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 s how 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.2 Background On November 18, 2008, Juan Montelongo, the manager of the Pilot store at Lakeside and I-40 in Amarillo, heard str ange noises and observed appellant acting suspiciously around a case containing electr onics. He then saw appellant walk toward

him and leave the store. M ontelongo went straight to the glass case which was broken and determined that two radar detectors were missing. Montelongo got in his vehicl e and followed appellant to Am erica’s Best Value Inn. He confronted appellant bu t appellant denied that he had stolen anything. Appellant then moved towards him so Montel ongo attempted to rest rain 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. Montel ongo kept appellant pinned to the ground. While doing so, a knife was observed in appel lant’s hand. Montelongo rele ased appellant after the police arrived. The two radar detectors we re found on appellant at the police station. Sufficiency of the Evidence Although appellant has chal lenged both the legal and fa ctual sufficiency of the evidence, we conduct a review only to determi ne 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. L EXIS 1240 at *57 (Tex. Crim . App. October 6, 2010). To prove aggravated robber y, the State was required to show that while in the course of committing theft of property and wit h intent to obtain and maintain control of that property, appellant intent ionally or knowingly threat ened and placed Montelongo in fear of imminent bodily inju ry and death and that he used or exhibited a deadly weapon3 during the commission of the robbery. T EX

. P ENAL C ODE A NN

. §29.02(a)(2) & 29.03(a)(2) (Vernon 2003). Appellant testified at trial. In doing so , he admitted to steali ng the two items from the Pilot store and to leaving t he store with the intent to maintain control over them and to avoid capture. 1 He further admitted that he had denied to Mont elongo and the police that he had stolen anything. However, he cl aimed that he never exhibited a knife or threatened Montelongo. According to appel lant, he carried his knife clipped on his pocket and, when Montelongo attacked him, the knife fell out. Nevertheless, there was ev idence that 1) appellant was excited and angry, 2) appellant stepped toward Mont elongo, 3) appellant str uggled 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 pers on (Juan Fuentes) removed the knife from appellant’s hand, 7) Fuentes te stified that he saw the kn ife 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 stat ed 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 bod ily injury or death. Actions taken during flight from a the ft constitute part of the offense of aggravated robbery. Garza v. State, 100 S.W.3d 347, 349 (Tex. App.–San Antonio

1 Appellant also admitted to being intoxicated.4 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 esc ape 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 dis believed appellant, there was evi dence 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 over ruled and the judgment is affirmed.

Per Curiam

Do not publish.

2 Even if factual sufficiency review was appropriate, we would conc lude, from the entirety of the record, that the evidence is factually su fficient to support appellant’s conviction.