Opinion
No. 10-01-175-CR
Opinion delivered and filed August 4, 2003. DO NOT PUBLISH.
From the 13th District Court, Navarro County, Texas, Trial Court # 27,676. AFFIRMED
Clifton L. Holmes and John W. Moore, II, Holmes Law Office, Longview, Texas, for Appellant. James E. Lagomarsino, Navarro County Asst. District Attorney, Corsicana, Texas, for Appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
OPINION
A jury convicted Arthur Lee Williams, Jr. of aggravated robbery and assessed his punishment at forty-five years' imprisonment. Williams presents three issues in which he claims: (1) the evidence is legally insufficient to support the conviction; (2) the evidence is factually insufficient to support the conviction; and (3) the court erred by denying his motion for an instructed verdict.
BACKGROUND
The indictment alleges that Williams:on or about the 31st day of May, A.D. 2000 . . . in [Navarro County, Texas], did then and there, while in the course of committing theft of property and with intent to obtain and maintain control of said property, intentionally and knowingly threaten and place Odie Stewart in fear of imminent bodily injury and death, and . . . did then and [there] use and exhibit a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury. . . .According to the testimony, Stewart had been training Williams to do his job at the Collin Street Bakery in Corsicana, which included among other duties making bank deposits. Stewart gave Williams a ride on the date in question while Stewart was driving to the bank to make a deposit. Williams pointed to his wife driving a car past them and directed Stewart to follow her because he wanted to ask her something. When Williams's wife turned a different way than Stewart wanted to go, Stewart told Williams to get out because he didn't have time for it. They were stopped at that time because of a train crossing the street. Williams then displayed what appeared to be a kitchen knife and instructed Stewart to take Williams "where [he] want[ed] to go." Stewart told Williams that, if he got out of the van, Stewart would not say anything to anyone about the matter. Williams responded that he would cut Stewart if he did not take Williams where he wanted to go. Williams moved toward Stewart as if to stab him. Stewart grabbed Williams's hand and held it against the dash. Then, they each grabbed the money bag. Stewart pulled the money bag away from Williams (while holding his other hand against the dash) and dropped it out the window. Stewart told Williams to get out of the van again. This time Williams complied. Stewart retrieved the money bag and made the deposit before reporting the incident.
LEGAL SUFFICIENCY
Williams contends in his first and third issues that the evidence is legally insufficient to prove: (1) venue; (2) that he was "in the course of committing theft" or that he had any "intent to obtain and maintain control" of stolen property; and (3) that he used a deadly weapon. In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).Venue
Williams challenges the legal sufficiency of the evidence to prove that venue was proper in Navarro County. The State must prove venue by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977); Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App. 1983); Bordman v. State, 56 S.W.3d 63, 70 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Godsey, 989 S.W.2d at 498. The State may establish venue by direct or circumstantial evidence. Black, 645 S.W.2d at 790; Bordman, 56 S.W.3d at 70. A trier of fact may draw reasonable inferences from the evidence to decide venue. Bordman, 56 S.W.3d at 70; Lozano v. State, 948 S.W.2d 925, 929 (Tex.App.-El Paso 1997, no pet.). We will conclude that the evidence is sufficient if from it "the jury may reasonably conclude that the offense was committed in the county alleged." Bordman, 56 S.W.3d at 70 (quoting Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964)). The prosecutor asked Stewart whether he was working for the bakery "here in Navarro County" on the date in question. He answered in the affirmative. Stewart then testified that, after he left the bakery to make the deposit, he "went up 7th to 12th Street and [he] went down 12th Street to the Bank of America." He further testified that Williams was standing at the corner as he turned onto 12th Street. Williams got in the van at that point. From this testimony, the jury could reasonably infer that the incident occurred in Navarro County. See Lozano, 958 S.W.2d at 929. In addition, the State elicited testimony from one of the investigating officers during Williams's case-in-chief that the offense occurred in Navarro County. See Cox v. State, 494 S.W.2d 574, 575 (Tex.Crim.App. 1973) (State may reopen to prove venue after both sides have rested). Under this evidence, we hold that the jury could "reasonably conclude that the offense was committed in the county alleged." Rippee, 384 S.W.2d at 718; Bordman, 56 S.W.3d at 70.Underlying Theft
Williams next argues that the evidence is legally insufficient to prove that he was "in the course of committing theft" or that he had any "intent to obtain and maintain control" of stolen property. The phrase "in the course of committing theft" "means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Tex. Pen. Code Ann. § 29.01(1) (Vernon 1994). "[T]he actual commission of theft is not a prerequisite to the commission of robbery; the gravamen of robbery is the assaultive conduct and not the theft." Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App. 1992) (quoting Crank v. State, 761 S.W.2d 328, 350 (Tex.Crim.App. 1988)); Sendejo v. State, 953 S.W.2d 443, 452 (Tex.App.-Waco 1997, pet. ref'd). Thus, to show a robbery, the evidence must show that the accused assaulted the victim in an attempt to commit theft. Id. Viewed in a light most favorable to the verdict, the evidence reflects that Williams threatened Stewart at knife-point. Williams grabbed the money bag during the course of the struggle. Because of Williams's employment training, he was familiar with Stewart's routine for making bank deposits. From this evidence, we hold that a rational trier of fact could have found that Williams was "in the course of committing theft" because he was attempting to steal the money bag. The fact that he actually grabbed the money bag is sufficient evidence from which a rational trier of fact could have found that he was attempting to "obtain and maintain control" of stolen property.Deadly Weapon
Williams next contends that the evidence is legally insufficient to prove that he used a deadly weapon. He notes that the State did not produce the knife at trial. Stewart testified that the knife "looked like a kitchen knife." It was "sharp" and "pointed." Stewart felt as though he would have sustained serious bodily injury or may have been killed if Williams had succeeded in stabbing him. The State need not produce the knife at trial to obtain a deadly weapon finding. Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982); Nickerson v. State, 69 S.W.3d 661, 669 (Tex.App.-Waco 2002, pet. ref'd). A deadly weapon finding may be made, if otherwise supported by the evidence, regardless of whether any injury was inflicted. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000); Rogers v. State, 877 S.W.2d 498, 500 (Tex.App.-Fort Worth 1994, pet. ref'd). We examine the following factors to determine whether the evidence supports a finding that a knife is a deadly weapon: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) any testimony of the knife's life-threatening capabilities. Nickerson, 69 S.W.3d at 670; Garcia v. State, 17 S.W.3d 1, 4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); accord Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App. 1991). Stewart testified that the knife was sharp; that Williams tried to stab him with it; and that he feared that he would suffer death or serious bodily injury if Williams succeeded. From this evidence, a rational trier of fact could conclude that the knife was a deadly weapon. For the foregoing reasons, we conclude that Williams's first and third issues are without merit.FACTUAL SUFFICIENCY
Williams avers in his second issue that the evidence is factually insufficient to prove that he committed the offense because Stewart seemed unsure that Williams was the guilty party during his testimony and because Williams produced phone records and testimony indicating that he had made and received a number of telephone calls during the time period the offense occurred. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). During direct examination, Stewart identified Williams as the person who committed the offense. He testified that there was no question in his mind that Williams was the guilty party. He estimated that the offense occurred "around 10:30 somewhere about there." On cross-examination, Williams's counsel pointed out to Stewart that he had told the police that the offense occurred at about 11:30 that morning. On redirect, the prosecutor again asked Stewart whether he was sure that Williams was the person who robbed him.Q: Is there any question whatsoever that the person that attempted to rob you and pulled the knife on you is Arthur [Williams] the person seated to my right in this courtroom?
. . . .
A: I think that's him.
Q: Okay. Are you sure?
A: I'm sure.The State tried to clear up the matter again on further redirect examination. Stewart stated four times that he "thought" Williams was the person who robbed him. He stated twice that he was "sure" of it. He concluded by testifying again that there was "no question" that Williams was the person who robbed him. Williams testified that he could not have committed the crime because he was at work on the occasion in question. He also produced cell phone records indicating a number of telephone calls between 11:07 and 11:59 that morning. His mother testified that he called her that morning at 10:00 and at 11:45. This testimony presented the jury with a credibility determination which the jury had to resolve. We must defer to the jury on this issue. Swearingen v. State, 101 S.W.3d 89, 98 (Tex.Crim.App. 2003). We cannot say that the evidence "is so obviously weak as to undermine confidence in the jury's determination" or "greatly outweighed by contrary proof." See Johnson, 23 S.W.3d at 11; see also Goodman, 66 S.W.3d at 285. Accordingly, we conclude that Williams's second issue is without merit. We affirm the judgment.