Opinion
NO. 02-15-00296-CR
05-26-2016
DEAIRION JOHNSON A/K/A KEVIN APPELLANT KIMP v. THE STATE OF TEXAS STATE
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1402171D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Deairion Johnson a/k/a Kevin Kimp appeals his conviction for aggravated robbery with a deadly weapon. In three points, Johnson challenges the sufficiency of the evidence to support the deadly-weapon finding, the admission of expert testimony, and the propriety of the trial court's order authorizing the withdrawal of funds from his inmate trust account. We hold that the evidence presented at trial was insufficient to support the deadly-weapon finding. Therefore, we reverse the trial court's judgment, render a judgment reflecting a conviction for robbery, and remand for a new punishment hearing.
The majority of the documents filed in the trial court, including the indictment and the jury charge, referred to Johnson as "Kevin Kimp." Shortly before the charge was given to the jury, the trial court signed an order noting that Deairion Johnson was his true name and entering this change into the minutes. Pursuant to this order, we refer to Johnson by his true name.
I. BACKGROUND
On the night of June 1, 2013, Amelia Martinez and Aaron Martinez were working as cashiers at a Race Trac convenience store in Fort Worth, Texas. At approximately 11:00 p.m., Johnson got a fountain drink in the store and approached the cash register to pay for the drink. After he paid, he walked around to Amelia's side of the counter, holding what Amelia described as "like a butter knife," and "aggressively" ordered Aaron and Amelia to "[b]ack the [expletive] up." Amelia stated that Johnson, with his arms bent at the elbows and holding the knife, "lunge[d]" or "gesture[d]" at Aaron and Amelia while forcing them into a corner and telling them to keep their faces down. Aaron testified that Johnson "kind of stuck his chest out" before ordering them to back up. Aaron saw Johnson holding "a silver object" and presumed it was a knife, but could not identify it as such. Johnson then grabbed the money from both cash registers, told them to "have a nice [expletive] day," and left the store. Police were able to identify Johnson by a fingerprint and DNA from the fountain drink that he had left sitting on the counter.
Johnson was indicted with aggravated robbery by intentionally or knowingly, while in the course of committing theft of property, threatening or placing Amelia in fear of imminent bodily injury or death and using or exhibiting a deadly weapon. See Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (West 2011). After being charged on the offenses of robbery and aggravated robbery, a jury found Johnson guilty of aggravated robbery as charged in the indictment. During the punishment phase of trial, the State presented the testimony of Fort Worth Police Officer Christopher Wells, who was a gang-intelligence officer. Wells testified about gang activity in Fort Worth as well as the tattoos and signs associated with those gangs. Wells opined that Johnson's tattoos identified him as a member of a specific gang that operates in the area where the robbery took place.
The jury assessed Johnson's punishment at eighteen years' confinement with a $10,000 fine. The trial court entered judgment, sentencing Johnson to eighteen years' confinement and assessing $299 in court costs. Although the trial court orally pronounced the fine as part of the imposed sentence, it did not include the fine in the written judgment. Johnson filed a motion for new trial, contending that the evidence was insufficient to support his conviction, which was deemed denied. See Tex. R. App. P. 21.8(c).
II. SUFFICIENCY OF DEADLY-WEAPON EVIDENCE
In his first point, Johnson argues that the evidence at trial was insufficient to support the jury's implicit finding that he used or exhibited a deadly weapon during the robbery. As charged, the use or exhibition of a deadly weapon was an element of the offense of aggravated robbery. See Hatch v. State, No. 05-13-01710-CR, 2015 WL 4723620, at *5 (Tex. App.—Dallas Aug. 10, 2015, pet. ref'd) (mem. op., not designated for publication).
A. STANDARD AND SCOPE OF REVIEW
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier 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 (1979). To sustain a deadly-weapon finding, the evidence must show that the object meets the statutory definition of a deadly weapon, the deadly weapon was used or exhibited during the offense, and other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). Relevant to this appeal, a deadly weapon is defined by statute as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2015). An object that may not normally be considered a deadly weapon may become one depending on the manner of its use during the commission of an offense, regardless of intent. Drichas, 175 S.W.3d at 798; Mims v. State, 335 S.W.3d 247, 249-50 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). Thus, the "sufficiency of the evidence is dependent upon the specific testimony in the record about the manner of use." Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014); see McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To that end, we may consider several factors to determine whether the evidence supported a finding that the knife was a deadly weapon: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) any evidence of the knife's life-threatening capabilities; (4) the nature or existence of any inflicted wounds; (5) threats or gestures used by the defendant; and (6) the physical proximity between the victim and the knife. See Magana v. State, 230 S.W.3d 411, 414 (Tex. App.—San Antonio 2007, pet. ref'd).
B. APPLICATION
The knife was not admitted into evidence, and Amelia was unable to testify as to the exact shape and size of the knife apart from identifying it as a "rounded butter knife" or "kitchen silverware." Aaron was not able to definitively state that Johnson's "shiny object" was a knife. Amelia testified that while Johnson backed Amelia and Aaron away from the cash registers, Johnson held the knife up and lunged at or "lurched forward with [his] chest and head" toward Amelia and Aaron. Aaron stated that Johnson "stuck his chest out." The security video of the robbery, which the jury saw, did not reflect that Johnson lunged at Amelia as she stated at trial; but Johnson did pass closely by Amelia while holding the knife before ordering her and Aaron to back up. Although Johnson cursed at Amelia and Aaron and ordered them to keep their faces down and to back up while holding the knife, he did not verbally threaten them, brandish the knife, or touch them with it.
Amelia testified that she was scared because she did not "know if [Johnson] can harm [her]," because a "butter knife . . . still can do some damage," and because she had never been robbed before. Aaron testified that he was not scared for his life, but was scared for Amelia "because [he] could see that she was scared." Indeed, the video reflects that both Amelia and Aaron returned to their registers to help other customers immediately after Johnson left the store.
We conclude that this evidence is insufficient to support a finding that the knife, in the manner Johnson used or intended to use it, was capable of causing death or serious bodily injury. See, e.g., Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (holding evidence insufficient to support finding knife was a deadly weapon because complainant testified that defendant displayed "something like a kitchen knife" during robbery but could not identify its sharpness or length); Davidson v. State, 602 S.W.2d 272, 273-74 (Tex. Crim. App. [Panel Op.] 1980) (holding evidence insufficient to establish knife was deadly weapon when witnesses estimated blade's length as between two-and-a-half and five inches, knife was not introduced into evidence, and no evidence offered about knife's potential to inflict death or serious bodily injury); cf. Harrell v. State, No. 05-10-01322-CR, 2012 WL 171861, at *3 (Tex. App.—Dallas Jan. 20, 2012, no pet.) (not designated for publication) (holding evidence sufficient to support finding butter knife was used as deadly weapon because defendant severely beat complainant, left to get butter knife, and stabbed complainant in the leg); Chavez v. State, 740 S.W.2d 21, 22-23 (Tex. App.—El Paso 1987, no pet.) (holding evidence sufficient to establish use of knife as deadly weapon where co-defendant jabbed unidentified sharp object in complainant's back while twisting her arm and forcing her to open cash register and defendant then drew out a knife, which was "sharpened on both sides," and approached complainant as she emptied the register); Williams v. State, 732 S.W.2d 777, 779 (Tex. App.—Corpus Christi 1987, no pet.) (concluding that rounded-tip knife, which was admitted into evidence and had a four-inch, serrated blade, was used as a deadly weapon when defendant, during a sexual assault, grabbed complainant's face, pressed the knife into her side, and threatened to kill her). As we have discussed, there was no evidence of the size and shape of the knife Johnson held during the robbery or its capacity to cause serious bodily injury or death. The entirety of the evidence, even when viewed in the light most favorable to the verdict, would not allow a reasonable fact-finder to conclude that Johnson used or intended to use the knife in a manner capable of causing death or serious bodily injury.
C. DISPOSITION
Having concluded that the evidence was insufficient to support the deadly-weapon element of Johnson's aggravated-robbery conviction, it follows that the evidence was insufficient to support a finding of guilt for aggravated robbery. See Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.—Dallas 1994, pet. ref'd) (op. on reh'g). But robbery is a lesser-included offense of aggravated robbery. See Penaloza v. State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). To determine if we may render a judgment of conviction for robbery as a lesser-included offense, we must ask whether (1) the jury must have necessarily found every element necessary to convict him for robbery and (2) there is sufficient evidence to support a robbery conviction. Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014).
First, by finding Johnson guilty of aggravated robbery, the jury necessarily found him guilty of the lesser-included offense of robbery. See Hernandez v. State, 946 S.W.2d 108, 114 (Tex. App.—El Paso 1997, no pet.); Hester v. State, 909 S.W.2d 174, 181 (Tex. App.—Dallas 1995, no pet.). Second, Johnson challenges only the sufficiency of the evidence regarding whether he intentionally or knowingly threatened or placed Amelia in fear of imminent bodily injury or death. Amelia testified that Johnson lunged at her, backed her into a corner, cursed at her, and ordered her to not look at his face, all of which scared her. This evidence, which the jury was free to believe, was sufficient to show that Johnson, while committing theft, intentionally or knowingly threatened or placed Amelia in fear of imminent bodily injury or death. See, e.g., Crenshaw v. State, No. 02-14-00192-CR, 2015 WL 1544129, at *3-4 (Tex. App.—Fort Worth Apr. 2, 2015, no pet.) (mem. op., not designated for publication); Leonard v. State, No. 01-09-00379-CR, 2010 WL 4676989, at *3 (Tex. App.—Houston [1st Dist.] Nov. 18, 2010, pet. ref'd) (mem. op., not designated for publication); Barrow v. State, No. 07-08-00298-CR, 2010 WL 2160370, at *2-3 (Tex. App.—Amarillo May 28, 2010, pet. ref'd) (mem. op., not designated for publication); Hayden v. State, 155 S.W.3d 640, 643-44 (Tex. App.—Eastland 2005, pet. ref'd); Williams v. State, 886 S.W.2d 495, 496-97 (Tex. App.—Fort Worth 1994, no pet.). Therefore, the correct disposition is to reverse the trial court's judgment and render a judgment of conviction for the lesser-included offense of robbery. See Tex. R. App. P. 43.2(c); Lockett, 874 S.W.2d at 818; see also Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013) (holding if State fails to prove an element of the offense, rendition of judgment of conviction for lesser-included offense improper "unless there is proof beyond a reasonable doubt of all elements of the lesser-included offense"); Bowen v. State, 374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012) (allowing appellate court to reform judgment to reflect conviction of lesser-included offense). Because a robbery conviction carries a different punishment range than the range considered by the jury for aggravated robbery, we must remand the case for a new punishment hearing.See Lockett, 874 S.W.2d at 818. Compare Tex. Penal Code Ann. § 29.03(b) (classifying aggravated robbery as first-degree felony), with id. § 29.02(b) (classifying robbery as second-degree felony).
Because Johnson is entitled to a new punishment hearing, we need not address his third point directed to the effect of the fine assessed by the jury or his second point regarding Wells's testimony, which was introduced at punishment. See Tex. R. App. P. 47.1. --------
III. CONCLUSION
Because we conclude that the evidence was insufficient to support the finding that Johnson used or exhibited a deadly weapon, which was an element of the offense of aggravated robbery, we sustain in part Johnson's first point, reverse the trial court's judgment, render a judgment reflecting a conviction of robbery, and remand to the trial court for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2015); Tex. R. App. P. 43.2(c), 43.3; Lockett, 874 S.W.2d at 818.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016