Opinion
No. 10-04-00140-CR
Opinion delivered and filed April 13, 2005. DO NOT PUBLISH.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court # 03-04515-Crf-361.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Kervin Burns was found guilty by a jury of aggravated robbery. TEX. PEN. CODE ANN. § 29.03 (Vernon 2003). Burns pled true to one enhancement paragraph and not true to a second enhancement paragraph. The trial court found both enhancement paragraphs to be true and assessed punishment at thirty-five years' confinement. Burns brings two issues on appeal: (1) the evidence is insufficient to prove he used or exhibited a deadly weapon; and (2) the trial court erred by overruling his objection to a comment on his failure to testify.
We will overrule the issues and affirm the judgment.
BACKGROUND
A cashier at a grocery store in College Station testified that Burns entered the store about 2:00 a.m. and tried to change a $100 bill. After changing the bill with another customer, Burns left the store. Burns returned to the store a short time later and asked the cashier for some cigars. Burns then asked the cashier where the Kool-aid mix was. The cashier testified that Burns was carrying a package of meat, but when he returned with the Kool-aid he no longer had the meat in his hand. The cashier noticed a bulge under Burns's shirt. Burns then paid for the cigars and Kool-aid. The cashier confronted Burns near the front door and asked for the item under Burns's shirt. Burns took the meat out from under his shirt and handed it to the cashier. The cashier then instructed Burns to wait for the police to arrive. The cashier testified that Burns then told him that he would not wait for the police and he "wasn't going back to the pen." Burns then reached into his rear pocket and produced a pocket knife. The cashier described the knife as having a three-inch blade. He testified that Burns held the knife by his side and displayed the blade by opening the knife with his thumb. The cashier testified that he believed that he might get stabbed if he stayed in Burns's way and that the knifed could have caused death or serious bodily injury. The cashier backed up and let Burns exit.Deadly WeaponBurns argues that the evidence is insufficient to prove the pocket knife was a deadly weapon. Although Burns does not specify, he seems to be arguing legal, rather than factual, sufficiency. When reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether a rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Aggravated robbery may be committed by using or exhibiting a deadly weapon during the commission of a robbery. TEX. PEN. CODE ANN. § 29.03. A deadly weapon is: (A) a firearm or anything manifestly designed, made, or adapted to the purpose of inflicting death or serious bodily injury; or (B) 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)(A), (B) (Vernon Supp. 2004-05). Under subsection (B), the defendant need not intend to cause death or serious bodily injury, only to use or intend to use the object in a manner that is capable of such a result. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Conduct that threatens deadly force may be sufficient even though the defendant has no intention of actually using deadly force. Id. Factors such as the manner of the knife's use, the size of the blade, the victim's description of the knife, express and implied threats made by the accused, or the physical proximity of the accused and the victim may be offered to establish a knife's capacity to cause serious bodily injury or death. Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986). The cashier testified that Burns stated that he would not wait for the police because he was not going back to prison, and then exhibited the knife. A rational jury could have found from the evidence that Burns used the knife to threaten the cashier. A videotape was shown to the jury showing the cashier's and Burns's proximity to one another at the time the knife was exhibited. The cashier testified that Burns's words and knife caused him to believe that he would be stabbed if he did not move out of Burns's path. The cashier testified to the size of the blade, and both he and the investigating officer testified that a knife with a three-inch blade was capable of causing serious bodily injury or death. Viewing the evidence in the light most favorable to the verdict, we conclude that it is legally sufficient to support the finding that Burns used or exhibited a deadly weapon. We overrule this issue.
Improper CommentBurns argues that the trial court erred by overruling his objection to a comment by the prosecutor on his failure to testify. In closing argument, the prosecutor stated:
Now, with intent to maintain control over that property goes right in there in the course of committing theft. Nowhere in here has there been anything that says he did not attempt to maintain control of that property. . . . He intended to maintain control of that property. That's what is important about in the course of committing theft. There is nothing, no finding, no evidence that butts up against each other on those points.At that point, defense counsel objected to comments on the defendant's failure to testify. The trial court overruled the objection. A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). Comments by a prosecutor referring to a defendant's failure to testify violate article 38.08 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 1979). However, for a statement to constitute a comment on the failure to testify, the language must either be manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Montoya v. State, 744 S.W.2d 15, 35 (Tex.Crim.App. 1987). Burns argues that the prosecutor's argument called attention to the absence of evidence which only the defendant could supply, and thus was an improper comment on the defendant's failure to testify. See Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App. 1995). However, intent to maintain control over property can be proven by circumstantial evidence. Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Such intent may be rebutted by circumstantial evidence as well. The prosecutor's comment could thus reasonably be construed to refer to evidence other than the defendant's testimony. See Patrick, 906 S.W.2d at 491. The prosecutor's argument was not such that a jury would naturally and necessarily take it to be a comment on Burns's failure to testify. We overrule this issue.
CONCLUSION
Having overruled the issues, we affirm the judgment.