NO. 2055-00








Keasler, J., filed this concurring opinion, joined by Hervey, J.


This is a simple case. To prove Cooper's guilt, the State had to prove that he assaulted Blueitt "in the course of" taking his truck. (1) This means the State had to prove that at the time Cooper assaulted Blueitt, he intended to take the truck. (2) If the theft was committed "as an afterthought and unrelated to" the assault, then the evidence was insufficient to show a robbery. (3)

The Court of Appeals seemed to find some conflict between McGee v. State (4) and Nelson v. State. (5) The appellate court viewed McGee as setting out a "bright-line rule" that, if the theft occurs immediately after the assault, then the evidence is sufficient to show that the assault was committed "in the course of" the theft. (6) The court felt that Nelson "clarified" our position by pointing out that it is possible for a person to commit, first, a murder, and second, a theft, and have these offenses not constitute capital murder. (7)

But Nelson said nothing new. We had previously noted many times that a theft could be committed "as an afterthought and unrelated to" a murder and that would not satisfy the "in the course of" requirement. (8) That acknowledgment in no way increases the State's burden of proof. In a robbery case, the State still must prove that the theft occurred "in the course of" the assault. The defendant must form the intent to commit the theft either before or during the assault.

The critical rule of law which the court of appeals overlooked is that intent may be inferred from the acts and conduct of the defendant. (9) The court of appeals held that "the immediacy of the theft following the assault is a factor to be considered, but absent other evidence from which to infer at what time [Cooper] developed the requisite intent to take the truck, we cannot say that any rational trier of fact could have found that element of robbery proven beyond a reasonable doubt." (10) The court apparently would require the State to psychoanalyze Cooper and prove his thought processes. The law, however, has no such requirement.

The evidence showed that Cooper hit Blueitt and then immediately stole his truck. The fact that the theft occurred immediately after the assault is circumstantial evidence of Cooper's intent. A rational trier of fact could infer from these events that Cooper intended to take the truck at the time of the assault and, therefore, that the assault was committed in the course of the theft. The appellate court apparently wanted more evidence from which to infer Cooper's intent, but the issue is whether a rational jury could have inferred Cooper's intent from this evidence. Here, it could have easily done so.

With these comments, I join the opinion of the Court.

DATE DELIVERED: January 30, 2002


1. See Tex. Penal Code 29.02.

2. See Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). See also Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995); Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994); Riles v. State, 595 S.W.2d 858, 861-62 (Tex. Crim. App. 1980).

3. Alvarado, 912 S.W.2d at 207; Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App.), cert. denied, 506 U.S. 839 (1992); O'Pry v. State, 642 S.W.2d 748, 762 (Tex. Crim. App. 1981) (op. on reh'g). See also White v. State, 779 S.W.2d 809, 815 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 962 (1990); Ibanez, 749 S.W.2d at 807.

4. 774 S.W.2d 229, 234 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060 (1990).

5. 848 S.W.2d 126, 131-32 (Tex. Crim. App. 1992) (plurality op.), cert. denied, 510 U.S. 830 (1993).

6. Cooper v. State, 29 S.W.3d 901, 904 (Tex. App. - Beaumont 2000).

7. Id.

8. Alvarado, 912 S.W.2d at 207; Moody, 827 S.W.2d at 892; O'Pry, 642 S.W.2d at 762. See also White, 779 S.W.2d at 815; Ibanez, 749 S.W.2d at 807.

9. McGee v. State, 774 S.W.2d at 234; Fierro v. State, 706 S.W.2d 310, 313 (Tex. Crim. App. 1986), cert. denied, 521 U.S. 1122 (1997).

10. Cooper, 29 S.W.3d at 904-05.