No. 05-02-01379-CR
Opinion Filed August 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F02-00808-VK. AFFIRMED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice BRIDGES.
A jury convicted Thomas Eugene Green of aggravated robbery and assessed punishment, enhanced by one prior felony conviction, at thirty-eight years confinement and a $7500 fine. After the jury's verdict, the trial court entered an affirmative finding that appellant used a deadly weapon, specifically a box cutter/razor, during the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the deadly weapon finding. We affirm.
Facts
Kimberly Stacey visited eighty-year-old Robert Mitchell on several occasions to do Stacey's laundry and to clean Mitchell's home. On two of those visits, appellant accompanied her. To put Mitchell at ease, Stacey introduced appellant, a platonic friend, as her brother. In appellant's presence, Mitchell paid Stacey $50 for housecleaning services and gave her $200 to help with her overdue rent. Although Stacey stood in front of appellant while Mitchell was handing her the cash, she could not be sure appellant did not observe the transaction. On the night of the offense, appellant woke Mitchell by ringing the doorbell at 1:30 a.m. When Mitchell answered the door, appellant asked permission to use the telephone. Mitchell recognized Stacey's "brother" and invited appellant inside his home. Appellant remarked that it was hot inside the house and went into the room where the telephone was located. While Mitchell was adjusting the thermostat, he saw appellant approach him with what Mitchell described at trial as a box cutter or X-ACTO knife — a knife that holds a small razor blade. Appellant used the X-ACTO knife to cut Mitchell's throat in two places. When Mitchell asked appellant why he was mad and what he wanted, appellant denied being angry and he demanded to know where Mitchell kept Mitchell's wallet and gun. After obtaining Mitchell's wallet and gun, appellant took the telephone from the wall and left the house. Mitchell testified he had between $2700 and $3000 in his wallet on the night of the offense. Mitchell did not call the police or an ambulance. Instead, he stanched his bleeding wounds and laid down on the bed. The following day, he used a second telephone to call his daughter, who called the police and an ambulance. Mitchell required about twelve stitches to close his throat wounds which included a slight cut to the jugular vein. Mitchell told police that Stacey's brother had attacked him. Dallas police detective Robert Ermatinger tracked down Stacey and she identified appellant, an employee at a nearby car dealership whom she knew as "Barracuda" or "Tommy," as the person she had introduced to Mitchell as her brother. From the car dealership, Ermatinger obtained further information about appellant. Ermatinger put together a photographic lineup and Mitchell picked appellant's photograph from the lineup as the man who had robbed him. Mitchell could not, however, identify appellant in court. Stacey, a convicted prostitute, testified appellant's appearance had changed since the picture used in the photographic lineup was taken. According to Stacey, at the time of the offense, appellant's appearance matched his appearance in the photograph. A second police detective testified he obtained a fingerprint, later matched to appellant, from the interior glass of Mitchell's storm door. No weapon was recovered. The State introduced into evidence a box cutter that Mitchell testified was similar to the X-ACTO knife appellant used during the robbery. Ermatinger testified the box cutter could be used as a deadly weapon. Appellant did not offer any evidence about the nature of the weapon used in the robbery. Standard of Review
In weighing the legal sufficiency of the evidence, we must determine whether, after considering the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). We are mindful that it was the jury's role, as fact finder, to weigh the evidence and assess the credibility of the witnesses. See Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1108 (1999); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Whitaker, 977 S.W.2d at 598. The jury may draw reasonable inferences from the evidence. See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we review the evidence in support of and contrary to the verdict to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Although we are authorized to disagree with the fact finder's determination, our review must be conducted with appropriate deference so as to avoid substituting our judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 7. Discussion
Appellant contends the evidence is legally and factually insufficient to support the jury's guilty verdict because there was no evidence that he used a razor. The indictment charged appellant with committing aggravated robbery using a deadly weapon described as "a razor and a box cutter." The jury charge authorized the jury to convict appellant if it found he used "a razor or a box cutter." When an indictment alleges differing methods of committing an offense in the conjunctive, the jury is properly charged in the disjunctive, and it may find the defendant guilty if the evidence proves any of the methods submitted. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). The trial court must enter an affirmative finding in the judgment, when, as in this case, the indictment specifically alleged use of a deadly weapon and the jury returns a verdict of "guilty as charged in the indictment." See Johnson v. State, 6 S.W.3d 709, 713-14 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). The jury was authorized to convict appellant if it found he used a box cutter or a razor. Mitchell's uncontroverted testimony establishes appellant used a type of box cutter. Therefore, we conclude the evidence is both legally and factually sufficient to support the affirmative deadly weapon finding. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 11. We overrule appellant's points of error. We affirm the trial court's judgment.