Affirmed and Opinion filed October 9 , 2018

.

In The 

## Fourteenth Court of Appeals

NO. 14- 17 -00763- CR

PHILLIP ANTHONY ZAGO NE , Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 17-27555

O P I N I O N

Appellant Phillip Anthony Zagone was convicted of aggravated robbery and sentenced to five years in prison. In this appeal, appellant complains that the evidence is legally insufficient to establish that his threatening conduct occurred while in the course of committing theft of property. Finding that the evidence is legally sufficient to support appellant’s conviction, we affirm. 1

1 The case was transferred to this court from the Ninth Court of Appeals by Texas Supreme2 Background
On September 27, 2016, Stephen Morgan, an employee at Cowboy Harley Davidson, parked his motorcycle behind the store along with other employees who rode their motorcycles to work. Eric Sheffield, another employee of Cowboy, was informed by one of Cowboy’s tech nicians that “ [s] omebody’s messing with the employee bikes.” The store was not open at that time of the morning . Sheffield went outside and saw that appellant, who was wearing a helmet, was “messing with the switches and knobs” on Morgan’s motorcycle. The ignition switch was on because the lights were on, but the engine was not. A key is not necessary to start the engine on most Harley Davidson motorcycles, including that particular model. It appeared to Sheffield that appellant was trying to start Morgan’s motorcycle. When Sheffield was close enough, he saw that appellant was wearing Morgan’s helmet. Morgan did

not give anyone permission that morning to ride his motorcycle.
Sheffield asked appellant what he was doing, to which appellant responded that he was looking at the motorcycles. Sheffield said to appellant that he did not “need to be touching these bikes” bec ause they belonged to employees and grabbed Morgan’s helmet off appellant’s head. Sheffield told appellant to leave. Appellant started to walk away and then turned around and told Sheffield that he was there to pick up a motorcycle.
Appellant was wearing a backpack. Sheffield noticed “a big chunk of aluminum, [which] looked like a motorcycle part in his backpack.” Sheffield assumed that appellant had stolen a motorcycle part and grabbed the aluminum item. Appellant said the aluminum item was his and told Sheffield to give it back.

Court Transfer Order Misc. Docket No. 17-9138, issued September 28, 2017. Because of the transfer, we must decide the case in accordance with the precedent of the Ninth Court of Appeals if our decisions otherwise would have been inconsistent with that court’s precedent. See Tex. R. App. P. 41.3.3

Sheffield threw the item in the grass and told appellant to leave. Appellant headed towards a Honda dealership, but Sheffield told hi m that was the wrong direction, so appellant reversed course.
As appellant started walking away , Sheffield hear d someone yell, “That’s the guy that stole the Honda last week[.]” 2 Sheffield grabbed appellant by both straps on the backpack and was going to try to hold him on the ground for the police. Sheffie ld then heard someone say “ Knife.” Sheffield pushed appellant away and saw a knife in appellant’s hand as appellant was making a “slashing motion towards [him].” Appellant then stood there for a couple of secon ds with the knife in his hand. Other employees had approached the scene behind Sheffield, a nd appellant ran away, and Sheffield and the other employees followed appellant off Cowboy’s property.
The police apprehended appellant and brought him back to Cowboy about fifteen to twenty minutes later. Appellant was charged with and convicted of aggravated robbery and was sentence d to five years’ incarceration.
In his sole issue in this appeal, appellant argues that the evidence is legally insufficient to support his conviction.
Standard of Review
When reviewing sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence and any reasonable inferences therefrom in the light most favorable to the verdict to determine whether the jury was rationally justified in its decision. Johnson v. State , 509 S.W.3d 320, 322 (Tex. Crim. App. 2017) (citing Jackson v. Virginia , 443 U.S. 307, 318–19 (1979)). We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by

2 There was no objection to this testimony. The prosecutor told Sheffield: “Let’s not worry about what other people said.”4

reevaluating the weight and credibility of the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from
basic to ultimate facts. Id. This standard applies equally to both circumstantial and
direct evidence. Id. Each fact need not point directly and independently to the appellant’s guilt, as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Ho oper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Analysis
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. Tex. Penal Code § 29.02(a). A person commits theft if he unlawfully appropriates property without
the owner’s consent. Id

. § 31.03(a), (b)(1). “‘In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id

. § 29.01(1). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly

weapon. Id

. § 29.03(a)(2). “‘Deadly weapon’” is “ a firearm or an ything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury ; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. ” Id

. § 1.07 (a) (17).
Appellant contends that he was not in immediate flight after the attempted commission, or the commission of the theft of Morgan’s motorcycle when he
threatened Sheffield with the knife. The State disagrees. Both sides cite Sweed v.
State in support of their respective po sition s

. 351 S.W.3d 63 (Tex. Crim. App. 2011).

In Sweed , in which the sole issue was whether the trial court erred when it5

refused the appellant’s request to give an instruction in the jury charge on theft as a lesser-included offense, the Texas Court of Criminal A ppeals defined the term

“ ‘ immediate ’ as ‘[o]ccurring without delay; instant,’ ‘[n]ot separated by other persons or things,’ or ‘[h]aving a direct impact; without an intervening agency’” and applied th e definition to the facts of that case. Id. at 69 n.5 (quoting Black’s Law Dictionary 751 (7th ed. 1999)).

T he complainant in Sweed observed the defendant among his wo rk crew at a
construction site. Id. at 64. Later that day, the complainant heard one of his employees scream that someone had pulled a knife on him. Id. The employee told the complainant that the defendant had stolen a nail gun. Id. The complainant saw
the defendant running away with something in his hands. Id. The defendant was seen entering an apartment, and the complainant and his father positioned themselves to watch the apartment until the police arrived. Id.
Between five and twenty minutes after the defendant had entered the apartment, the complainant saw the defendant leave the apartment empty

- handed and wearing different clothing. Id. at 65. The defendant walked across the apartment complex parking lot and spoke to a group of men for about five minutes and then walked back in the direction of the apartment. Id. The de fendant , seeing and recognizing the complainant, approached him and waive d a knife at chest level. Id.
When the defendant was about three feet away, the complaina nt put his hands in his pockets and acted like he had a gun. Id. Without saying anything, the defendant walked away and returned to the apartment. Id. Th ese events all occurred over a period of fifteen to thirty minutes. Id. The police arrived five to ten minutes later, entered the apartment, located the defendant , and recovered the missing nail gu n. Id.

The defendant was indicted and convicted of aggravated robbery. Id

. T he trial
court refused the defendant’ s request for a lesser

- included offense instruction on6

theft. Id. The defendant argued that the trial court erred in denying his request. The court of appeals affirmed.

The Court of Criminal A ppeals observed that if the State could not prove that
the defendant was “in the course of committing theft , ” then the theft and the assault were separate events, and the defendant could not be found guilty of robbery or aggravated robbery. Id. at 69. Because the defendant did not dispute that he committed the theft, the primary issue was whether he had pulled a knife on the complainant during or in immediate flight after the commis sion of the theft. Id.

The court concluded that the fifteen to thirty

- minute delay and the intervening activities, including the defendant ’s act of leaving the apartment, rationally could be interpreted as evidence that he was no longer fleeing from the t heft. Id. A jury rationally could conclude that the assault was a separate event from the theft, and
the defendant could have been guilty only of the lesser offense of theft, not aggravated robbery. Id. Therefore, based on the evidence presented a t trial, the court
held that a jury instruction on the lesser

- included offense of the theft should have been given and reversed and remanded to the court of appeals to conduct a harm analysis. Id. at 69

– 70.
Appellant argues that under the definition of “immediate” set forth in Sweed , if he had pulled the knife and threatened Sheffield when Sheffield pull ed the helmet off his head, that would have “occurred without delay” and “not [have been] separated by other persons or things.” Instead, according to appellant, the “separation of persons or things” occurred when he started to leave and changed direction in response to Sheffield’s orders to leave, and Sheffield was the person who caused “the separation by other persons or things” because he ordered appellant
to leave and appellant initially followed Sheffield’s orders. Appellant then stopped and engaged Sheffield in further conversation. Appellant further asserts that another7

employee was an “intervening agency” or caused another “separation” from the attempted theft of Morgan’s motorcycle by yelling for Sheffield to “grab” appellant, which resulted in appellant pulling the knife on Sheffield. Although t his case is procedurally different from Sweed
, the definition of “immediate” is instructive

. However , t he facts of this case are distinguishable from those in Sweed

. Here, during
the very short time from when Sheffield first confronted appellant to when appellant pulled the knife, appellant had not actually left the site of the attempted theft and
continued to be engaged in conversation with Sheffield. There was no intervening agency such as contemplated by Sweed. Therefore, applying the definition of
“immediate” set forth in Sweed does not render the attempted theft and the assaul t separate offenses

. The facts of this case are more similar to Oggletree v. State , 851 S.W.2d 367 (Tex. App.

— Houston [1st Dist.] 1993, pet. ref’d ) . In that case, two employees of an AppleTree grocery store, Corley and Eaton, observed the defendant loading packages of meat in plast ic bags. Id. at 367. Another man entered the grocery store and asked for paper bags with which to clean out his car; he left the store, got into his car, but did not drive away. Id. Over two hours later, Corley saw the defendant approach the front of the s tore carrying plastic bags full of packages of meat. Id. Corley and Eaton called for the defendant to stop, but he instead began running across the parking lot. Corley chased the defendant , and Eaton spotted the man who asked for paper bags sitting in his car and tried to detain the driver. Id. at 367

– 68. Corley called 911 and joined Eaton at the car to wait for the police. Id. at 368. The
defendant returned to the car with a knife and told the employees to let the driver go and approached Corley with the knife threatening, “I’ll get you.” Id.

The Og g letree court noted that neither the Penal Code nor case law defined “immediate flight.” Id. at 369. The court stated that the appellant engage d in one8

continuous, criminal episode, not in a series of independent incidents. Id. The
defendant ’s flight across the parking lot and his reappearance to threaten Corley occurred without intervening circumstances. Id. at 369

– 70. The court held that a
rati onal trier of fact could conclude that the defendant displayed the knife during the immediate flight from theft. Id. at 370.

O g gletree predates Sweed , but the court used reasoning very similar to that in
Sweed . The court concluded there was an unbroken chain of events with no intervening circumstances. As in O g gletree , from the time appellant attempt ed to take Morgan’s motorcycle to the time he pulled the knife on Sheffield , appellant was engaged in one continuous criminal episode without any intervening events. Considering all the evidence in the record, a rational jury could conclude that the appellant used the knife against Sheffield in a threatening manner during an immediate flight from the attempted theft. We overrule appellan t’s only issue.

Conclusion Having overruled appellant’s sole issue in this appeal, we affirm the judgment
of the trial court.

/s/ Martha Hill Jamison Justice

Panel consists of Chief Justice Frost and Justices Christopher and Jamison. Publish — Tex. R. App. P. 47.2(b)