1 John T. B oyd, Chief Justice (Ret.), S eventh Court of A ppeals, sitting by

assignment . Tex. Gov ’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). NO. 07-02-0427 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E OCTOBER 7, 2003

______________________________ LLOYD ORVILLE ROBERTSON, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUN TY; NO. 44,773-E; H ONORAB LE ABELOPEZ, JU DGE

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1
OPIN ION
In this appeal , appell ant Lloyd Or vill e Ro berts on challenges his conviction of aggr avated rob bery. H is punishm ent w as ass essed b y the t rial jury at 40 years2

confinement

in the Instituti onal Di visi on of the Departm ent of Crim inal Justice and a $10,000 fine. In pur

suin g hisapp eal, he presents three issues f or our determ ination. In doing so, he argues 1) the tri al court er red by fail ing to l imit the defini tions of “i ntention ally” and “kn ow ingly” in the j ury charge to the conduc t elementsof the offense to which they appl y, 2) the evidence is factually insufficient to support a finding that appellant inte ntio nally

or knowingly threatened and placed Aileen Hollingsworth (the al l eg ed vi ct i m) in fear of imm inent bodily inj uryand death, and 3) the evidence is fact ually insufficient to support a finding that appellant intended to deprive the owner of property . Disagreeing that reversal is required, we affirmthe judgm ent of the trial court. Although the facts giving rise to t he under lying prosecution are, in the main, undisputed, the nature of appellant’s challenges requires us to briefly review the pertinent evidence. In the early m orn ing of July 21, 2001, Aileen Hollingsworth, the assistant
m anager, opened the Toot’n Totum convenience store located at the intersection of

Grant and Am arillo Boulevard in Amarillo. As she did so, she noticed a van back ed up to the door an d sa w a ma n, later

identified as appellant, get out of the van carrying a three-foot knife, com monly referred to as a m achete, and enter the s tore. Hollingsworth testified that when she saw app ellant enter the store with the m achete, she was frightened. Appellant told Hollingsworth he was thirsty, and she replied that if he would put the k nife down, she
w ould ge t h i m a glass of water. Hollingsworth said that appellantthe n start ed “ talk ing in the air to–I’m thinking its just som ebody that w asn’t there. I didn’t s ee anybody.” She continued by saying that he started “flinging the knife around, and j ust scaring m e,” so she3

stay ed w ith her back to an office door that she could g o through and l ock, if necessar y. She also averred he “walked arou nd there , w here I wasstanding, and stayed there. And then he walked over to the door, and then he t urned to m e, and he said, well, if you’re not going to give m e any wa ter, I will.” She told him to “[d]o w hatever you w ant.” She testified she said this

becaus e ap pella nt s til l had the three-foo t knife i n his hand and “I wasn’t
mov ing.” Appellant walked over tothe Culligan display, got a gallon container of w ater, went to the front

door, squatted, and began drinking the water. He then w ent out to the par king lot. Du ring thetim e ap pella nt w as in the store, Hollingsworth called 911 several times. Although she had stopped shoplifters several times befo re, she said, she did not try to stop app ellan t be cau se of his knife and her fear of him . She also said that appellant appeared to be intoxicated.
Pol ice Off ic er s Br ia n Ca mpbe ll an d Sh an e Ch ad wic k te st if ie d t ha t wh en the y arrived, appellant was in the parking lot adj acent to the store building. He had the
mac hete in hi s ha nd in itiall y, w ave d it around, and told them he was not going to jail again. In order to restrain him and get the m achete away, the officers w ere f orced to use nonlethal force, including the use of a “bean-bag” shotgun (a shotgun that shoots bean-bag pellets inste ad of th e m ore lethal reg ular pellets).
Mu rali Veeram achaneni, an Am arillo psychiatri st, testified about the effects of drug addiction. He averred that the abuse of controlled substancescou ld lead to psychosis and bizarre beh avior.4

Ap pella ntchose to testify. He said he had been ingesting and shooti n g met hamph etam ine prior to the occurrence in an effort tocom mit suicide. As a result, he said, he did not rem ember how he arrived at th e store, and the first thing he rem embered
wasbac king his van up to its door. He was thirsty, he said, and wanted to go intothe store and purchase som e water to quench his thirst. Although he w as aware t hat he was carrying a m ac het e un der his arm , hesw

ore he d id no t intend to p laceHol lingsw ort h in fear of imm inent bodily injury. At one point, he said, he had put them acheteunder his arm to get his wallet to pay for the w ater but wh en he could not find it, he assum ed that he had left thew allet

in hi s pickup. He wa s aware t hat he was frightening Hollingsworth, but he did not intend to do so. He averred he tol d her he would not har m her. He also swore he did not intend to steal the w ater, and that

he was in the process of going to his van to get his wallet when th e officers arrived. Appellant adm itted he had had a drug pr ob l em for a num ber of years and had
com mitted som e violent actions in the past. He also adm itted tha t he was aware that a mac hete w as capa ble of causing serious bodily injury or death w hen he entered the store, but was adama nt that he did not intend to harmthe clerk or steal the water.
As w e noted, in his first issue, appellant argues that the trial court com mitte d
rev ers ible error

in its charge in the guilt-innocence phase of the trial by failing to li mit its definitions of “know ing” and “intentional” to the relevant conduct el ement s of the underlying offense. Appellant m ade no trial objection to the cou rt’s charge.5

To sus tain thecon victio n for aggravated robbery, the S tate m ust have proved beyond a reasonable doubt that the defe ndant, in the course of com mitting theft, an d with the inte nt to obtain or m aintain control of the property, “intentionally or knowingl y ” threatened or placed Hollingsworth in fear of im minent bodily injury o r death and, in the
course of com mitting a robbery, used or ex hibited a deadly weapon. Tex. P en. Code Ann. §§ 29.02 and 29.03 (Ver non 2003). In the indictm ent, and in relevant part, the State charged that appellant:

. . . di d th en a nd t her

e, w hile in the course of committing theft of prope rty, to-wit: bottled w

ater, and w ith in ten t toobtain and m aintain cont rol o f sa id p ropert y, inte ntio nall y or kno wingl y threa ten and plac e AILEEN HOLLIN GSW ORTH in fear of imm inent bodily injury and death, and the defendant

did then and there use and ex hibit a deadly weapon, to- w it : a mac hete that in the m anner of its use or intended use w as capable o f causing dea th or serio us bodil y injury.
In its guilt-innocence c har ge, the trial court instructed the j ury on the m eaning of “intenti onall y” a nd “knowing ly” and applied those definitions to the facts of the case as foll ows: A person acts intentionally, or with intent, with respect to the nature of his conduct, or

to a result of hi s conduct, when it is hi s conscious objective or desire to engage in the conduct or cau se the result. A p erson acts know ingly, or with know ledge, with respect to the nature of his conduct, or to the c ircumstances surrounding his conduct, w hen he is aware of th e nature of his conduct or tha t the circums tances ex ist. A person acts know ingly, or with kno wle dg e, wi th r esp ect to ares ult of his conduct when he is aw

are that his conduct is reasonably certain tocause the result.6 * * * Now if you find from the evidence beyond a reasonable doubt t hat on or about July 21 st , 2001, in Potter Count y, Texas, th e defen dant, L LOYD ORVILLE ROBE RTSON , did then and the re, w hile in the cou rs e of com mitting theft of property, to -wit: bottled water, and w ith inten t toobtain and ma intain control of said property, did intentionally or knowingly threaten or place A ileen Hol lingsw ort h in f ear of i m m inen t bo dily

injury or death, and thedef end ant did t hen and the re u se o r ex hibit a de adly

weapon, to wit: a mac hete, that in the m anner of its use or intended use w as capable of causing dea th o r se riou s bo dily inj ury , th en you w ill find the defendant guilty of aggravated robbery as c harged.
In supporting his proposition that the trial court erred, appellant emphasizes that the thrust of his defense was t hathe d id no t intend to p laceanyone in f ear of i m m inen t bo dily injury or death and did not i ntend to comm it theft. He poi nts out that the evi dence produced by both him self and the Stat e wa s esse ntially the s am e except in re gard to h is mental state. He refersto his testim ony that he intended to purchase something to dri nk, butdiscovered he did not have his w allet and was pre ven ted fro m obtainin g hiswallet by the actions of

the police. Appellant also refers to his testim ony that he had the m achete because of his fe ar of im aginary people. He references Hollingsworth’ s testim ony that he
wastalking to people who w ere not there and w avin g th e m ach eteas he d id so . A ll of this, he concludes, showsthe primary contested issue at trial was his m ental state and was the crux of his defen se.
In arguing the court’s charge w as not sufficient, appellant relies upon the teaching of cases such as Patric

k v. State , 906 S.W .2d 481 , 492 (T ex. Crim. Ap p . 1995), cert. denied , 517 U.S. 1106 , 116 S.Ct.13 23, 134 L.Ed.2d 475(1996); Fields v . State , 9667

S.W.2d 736, 739 (Tex. App.–San Antonio 1998), remanded on other grounds , 1 S.W.3d 6 87 (Tex. Crim . App. 1999); and Ash v. S tate, 930 S.W.2d 192 , 194 ( Tex. App.–Da lla s 1996, no pet.), that the “intentional” and “know ing” references in a court’s charge b e confined to the specific conduct elem ent required to prove the alleged offense. He argues thatthe trial court’s application paragraph fails to describe th e ma nner and m eans of
com mitti n g the robbery and “fails to limit the culpable m ental states to the result of [ a]ppell ant’s conduc

t in any m anner” an d, thus , was in error. He rea sons t he tri al cour t should have limited the bod ily i njury definit ion as fol lows:
The follow ing d efin ition app lie s to the me ntal state in placing Aileen Hollingsworth in fear of i mm inent bodi ly injury or deat h: A person act s ‘intenti onall y’ or with intent, with r espect to ares ult of his con duc t w hen itis his conscious obj ective or desire to cause the result. A person ac ts knowingly, or with know ledge with respect to a result of his conduc t when he is aware that his condu ct is reasonably certain to cause the res ult. Appellant also argues the cou rt s hou ld have limited the appropriation of property defini tion as fol lows:
The follow ing d efin ition app li es to the m ental state in appropriation of property: A p ers on a cts‘in tentional ly,’ or with intent, w ith respect to the nature of his conduct when it is his conscious obj ective or desire to engage in the conduct. A

person acts know ingly, or with know ledge with respect to the nature of his conduct w hen he is aware of the nature of his conduct. He fur the r po sits

tha t th e co urt

sho uld have limited the definition referring to “in the cour se of comm ittin g theft” as fol lows:8

The following defi nition a pplies to the mental state in the course of com mitting theft: A pers on acts ‘intentionally,’ or with intent, with respec t to the circums tances surrounding his conduct w hen he is aware tha t the circum stances exist. A person acts know ingly, or with know ledge with respect to t he c ircu m sta nce s s urr oun ding his conduc

t w hen he is awarethe circumstances ex ist. Recognizing thatno trial objection to the court’s charge was

ma de on his behalf, appellant now con tends that the error w as so egregious thatreversal is required. Although the State does not

concede there w

as reversible err or in the charge, it does concede Texas courts require that in th e ju dge’s charge to the jury on guilt or innocence, “the ‘intent iona l’ and ‘know ing ’ requirements b e confined to the specific conduct elem ent required toprove t he alleged of fense. ”
For unpreserved charge error to be reversible, the errormust be “egregious,” that is, it must

have so harm ed the defendant that hewas dep rived of his right to a fair and impartial trial. See Almanz a v. State , 686 S.W.2d 157, 171 (Tex. C rim. Ap p. 1984). The reviewing court m ust as say th e harmin light of theentire record, including the ent ire ju ry charge, the state of the evidence, including the contested issues and weight of probati ve evidence, and any

other relevant informat ion revealed by the record of the trial as a w hole. Id.; seealso Hutch v

. State, 922 S.W.2d 166 , 170-74 (Tex. Crim . App. 19 96 ). Th e s ame rule applies even in a case such as this one in which the principal issue was the intent of the defendant. It is also established that intent can be inferred from t he acts, w ords, and conduct of the acc used. Beltran v. State , 593 S .W.2d 688, 689 (Te x. C rim. App. 1980).9

In this case, the charge included the full definitions of “intentionally” and “knowingly.” The general instructions in the charge wer e related to the conduct required for conviction by the reference in the application paragraph that a conviction m ust be predicated upon the j ury finding beyond a reasonable doubt that appellant intentionall y or know ingly

did “thre aten or pla ce Hollingsworth in fear of imm inent bodily injury.” Thus, the term intentionally o r know ingly directly m odifies and refersto the phrase “threaten or place in fear of imm inent bodi ly in jury .” When the term s “intent ionally” and “k now ingly” are viewed in their factual context, toge ther with the application paragraph , the j ury was directed to the appropriate portion of the definitions and were not m isled as to the degree of proof required.
Additio nall y, in the appl icati on paragrap h, the jury was required to fi nd as a thr esh old ma tter that appellant intended to unlawfully appropriate propertybef ore it c ould convict himof aggravated assault. Thus, if the jury fou nd that appellant lacked the intent to com m it th eft , it w as r equ ired to a cqu it ap pella nt e ven if it belie ved tha t heinte ntio nally
or knowingly pl aced Holl ingsworth in fe ar of imminent bodily i njury. Suffice it to say, appellant did not s uffer eg regious inj ury by t he subm ission of t he charg e as writt en. Appellant’s first issue is overruled.
As we noted above, in his second issue, appellantchalle nges the factual sufficie ncy of the eviden ce to support a finding that appellant intentionally or knowingly threatened and placed Hollingsworth in fear of im minent bodily injury o r death.10

The s tandards by w hich an appellate court judges th e factual sufficiency of th e evidence are by now

well established. Succinctly stated, the reviewing court view s all the evidence without

the prism of “in the light most favorable to the prosecution.” The jury’s verdict m ay o nly b e se t as ide if it isso contrary tothe overwhelming weight of the evi dence
as to be clearly wrong and unj ust. In perform ing its review of a ju ry verdict, an appellate
co urt must defer to the factfinder ’s determination con cerning what weight to gi ve contrad ictory

testimon y. Johnson v. St ate , 2 3 S .W .3 d 1 , 7 -9 (T ex . C ri m. App. 200 0); Clewi s v. State , 922 S.W.2d 126, 129 (Tex. Crim . App. 1996).
W hen robbery is com mitted by threats or by placing another in fear, that fear must be of such a nature as i n reason and common ex perience is likely to induce a person to part with his or her property against th eir will. Devine v. State , 7 86 S.W .2 d 2 68 , 2 70 (T ex. Cr i m. App. 1989). In order to com mit the of fense, the accus ed m ust have had thespe cifi c intent to place any person in fear of im minent serious bodily injury. Dues v. St ate , 634 S.W.2d 304, 30 5-06 (Tex . Crim . App. 1982). Intent can be inferr ed from the acts, words, and conduct of the accused. Id. at 305 ; Beltran v . Sta te, 593 S.W.2d at 689; Romo v. State , 593 S.W.2d 690, 693 (Tex. Crim . App. 1980), overruled o n other grounds by Wagner v. State, 687 S.W.2d 303 (Tex . Crim . App. 1984). The accused’s intent cannot be determined merely from what the victim thought at the time of the offense , and i t is imm aterial to the offense w hether the accused had the capability or the intention to carry outhis thr

eat . I nde ed, all t hat

is n ece ssa ry to co m plete th e of fen se is that the accused by11

his threat so ugh t, as a desired reaction, to place a person in fear of im minent serious bodily injury. Dues v. St ate , 634 S.W.2d at 306.
In contending the evidence is factually insufficient, appellant points to the testimon y of Dr. Veeram achaneni, in respons e to a hyp othetical question, that a person w ho has
consum ed me tham phetam ines atleast th re e times aday, talks to people w ho are not t here, a nd acts paranoid would be delusional and psychotic. Appellant averred he had been ingesting metham phetam ines. Additionally, he also testified that he did not intend t o pla ce Hollingsworth in fear of death or im minent bodily injury a nd denied that he threatened her . H e als o sa id he washaving som e paranoid delusions. He adm itted that he was aw

are that Hollingsworth w as frightened and ave rre d th at h e at tem pte d tocalm

her whe n he told h er he w

ould not h urt her.
However, the evidence also showed that appellant backed his van up to an d c ame into the store bearing a three-foot m achete, that he asked H ollingsworth for water an d she asked him to put

the m achete dow n, that she w as f ear ful a nd w

ould not m ove but stayed bythe door, that appellant brandished the m achete and took water from the store, and he retained the m achete as he left the store. Holli ngsworth testifi ed that she was in such fear thatshe had pushed the 911 button seve ral times w hile appell ant was in the store, because of her

fear she s tayed by a door that was a po tential escape route, and she l oc ke d t he do or as so on as he l ef t, ag ai n b ec au se sh e wa s a fr ai d o f h i m.12

Viewed in the light by

whi ch we mus t vi ew i t, we cannot say that the jury’s verdi ct
wasso against the overw helming weight of the e vidence as to be m anifestly unjust, t hat itclearl y demonstrated bias, or that it shocks theconscience. Appellant’s second issue is overruled.
In his third issue, appellant conten ds the evidenceis factu ally insufficient to sup port
a finding that appellant intended to d epr ive t he ow ner of p rop ert

y. In cons ider ing t his argument , we note the rule that an intent to deprive m ust be determ ined from the words and acts of the acc used and that intent m ust exist at the time of the taking. See Banks v. State , 471 S. W .2d 811, 812 (Tex . Crim . App. 1971); Roberson v. State , 821 S.W.2d 446, 448 (Tex. Ap p.–Corpus Christi 1991, pet. ref’d); Draper v. State , 53 9 S. W .2 d 6 1, 68 (T ex. Cr i m. App. 1976 ). The g ist of a ppe llant ’s con ten tion is t hat theevid enc e sh ows his conduct wasconsistent w ith his testimony tha t he did not inte nd to s teal the b ottle of w ater. He re as on s th e e vi de nc e sh ows that he m ade no dem ands of Hollingsworth and shetold him to help himself to the water. He posits that this evidence, w hen taken together w ith his asserti on th at he went into the store intending to buy som ething to drink, that he discovered he d id not have his wallet, and he was prevented by the acti ons of the poli ce from determ ining if his wallet was in his vehicle and paying for the water showsthatthe evidence, ta ken as a whole, is not suf ficie nt to sustain the verdict of the jury.
We disa gree. As we havenoted, the evidence show s that appellant walked into the store, told the clerk he wanted water, took the bottle of w ater, and w ithout saying anything13

to the clerk about h is wallet be ing in the car, walked past the cash register and onto th e parking lot while imbibing the water. The jury would have been j ustified in concluding that the remark

of the clerk about t ak in g t he wa ter was b ecause of her perceived fear of appellant and the weapon he carried. Reiterated, the intent to m aintain or obtain control of property or the inte nt to deprive the ow ner of property m ay be determ ined by the factfinder from the words and acts of the acc used. Gr iff in v. State , 614 S.W.2d 155, 159 (Tex. Crim . App. 1981). A ppellant’s third issue is overruled.
In summ ary, all of appell ant’s issu es are overruled, and the j udgme nt of the trial court is affirmed. John T. Boyd Senior Justi ce Do not publish.