holding evidence was sufficient to establish robbery where defendant, although he made no verbal threat, had eyes as “red as fire” and seemed to be “under the influence of something” when he placed his face close to shopkeeper’s face and demanded money, and shopkeeper’s fear was evident from fact he reached for a weapon; the conduct was “intensely and immediately focused on inducing [the shopkeeper] to part with the money”
How later courts described this case
- holding evidence was sufficient to establish robbery where defendant, although he made no verbal threat, had eyes as “red as fire” and seemed to be “under the influence of something” when he placed his face close to shopkeeper’s face and demanded money, and shopkeeper’s fear was evident from fact he reached for a weapon; the conduct was “intensely and immediately focused on inducing [the shopkeeper] to part with the money”
- holding evidence was sufficient to sustain a finding that the .defendant’s words and actions placed the cpmplainant in fear of imminent harm when defendant did not display a weapon or make an express threat
- comparing requirement in robbery prosecution that State prove that victim was placed in fear of imminent bodily injury with requirement in assault prosecution that State prove that the accused threatened the victim with imminent bodily injury
- holding factfinder may conclude an individual perceived fear or was “placed in fear” in circumstances where no actual threats were conveyed by the defendant
Written by the judges who cited it.
The opinion
O’CONNOR, Justice,
dissenting.
I dissent. I do not think there was any evidence to support the appellant’s conviction for robbery by threat under Tex. Penal Code Ann. § 29.02 (a)(2) (Vernon 1989). I agree that the appellant left the convenience store without paying for the beer. I disagree that he accomplished the theft by threat.
When entering the store, he greeted Davis by calling out, “How are you doing, Mr. Hickman?” Davis has a nephew by the name of Hickman. Davis knew the appellant went to school with his nephew. The appellant was wearing blue jeans but was barefoot and shirtless.
After the appellant selected a can of beer from the cooler, he walked up to the register and saw the money out of the register, near a brown towel. The appellant looked directly at Davis and said,
We are going to do it like this; give me all the money, put the money in the towel; and I’m serious.
Davis asked the appellant if he were sure about what he was saying, and the appellant responded:
[P]ut the money in the towel, and we are going to do it like this, and I’m serious.
Davis testified that he was afraid of the appellant because he knew the appellant would cause him bodily injury. After the appellant asked for the money the second time, Davis reached under the counter for a piece of pipe. Davis asked the appellant if he was sure of what he was saying. The appellant then giggled real funny and *618 grabbed the beer and ran out the place, “just giggling and hollering.”
Houston Police Officer C.E. Turner testified he was a patrol officer and was the first law enforcement officer to arrive on the scene. Turner reported that Davis told him only that the appellant left the store without paying for a beer. Turner classified the report as a theft under $20. Davis testified that he told Turner about the threatened robbery.
The appellant does not dispute that he stole a can of beer, but contends that evidence presented by the State did not show he threatened or placed the complainant in fear of bodily injury or death. Tex. Penal Code Ann. § 29.02 (a)(2) (Vernon 1989). To prove the offense of robbery, the accused must have committed actual violence or have threatened violence to the person of another, such that the other party is put in fear. Green v. State, 567 S.W.2d 211, 213 (Tex.Crim.App.[Panel Op.] 1978); Jones v. State, 467 S.W.2d 453, 454 (Tex.Crim.App. 1971). The fear must be likely to induce a reasonable person to part with property against his will. Jones, 467 S.W.2d at 454 ; Franklin v. State, 702 S.W.2d 241, 244 (Tex.App.—Houston [1st Dist.] 1985, no pet.).
The term “imminent,” when referring to bodily injury in section 29.02(a)(2) requires the threat to be of an impending and immediate nature. Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989). Neither past nor future threats or conduct is enough to satisfy the requirement of “imminent” harm. See id. at 270-71 .
In Devine , the defendant and Cox, the complainant, had been married. Cox testified that once, during the marriage, the defendant held a gun to his head. Cox had been told by the defendant that she carried a gun in her purse. After the marriage ended, the defendant extorted money from Cox by threatening to kill him. In January 1985, the defendant demanded $2,500 and when Cox refused, she said she would kill him and his wife and do something to his two small children. Finally, Cox went to the police, who wired him for a meeting with the defendant. Cox met with the defendant at a restaurant, handed her an envelope, at which time the police arrested her. Devine, 786 S.W.2d at 269 .
Cox testified during the meeting he was afraid that he would be killed, perhaps in the parking lot. If something went wrong with the arrest, he said he was afraid she would shoot him. At no time during the encounter did the defendant make any overt action, such as display a gun. De-vine, 786 S.W.2d at 269 . At the meeting, the defendant told Cox that she had almost had him killed the day before but she had cancelled the plan when he agreed to show up with the money. Id. at 270 . The court held there was nothing in the record to show Cox was threatened with imminent bodily harm. Id. The court held there was nothing to indicate the defendant had acted in such a way as to place Cox in fear of imminent harm. Id. at 271 .
The testimony in this case showed that the appellant twice said he was going to take the money, and that he was serious. There is no evidence that the appellant threatened Davis with imminent bodily harm or that he acted in such a way as to place Cox in fear of imminent harm. Devine, 786 S.W.2d at 270 . The jury, as fact finder, was not free to interpret Davis’ testimony, that he was afraid of the appellant, as a substitute for the element of placing Davis in fear of imminent bodily harm. See Cranford v. State, 377 S.W.2d 957, 959 (Tex.Crim.App.1964) (conduct of accused, not timidity of victim, must give rise to fear).
We should sustain the appellant’s point of error and reverse the judgment and remand for the trial court to enter an order of acquittal.