No. 14-05-01252-CR
Opinion filed November 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 1028409. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, Brisio Javier Pintor, appeals his conviction for aggravated robbery. A jury found him guilty and assessed punishment at fifteen years in prison. On appeal, appellant contends that the trial court erred in denying his motion for directed verdict because the State failed to prove beyond a reasonable doubt that he used a firearm during the commission of the offense as alleged in the indictment. We affirm.
Background
The indictment charged appellant with aggravated robbery, alleging that appellant: while in the course of committing theft of property owned by SUSAN HORR and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] SUSAN HORR in fear of imminent bodily injury and death, and [appellant] did then and there use and exhibit a deadly weapon, to-wit: a FIREARM.
At trial, Susan Horr testified that on April 28, 2005, she was driving home from a little league baseball game with her son when a car coming from the opposite direction flashed its brights at her and drove directly toward her vehicle. When she slowed down, the other vehicle pulled in front of her and stopped, blocking her between that vehicle and another vehicle parked on the street. A man she identified as appellant got out of the back seat of the car. Appellant went to the passenger side of Susan's car, pointed a pistol at her son, and waved the pistol around, saying "Open the door, * * * * *" and using other profanity. Susan said that she was somewhat familiar with guns, that she "absolutely" believed the weapon held by appellant to be a real gun, and that it looked similar to a 9 millimeter pistol that her husband used to own. She refused to exit her car, and a short time later, her husband, Jim, drove down the same street, stopped, and exited his vehicle. At this point, appellant hid the pistol and tried to wave Jim forward. Appellant then walked up to Jim, "held the gun up to him," and started yelling. Susan said that appellant made a reference to "popping a cap up your * * *." Jim tried to calm appellant down, but when Jim reached into his pockets to get his money, Susan heard appellant's gun click as though he had pulled the trigger. Jim told appellant to calm down and gave him the money. They then walked over to the driver's side of Susan's car, and when she rolled the window down, Jim told her to give appellant her money. She handed over her money and her cell phone, which appellant also demanded. Appellant then returned to the other vehicle and drove away. Susan testified that during the encounter she was "scared to death" and afraid that appellant was going to shoot her. Jim Horr testified that he was in the Marine Corps. for seventeen years and had qualified as an expert on various weapons, including a .45 caliber pistol and a 9 millimeter pistol. He further stated that he formerly owned a 9 millimeter pistol, and he described the pistol and its operation. On April 28, 2005, after staying to gather equipment at the ballfield, Jim drove toward home. On the way, he spotted his wife's car and another car blocking the road. A man Jim identified as appellant was standing outside the vehicles and tried to wave Jim past. When Jim stopped and exited, appellant pulled out a gun and pointed it at Jim. Appellant approached Jim and said "Shut up or I'll pop a cap up your * * *." Jim then heard a metallic click like the hammer of a pistol. When he heard the click, he thought that appellant did not have a round in the chamber or had a misfire. Jim stated that he could tell it was a real gun because it was metallic and had matte blueing applied to it, which he explained is used on guns to prevent light reflection, and the barrel had a visible silver ring. Appellant demanded that Jim hand over his money, and Jim complied while trying to calm appellant down. Appellant said it wasn't enough, so Jim went to Susan's window and told her to give him her cash. Appellant took the cash and then demanded Susan's cell phone, which she also handed over. Appellant then returned to the other vehicle and left the scene. Appellant also testified at trial, admitting that he robbed the Horrs. He asserted, however, that he did not use a firearm during the robbery but merely wielded an air pistol only capable of firing yellow plastic balls. He said that the gun looked real and used a clip; the clip was stuck, however, and the pistol did not work properly. He said that he did not remember telling Jim Horr that he was going to "bust a cap in his * * *," but he admitted the possibility of such a threat. Appellant further stated that during the encounter, he cocked the pistol's hammer three times, and on one of those occasions, the hammer came down. The gun was not introduced into evidence and apparently was never recovered by the police. Discussion
Appellant contends that the trial court erred in denying his motion for a directed verdict because the State failed to prove that he used a firearm during commission of the offense as alleged in the indictment. We treat a point of error complaining about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). Accordingly, we use the well-established standards of review in assessing the legal sufficiency of the evidence. See King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). A person commits aggravated robbery if, among other possibilities, he or she uses or exhibits a deadly weapon during the course of a robbery. TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). The Texas Penal Code lists two categories of "deadly weapons." Id. § 1.07 (Vernon Supp. 2006); Robertson v. State, 163 S.W.3d 730, 732 (Tex.Crim.App. 2005). The first category is comprised of those instruments designed to be deadly weapons, including "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(A). The second category is comprised of those instruments whose use transforms them into deadly weapons, including "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B). Here, the indictment specifically charged that appellant used and exhibited a firearm while committing robbery. Therefore, the State had the burden to prove beyond a reasonable doubt that appellant in fact used and exhibited a firearm during the robbery. See Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991); Tidwell v. State, 187 S.W.3d 771, 775-76 (Tex.App.CTexarkana 2006, pet. stricken). As discussed above, Susan Horr testified that she had some familiarity with guns, that she "absolutely" believed appellant's pistol was a real gun, and that it looked similar to a 9 millimeter pistol formerly owned by her husband. Jim Horr testified that as a marine veteran, he had extensive experience with weapons, including .45 caliber and 9 millimeter pistols. He stated that he formerly owned a 9 millimeter pistol, and appellant's pistol looked like a 9 millimeter. He further testified in detail regarding what appellant's pistol looked like and why he believed it to be a real pistol. Additionally, both Susan and Jim testified to hearing a metallic click, and to hearing appellant say that he was going to "pop a cap" in Jim. Both observations support the conclusion that the pistol was a real firearm. Without citation to authority, appellant suggests that Jim did not qualify as an expert on handguns and thus his opinion regarding whether appellant's pistol was a firearm was of no value. However, because appellant did not object to Jim's testimony as impermissible expert testimony, he has not preserved this issue for appeal. TEX. R. APP. P. 33.1; Salazar v. State, 127 S.W.3d 355, 362 (Tex.App.CHouston [14th Dist.] 2004, pet. ref'd). Furthermore, under Texas Rule of Evidence 701, a lay witness may offer opinion testimony if based on personal observations not requiring significant expertise to interpret and not based on scientific theory. Tex. R. Evid. 701; Osbourn v. State, 92 S.W.3d 531, 537 (Tex.Crim.App. 2002). Indeed, the personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge. Osbourn, 92 S.W.3d at 537. This appears to be exactly what Jim was doing when he testified that based on his experience with guns, appellant's pistol was a real gun. Appellant cites several cases standing for the proposition that the State has the burden of proving that an alleged deadly weapon was capable of causing death or serious bodily injury in the manner of its use or intended use. See Davidson v. State, 602 S.W.2d 272, 273-74 (Tex.Crim.App. 1980); Lee v. State, 51 S.W.3d 365, 371-76 (Tex.App.CAustin 2001, no pet.); Adame v. State, 37 S.W.3d 141, 143-44 (Tex.App.CWaco 2001), rev'd, 69 S.W.3d 581 (Tex.Crim.App. 2002); Lucero v. State, 915 S.W.2d 612, 614-15 (Tex.App.CEl Paso 1996, pet. ref'd); Holder v. State, 837 S.W.2d 802, 807-09 (Tex.App.CAustin 1992, pet. ref'd). However, each of the cited cases involved an instrument in the second category of deadly weapons discussed above, i.e., those whose use or intended use converted them into deadly weapons. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B); Davidson, 602 S.W.2d at 273-74 (knife); Lee, 51 S.W.3d at 371-76 (air pistol); Adame, 37 S.W.3d at 143-44 (BB gun); Lucero, 915 S.W.2d at 614-15 (screwdriver); Holder, 837 S.W.2d at 807-09 (BB pistol). Here, appellant was charged with using or exhibiting a firearm, which is in the first category of deadly weapons and thus a deadly weapon per se. See TEX. PENAL CODE ANN. § 1.07(a)(17)(A). Accordingly, the State did not have to prove that appellant's pistol was capable of causing death or serious bodily injury in the manner of its use or intended use; it only had to prove that the pistol was in fact a firearm. Thomas, 821 S.W.2d at 620; Tidwell, 187 S.W.3d at 775-76. This it did through the testimony of Susan and Jim Horr. Lastly, regarding appellant's self-serving testimony that the pistol was merely an air gun, as sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to completely disregard appellant's testimony and assign it no weight. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCelvey v. State, 143 S.W.3d 522, 531 (Tex.App.CAustin 2004, pet. ref'd). Accordingly, we find that the evidence was legally sufficient to support the conclusion that appellant used and exhibited a firearm during the robbery. Appellant's sole issue is overruled. We affirm the trial court's judgment.