Opinion
01-21-00597-CR
09-20-2022
KERRY LORENZO MCCRAY, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1604947
Panel consists of Chief Justice Radack and Justices Landau and Hightower
MEMORANDUM OPINION
SHERRY RADACK CHIEF JUSTICE
A jury convicted appellant, Kerry Lorenzo McCray, of aggravated robbery, appellant pleaded "true" to an enhancement, and the jury assessed his punishment at 15 years' confinement. In his sole issue on appeal, appellant contends that there is legally insufficient evidence to prove that he used or exhibited a firearm during the course of the robbery. We affirm.
BACKGROUND
The complainant, Edwardo Santiago, testified that, while working outside his house on the morning of September 7, 2018, he was approached by a man, later identified as appellant, who asked to use the complainant's water hose for his companion's broken-down car across the street. Instead of using the water hose, however, appellant immediately returned to the complainant, produced a gun, which the complainant testified looked like "a black gun that was not very large," and pointed it at the complainant's forehead. The complainant, who testified that he was feeling "[a] lot of fear" and was thinking that "this is as far as I get," along with "if I don't do what he's asking me to do, he's going to shoot me," remembers appellant telling him to "give him [his] wallet, the money," in English and repeating "dinero" in Spanish.
Appellant then pointed the gun at the back of the complainant's head and pushed him into the garage, taking the complainant's phone, as well as the keys to his house and car, in the process. Appellant struck the complainant in the head with the gun multiple times before pushing him into the house. Once inside, appellant struck the complainant's head with the gun once more and "knocked" him onto the bed, leaving a large bloodstain on the sheets. Appellant rummaged through the complainant's things before finding his wallet and taking it. Appellant continued to search the room and closets before striking the complainant on the head one last time and putting him in a closet. The complainant testified that appellant said "not to open the [closet] door because he would shoot [complainant]," then he fled the scene.
Officer A. Lyons testified that, on September 7, 2018, he responded to the complainant's house to investigate a "home invasion." He testified that the complainant confirmed that he had been hit in the head "[b]y a gun." The trial court admitted into evidence photographs of the blood stain and the complainant's injuries caused by the appellant striking him with a gun.
Officer A. Lopez testified that, the next day, he responded to a call made by appellant regarding a suspicious vehicle allegedly following him. Once police arrived on the scene, appellant admitted to having a gun on his person. Police searched him and recovered a loaded 9-millimeter handgun from his waistband, along with several of the complainant's stolen credit cards. Officer H. Shaffer transported the handgun and stolen cards to the station property room after appellant's arrest. The handgun was admitted into evidence and the complainant answered affirmatively when asked whether it "looked similar" to the firearm used during the robbery.
During the trial, Detective T. Vaca testified that no DNA testing was done on the gun recovered from appellant. He also testified that, even though a ballistics test was not performed on the gun, it was unnecessary because there was no shooting reported and the gun had not been fired during the robbery.
Other testimony at trial included Officer J. Olivarez, who testified that the complainant picked appellant out of a line-up with little hesitation.
At the close of the guilt-innocence phase of trial, the trial court's charge authorized the jury to find appellant guilty of the offense of aggravated robbery if, in part, it found that he used or exhibited a deadly weapon during the commission of the offense. The jury found appellant guilty of the offense of aggravated robbery.
During punishment, appellant testified that he was in possession of the credit cards with the intention to commit fraud, but that he had received them from someone other than complainant. On cross-examination, appellant testified that he only came into possession of the gun on September 8, 2018, the day of his arrest, and that it was given to him by the same person who gave him the credit cards.
The jury assessed appellant's punishment at 15 years' confinement. In accordance with the jury's verdict, the trial court entered an affirmative finding that appellant used or exhibited a deadly weapon during his commission of the offense.
SUFFICIENCY OF THE EVIDENCE
In his sole issue, appellant contends that "[t]he evidence is insufficient to support the jury's verdict of guilty of aggravated robbery with a deadly weapon, namely a firearm, since there is not legally sufficient evidence that appellant used or exhibited a firearm during the course of the alleged robbery of the complainant."
Standard of Review and Applicable Law
We review the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); Edwards v. State, 497 S.W.3d 147, 156 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd). Our role is that of a due process safeguard, ensuring only the rationality of the trier-of-fact's finding. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the factfinder's determinations on witnesses' credibility and the weight to be given to their testimony and do not substitute our judgment on these matters. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code § 29.02(a)(2). Theft is the unlawful appropriation of property with intent to deprive the owner of the property. Id. § 31.03(a). The offense of robbery is aggravated if the offender "uses or exhibits a deadly weapon" during its commission. Id. § 29.03(a)(2). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A) (defining deadly weapon as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury").
Analysis
Appellant contends that the evidence was legally insufficient to support the trial court's finding that he used or exhibited a firearm during the course of the robbery. Specifically, he asserts that there is insufficient evidence to support the jury's finding that: (1) the gun used during the robbery was actually a firearm, and (2) the firearm recovered from appellant's person the following day was the same "gun" or "firearm" used in the robbery.
In support of his first argument, appellant asserts that the evidence is legally insufficient because the complainant only testified that the weapon used in robbery was a "gun," rather than referring to the weapon as a "firearm." This argument is not grounded in any precedent of this Court, nor is it supported by case law from higher courts.
Testimony using any of the terms "gun," "pistol," or "revolver" is sufficient to authorize the jury to find that a deadly weapon was used, absent any specific indication to the contrary. Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (panel op.). When asked to describe the gun, the complainant testified that it was "a black gun that was not very large." See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) ("Testimony regarding the use of a [firearm] is sufficient to support a finding of use and exhibition of a deadly weapon."). Further, during the trial, the terms "gun" and "firearm" were used interchangeably. As the record shows, the complainant answered "yes" when asked if the gun recovered from appellant's person "look[ed] similar the gun that was pointed to [his] head" and was then asked to confirm a second time whether the recovered gun looked similar to "[t]he firearm that was pointed to [his] head," to which the complainant also answered "yes."
Moreover, when an accused threatens a victim with a gun, the act itself suggests that the gun is a firearm rather than simply a gun of the non-lethal variety, such that the factfinder may draw a reasonable inference or make a reasonable deduction that the gun used in the commission of the crime was a firearm, absent any evidence to the contrary. Hill v. State, No. 06-21-00096-CR, 2022 WL 1591336 at *7 (Tex. App.-Texarkana, May 20, 2022) (citing Cruz v. State, 238 S.W.3d 381, 388-89 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd)); see also Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.-Houston [14th Dist.] 1999) pet. dism'd, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002).
In this case, there is nothing in the record to suggest that the gun used by appellant was a toy or anything other than a firearm. The complainant testified that appellant had "a black gun that was not very large," and when asked if he got a close look at the gun, the complainant answered in the affirmative. The complainant also testified that when appellant pointed the gun at his head, he thought that "this is as far as I get" and that "if I don't do what he's asking me to do, he's going to shoot me." Unlike a toy, the weapon was heavy and caused bleeding when it was used to hit the complainant in the head.
Both the description of the weapon, the way it was used, and complainant's fear for his life support the jury's finding. This Court has previously held that a victim's testimony regarding their fear and belief that their life was in danger constituted legally sufficient evidence that the gun used by appellant was a firearm, and accordingly, that the jury could have concluded as such beyond a reasonable doubt. See Cruz, 238 S.W.3d at 389.
In support of his second argument, appellant asserts that the evidence is legally insufficient to support his conviction because the complainant "never identified the [firearm] recovered the following day [from] appellant's person" as the same firearm used and exhibited in the course of the robbery. This argument is also unsupported by any recognized precedential caselaw.
It is not a prerequisite to a conviction that the exact firearm used in the commission of the offense be recovered. See Bell v. State, No. 01-16-00774-CR, 2018 WL 1473781, at *4 (Tex. App.-Houston [1st Dist.] Mar. 27, 2018, pet. ref'd) (mem op) (holding that "neither proof that [defendant] possessed a weapon before or after the robbery, nor recovery of the firearm, was required to support conviction"). Further, it is also not a requirement that the complainant be able to describe the firearm used during the offense. See id. (holding that "there is likewise no requirement that a victim be able to . . . describe the firearm used").
It is sufficient for the victim to describe only part of the firearm used. See Gomez, 685 S.W.2d at 336 (holding that complainant's testimony that he saw "half" of "black colored gun" and that defendant "covered the other half" sufficient to support deadly-weapon finding); see also Riddick v. State, 624 S.W.2d 709, 710-11 (Tex. App.-Houston [14th Dist.] 1981, no pet.) (holding that complainant's testimony that defendant threatened her with "pistol" was sufficient, notwithstanding that she could only see barrel of firearm). It is within the province of the jury to determine the credibility of the complainant's testimony even if part of their testimony is incomplete. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
In this case, the complainant testified that the robber was using "a black gun that was not very large" and answered affirmatively that State's Exhibit 35-the firearm recovered from appellant-looked "similar" to the gun used during the robbery. When asked by defense counsel about the silver coloring of the firearm, the complainant responded that "[he] did not see that. [He] just looked at the gun . . . on the front side . . . [and] never got to see the gun again." This description is consistent with other testimony found sufficient to support convictions in previous cases. See Gomez, 685 S.W.2d at 336; Riddick, 624 S.W.2d at 710-11.
Lastly, the firearm was recovered from appellant's person along with credit cards belonging to the complainant, which had been taken during the robbery. See Johnson v. State, No. 14-18-00873-CR, 2020 WL 1528103, *2, 3 (Tex. App.- Houston [1st Dist.] Mar. 31, 2020, pet. ref'd) (mem. op., not designated for publication) (holding that evidence was legally sufficient to support conviction when firearm was recovered from appellant's vehicle along with stolen property belonging to complainant).
Therefore, viewing the evidence in the light most favorable to the verdict, the jury could have made the reasonable inference that the complainant's testimony regarding the "gun" used in the commission of the crime, was, in fact, a firearm and that the firearm recovered from appellant's person the following day was the same firearm used during the robbery. Accordingly, the jury could have reasonably concluded that appellant, while in the course of committing a theft of a wallet, and with the intent to obtain or maintain control of it, intentionally or knowingly placed the complainant in fear of imminent bodily injury or death. See Tex. Penal Code §§ 29.02(a)(2); 31.03(a). The jury could have also reasonably concluded that appellant used or exhibited a firearm during his commission of the offense. Id. §§ 1.07(a)(17)(A), 29.03(a)(2).
We overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.