider all evidence admitted at trial, including any
evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013). We defer to the factfinder’s role as the sole judge
of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
basic to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we
presume that the factfinder resolved any conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
We measure sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The hypothetically correct jury charge 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 the defendant was
tried.” Id.
3
 Section 29.02 of the Penal Code provides that a person commits the offense
of robbery “if, in the course of committing theft as defined in Chapter 31 and with
intent to obtain or maintain control of the property, he . . . intentionally, knowingly,
or recklessly causes bodily injury to another.” PENAL § 29.02(a)(1). “‘In the course
of committing theft’ means conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.” Id.
§ 29.01(1). A person commits theft if he unlawfully appropriates property with
intent to deprive the owner of property. Id. § 31.03(a). “[T]he actual commission
of the offense of theft is not prerequisite to commission of a robbery[.]” Earl v.
State, 514 S.W.2d 273, 274 (Tex. Crim. App. 1974).
The factor that elevates a theft to a robbery is the intent, at the time of or prior
to the injury, to obtain or maintain control over the victim’s property. See Walter v.
State, 581 S.W.3d 957, 974 (Tex. App.—Eastland 2019, pet. ref’d) (citing Nelson v.
State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992)). There need not be a
completion of theft to establish a robbery—“the gravamen of robbery is the
assaultive conduct, not the theft.” Crawford v. State, 889 S.W.2d 582, 584 (Tex.
App.—Houston [14th Dist.] 1994, no pet.). Therefore, in the absence of a completed
theft, the State must show intent to obtain control over the property and a nexus
between that intent and the injury suffered by the victim.
The factfinder may infer a defendant’s intent by his conduct. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Generally, intent is proven by
circumstantial rather than direct evidence. See, e.g., Hart v. State, 89 S.W.3d 61, 64
(Tex. Crim. App. 2002). Intent may be inferred by the acts, words, and conduct of
the accused. Id. Further, a verbal demand for money is not required. Edwards v.
State, 497 S.W.3d 147, 159 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). In a
prosecution for robbery of money, it is immaterial how much money is involved.
4
Crawford, 889 S.W.2d at 584 (citing Byrd v. State, 456 S.W.2d 931, 932 (Tex. Crim.
App. 1970)).
Viewed in the light most favorable to the verdict, Appellant’s conviction is
supported by sufficient evidence. The record indicates that Appellant repeatedly
asked Christianson for money. After Christianson declined his verbal requests,
Appellant insisted that she “show” him that she had no coins. Appellant
subsequently “crowded” Christianson by jumping into an elevator with her. He
blocked her exit from the elevator; he prevented her from pushing the buttons on the
elevator; and he attempted to grab at her hand in which she was holding her purse.
Christianson testified that she believed Appellant was trying to take her purse.
Further, Christianson testified that she suffered pain where Appellant struck her hand
as he grabbed for her purse, thereby causing her bodily injury. We conclude that a
rational factfinder could have reasonably inferred from Appellant’s conduct that he
acted with an intent to commit theft when he injured Christianson. We overrule
Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
May 13, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
5