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Gebreyesus v. State

Court of Appeals of Texas, Fifth District, Dallas

December 17, 2019

TEKLEA GEBREYESUS, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1855502-V.

          Before Justices Bridges, Molberg, and Partida-Kipness.

          MEMORANDUM OPINION

          ROBBIE PARTIDA-KIPNESS JUSTICE.

         Appellant Teklea Gebreyesus appeals from his conviction for robbery. In one issue, appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm the judgment. Because the issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.

         Background

         Shortly after 1:00 a.m. on July 1, 2018, appellant walked into the Kwik Trip gas station and convenience store located near Greenville Avenue and Park Lane in Dallas County, Texas. Appellant testified that he went to the Kwik Trip with the intent to steal beer from the store.

         Justin Hershberger was the night manager at the Kwik Trip on July 1 working the overnight shift from 9:30 p.m. to 7:00 a.m. Hershberger had worked for Kwik Trip for approximately four months at the time of the robbery, but July 1 was only his second shift at the Greenville Avenue location. He was alone in the store when appellant entered the store. Hershberger testified that he heard a voice and when he saw appellant, he said hello and welcomed appellant to the store. Hershberger testified that appellant made a threat by lifting up his shirt and saying he had a firearm. Appellant then went to the back of the store, grabbed some beer, and started walking out. Hershberger challenged appellant before allowing him to leave the store, something he admitted at trial was not a good idea. He testified, however, that he "was pretty intimidated and I just - I was taught when you're frightened to fight."

         Kwik Trip's security system recorded video and audio surveillance footage of the robbery. In the footage, appellant can be seen walking into the store through the front doors. Hershberger says hello, and appellant says something to Hershberger that sounds like motherf***er as he walks in front of the counter and to the back of the store. Appellant then stops walking, turns back to Hershberger and says "I'll show you my pistol." Appellant then lifts his shirt to show his stomach and waistband. He then walks off screen briefly. When appellant comes back on screen, he has a box of beer and walks toward the front door. As he is walking toward the door and toward Hershberger, appellant again says "I'll show you my pistol." Hershberger says "Go ahead. Go ahead. Come on," but the video shows that appellant kept walking with the beer and left the store. Hershberger followed him out the door, yelling "Put the beer down," but appellant did not stop. Hershberger explained at trial that he followed appellant out of the store because he was trying to see where appellant was going so he could get the best description possible.

         Hershberger also told the court that he considered appellant's words and actions to be a threat:

Q. Justin, when the defendant came in and was mouthing something, lifted up his shirt, and said, "I'll show you my pistol," what did you take that to mean?
A. I just -- I took it as an overall threat. That late at night in that area, and I'm by myself and somebody just starts screaming, and I've seen enough to know that when somebody lifts their shirt up like that, it typically means they're going to show a weapon. I didn't understand what he said originally, but it was -- it was really intense.

         At the time, Hershberger thought he saw a handle of either a firearm or a knife in appellant's waistband when appellant raised his shirt. This was the first time this had ever happened to Hershberger.

         Hershberger alerted an internal Kwik Trip security team to the incident, but he did not immediately contact the police because he thought the security team would decide if police involvement was necessary. Several hours later, however, appellant returned to the store, and that prompted Hershberger to contact the police directly. When the police responded to that call, they learned that a man matching the appellant's description was nearby. The responding officers located appellant, spoke to him briefly and, after appellant attempted to run away from the officers, tackled him and placed him under arrest.

         Appellant was indicted for robbery under section 29.02 of the Texas ...


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