Affirmed and Opinion Filed December 17 , 2019

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 19
- 00063
- CR TEKLEA GEBREYESUS , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the 292nd Judicial District Court

Dallas County, Texas Trial Court Cause No. F
- 1855502
- V 

### MEMORANDUM OPINION Before Justices Bridges, Molberg, and Partida

- Kipness Opinion by Justice Partida

- Kipness Appellant Teklea Gebreyesus appeals from his conviction for robbery. In one issue, appellant challenges the legal sufficiency of the evidence to support his conviction . We affirm the judgment. Because the issues are settled in law, we issue this memorandum opinion. See T EX
. R.
A PP
. P. 47.4.
Backgrou nd Shortly after 1:00 a.m. on July 1, 2018, appellant walked into the Kwik Trip gas station and convenience store located near Greenville Avenue and Park Lane in Dallas County, Texas. Appellant testified that he went to the Kwik Trip with the intent to steal beer from the store. Justin Hershberger was the n ight manager at the Kwik Trip on July 1 working the overnight shift from 9:30 p.m. to 7:00 a.m. Hershberger had worked for Kwik Trip for approximately four– 2

–

months at the time of the robbery, but July 1 was only his second shift at the Greenville Avenue loc ation. He was alone in the store when appellant entered t he store

. Hershberger testified that he heard a vo ice and when he saw appellant, he said hello and welcomed appellant to the store. Hershberger testified that appellant made a threat by lifting up hi s shir t and saying he had a firearm. Appellant then went to the back of the store, grabbed some beer, and started walking out. Hershberger challenged appellant before allowing him to leave the store, something he admitted at trial was not a good idea. He t estified, however, that he “was pretty intimidated and I just

– I was taught when you’re frightened to fight.” Kwik Trip’s security system recorded video and audio surveillance footage of the robbery. In the footage, appellant can be seen walk ing into the store through the front doors . Hershberger says hello, and appellant says something to Hershberger that sounds like motherf***er as he walks in front of the counte r and to the back of the store. Appellant then stops walking, turns back to Hershberger and s ays “I’ll show you my pistol.” Appellant then lifts his shirt to s how his stomach and waistband. He then walks off screen briefly

. When appellant comes back on screen, he has a box of beer and wal ks toward the front door. As he is walking toward the door a nd toward Hershberger, appellant again says “I’ll show you my pistol.” Hershber ger says “Go ahead. Go

a head. Come o n , ” b ut the video shows that appellant ke pt walking with the beer and left the store

. Hershberger follow ed him out the door, yelling “Put the beer down,” but appellant d id not stop. Hershberger explained at trial that he followed appellant out of the store because he was trying to see where appellant was going so he could get the best description possible

. Hersh berger also told the court that he considered appellant’s words and actions to be a
threat: Q. Justin, when the defendant came in and was mouthing something, lifted up his shirt, and said, “I’ ll show you my pistol, ” what did you take that to mean?– 3

–

A. I ju st

-- I took it as an overall threat. That la te at night in that area, and I’ m by myself and somebo dy just starts screaming, and I’ ve seen enough to know that when somebody lifts their shirt up like that, it typically means they’ re going to show a weapon. I didn’ t understand what he said originally, but it was

-- it was really intense. At the time, Hershberger thought he saw a handle of either a firearm or a knife in appellant’s waistband when appellant raised his shirt. This was the first time this had eve r happened to Hershberger

. Hershberger alerted an internal Kwik Trip security team to the incident , but he did not immediately contact the police because he thought the security team would decide if police involvement was necessary. Several hours later, h owever, appellant returned to the store, and that prompted Hershberger to contact the police directly. When the police responded to that call, they learned that a man matching the appellant ’s description was nearby. The responding officers located appellan t, spoke to him briefly and, after appellant attempted to run away from the officers, tackled him and placed him under arrest. Appellant was indicted for robbery under section 29.02 of the Texas Penal Code. The indictment alleged: [ On or about July 1, 201 8, Gebreyesus ] intentionally and knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten or place JUSTIN HERSHBERGER in fear of imminent bodily injury and death. The indictment included one enhancement paragraph for a 2014 robbery conviction. Following a bench trial, the trial court found appellant guilty of robbery as alleged in the indictment . Appellant plead true to the enhancement, t he trial court accepted th at plea and assessed punishment at ten years’ confinement. On appeal, appellant argues the evidence is legally insufficient to suppo rt the conviction for robbery. Specifically, appellant maintains the evidence is legally insufficient to establish that appe llant intentionally or knowingly threatened or placed Hershberger in fear of imminent bodily injury or death.– 4

– Standard of Review A challenge to the sufficiency of the evidence is evaluated under the standards established
in Jackson v. Virginia , 443 U.S. 30 7 (1979)

. Brooks v. State , 323 S.W.3d 893, 895 , 912 (Tex. Crim. App. 2010). We review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt

. Jackson , 443 U.S. at 319; Brooks , 323 S.W.3d at 894

– 95. This standard of review for legal sufficiency is the same for both direct and circumstantial evidence. Wise v.
State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson , 443 U.S. at 326. For the evidence to be sufficient, t he State need not disprove all reasonable alternative hypotheses that are inconsistent with appellant’ s guilt. Wise , 364 S.W.3d at 903. Rather, we consider only whether the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence wh en considered in the light most favorable to the verdict. Hooper , 214 S.W.3d at 13. Robbery A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. T EX
. P ENAL C ODE A NN
. § 31.03(a). A person commits robbery if, in the course of committing theft, and with intent to obtain or maintain control of the property , he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. T EX
. P ENAL C ODE A NN
. § 29.02(a) (2)

. This sta tute, written in the disjunctive, covers both a situation in which the defendant actually threatens the victim and a situation in which the defendant implicitly threatens the victim and places the victim in fear. Howard v. State , 333 S.W.3d 137, 138

– 39 (Te x. Crim. App. 2011).– 5

–

It is not necessary for an alleged robber to display a weapon or make an express threat to support a finding that the victim was threatened or placed in fear. See Cranford v. State , 377 S.W.2d 957, 958

– 59 (Tex. Crim. App. 1964); Davis v. State , 796 S.W.2d 813, 816 (Tex. App.

— Dalla s 1990, pet. ref’ d). The victim of a robbery may reasonably perceive fear in circumstances where no actual threats were conveyed by the defendant. See Welch v. State , 880 S.W.2d 225, 226

– 27 (Tex. App.

— Austin 1 994, no pet.) (appellant was not armed and did not expressly threaten victim

— generally aggressive manner was sufficient to place bank teller in fear); Knight v. State , 868 S.W.2d 21, 24

– 25 (Tex. App.

— Hou ston [1st Dist.] 1993, pet. ref’ d) (pushing convenien ce store clerk’s hands away, having what appeared to be a gun handle in his pocket); Wilmeth v. State , 808 S.W.2d 703, 706 (Tex. App.

— Tyler 1991, no pet.) (menacing glance and a hand gesture, no verbal threats). Further, a defendant can accomplish the thre at of bodily injury by causing the complainant to believe in some way that the defendant has a weapon. Rose v. State , 672 S.W.2d 639, 640 (Tex. App.

— Fort Worth 1984, pet. ref’d) (citing Anderson v. State , 221 S.W.2d 268, 270 (1949); Bartley v. State , 205 S.W.2d 600, 601 (1947)). The defendant’s actions are sufficient to satisfy the threat element of the offense if they are “of such nature as in reason and common experience is likely to induce a person to part with his property against his will.” Howa rd , 333 S.W.3d at 138 (quoting Cranford , 377 S.W.2d at 958). Analysis Appellant admitted to committing theft. During his direct examination, appellant admitted to walking into the store, taking the beer, and not paying for it. During closing argument, def ense counsel told the court there was “no doubt that the defendant stole beer.” The only issue contested below was whether appellant’s actions satisfied the threat element that would turn his th eft into robbery. On appeal, appellant argues the evidence was legally insufficient to support the robbery conviction. We conclude, as the trial court did, that the evidence was legally sufficient.– 6

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Hershberger testified that appellant made a threat by lift ing his shirt and saying he had a firearm

. Hershberger also testified that he felt “pretty intimidated” by appellant’s actions. The store’s surveillance footage captured appellant walking into the store, turning back to Hershberger and saying “I’ll show you my pistol,” and lifting his shirt to sho w his stomach and waistband. The video also shows appellant walking toward the front door with a box of beer a nd captured appellant telling Hershberger again “I’ll show you my pistol” before he leaves the store without paying for the beer. Hershberger testified that when someone lifts their shirt to show their waistband like appellant did, that usually means the person has a weapon in the waistband and is threaten ing you by showing the weapon. He further testified that he thought he saw a handle of a kn ife or gun in appellant’s waistband. The evidence showed that a ppellant displayed a weapon or, at a minimum, appeared to display a weapon

. Further, viewing the evidence in the light most favorable to the prosecution, the evidence showed that appellant’s t hreatening body language placed Hershberger in actual fear and caused him to believe appellant intended his words and actions as an overt threat. From that evidence, the trial court judge, acting as fact

- finder, could have rationally found appellant placed Hershberger in fear of imminent bodily injury or death. Accordingly, Hershberger’s testimony and the surveillance footage constituted legally sufficient evidence to support the trial court’s determination that appellant was guilty of robbery. Conclusion We resolve appellant’s single issue against him and affirm the judgment.

D O N OT P UBLISH T EX
. R. A PP
. P. 47 190063F.U05 /Robbie Partida

- Kipness/ ROBBIE PARTIDA

- KIPNESS JUSTICE– 7

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

TEKLEA GEBREYESUS, Appellant No. 05

- 19

- 00063

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1855502

- V. Opinion delivered by Justice Partida

- Kipness. Justices Bridges and Molberg participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 17 th day of December, 2019.