Sammy Kizzee v. State ( 2003 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00035-CR ______________________________



SAMMY KIZZEE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court No. F01-73341-Q

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Sammy Kizzee appeals his conviction for the January 23, 2001, robbery of a Dallas motel. (Kizzee has also appealed his convictions for two other robberies committed on January 17 and 21, 2001; the merits of those appeals are addressed by separate opinions in appellate cause numbers 06-02-00038-CR and 06-02-00039-CR.) ⁽¹⁾ At the punishment trial in the case at bar, the jury found the enhancement allegations contained in the indictment true and assessed punishment at thirty-five years' imprisonment. On appeal, Kizzee contends the trial court erred by refusing Kizzee's request for a lesser included offense charge of theft and by denying his requested jury charge on the reasonableness of the victim's fear. We affirm the trial court's judgment for the reasons set forth below.

I. Factual Background  

The facts of the January 17 and January 21, 2001, robberies are important to understanding the events of the January 23, 2002, robbery. Therefore, we briefly summarize the facts relevant to all three dates.

On Wednesday, January 17, 2001, Varsha Khatri was working at the front desk of a Super 8 Motel in Dallas, Texas. Around 3:10 p.m., Kizzee entered the business looking for a man he called "J. R." ⁽²⁾ Kizzee was not a motel guest on this date, but there was evidence he had stayed there on previous occasions. Kizzee stated J. R. owed him money. Khatri, who did not speak English very well, replied that her husband (Hitesh Khatri) was not at the business but would return in a few minutes to assist Kizzee. Kizzee told Khatri there were items belonging to him located in the kitchenette behind the front check-in counter. The kitchenette is not available to customers. Khatri told Kizzee he could not go behind the front check-in counter and instructed him to wait until her husband returned. Khatri testified that, nonetheless, Kizzee "went forcefully" into the kitchenette near the front check-in counter. Kizzee opened a cabinet, peered inside, then returned to where Khatri stood behind the check-in counter. Kizzee told her to move, stated he had a gun, and said, "Raise your hands and don't do anything." Khatri testified that she believed Kizzee had a weapon and that she feared imminent bodily injury. Khatri then sat down on the floor with her hands raised. According to Khatri, Kizzee then opened the register, removed more than $500.00, and left through the front door. Khatri called someone at a nearby Howard Johnson Motel to let them know she had been robbed. She also told J. R., who worked as a manager behind the front desk at the Howard Johnson Motel, what happened. According to Khatri's testimony, J. R. told Khatri he thought he knew  the  robber's  identity.  Khatri  did  not  report  the  January  17  robbery  to  police  until  after January 21.

On Sunday, January 21, 2001, Khatri again was working at the same Super 8 Motel in Dallas. According to Khatri's testimony, Kizzee entered the motel through the back laundry entrance around 5:00 p.m. Kizzee wore the same clothes he had worn during the previous robbery, but this time said nothing. Khatri testified Kizzee's reappearance scared her because he had previously robbed her at that motel. Khatri then fled the lobby area and locked herself inside a small room off the main lobby. Khatri heard Kizzee go to the cash drawer, open it, take money from the drawer (she would later testify that about $150.00 was removed), and then say, "Where is more money?" Khatri replied, through the door, "I don't know." Khatri did not unlock the door until two maids, who also witnessed the events, told Khatri it was safe to come out. (The maids were later able to identify Kizzee as the robber.) Khatri then called someone at the nearby Howard Johnson Motel to let them know she had again been robbed. Later, at trial, the jury viewed a videotape recording of this second robbery. ⁽³⁾

On January 23, 2001, J. R. was working the registration desk at the Howard Johnson Motel located near the Super 8 Motel where Khatri worked. He testified that, before January 23, he knew of the previous two robberies at the Super 8 Motel. According to J. R.'s testimony, Kizzee entered the Howard Johnson lobby sometime after midnight. Kizzee came around the front desk and told J. R. to give him money, otherwise he would kill J. R. J. R. testified he did not see a weapon in Kizzee's hands but knew from past dealings with Kizzee that Kizzee owned guns and was a dangerous person. J. R. testified Kizzee's behavior and threats frightened him. J. R. moved into a back room behind the front desk, closed the door, and pulled a fire alarm located inside the room. J. R. testified that later he discovered there was no money missing from the motel's cash register because J. R. had removed the keys to the register before he ran into the back room. ⁽⁴⁾

On February 9, 2001, Kizzee gave a custodial statement to Walter Hughey of the Mesquite Police Department. ⁽⁵⁾ In that statement, Kizzee admitted taking money from the cash register of the Super 8 Motel on two separate occasions in January of 2001. He also admitted he told the lady working the front check-in counter (Khatri) to go into the back room, which she did.

II. Lesser Included Charge  

A. Standard of Review

In his first point of error, Kizzee contends the trial court erred by denying his request for a jury charge that would permit the jury to find him guilty of the lesser included offense of theft. He claims his written confession is at least some evidence from which the jury could find him guilty only of theft.

To be entitled to a charge on a lesser offense, each element of the lesser offense must be included as an element of the original offense and there must be some evidence that would allow the jury to find the defendant guilty of only the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). An appellate court should review all the evidence presented at trial to determine whether the defendant should have been granted the requested jury charge on a lesser included offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). "The issue is, therefore, whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty only of theft. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Id.

B. Analysis

The indictment charged Kizzee with the theft of United States currency from J. R. and further charged that Kizzee knowingly and intentionally placed J. R. in fear of imminent bodily injury during the theft. A person commits the offense of robbery if (1) "in the course of," ⁽⁶⁾ (2) intentionally or knowingly, (3) taking property, (4) that belongs to another, (5) with intent to permanently deprive the owner of said property, (6) the person intentionally or knowingly, (7) threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 1994), § 31.03 (Vernon Supp. 2003). To convict Kizzee under the indictment for the January 23, 2001, robbery, the State needed to prove that, while Kizzee was in the course of intentionally or knowingly taking, or in this case attempting to take, United States currency belonging to J. R. (under the special ownership of J. R. as an employee of the motel), with intent to permanently deprive J. R. of the currency, Kizzee intentionally or knowingly threatened or placed J. R. in fear of imminent bodily injury. See Tex. Pen. Code Ann. § 29.02.

A person commits the offense of theft if the person (1) intentionally or knowingly, (2) takes property, (3) belonging to another, (4) with intent to deprive the owner of said property. Tex. Pen. Code Ann. § 31.03. To convict Kizzee under a lesser included offense charge for theft-as authorized by the indictment for the January 23, 2001, robbery-the State would have needed to prove Kizzee intentionally or knowingly took United States currency belonging to J. R. (under the special ownership as an employee of the motel) with intent to permanently deprive him of the currency. See Rousseau, 855 S.W.2d at 672 (lesser included offense must be included within proof necessary to establish offense charged).

For evidence that he is guilty only of the lesser included offense of theft, Kizzee directs our attention to the custodial statement he gave police. In the statement, Kizzee claims the January robberies were committed with J. R.'s help. Kizzee argues in his brief that, because J. R. consented to the robberies, J. R. could not reasonably have been in fear of his life and, therefore, an essential element of the offense of robbery was missing, thereby permitting the jury to find Kizzee guilty only of the lesser included offense of theft. However, as the State correctly points out, Kizzee's custodial statement is no evidence in support of a lesser included offense of theft. Kizzee's statement does not say Kizzee stole United States currency under the control of J. R.; instead, it states Kizzee took money from the motel while a manager named Kevin-not J. R.-was on duty at the Howard Johnson Motel. The indictment did not allege the victim was named Kevin, and the State's burden of proof under a lesser included charge would have been to show Kizzee stole currency belonging to J. R. rather than someone called "Kevin." See id. (proof of lesser included offense must be included within proof necessary to establish the greater offense). We have also reviewed the record and have found no evidence that J. R. was also known as "Kevin." Accordingly, there was no evidence presented at trial from which a rational jury could have found Kizzee guilty of only the lesser included offense of theft of currency from J. R. Cf. Fulmer v. State, 731 S.W.2d 943 (Tex. Crim. App. 1987) (subsequent prosecution not barred by double jeopardy where prior jury had acquitted defendant of indecency because prior indictment did not correctly set forth complainant's name). Kizzee has failed to meet the second prong of the Rousseau test for requiring a lesser included offense charge.

Additionally, if one believes J. R.'s testimony that Kizzee was unable to take any money in the January 23 robbery because the cash register was locked, then Kizzee could not be guilty of a lesser included charge of theft because Kizzee would not have "take[n] property belonging to another." See Tex. Pen. Code Ann. § 31.03. The evidence would have been legally insufficient to support a verdict that Kizzee was guilty of a completed theft.

We overrule Kizzee's first point of error.

III. Jury Charge on the Reasonableness of the Victim's Fear  

A. Standard of Review

In his second point of error, Kizzee contends the trial court erred by denying his proposed jury instruction that would have directed the jury on how to determine whether a victim's fear was reasonable. His proposed instruction was based on Welch v. State, 880 S.W.2d 225 (Tex. App.-Austin 1994, no pet.), in which the Third Court of Appeals held that, for purposes of reviewing legal sufficiency of a robbery conviction on appeal, the evidence of the victim's fear "must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will. The victim's fear may not arise merely from some temperamental timidity, but must result from some conduct of the perpetrator." Id. at 226 (citations omitted). Kizzee also directs our attention to Green v. State, 567 S.W.2d 211 (Tex. Crim. App. 1978), and Wilmeth v. State, 808 S.W.2d 703 (Tex. App.-Tyler 1991, no pet.), in support of his proposed instruction.

The function of a jury charge is to instruct the jury on the law applicable to the case. Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994). The charge is the instrument by which the jury convicts; therefore, the charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Id.; see also Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2003). When reviewing charge error, we must first determine whether error actually exists in the charge. Escobar v. State, 28 S.W.3d 767, 778 (Tex. App.-Corpus Christi 2000, pet. ref'd) (citing Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998)); Duke v. State, 950 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). This part of the analysis requires a review of the charge as a whole, examining the workable relationship between the abstract parts of the charge and the application paragraphs. Escobar, 28 S.W.3d at 778. If we find error in the charge, the second step of the analysis requires us to determine whether the error was the subject of an objection before the trial court. Almanza, 686 S.W.2d at 171. If the defendant made a timely objection to the charge, then reversal is required if the error is calculated to injure the defendant's rights. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Almanza, 686 S.W.2d at 171. Otherwise, reversal may be had only for "fundamental" error, that is, if the defendant demonstrates egregious harm resulting from the error. Almanza, 686 S.W.2d at 171-72.

B. Analysis

In Welch, our sister court held that, when examining the legal sufficiency of a robbery conviction with respect to the element of fear, the reviewing court must determine whether "the fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will." Welch, 880 S.W.2d at 226. Welch, however, does not hold that a jury should be so instructed in the trial court's charge.

Similarly, in Green, the Texas Court of Criminal Appeals reaffirmed its position that "to constitute the offense of robbery, there must be actual or threatened violence to the person antecedent to the robbery, or intimidation of such character that the injured party is put in fear. The fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will." Green, 567 S.W.2d at 213 (quoting Jones v. State, 467 S.W.2d 453 (Tex. Crim. App. 1971)). The Texas Court of Criminal Appeals, however, applied this standard while reviewing the legal sufficiency of the evidence. See Green, 567 S.W.2d at 213. The Texas Court of Criminal Appeals' opinion in Green does not require a trial court to instruct a jury on how to evaluate the reasonableness of a victim's fear; instead, Green serves as guidance for appellate review.

Finally, in Wilmeth, the Tyler Court of Appeals, in reviewing evidentiary sufficiency, held that the victim's fear must "be of such nature as in reason and common experience is likely to induce a person to part with his property against his will." Wilmeth, 808 S.W.2d at 705 (quoting Green, 567 S.W.2d at 213). The Twelfth Court's holding in Wilmeth does not require trial courts to instruct juries, using an appellate standard of review for legal sufficiency, on how to determine whether a victim's fear was reasonable. Wilmeth, 808 S.W.2d at 706. Accordingly, we find no precedent, and Kizzee has directed our attention to none, that requires the trial court to instruct a jury on how to determine whether a victim's fear of imminent bodily injury was reasonable by using a standard designed for appellate review. We cannot say the trial court erred in denying the requested jury instruction.

For the reasons stated, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 17, 2003

Date Decided: February 11, 2003

Do Not Publish

1. In Cause Number 06-02-00035-CR, the defendant's name is listed as Sammy Kizzee, a/k/a Eddie Walker in the indictment and as Sammy Kizzee in the judgment. In Cause Number 06-02-00038-CR, it is listed as Eddie Walker in the indictment and as Eddie Walker Sammy Lee Kizzee in the judgment. In Cause Number 06-02-00039-CR, it is listed as Sammy Lee Kizzee Jr. in the indictment and in the judgment. We will refer to him as Sammy Kizzee.

2. J. R. turns out to be named Ervuankai Jeevaraj, but we will refer to him throughout this opinion as "J. R."

3. There was no videotape of the first robbery.

4. One can commit robbery without successfully taking money. Robbery is committed "in the course of committing theft," Tex. Pen. Code Ann. § 29.02(a) (Vernon 1994), which phrase is defined  to  include  "conduct  that  occurs  in  an  attempt  to  commit  .  .  .  theft."  Tex.  Pen. Code Ann. § 29.01(1) (Vernon 1994). "Since the actual success of obtaining the property sought is not an element of the offense of aggravated robbery, the fact that the acts tend but fail to obtain the property does not render them insufficient to effect the commission of the offense of aggravated robbery." Watts v. State, 516 S.W.2d 414, 415 (Tex. Crim. App. 1974).

5. At trial, Kizzee challenged the voluntariness of his custodial statement. The trial court found the statement to have been given voluntarily. Kizzee does not raise this issue again on appeal. Therefore, we will assume the trial court did not err by finding the statement was given voluntarily.

6. Since the phrase "in the course of committing theft" is defined to include conduct committed, not only during a theft, but also during an attempted theft and during immediate flight from a theft or an attempted theft, Tex. Pen. Code Ann. § 29.01(1), theft is not necessarily always a lesser included offense to robbery. If the evidence presented in a robbery prosecution fails to support a charge of theft because the theft attempt was unsuccessful or incomplete, theft would not be a lesser included offense to robbery.