NO. 07-99-0384 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MAY 16, 2002

______________________________ RAY L. NORRIS, JR., APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 99-430031; HON ORABLE BRADL EY S. UNDER W OOD, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Ray Norris, Jr., appeals from his conviction for robbery. He asserts

that the evidence was

insufficient to support his conviction. We affi rm. Appellant was indicted by a L ubbock Count y gr and jury f

or robbery, aggravated robbery and burgla ry of a habitation. The indictment was bas ed on a com plaint by Christopher

Davis. According to Davis’s trial testimony , appellant, Brian Vinson, Jonathan Givens, and two other m en kicked in the door and entered Dav is’s m obile home at2

app rox im ate ly12:30 a.m . on January 25, 1999. Appellant imm ediately grabbed Davis by the throat and held a gun to hi s forehead. Appellant, Vinson, and Givens dem anded money from Davis, for

ced Dav is into his bedroom, o rdered him to rem ove his clothing, then took the clothi ng as well as money, compact discs (CDs), a VCR, a pager, a watch, a gold chain, and a video gam e unit and left. Davis imm ediately called 911, notified authoriti es of the incident, and gave a description of the car in w hich the m en droveoff. A short ti me laterappellant was app rehended in a car fitting the description given by Davis. Som e of the itemstaken from Davis were s till i n the car.
After appellant’s arres t, Lubbock Police Detective Doug Sutton interviewed appellant at the police departm ent and obtained a w rit ten statem ent from him. The statem entwas introduced intoevid enc e at tria l. According to the w ritten statem ent, Vinson and Givens to l d appellant they were robbed by two m en on the evening of January 24 , 1999. Appellant asked i f t he y k ne w wh o r ob be d t he m, and Vinson and Givens indicated theyknew w here the robbers lived. According to appe llan t’s statem ent, he accom panied Vinson and Givens wh en they went to Davis’s hous e to retrieve th eir prope rty . I n his statem ent, appellant admitted pointing what he claimed w

as a wate r gu n at

Dav is w hile the othersremoved property from Davis’s home, includi ng the video game console and CDs. Appellant claimed in his statem ent that he believed the p roperty ta ken from Davis’s residence belonged to Vinson and Givens, an d he d enie d ha ving theinte nt to co m m it robbery.1 Further re ference to provisions of the Penal Code shall be by referring to “Penal Code §___.” 3 The Stat e w ent to trial on the indictment for aggravated robbery. See T EX . P EN . C ODE A NN . §§ 29.02, 29.03. (Verno n 1994). 1 The jury w as instructed on the offenses of aggravated robbery, robbery, aggravated assault, and assa ult by threa t. The jury was also instructed to find app ellan t no t gu ilty if they believed that appellant reasonably believed thatVinson and/or Givens were unla wfully disp ossessed of proper ty by Davis, that appellant rea son ably

belie ved for

ce w as im m edia tely

necessary to recover

the property, and that appell ant used force imm ediately orin fresh pursuit of Davis after Davis had taken the property.
The jury fou nd appellan t gu ilt y of the lesser- inclu ded offense of rob bery. Punishm entwasassessed by t he court at 10 years confinem ent in the Texas D epartm ent of Justice, Institutional Division. Appella nt urges on appea l that the evi dence was insuffici ent to prove that he had intent to com mit theft

. He does not spec ify whether his challenge is a legal or a factual suffici ency challenge, but his brief addresses both legal and factual sufficiency authorities and we w ill consider the issue as challenging both the legal and factual sufficiency of the evidence.
The St atefirs t ar

gue s th at a ppe llant

is estopped from challengi ng the suffici ency of the evidence because he did not obj ect to th e jury ch arge instr uction on the less erincluded offense of robbery. Next, the State a rgues that the evidence w as sufficient to2 Further re ference to a rule of ap pell ate procedure will be by re ference to “TRAP

_.” 4 support the jury ’s verdict. Because w e conclude that both legally and factually sufficient evidence supports the j ury’s verdict, as w e de tail h ere aft er, w e w ill not address the State’s estoppel argum ent. See T EX . R. A PP . P. 47.1. 2
W hen reviewing challenges to both legal and factual suf ficie ncy of the eviden ce to
su pp or t th e ve rd ic t, we first review the legal sufficiency challenge. See Clewis v. State , 922 S.W.2d 126, 133 (Tex.Crim .App. 1996). We consider all the record evidence, includi ng direct and circumstantial , both admissibl e and inadmissi ble, i n the li ght most favora ble to the jury’s verdict. We then determine if a rational jury could have found all the essential e lements of the off ense be yond a r

easonab le doubt b ased up on such record evidence. See Jac kso n v. Vir ginia , 443 U.S. 30 7, 319-20, 99 S.Ct. 278 1, 2789, 61 L.Ed.2d 560 (1979); Johnson v. State , 967 S.W.2d 410, 4 11 (T ex. Crim.A pp. 1998). All the evidence is reviewed, but evidence that does not suppo rt the verdict is disregarded. See , e.g ., Cham bers v. State , 805 S.W.2d 459, 461 (Tex.Crim .App. 1991).
If theevid enc e is lega llysufficient to support the verdict, we t hen review the fac tual sufficiency challenge if one is properly raised. See Clew is , 922 S.W.2d at 133. Factual sufficiency review is accom plished withoutviewing the evidence through thepris m of “ in the light m ost favora ble to the prosecu tion.” Id . The evidence is not factually sufficientto support a c onv icti on if

the appellate court determ ines, after viewing all the evidence, both for and aga inst

thefind ing in a ne utr

al ligh t, t hat

eith er ( 1) t he p roo f of

guilt is s o ob viou sly5

weak as to underm ine confidence in the jury’ s determ ination, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State , 23 S.W.3d 1, 6-7 ( Tex. Crim .App. 2000). Unless the record clearly reveals that
a d ifferent result is appropriate, an appellate court must defer to the factfi nder’ s determ ination concerning what weight to give contrad ictory testi monial evide nce because resolution often t urns on an evaluat ion of cre dibility and dem eanor, w hich is pri m arily a determ ination to be made by observation of

the witnesses

giving the testimon y. Id . at 8.
As applicable to the present cas e, t he e lem ents of

rob ber y ar e: ( 1) a per

son (2)in the course of com mitting a theft (3) with the int ent to o btain or maintain control of the property involved (4)inte ntio nally or k now ingly

places a not her

in f ear of i m m inen t bo dily injury or death. Penal Code § 29.02. The ter m “theft,” as it is a pplicable to appell ant’s case, refers to the offensedefined in Penal Code § 31.03. The elem ents of theft are: (1)
a person (2) unlawfully appropriates property (3) w ith intent to deprive the own er of the property. Penal Code § 31. 03. The Pena l Code defi nes an “owner” of prope rty as a person who hastitle to the property, po ssession of the pr operty, whether law ful or not, or
a gre ate r rig ht to p osses sion of t he prope rty tha n the ac tor. P enal Code§ 1.07(3 5)(A). Intent to com mit theft

ma y be inferre d from the surrounding circumstances, and is a fact question for the j ury to decide. See Lewis v. S tate , 715 S.W.2d 655, 657 (Tex.Crim .App. 1986).
In consider ing appell ant’s legal sufficie ncy chall enge, we need only note Davis’s testimony. Davis testified that appellant wasthe m an w ho kicke d in his door , gra bbe d him6

bythe throat, dem anded m oney and took it, and also took clothes, jew elry and other property. Then appellant and the fou r others left the m obile home and drove of f. Disregarding any contrar y evide nce , asw e m ust , we co nclu de t hat a ra tion al j ury

cou ld have inferred that appellant intended to obtain and m aintain control of a nd d epr ive D avis of pro per ty, and tha t th e pr

oof is le gally

sufficient

to sup port

the verdict. See Cham bers , 805 S.W.2d at 461. Appella nt’s fac

tua l suf fici enc y c halle nge is b ase d on his assertion that the State did not prove his subj ective intent, while his written sta tem ent clea rly p rov ed t hat

he d id not have intent to com mit theft . He argues that h is statem ent is d irec t ev iden ce of his subjective belief

that he was helping friends retrieve property which had been s tolen from them earlier.
In consideri ng factual suf ficie ncy, we defer to the jury ’s determ ination in matters of credibili tyand weight of any conflicting evidence and inferences. See Johnson , 23 S.W.3d at8. It w as w ithin the j ury’s discretion to dete rm ine the relat ive w eight to a ccord appell ant’s statem ent as well as the other testimony and evidence. The jury w as entitled to discount the weight of or to disregard all or any part of the statem ent. Id

. Ap par ent ly itdid so. And, w hen consider ing the entire record, we conclude that the proof of appell ant’s guilt is neither so obviously weak as to underm ine confidence i n the jury’s determ ination, nor

suc h th at it

is g rea tly

outweighed by contrary proof. Thu s, t he p roo f is factually sufficient to support the verdict.7

Having found the proof both legally and factually sufficient to sup po rt appell ant’s conviction, we overrule his sole issue. As noted previousl y, we do not address the State’s assertion that appellant is estopped to chal lenge th e ev iden tiar y s uff icien cy of h is conviction for robbery. The j udgme nt is affirmed.

Phil Johnson Justice Do not publish.