One Need Not Be Present to Be Robbed

The Texas Court of Criminal Appeals released an opinion this month in a case where a man entered a convenience store brandishing a rifle. When the man looked around, however, he noticed that there wasn’t anyone in the store. The store clerk was in the back office watching the man on the security camera. When the clerk saw the man enter the store, he locked the office and called 911. Unable to open the cash register, the "robber" stole the clerk’s wallet and some money that was behind the counter. The "robber" never saw anyone inside the store.  Then he left.

The man was later charged with and convicted of Aggravated Robbery under Texas Penal Code Section 29.02, which provides in relevant part:

a person commits [robbery] if, in the course 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 harm.

Appellant argued that “because there was no evidence of interaction between him and [the victim], the evidence was legally insufficient to support a robbery conviction, and the conviction should be reformed to that of theft. Accordingly, the CCA was faced with a question of first impression in Texas: Does the Offense of Aggravated Robbery Require Interaction Between the Accused and the Purported Victim?

Appellant contested that he could not intentionally or knowingly place a person in fear, if that person was unknown to him. A unanimous CCA disagreed, explaining that

'knowingly' does not refer to the defendant’s knowledge of the actual results of his actions, but knowledge of what results his actions are reasonably certain to cause. Using this definition, robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone is actually placed in fear.

In this case, because Appellant brandished the rifle in the convenience store, the CCA held that his culpable mental state was not negated by the fact that the victim did not happen to be in his presence. In sum, the CCA answered the question presented in the negative.

The offense of Aggravated Robbery does NOT require interaction between the accused and the purported victim.

Read the full CCA opinion in Howard v. State HERE.

Beware of the Last-Minute Enhancement!

If your client has a prior conviction, it is more likely than not that the State will attempt to “enhance” the current case if it can.  Typically the State will plead the enhancement provision in the indictment, so that your client is on notice of the possibility that his sentence (if he is ultimately convicted) may be enhanced to a higher level crime.  But what if the jury convicts your client of the lesser-included offense, such that the particular enhancement doesn’t logically apply?  Can the State still seek to enhance the LIO conviction?

The Texas Court of Criminal Appeals recent decision in Pelache v. State indicates that, YES, the State can enhance the LIO conviction with other qualifying convictions (even if it didn’t notify your client in the indictment!).  I’m not going to get into the specifics of enhancements in this post.  You can read the case if you want a high level of detail.  I’m here with the highlights.  

In Pelache, the defendant was charged with the 2^nd degree felony offense of robbery.  In the indictment, the State included an enhancement count alleging that he had been previously convicted of an aggravated robbery.  Thus, if appellant was convicted on the current robbery charge, his sentence could be increased to the range of a 1^st degree felony.  Knowing this, the defendant refused a plea deal and proceeded to trial where he was convicted of the LIO of theft from a person (a state-jail felony).  Because he was convicted of the LIO, the enhancement count that the State included in the indictment did not apply.

However, after the trial concluded and less than a week before the sentencing hearing, the State filed a notice with the Court, indicating that it was seeking to enhance the state-jail felony conviction with two other felony convictions.  The defendant objected to the last-minute enhancement notice, arguing that it violated his right to due process.  The State pointed out that the notice of the enhancement need only be given “prior to sentencing” and the trial court allowed the sentenced to be enhanced to a 2^nd degree felony.  The trial judge then sentenced the defendant to 20 years, the upper end of the enhanced range (2 to 20).

On appeal, the 13^th District Court of Appeals (Corpus Christie) held that the defendant’s federal due process rights were violated by the late notice of the State’s intent to enhance the conviction.  That would be a short-lived victory for the defendant.  Last week the CCA, on State’s petition, reversed the decision of the 13^th Court, holding:

[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution…We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under section 12.35(c)(2)(A) and under section 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail felony offense of theft from a person.

Judge Meyers dissented without opinion.

Takeaway:  The State can seek enhancements at any time prior to sentencing.  Enhancements may apply to the charges offense or the LIOs.  Advise your clients accordingly.