Opinion
No. 4-05-00006-CR
Delivered and Filed: February 8, 2006. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-4333, Honorable Sid L. Harle, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Douglas Robert Floyd appeals his conviction of aggravated robbery with a deadly weapon. Floyd contends that: (1) the trial court erred by failing to instruct the jury that a knife is not a deadly weapon per se; and (2) the evidence is legally and factually insufficient to support his conviction. We overrule Floyd's contentions and affirm the trial court's judgment.
Background
Floyd shoplifted a pair of binoculars from a store. As Floyd left the store, four employees followed him to the parking lot, and a struggle ensued. One of the employees noticed that Floyd had a pocket knife in his left hand. Another employee, Jayson Caldwell, was cut on his finger. The jury returned a guilty verdict to the charge of aggravated robbery with a deadly weapon. The trial court made an affirmative finding in the judgment that Floyd used a deadly weapon in the commission of the robbery as charged in the indictment.Discussion
Initially, Floyd complains that the trial court erred by failing to instruct the jury that a knife is not a deadly weapon per se. After the State rested its case-in-chief, the defense asked the court to include the following instruction in the jury charge: "A knife is not a deadly weapon per se if the knife was not used to cause death or serious bodily injury." The trial court denied the request, stating that the definition of a deadly weapon included in the charge was sufficient. The charge read, in pertinent part:Our law provides that a person commits the offense of robbery if, in the course of committing theft, as defined hereinafter, and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. A person commits aggravated robbery if the person commits a robbery, as defined above, and uses or exhibits a deadly weapon. . . . "Deadly weapon" means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. (Emphasis added).In Lopez v. State, 651 S.W.2d 830, 835-36 (Tex.App.-San Antonio 1983, pet. ref'd), a proposed instruction similar to appellant's was rejected. There the court held that because the charge included the statutory definition of a deadly weapon, the jury was required to take into account the same factors, under both the requested and submitted instructions, in order to find appellant used a deadly weapon. See also Grissom v. State, 625 S.W.2d 424, 426-27 (Tex.App.-Fort Worth 1981, pet. ref'd) (no error was present when trial court in its charge fully defined the term "deadly weapon" in accordance with definitions found in section 1.07 of the Penal Code, and also required that the jury find that the "deadly weapon" to wit, a knife, was used or exhibited before the defendant could be found guilty). In the instant case, the charge includes the statutory definition of a deadly weapon. In the application paragraph, the jurors were further instructed that to find the defendant guilty, they must find that Floyd intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death, by using or exhibiting a deadly weapon, namely: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury, while in the course of committing theft of property. The jurors were first required to find that the knife was capable of causing death or serious bodily injury before finding Floyd guilty and therefore appellant's requested instruction was unnecessary. See Riley v. State, 802 S.W.2d 909, 910 (Tex.App.-Fort Worth 1991), aff'd, 830 S.W.2d 584 (Tex.Crim.App. 1992) (requested instruction properly refused if substance of matter contained in requested instruction is included in court's charge, even if requested instruction is correct statement of the law). Including Floyd's requested instruction in the charge would rise to an impermissible comment on the weight of the evidence. See Hill v. State, 167 Tex. Crim. 229, 319 S.W.2d 318, 319-20 (1958) (requested instruction that a pocketknife is not in itself a deadly weapon would have been a comment on the weight of the evidence and therefore was properly refused); see also Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005) (charge of court should not express any opinion as to the weight of the evidence). We hold that Floyd's rights were adequately protected by the jury charge, and the trial court did not err in refusing the requested instruction. Floyd's first issue is overruled. Next, Floyd argues that the evidence is both legally and factually insufficient to sustain his conviction for aggravated robbery, particularly with respect to the knife as a deadly weapon. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App. 2004)). The trier of fact is required to evaluate the credibility and demeanor of the witnesses and determine the weight to be given contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). We are not permitted to re-weigh the evidence; rather we defer to the trier of fact's findings, particularly those based on credibility determinations. Id. at 407-09. A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). The offense is elevated to aggravated robbery when a deadly weapon is used or exhibited. Id. § 29.03. A pocket knife is not a deadly weapon per se. Victor v. State, 874 S.W.2d 748, 751 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Therefore, the State must prove "that in the manner of its use or intended use [it was] capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B). Serious bodily injury is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46). The statute does not require that the actor actually intend death or serious bodily injury, only that the object used is capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Whether an object qualifies as a deadly weapon depends upon the evidence presented. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). Where no actual injury is sustained, the State must present evidence of other factors to establish that an object is a deadly weapon. Victor, 874 S.W.2d at 751. To determine the deadliness of the weapon, the fact finder may consider not only the knife's size, shape, sharpness, the manner of its use or intended use, and its capacity to produce death or serious bodily injury, but all the facts of the case, including the proximity of the assailant to the victim(s) and the assailant's gestures. Mata v. State, 853 S.W.2d 172, 174 (Tex.App.-Corpus Christi 1993, no pet.). A lay witness may testify that the knife was used in a manner capable of causing death or serious bodily injury, and that testimony is sufficient to show that the knife was a deadly weapon. Barrera v. State, 820 S.W.2d 194, 196-97 (Tex.App.-Corpus Christi 1991, pet. ref'd). Michael Tonne, a loss prevention employee, testified that after observing Floyd take a box of binoculars into a dressing room, he followed Floyd to the parking lot when he left the store without paying. Tonne, who was dressed in plainclothes, tried to stop Floyd, who kept on walking. Tonne then grabbed Floyd's arm from behind, and a struggle ensued. Soon, three other male employees were helping Tonne take Floyd to the ground. One employee shouted that Floyd had a knife. Tonne then noticed that Floyd was holding a pocket knife up in his left hand. The employees struggled with Floyd, who did not drop the knife until all four men were on top of him and pried his hand open. At that time, an off-duty Department of Public Safety officer who happened to be shopping, arrived and handcuffed Floyd, who was taken back into the store. The jury was able to view a video recorded by a store security camera of the incident in the parking lot. Tonne stated that in his ten years of working in security at the store he had never had a weapon "pulled on him" and that after seeing the knife, he was very afraid of getting stabbed or hurt. John David Gutierrez, a customer service manager at the store, testified that he was hysterical when he called 911 to report that "there had been a knife and a shoplifter." David Gardner, a store support manager, testified that when his co-worker yelled that there was a knife, he was afraid that he or one of his co-workers would be stabbed. Jayson Caldwell, an assistant manager at the store, testified that his finger was cut during the struggle. Caldwell could not say that Floyd had pointed the knife directly at him, but he did state that from the moment he saw the knife he feared for his life. Caldwell also stated that Floyd did not threaten to cut anyone but himself. San Antonio Police Officer Andres Salazar, who arrived at the store to arrest Floyd, testified that the knife he recovered could, in the manner of its use, be a deadly weapon. Although there was no testimony as to the size or sharpness of the knife, it was admitted into evidence. The sole complainant, Tonne, was in close proximity to the knife during the struggle, as were the other three men. After viewing the evidence presented at trial, we hold that the evidence is sufficient to sustain Floyd's conviction for aggravated robbery with a deadly weapon. The testimony from the State's witnesses supports the contention that the knife exhibited by Floyd was a weapon capable of causing serious bodily injury or even death. The contrary evidence on the issue of the knife as a deadly weapon was not so strong that the beyond a reasonable doubt standard could not have been met. See Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App. 2004); Escamilla, 143 S.W.3d at 817. The evidence presented at trial was both legally and factually sufficient to sustain Floyd's conviction for aggravated robbery. Floyd's second and third issues are overruled.