Affirmed and Opinion filed October 9, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00763-CR

PHILLIP ANTHONY ZAGONE, 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 Supreme 
2

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 technicians 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” because 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 him that was the wrong direction, so 

appellant reversed course.

As appellant started walking away, Sheffield heard 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. Sheffield 

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 seconds with the knife in his hand. Other 

employees had approached the scene behind Sheffield, and 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 sentenced 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. Hooper 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 anything 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 positions. 351 S.W.3d 63 (Tex. Crim. App. 2011).

In Sweed, in which the sole issue was whether the trial court erred when it 
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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 Appeals 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 the definition to the facts of that case. Id. at 69 n.5 (quoting Black’s Law 

Dictionary 751 (7th ed. 1999)). 

The complainant in Sweed observed the defendant among his work 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 defendant, seeing and 

recognizing the complainant, approached him and waived a knife at chest level. Id.

When the defendant was about three feet away, the complainant 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. These 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 gun. Id.

The defendant was indicted and convicted of aggravated robbery. Id. The trial 

court refused the defendant’s request for a lesser-included offense instruction on 
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theft. Id. The defendant argued that the trial court erred in denying his request. The 

court of appeals affirmed.

The Court of Criminal Appeals 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 commission 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 theft. 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 at 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 pulled 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 another 
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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 this case is 

procedurally different from Sweed, the definition of “immediate” is instructive.

However, the 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 assault 

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 plastic 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 store 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 Oggletree court noted that neither the Penal Code nor case law defined 

“immediate flight.” Id. at 369. The court stated that the appellant engaged in one 
8

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 

rational trier of fact could conclude that the defendant displayed the knife during the 

immediate flight from theft. Id. at 370. 

Oggletree 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 Oggletree, from the time appellant attempted 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 appellant’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)