No. 05-02-00786-CR
Opinion Filed July 8, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-74553. AFFIRM as MODIFIED
Before Justices O'NEILL, BRIDGES, and FITZGERALD.
Opinion By Justice FitzGerald.
Larry Wayne Richardson appeals his conviction for aggravated robbery. In four points of error, Richardson argues the evidence is legally and factually insufficient to support both the jury's finding that he committed the aggravated robbery and its finding that a deadly weapon was used in the robbery. We affirm the judgment of the trial court.
Background
The aggravated robbery at issue in this case was captured on a security videotape. Accordingly there are few questions about how the robbery took place. Karmali Amlani was working behind the counter at La Bonita Dollar Store; Sharmilla Behrarry was working in an aisle a short distance from the counter. The robber approached the counter with a bottle of baby lotion and handed Amlani two dollars. When Amlani opened the cash register to get change for the purchase, the robber pulled a gun from his pocket and pointed it at Amlani's head. Amlani removed the cash drawer from the register and attempted to pass the drawer to the robber, but he dropped it, and the money spilled out. The robber jumped over the counter, struck Amlani on the head and across the face with the gun, grabbed some of the spilled cash, and ran away. The gun the robber used turned out to be a BB gun; it broke into two pieces when the robber used it to strike Amlani. Amlani summoned the police. Meanwhile, Behrarry ran to the business next door — a pawn shop — for assistance. The owner, Roberto Gomez, hurried next door. He testified that when he entered the store, the monitor connected to the security cameras was frozen on the face of the robber, and he recognized the robber as one of his customers. Gomez told the police that the man in the video was appellant, who had visited his pawn shop a number of times in the past. The police subsequently obtained a picture of appellant and placed it in a photo lineup: Behrarry identified appellant as the robber. Appellant's defense at trial was that he was not the robber. The jury found appellant guilty of aggravated robbery, and the trial court sentenced him to sixty years' imprisonment. This appeal followed. Standard of Review
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine if 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 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Sufficiency of Evidence to Prove Appellant was the Robber
Appellant's first two points of error challenge the legal and factual sufficiency of the evidence supporting the jury's verdict on aggravated robbery. Specifically, appellant charges the State failed to prove he was the man who committed the aggravated robbery. We disagree. The State provided significant evidence that appellant was in fact the robber. Karmali Amlani, the assault victim, identified appellant at trial as the man who robbed and beat him. He reviewed the security videotape and identified the man in the tape as the robber. And he reviewed still photographs made from the video and identified appellant as the man in those photos. Sharmilla Behrarry, who was working in the store with Amlani, identified appellant from a photo lineup approximately one month after the robbery. She also identified appellant at trial as the man who hit Amlani and the man in the photographs made from the security video. Roberto Gomez, the operator of the business next door, testified he saw the security video and recognized appellant who had been in his shop a number of times. He identified appellant again in court as the man pictured on the video. Finally, Detective Stephen Spradling testified that he got appellant's name from Gomez and ordered appellant's state identification photograph. Spradling compared that photo with the photos from the security video, and it looked like the same man to him. Appellant stresses the absence of fingerprint evidence or other physical evidence linking him to the crime. However, our task is to evaluate the evidence that was presented and determine whether it was sufficient to support the verdict. In this case, the State offered a series of identifications pointing to appellant as the robber. The photographic aids used in those identifications — the security videotape, the photos made from that tape, and appellant's identification photo — were all entered into evidence for the jury to review. Jurors observed appellant at length during the trial, and they were certainly capable of determining whether appellant was or was not the man in the video; they were convinced he was. Their verdict was supported by legally and factually sufficient evidence. We overrule appellant's first and second points of error. Sufficiency of Evidence to Prove "Deadly Weapon"
Appellant's third and fourth issues challenge the legal and factual sufficiency of the evidence to prove "the weapon used was a deadly weapon." Appellant points to the configuration of the gun used and the lack of testimony from a "physician or doctor." A deadly weapon includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen Code Ann. § 1.07(a)(17)(B) (Vernon 1994). Even a simulated metal handgun, can cause serous bodily harm when used to club or bludgeon a victim. See Delgado v. State, 986 S.W.2d 306, 309 (Tex.App.-Austin 1999, no pet.). Both police officers who investigated this case testified that if the gun were used to hit someone in the head, it would be capable of causing death or serious bodily injury. Amlani testified appellant pointed the gun at him; both Amlani and Behrarry testified appellant struck Amlani with the gun. Amlani suffered a serious head wound, requiring twenty-two stitches. The State introduced Amlani's medical records from his hospital treatment immediately after the robbery; the records describe his closed head injury and his treatment for multiple lacerations. Amlani testified that, as a result of the injury, he was forced to use a hearing aid. He also testified that at the time of trial he continued to suffer from headaches and nose bleeds. We conclude there is legally and factually sufficient evidence to prove the BB gun, as it was used in this case, was a deadly weapon. We overrule appellant's third and fourth points of error. Reformation of the Judgment
The trial court's judgment in this case asserts there was no finding of a deadly weapon. However, the court's charge stated that, to find the defendant guilty of aggravated robbery, the jury was required to find, inter alia, that the defendant "did then and there exhibit a deadly weapon in the commission of said acts, namely a simulated metal handgun." This language in the charge mirrors the indictment's language, and the verdict form states the jury found the defendant guilty "as charged in the indictment." We modify the trial court's judgment to indicate there was a deadly weapon finding, as reflected in the jury's aggravated robbery verdict. See Vasquez v. State, 56 S.W.3d 46, 47 (Tex.Crim.App. 2001) (trial court required to enter deadly weapon finding when guilt found as alleged in indictment and deadly weapon specifically pleaded in indictment). Conclusion
We have overruled all of appellant's points of error. Accordingly, we affirm the judgment of the trial court as modified.