No. 01-05-00245-CR
Opinion issued December 8, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 994484.
Panel consists of Justices TAFT, KEYES, and HANKS.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Brad Allen Broussard, of aggravated robbery and assessed his punishment at 50 years confinement. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In four points of error, appellant argues that the evidence was legally and factually insufficient to prove (1) his identity and (2) that he used a deadly weapon while committing the robbery. We affirm.
Background
At approximately 7:15 a.m. on July 15, 2004, appellant confronted the complainant, Edna Grounds, as she attempted to exit her vehicle in the parking lot of a neighborhood grocery store. Appellant placed a knife to Grounds's throat and demanded money. Having only one dollar in her purse, Grounds offered to go inside the store in order to withdraw additional cash from an ATM machine. Appellant refused this offer and demanded that Grounds take him to a drive-thru ATM. While holding the knife near Ground's face, appellant entered the back seat of her car and ordered her to drive him to an ATM. After Grounds and appellant were unable to locate a drive-thru ATM, appellant instructed Grounds to pull into a Stop `N Go convenience store. Appellant informed Grounds that he would follow her into the store, where she would withdraw money from her account. As they approached the entrance, appellant told Grounds that if she screamed, he would "cut her up" and then "go get her family." Grounds withdrew $300 in twenty dollar bills, handed them to appellant, and then screamed that she was being robbed. As he ran out of the store, appellant fell and dropped a cell phone, dislodging the phone's battery. Appellant retrieved the phone before continuing to flee, but not the battery. Doris Boyd, the manager of the store, called 911. Boyd testified that she had witnessed Grounds and appellant together at the ATM before appellant fled. D. Johnson, an officer with the Harris County Constable's Office, arrived at the store shortly after Boyd's 911 call. Grounds described her assailant to Johnson and then rode with him in his patrol car to search the area. She spotted appellant about a block from the convenience store and identified him to Johnson. Appellant, who had observed Johnson's patrol car, immediately fled into a nearby subdivision. Additional officers were called to assist in the search for appellant and to ensure that he was unable to exit the subdivision without being apprehended. During the search, appellant was observed running about the neighborhood by various officers. Appellant was eventually chased to a nearby apartment complex where he was then residing with his cousin, Kenneth Harrell. Harrell testified that appellant ran into the apartment while being pursued by police officers. Appellant barricaded the apartment's front door and crawled behind the refrigerator, where he was found after officers gained access to the apartment by breaking a window. At or near the scene of the arrest, officers found a bundle of 20-dollar bills totaling $260. Discussion Legal and Factual Sufficiency of the Evidence: Appellant's Identity
In his first and second points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to sustain his conviction. Specifically, appellant contends that the evidence was not sufficient to establish his identity as the perpetrator. Legal Sufficiency We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon 2003). A person commits robbery when, "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." See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). A conviction for aggravated robbery requires that the State prove that the defendant committed a robbery and either caused serious bodily injury to another, used or exhibited a deadly weapon, or "causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is: . . . 65 years of age or older; or . . . a disabled person." Id. at § 29.03. Here, the complainant positively identified appellant in open court as the man who robbed her. On its own, the complainant's positive identification of appellant suffices to establish his identity as the offender. See Escovedo v. State, 902, S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Moreover, Boyd identified appellant as the man she saw hovering over the complainant as she withdrew money from the Stop `N Go's ATM machine. Thus, we conclude that the State presented legally sufficient evidence of appellant's identity. We overrule appellant's first point of error. Factual Insufficiency We begin a factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside 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)). Our evaluation may not intrude upon the fact finder's role as the sole judge of the weight and credibility to be accorded any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407-09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82. Here, appellant argues that the evidence presented at trial was factually insufficient to identify him as the offender. His contention is without merit. As noted, the complainant and Boyd positively identified appellant in open court. Appellant avers that the complainant's in-court identification is not credible because she was unable to pick him out of a photo line-up shown to her only hours after being robbed. The complainant testified, however, that she did not identify appellant in the photo line-up because she was shown a dark photograph with poor resolution. It was within the sole province of the jury to resolve any discrepancies between the complainant's failure to pick appellant out of the photo line-up and her positive identification of him in open court. See Cain, 958 S.W.2d at 407. In addition to eyewitness testimony, appellant is connected to the robbery by (1) $260 in twenty dollar bills recovered near the apartment where appellant was arrested; (2) clothing found in the apartment that matches eyewitness descriptions of appellant's attire; (3) the cell phone battery recovered from the Stop `N Go that matched the cell phone found where appellant was arrested; and (4) appellant's consciousness of guilt as evidenced by his flight from police and attempt to barricade himself in Harrell's apartment. See Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994) (holding that evidence of flight "shows a consciousness of guilt of the crime for which the defendant is on trial"). Viewed in a neutral light, the evidence was factually sufficient to support appellant's conviction. We overrule appellant's second point of error. Legal and Factual Sufficiency of the Evidence: Use of a Deadly Weapon In his third and fourth points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to establish that the knife used during the robbery was a deadly weapon. A conviction for aggravated robbery requires that the State prove that the defendant committed a robbery and either caused serious bodily injury to another, used or exhibited a deadly weapon, or "causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is: . . . 65 years of age or older; or . . . a disabled person." See Tex. Pen. Code Ann. § 29.03. Here, the complainant was uninjured, under the age of 65, and not disabled. Thus, the State could obtain a conviction for aggravated robbery only by proving that the knife used by appellant was a deadly weapon. A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003). While not a deadly weapon per se, a knife may be a deadly weapon based on the nature of its use or intended use. See Garcia v. State, 17 S.W.3d 1, 4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). In determining whether or not a given knife is a deadly weapon, courts consider the following factors: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony about the knife's life-threatening capabilities. Id. Contrary to appellant's contentions, these factors need not be proven by introducing the knife into evidence or through expert testimony. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. 1982) (holding that a weapon can be found to be deadly without having been introduced into evidence); Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App. 1980) (holding that expert testimony is not required to establish that a weapon is deadly). Here, the complainant described appellant's knife as one with a long, smooth, sharp blade, more akin to a carving knife than a butter knife. She testified that appellant placed the knife at her throat, flicking it back and forth. The complainant further testified that appellant told her that he would "cut her up," and indicated that she feared for her life. In view of this evidence, a rational fact finder could have found beyond a reasonable doubt that appellant's knife was a deadly weapon based on the nature of its physical characteristics and its intended use. See Garcia, 17 S.W.3d at 4. Furthermore, when viewed in a neutral light, the evidence supports the jury's determination that appellant employed a deadly weapon. Thus, we find that the State presented legally and factually sufficient evidence regarding appellant's use of a deadly weapon. We overrule appellant's third and fourth points of error. Conclusion
We affirm the judgment of the trial court.