No. 01-08-00528-CR
Opinion issued March 5, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 338th District Court Harris County, Texas, Trial Court Cause No. 1145491.
Panel consists of JUDGES TAFT, BLAND, and SHARP.
JANE BLAND, Justice.
Appellant Kenneth Earl Whitlock pleaded guilty and judicially confessed to the felony offense of aggravated robbery with a deadly weapon. TEX. PENAL CODE ANN. §§ 29.03, 1.07(a)(17) (Vernon 2003 Supp. 2008). On appeal, Whitlock contends that his conviction should be reversed because the record does not contain factually sufficient support for the trial court's finding that he used and exhibited a deadly weapon during the commission of the offense. We affirm.
Background
In connection with entering his guilty plea, Whitlock read and signed a waiver of rights, stipulated to the evidence against him, and judicially confessed to having committed the acts described in the charging document, namely, that he, "in the course of committing theft of property owned by BARBARA WATKINS and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] BARBARA WATKINS in fear of imminent bodily injury and death, and . . . "use[d] and exhibit[ed] a deadly weapon, to-wit: A FIREARM." Whitlock did not reach an agreed recommendation with the State as to punishment. After admonishing Whitlock of the consequences of his plea and finding that he entered it knowingly and voluntarily, the trial court accepted the plea, ordered a pre-sentence investigation, took evidence at a punishment hearing, and sentenced Whitlock to ten years' confinement. Discussion
The sole issue in Whitlock's appeal is whether factually sufficient evidence supports the finding that he used a firearm during the commission of the offense. The record establishes the validity of Whitlock's judicial confession, in which he stipulated to having used a firearm during the commission of the offense. The standard of review for factual sufficiency of the evidence, set forth in Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000), does not apply when a defendant enters a valid guilty plea. Keller v. State, 125 S.W.3d 600, 604-05 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). Our "sufficiency" review on appeal of felony pleas of guilty to the court is confined to determining whether sufficient evidence supports the judgment of guilt under article 1.15 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005); Ex parte Williams, 703 S.W.2d 674, 678 (Tex.Crim.App. 1986); Keller, 125 S.W.3d at 604. Whitlock nevertheless claims that the evidence adduced at the punishment hearing, which proves that he used an unloaded BB gun during the robbery, rendered the evidence factually insufficient with respect to the court's deadly weapon finding. When evidence is introduced in the trial court that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to his guilt, the trial court has the authority to decide that the "evidence did not create a reasonable doubt as to guilt" or, alternatively, acquit the defendant or find him guilty of a lesser included offense. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex.Crim.App. 2003). Under those circumstances, the trial court is not required to formally withdraw the defendant's plea before choosing to evaluate the State's evidence under a reasonable doubt standard, but may simply proceed as though it has withdrawn the guilty plea and entered a not guilty plea in its place. See Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978). Here, we need not decide whether the trial court made any such choice because Whitlock's use of an unloaded BB gun supports, rather than undermines, the stipulated fact that he used a deadly weapon in committing the offense. The Court of Criminal Appeals has held that a BB gun can be a weapon capable of causing serious bodily injury, making it a deadly weapon in some cases. See Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App. 2002); accord Whatley v. State, No. 01-07-00442-CR, 2008 WL 2388134, at *2 (Tex.App.-Houston [1st Dist.] June 12, 2008, pet. ref'd). Whether the BB gun is loaded or unloaded is immaterial. Adame, 69 S.W.3d at 582; Whatley, 2008 WL 2388134 at *2. Here, during the punishment hearing, the complainant testified that, in the course of the robbery, Whitlock pointed the BB gun directly at her and her coworker while threatening them, at one point "pointing the gun at me . . . right at my head." We hold that factually sufficient evidence supports the trial court's finding that Whitlock used a firearm in committing the robbery. Conclusion
We therefore affirm the judgment of the trial court.