Page 32 - Texas Police Journal November- December 2013

ARMED ROBBERY – ELEMENTS. THREAT. places another in fear of imminent bodily injury or death.
PLACE IN FEAR. PERCEPTION OF VICTIM. TEX. PENAL CODE § 29.02(a)(2). A person commits
The victim of the crime, Rosalee Johnson, was an aggravated robbery if he commits robbery and uses or
eighty-three year-old owner of, and clerk, at a Shell Super exhibits a deadly weapon. Id. § 29.03. A deadly weapon is
Stop in San Marcos, Texas. Appellant (Boston) entered defined, in relevant part, as a firearm or anything mani-
the store with Jacob Hemphill. Hemphill went to the cof- festly designed, made, or adapted for the purpose of
fee station in the store. Appellant went to the counter and inflicting death or serious bodily injury. Id. § 1.07(17)(A)
distracted Johnson Once the last customer left, Hemphill
approached the counter with a soda and coffee. He set the ( A detailed discussion in the opinion of other cases con-
soda and coffee on the counter by the register, pulled out struing the robbery statute is omitted from this digest, but
money, and handed the money to Johnson to pay for his suggested for more in-depth study.)
purchase. After handing Johnson the money, Hemphill
reached into one of his pockets and pulled out a firearm, Here, the Court held, there was sufficient evidence for a
which he dropped on the floor. Boston walked by and rational jury to infer that Hemphill threatened Johnson by
looked at the firearm but did not pick it up. Hemphill then his actions, that Johnson perceived the threatening behav-
picked up the firearm, briefly pointed it at the clerk, and ior based on her testimony at trial, and that Johnson was
set it on the counter pointed at the clerk. Johnson, howev- placed in fear of imminent bodily injury because of
er, did not see the firearm and rang up the sale of the soda Hemphills threatening behavior.
and coffee. When the register was open, Hemphill reached When Johnson opened the register to make change for
over the counter and took money from the cash register Hemphills purchase of a soda and coffee, Hemphill
with both hands. The clerk grabbed his hands to stop him, reached over the counter and took all of the money out of
but he pulled away. Leaving the soda and coffee, Hemphill the register. While Johnson testified that she did not see
grabbed his firearm, and Boston and Hemphill ran out of Hemphills 4 firearm during the robbery, brandishing a
the store together. Johnson yelled to the other employee in firearm is not the only way in which a person can be
the back, Ive been robbed, please come and call the threatened or placed in fear in accordance with the statute.
police[,] and she ran outside after Appellant and We believe that Hemphills conduct in reaching over the
Hemphill. The other employee called the police. When counter and taking money from the cash register was
asked if Appellant threatened her, she stated that the rob- threatening because his actions were a menacing indica-
bers didnt say anything. When asked if she perceived tion of (something dangerous, evil, etc.).5
Hemphills actions as threatening, Johnson stated that This conclusion is supported by Johnsons testimony
putting a firearm on the counter is threatening behavior, that she feared that she could have been injured during the
but she conceded that she never saw the firearm. She also robbery and by her almost immediate realization that she
testified that, during the robbery, she feared that she could had just been robbedIve been robbed, please come
be injured, perhaps seriously, and that she would not have and call the police. We hold that the evidence in this case
run outside after Appellant and Hemphill if she knew that is sufficient to sustain Appellants conviction for aggra-
they had a firearm. vated robbery under the law of parties.
On appeal, Appellant made two arguments regarding Boston v. State, No. PD-1023-12, Tex. Ct. Crim. App.,
sufficiency of the evidence relevant to the disposition of Oct. 9th, 2013.
this case. First, Appellant argued that the evidence was
insufficient to support Appellants conviction for aggra-
vated robbery because there was no evidence that
Appellant threatened Johnson or placed her in fear of
imminent bodily injury or death since she never saw the DEADLY WEAPON – DISPLAY?
firearm. Second, Appellant asserted that, because Appellant was convicted of unlawful possession by a
Johnson did not see the firearm, there was insufficient evi- felon of a firearm and possession of body armor. The trial
dence adduced at trial to support a deadly-weapon finding. judge entered a deadly-weapon finding in the bodyarmor
A person commits robbery if, in the course of commit- case, and the question before us is whether, for purposes
ting theft, he intentionally or knowingly threatens or of Article 42.12, § 3g, the evidence shows that appellant

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