Nos. 05-10-00658-CR, 05-10-00659-CR
Opinion Filed April 7, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-35128-TS and F08-35130-YS.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
Opinion By Justice RICHTER.
A jury convicted appellant of aggravated robbery and aggravated assault. In both cases, the trial court assessed appellant's sentence, enhanced by prior felony convictions, at forty years' imprisonment, with the sentences to run concurrently. The trial court also entered a deadly weapon finding. In two issues on appeal, appellant argues the evidence is insufficient to support his aggravated robbery conviction and the dual convictions constitute double jeopardy. Concluding appellant's arguments are without merit, we affirm the trial court's judgments.
Background
On the evening of November 21, 2008, appellant went to the parking lot of a Walgreens store carrying a gun and wearing a wig, hat, and gloves. Paulette Nielson parked her car in the parking lot and went into the store to purchase a pack of cigarettes. When she returned to her car, she threw the cigarettes inside and sat down. As she was about to close the door, appellant punched her and shoved her further into the car. Appellant told Nielson he had a gun, and said he was going to "f-g kill" her, "you bitch." As Nielson reached for the passenger door to try to get away, appellant stated "oh hell no, bitch, you're not getting out of here." Although Nielson did not see a gun, she could feel it poking her in her side. When appellant asked for the keys, Nielson handed them to him. Appellant stuck the keys in the ignition so hard that he broke one off in the ignition. Appellant kept hitting Nielson and she struggled with him. Nielson feared for her life, so she honked the horn and yelled for help. Appellant grabbed Nielson's purse and jumped out of the car. Arthur Eslinger and his wife were in their car in the Walgreens parking lot when they saw appellant run to Nielson's car and attack her. Eslinger drove his car next to Nielson's and his wife called 911 on her cell phone. When Eslinger saw appellant jump out of Nielson's car, he slowly drove after appellant in an attempt to prevent appellant from fleeing. Eslinger tapped appellant with his bumper, and although appellant fell down, he got up immediately and started to run. Eslinger bumped appellant a second time, causing him to fall to the ground again. When appellant got back up, he pulled out his gun and fired at Eslinger. The bullet "glanced" off of the hood of the car and "richochted" off of the windshield into the air. Appellant then ran into the woods. When the police arrived, witnesses directed them to the woods. Appellant was found crouched on the slope of a hill underneath a log. When ordered to stand up, appellant ran. Appellant was eventually apprehended, and was wearing only his left shoe when he was arrested. In the area of the woods where appellant had been found, officers recovered a hat, two pair of gloves, and a small .22-caliber revolver. The revolver was a six-shot revolver that contained five live bullets. On a nearby fence, officers found a jacket and appellant's right shoe. The next morning, officers searched other parts of the wooded area and found Nielson's purse, wallet and some personal items. The officers also found a wig. Appellant was charged with aggravated robbery of Nielson and aggravated assault of Eslinger. Following a trial by jury, appellant was convicted of both offenses. Discussion
Sufficiency of the Evidence
In his first issue, appellant maintains the evidence is legally and factually insufficient to support his conviction for aggravated robbery. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S.307, 319 (1979)). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard. Appellant was charged with committing aggravated robbery by using and exhibiting a deadly weapon — a firearm — while in the course of committing robbery. A person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain and maintain control of property, that person knowingly or intentionally threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (West 2003); see Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980). Of these elements, appellant only challenges the sufficiency of the evidence to prove he used or exhibited a deadly weapon. Specifically, appellant contends because Nielson did not see the gun when he was in the car with her, and only saw the gun after he exited the car, the State failed to prove he used or exhibited a deadly weapon. Appellant relies on a definition from "Dictionary.com" and argues that the term "exhibit" is to be construed as "to offer or expose to view; present for inspection; to manifest or display; to place on show; and to make manifest."Appellant's reliance is misplaced. The statute and the case law applying the statute assign a more precise definition than the one appellant seeks to employ. To "use" a deadly weapon during the commission of an offense means that the deadly weapon was employed or utilized in order to achieve its purpose; to "exhibit" a deadly weapon requires only that it be consciously displayed during the commission of the required felony offense. Patterson v. State, 769 S.W.2d 938, 940-41 (Tex. Crim. App. 1989); see also Coleman v. State, 145 S.W.3d 649, 655 (Tex. Crim. App. 2004); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (holding butcher knife partially concealed in appellant's pocket during attack was a deadly weapon used or exhibited in facilitating the offense); Dimas v. State, 987 S.W.2d 152, 153-55 (Tex. App.-Fort Worth 1999, pet. ref'd) (restating that "mere possession is enough if it facilitates the associated offense"). Here, the jury was instructed to determine whether appellant used or exhibited a deadly weapon. Nielson testified that appellant told her he had a gun and threatened to kill her. Although she did not see the gun until after appellant left her car, she said appellant kept poking her in the waist with what she believed was a gun. Evidence of appellant's subsequent encounter with Eslinger established that appellant did in fact have a gun. Utilizing the appropriate standard of review, we conclude the evidence was sufficient to support a finding that appellant either used or exhibited a firearm. Appellant's first issue is overruled. Double Jeopardy
In his second issue, appellant asserts his convictions for both aggravated assault and aggravated robbery constitute double jeopardy. See U.S. Const., amends, V, XVI. According to appellant, the aggravated robbery was a single assaultive event that continued until he retreated to the woods. Appellant claims because robbery is a form of assault and the assault occurred while he was in "immediate flight" from the robbery, the aggravated assault and the aggravated robbery are the same offense. The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). That guarantee protects against a second prosecution for the same offense after a conviction or an acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). It is the latter protection that is asserted here. Appellant raises his double jeopardy claim for the first time on appeal. In general, a defendant bears the burden of preserving a double jeopardy objection at or before the time the issue of his guilt is submitted to the finder of fact. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000); King v. State, 161 S.W.3d 264, 267 (Tex. App.-Texarkana 2005, pet. ref'd). Because of the fundamental nature of double jeopardy protections, however, appellant is excused from the preservation requirement when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. See Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006); Gonzalez, 8 S.W.3d at 643. The critical inquiry is whether the record before the reviewing court clearly reflects a double jeopardy violation. Long v. State, 130 S.W.3d 419, 424 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Appellant must satisfy both prongs of this test in order to raise his complaint for the first time on appeal. Id. Separate offenses constitute the same offense for purposes of double jeopardy when each element of the first offense is identical to each element of the second offense. Blockburger v. United States, 284 U.S. 299, 304 (1932). But in Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008), the Court of Criminal Appeals held that under the cognate-pleadings approach, double-jeopardy challenges could be made even to offenses that have differing elements under Blockburger if the same "acts required" are alleged in the indictment. Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)). Here, the aggravated robbery indictment alleged that appellant, while in the course of committing theft of property and with intent to obtain control of said property, threatened and placed Nielson in fear of imminent bodily injury and death, and used and exhibited a deadly weapon, to wit: a firearm. See Tex. Penal Code Ann. § 29.02(a)(2), 29.03 (a)(2). The aggravated assault indictment alleged that appellant threatened Eslinger with imminent bodily injury, and used and exhibited a deadly weapon, to wit: a firearm, during the commission of the assault. See Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2009). Because these two offenses do not involve the same acts or elements, we conclude the record does not clearly reflect a double jeopardy violation. Therefore, by failing to object at trial, appellant forfeited his right to raise a double jeopardy claim for the first time on appeal. See Langs, 183 S.W.3d at 687. Appellant's second issue is resolved against him. The trial court's judgments are affirmed.