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Servin v. State

Court of Appeals of Texas, Fourth District, San Antonio

April 24, 2019

Luis Alfredo SERVIN, Appellant
v.
The STATE of Texas, Appellee

          From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2015CR5175 Honorable Sid L. Harle, Judge Presiding.

          Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice.

          OPINION

          LIZA A. RODRIGUEZ, JUSTICE.

         Luis Alfredo Servin was convicted by a jury of two counts of aggravated robbery. On appeal, Servin contends the jury charge failed to link the appropriate mens rea to its respective conduct element resulting in egregious harm. We affirm the trial court's judgment.

         Background

         Servin was indicted for two counts of aggravated robbery. The two complainants were Robert "Bob" and Betty Gilland.

         The Gillands, who were both over sixty-five years old, testified Betty woke Bob around 4:00 a.m. because she saw a bright light in the house. As Betty followed Bob down the hallway, they were confronted by two individuals. Bob testified one of the individuals was holding a bright light and a long gun to which the light was possibly taped. Bob testified he could only see the barrel of the gun because of the light. Betty saw the bright light but did not see the gun. Both testified they were ordered to lie down on the floor. Bob testified the individual said he would shoot them if they did not get down. On cross-examination, Bob admitted the statement he gave the lead detective did not refer to the individual saying he would shoot them, but Bob testified the individual made the statement. Bob was subsequently ordered to assist one of the individuals in locating the Gillands' guns which were in a rack under their bed. Both Bob and Betty detailed the items the individuals stole from their home.

         Although Bob initially testified he did not did not believe he felt scared, he later stated he was in fear for Betty and that they were both in serious danger from the minute the individuals entered their home. Bob further testified, "Anybody that orders you in your own home, it's threatening." Betty testified she felt threatened and was afraid the individuals might cause her serious bodily injury.

         The finger of a latex glove was recovered from the Gillands' home by the area where their television was removed from the wall. It was stipulated at trial that Servin's DNA was on the finger of the glove.

         In his videotaped interview, Servin admitted breaking into the Gillands' home; however, he believed no one was home when he broke into the house because he knocked on the door and no one answered.

         After hearing the evidence, the jury convicted Servin of both counts of aggravated robbery. Servin appeals.

         Discussion

         In his brief, Servin contends the jury charge failed to link the appropriate mens rea to its respective conduct element which was erroneous and violated his due process rights and his right to a unanimous verdict. Acknowledging no objection was made to the charge, Servin asserts he was egregiously harmed by the charge error. The State concedes ...


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