No. 12-05-00408-CR
Opinion delivered November 15, 2006. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., Griffith, J., and HOYLE, J.
SAM GRIFFITH, Justice.
Appellant David Daniel appeals his conviction for aggravated robbery, for which he was sentenced to life imprisonment and a $10,000 fine. In his sole issue, Appellant contends that the evidence is legally and factually insufficient to support his conviction. We affirm.
BACKGROUND
Appellant was charged by indictment with aggravated robbery. The indictment included an enhancement paragraph alleging that Appellant had been previously convicted of a felony. Appellant pleaded "not guilty." At trial, Carolyn Turner testified that she was the manager at a jewelry store. At approximately 5:16 p.m. on June 30, 2005, she was emptying the display cases when Appellant entered the store wearing a bandana. She testified that he walked in, ordered her to get on the floor, took out a knife, and jumped over the counter. Turner stated that she got on the floor with her head down and that she did not know whether he was going to kill or rape her. She testified that she believed Appellant had entered the store to rob her and that when he jumped over the counter, he would have been able to open the counter. Donald McPherson, the jewelry store owner, testified that he was sitting in his office behind a one way glass mirror when he saw Appellant enter the store wearing a bandana. He grabbed his pistol, chambered a round, and entered the store to confront him. When McPherson entered the store, he saw Turner face down on the floor facing him. He testified that Appellant was bent over Turner with a knife towards the back of her neck. Based on McPherson's observations, Appellant was "in the course of committing theft." According to McPherson, Appellant was wearing a bandana, "bandit" style, around his face and latex gloves. McPherson confronted Appellant and yelled at him to get away from Turner. In response, Appellant began backing away, brandishing the knife and waving it. McPherson admitted fearing for his and Turner's safety. Appellant "hopped" the counter, turned around, and attempted to throw the knife. McPherson shot Appellant, but Appellant ran from the store. McPherson followed him and discovered him in an adjacent nail salon, sitting in a chair at a technician's station, as if he were waiting to be served. McPherson entered the store, advised the occupants of the nail salon what had occurred, and held Appellant until the police arrived. McPherson stated that Appellant was injured in the leg. According to the police officers who responded to the nail salon, Appellant was wearing a bandana or handkerchief over his mouth, sunglasses, a ball cap, rubber latex gloves, and a long sleeved shirt to conceal a tattoo identifying his last name. Upon searching Appellant, the officers found a black garbage bag and a roll of tape in his back pocket and a second knife in his sock. Officer Jason Burton, a patrol officer and crime scene technician with the Tyler Police Department, processed the crime scene at the jewelry store and stated that the knife recovered at the jewelry store was approximately one foot long. He also recovered Appellant's clothing and items on his person. Burton stated that, based on his training and experience, all of the evidence he collected was consistent with someone who committed aggravated robbery. Officer Karen Lynn Ward, a patrol officer with the Tyler Police Department, found Appellant at the nail salon after responding to a robbery call. She stated that, based on her training and experience, Appellant went to the jewelry store to commit robbery based on his disguise together with the knife, tape, and garbage bag found on his person. Ward also stated that the knife found at the jewelry store, if held to someone's throat, was capable of causing death or serious bodily injury. Officer Rodney Harrington, a bicycle patrol officer with the Tyler Police Department, stated that, based on his training and experience, the black garbage bag found on Appellant could have been used to carry stolen items, including jewelry, and that the tape, or more specifically, packaging tape, found on Appellant could have been used to bind someone's hands. Harrington also stated that, based on his training and experience, the knife recovered from Appellant's sock and the knife found in the jewelry store were deadly weapons. At the conclusion of the trial, the jury found Appellant guilty of aggravated robbery, found the allegations in the enhancement paragraph to be "true," and sentenced him to life imprisonment and a $10,000 fine. This appeal followed. SUFFICIENCY OF THE EVIDENCE
On appeal, Appellant contends that the evidence is legally and factually insufficient to support his conviction. Specifically, Appellant argues there is no evidence that he intended to commit theft or committed theft. The State disagrees. Standard of Review Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, pet. ref'd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). The evidence is examined in the light most favorable to the jury's verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Although we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Id. ; see Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002); see Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex.Crim.App. Oct. 18, 2006); Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App. 2003). Applicable Law A person commits the offense of aggravated robbery, if the person, in the course of committing theft and, with intent to obtain or maintain control of the property, uses or exhibits a deadly weapon. TEX. PEN. CODE ANN. 29.02(a), 29.03(a)(2) (Vernon 2003). The phrase "in the course of committing theft" is defined as "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id. § 29.01(1). The definition of deadly weapon includes "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" or "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE ANN. § 1.07(a)(17) (Vernon Supp. 2006). A knife is not a deadly weapon per se. Id. § 1.07(a)(17); Thomas v. State, 821 S.W.2d 616, 619-20 (Tex.Crim.App. 1991). To determine whether a knife is a deadly weapon, the jury may consider all the surrounding facts, including the size and shape of the knife, the manner of its use or intended use, the capacity of the knife to produce death or serious bodily injury, the proximity of the parties, the defendant's threats, and whether the victim feared death or serious bodily injury. Thomas, 821 S.W.2d at 619-20; Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986); Townsend v. State, No. 12-05-00090-CR, 2006 WL 2106990, at *4 (Tex.App.-Tyler July 31, 2006, pet. struck) (mem. op., not designated for publication). Analysis Appellant argues, in effect, that because he did not make any overt act to take possession of the jewelry store's wares and did not tell Turner that he was there to rob her, the jury could not, as he expressed it, "`fill in the blanks' when the State's evidence is lacking." Appellant's argument, however, is not consistent with case law. The court of criminal appeals has determined that the State's failure to prove that any property was taken does not render the evidence insufficient to prove a murder was committed while the actor was in the course of committing and attempting to commit the offense of robbery. See Autry v. State, 626 S.W.2d 758, 762-63 (Tex.Crim.App. 1982). Similarly, where men entered a store with guns and the store manager testified he was in fear of imminent bodily injury, the court stated that although neither the appellant nor his companion actually demanded the money from the manager, there was sufficient evidence to allow the jury to find that they were acting with intent to obtain control of the property within the meaning of the applicable statute. Johnson v. State, 541 S.W.2d 185, 186-87 (Tex.Crim.App. 1976). Specifically, the court said that "a verbal demand is not the talisman of an intent to steal. Such intent may also be inferred from actions or conduct." Id. at 187. The Johnson court further noted that the fact that the money was not actually taken did not necessitate a charge on attempted aggravated robbery. Id. The offense of aggravated robbery does not require as an element that the property sought actually be obtained. Id. It is sufficient to show that the defendant acts in the course of committing theft as defined by statute. Id. In this case, the jury heard the evidence and found Appellant guilty of aggravated robbery as charged in the indictment. In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. The evidence established that Appellant entered the store wearing a bandana over his mouth, sunglasses, a ball cap, rubber latex gloves, and a long sleeved shirt to conceal his identity. Appellant ordered Turner to get on the floor. He had two knives, one of which was concealed in his sock and one of which he held towards the back of Turner's neck. Appellant jumped over the counter, which allowed him access to the jewelry store's wares. Turner testified that she was scared for her life and safety and that she believed Appellant entered the jewelry store to rob her. McPherson stated that Appellant threatened him with a knife and attempted to throw it at him when he tried to stop the robbery. He testified that he feared for his and Turner's safety. Burton testified that the evidence he collected from Appellant was consistent with someone who committed aggravated robbery. Appellant had a black garbage bag in his possession that Harrington stated could have been used to carry stolen items. Harrington also testified that the roll of packaging tape in Appellant's possession could have been used to bind someone's hands. Ward testified that Appellant's disguise and items in his possession led her to believe that Appellant intended to commit robbery. Burton testified that the knife used to threaten Turner and McPherson was approximately one foot long. Ward testified that the knife found at the jewelry store, if held to someone's throat, was capable of causing death or serious bodily injury and Harrington believed that the knife was a deadly weapon. Therefore, viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found sufficient evidence that Appellant was in the course of committing the offense of aggravated robbery and, thus, could have found the elements of aggravated robbery beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. Accordingly, we conclude that the evidence was legally sufficient to support Appellant's conviction. In reviewing the factual sufficiency of the evidence, we look at the evidence both in support of, and contrary to, the jury's verdict. See Johnson, 23 S.W.3d at 11. Based upon our review of the record, however, the only contrary evidence Appellant could muster was that there was no evidence that he attempted to physically take possession of any of the jewelry store's merchandise before McPherson confronted him or any evidence that he told Turner he was there to rob the jewelry store. As noted above, a statement of an intent to rob or actual seizure or taking possession of the jewelry store's merchandise are not prerequisites for the offense of robbery. See Autry, 626 S.W.2d at 762; Johnson, 541 S.W.2d at 186-87. The jury was permitted to infer Appellant's intent to steal from his actions. See Johnson, 541 S.W.2d at 186-87. Consequently, in making our determination of the evidence, both for and against the jury's verdict, we cannot say that the evidence supporting the verdict is so obviously weak, or the contrary evidence so overwhelming, as to render to the conviction clearly wrong and manifestly unjust. See Ortiz, 93 S.W.3d at 87; Watson, 2006 WL 2956272, at *10; Sims, 99 S.W.3d at 601. Therefore, we conclude that the evidence was factually sufficient to support Appellant's conviction. Accordingly, Appellant's sole issue is overruled. DISPOSITION
The judgment of the trial court is affirmed.