Eric Alexander Long v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Eric Alexander Long

Appellant

Vs.                   No.  11-02-00056-CR C Appeal from Harris County

State of Texas

Appellee

The jury convicted appellant of robbery, found the enhancement paragraphs to be true, and assessed punishment at 36 years confinement.  We affirm.

In his second and third points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.  In order to determine if the evidence is legally sufficient, we must 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).   In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State 922 S.W.2d 126 (Tex.Cr.App.1996).

Thoa Diep testified at trial that on October 26, 2000, she was working at the grocery store that she owned.  Around 10:00 p.m., Diep was closing the store when appellant came in and asked to use the telephone.  Appellant=s father lived across the street from Diep=s store. Appellant=s father was not home, and appellant went outside of the store.  Appellant came back in the store and asked to use the phone to call his uncle.  Appellant=s uncle was not home, and appellant again went outside of the store.  Appellant returned to the store a third time and asked Diep if he could buy a cigar.  Diep had to go to a secured area to get the cigar.  Before she got to the door of the secured area, appellant approached Diep and told her to move to the back of the store.

Diep testified that appellant then Astrangled@ her around her neck and hit her in the face. Diep tried to keep appellant from pushing her into the back room of the store, but appellant was able to force her into the back room.   Appellant pushed Diep to the floor.  Diep stated that appellant took something out of his pocket and that she thought it was a gun.  Diep thought that appellant was going to kill her, so she turned her head.   However, appellant turned and left the area.  After he left, Diep locked the door to the back room and pushed the alarm for the police.  Diep could see appellant through the window of the door.  Diep testified that appellant took the money from the cash register. The police arrived and were able to obtain the video from the surveillance camera in the store.  The police contacted appellant=s father, and he went to the store and identified appellant on the video.  Appellant also testified at trial that he went into Diep=s store three times.    The last time he went into the store, appellant asked to buy a cigar. Appellant stated that, when Diep turned to get the cigar, he Acome up on her@ and pushed her.  Appellant said that he hit Diep two times and that she fell to the floor.  Appellant testified that he then took the money from the cash register and ran out of the store.  Appellant stated that, although he robbed the store, he did not use or exhibit a deadly weapon.

Appellant was indicted for the offense of aggravated robbery.  At the charge conference, appellant requested and received an instruction on the lesser offense of robbery. A defendant who invokes the benefit of a lesser included offense at trial is estopped from complaining on appeal that the evidence is legally insufficient to support a conviction of the lesser offense.   State v. Lee,  818 S.W.2d 778 (Tex.Cr.App.1991), overruled on other grounds by Moore v. State, 969 S.W.2d 4, 10 (Tex.Cr.App.1998); see also State v. Yount, 853 S.W.2d 6 (Tex.Cr.App.1993); Torres v. State, 979 S.W.2d 668 (Tex.App. - San Antonio 1998, no pet=n).  We also find that appellant is estopped from challenging the factual sufficiency of the evidence to support his conviction of the lesser offense of robbery because he received the benefit of the instruction on the lesser offense. Otting v. State, 8 S.W.3d 681, 687 (Tex.App. ‑ Austin 1999, pet=n ref=d, untimely filed); Reaves v. State, 970 S.W.2d 111, 118 (Tex.App. ‑ Dallas 1998, no pet=n);  Bisco v. State, 964 S.W.2d 29, 30 (Tex.App. ‑ Tyler 1997, pet=n ref'd).

Moreover, appellant argues that the evidence is legally and factually insufficient to support his conviction for robbery because the State failed to prove that Diep was the owner of the property taken as alleged in the indictment.  Appellant argues that the cash taken from the register belonged to the store, not Diep. It is sufficient to allege ownership in either the owner or Aspecial owner.@  TEX. CODE CRIM. PRO. ANN. art. 21.08 (Vernon 1989); Harrell v. State, 852 S.W.2d 521, 523 (Tex.Cr.App.1993).  A Aspecial owner@ is an individual who is in custody or control of property belonging to another person. Harrell v. State, supra; Roberts v. State, 513 S.W.2d 870, 872 (Tex.Cr.App.1974).  To show corporate ownership, it is sufficient to allege ownership in the employee who has care, custody, and control of the property, the Aspecial owner.@   Harrell v. State, supra; Roberts v. State, supra.  Diep testified both that she Aruns@ the store and that she owns the grocery store.  Additionally, appellant testified at trial that he committed the offense of robbery. We find that the evidence is both legally and factually sufficient to support appellant=s conviction for robbery.  Appellant=s second and third points of error are overruled.

In his first point of error, appellant argues that the trial court erred in failing to discharge the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).  In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three‑step process for properly determining a Batson challenge.  First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production.  In the second step, the burden of production shifts to the proponent of the strike to respond with a race‑neutral explanation.  Third, if a race‑neutral explanation has been proffered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination.  The burden of persuasion is on the opponent of the strike to convince the trial court that the strike was racially motivated.  Purkett v. Elem, supra; Ford v. State, 1 S.W.3d 691, 693 (Tex.Cr.App.1999); Camacho v. State, 864 S.W.2d 524, 529 (Tex.Cr.App.1993), cert. den=d, 510 U.S. 1215 (1994). 

Appellant complains that the State=s peremptory strikes used against Juror No. 10 and Juror No. 35 were racially motivated.    At the Batson hearing, the State informed the trial court that Juror No. 10 was struck because he Aseemed to be nodding off, sleeping@ and Adid not seem to have a whole lot of interest in the proceedings.@   The State said that Juror No. 35 is Aa retired teacher.  I don=t care for teachers for a punishment jury.@  The State also added that Juror No. 35 Awas having a very good rapport with the Defense Attorney.@  The record also indicates that Juror No. 35 thought that the defendant looked familiar.  Appellant stated at the Batson hearing that he was mainly bringing the challenge as to Juror No. 10.  Appellant did not respond to the State=s race-neutral explanation.  We hold that the trial court=s determination on the Batson issue was not clearly erroneous.  See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000). Appellant=s first point of error is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

December 12, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.