Aikens v. State

790 S.W.2d 66, 1990 Tex. App. LEXIS 960, 1990 WL 57392
CourtCourt of Appeals of Texas
DecidedApril 26, 1990
DocketNo. A14-89-601-CR
StatusPublished
Cited by9 cases

This text of 790 S.W.2d 66 (Aikens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aikens v. State, 790 S.W.2d 66, 1990 Tex. App. LEXIS 960, 1990 WL 57392 (Tex. Ct. App. 1990).

Opinion

OPINION

J. CURTISS BROWN, Chief Justice.

A jury found appellant Robert William Aikens, Jr., guilty of the felony offense of aggravated robbery. The jury found the enhancement paragraph true and sentenced appellant to forty-five (45) years’ confinement in the Texas Department of Corrections. Appellant brings four points of error. We affirm the judgment of the trial court.

On the evening of January 15, 1987, while complainant Cindy Kanak waited in her car to place a carry-out order at a McDonald’s fast-food restaurant, a tall, thin, black male ordered Kanak out of her car at gunpoint. When Kanak failed to respond quickly to the man’s demands, he reached through the open car window and struck Kanak on the side of her head with the firearm. Kanak fled the car without observing the man’s subsequent actions and entered the restaurant. Restaurant employees contacted the police. After the police were apprised of the events and given a description of the auto and its license number, officers observed the auto in an area near the restaurant. A chase ensued, and the complainant’s car was eventually immobilized in a ditch. Officers at the scene removed appellant Robert Aikens from the auto and placed him in custody. Although Kanak owned no gun nor allowed others to use her car, a .22 caliber handgun was found by the arresting officers in the passenger compartment of the auto.

In his first point of error appellant asserts that the evidence was insufficient to support appellant’s conviction for aggravated robbery. In support of this contention, appellant claims that the evidence failed to show that the handgun used was a deadly weapon, as alleged in the indictment. We disagree.

A deadly weapon is: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) 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)(11) (Vernon 1974). Appellant argues that since the handgun discovered in the complainant’s car was not in working order when police officers uncovered it, the State failed to prove that the weapon was capable of causing, or could be readily adapted to cause serious bodily injury or death. However, appellant misunderstands Texas law on firearms.

Citing Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App.1985), appellant concedes that a handgun, by definition, is a firearm and is therefore a deadly weapon. See Tex.Penal Code Ann. § 46.01(3) (Vernon 1989). Although the handgun was inoperable when found, in Walker v. State, [68]*68543 S.W.2d 634, 637 (Tex.Crim.App.1976), the Court of Criminal Appeals concluded that a handgun, even though not functional, was manifestly designed and made for the purpose of inflicting death or serious bodily injury, and, as in the case before us, this fact was evident to the victim. Further, where, as here, the jury is the trier of fact, and the indictment specifically alleges “deadly weapon” or names a weapon that is a deadly weapon per se, and the jury’s verdict finds the defendant guilty as charged in the indictment, the jury has made an affirmative finding as to the use of a deadly weapon. Boyett v. State, 692 S.W.2d 512, 517 (Tex.Crim.App.1985) (citations omitted). Under the circumstances of this case, the firearm discovered in complainant’s ear need not be serviceable in order to be classified as a deadly weapon. See Walker, 543 S.W.2d at 637.

Other evidence also supports appellant’s conviction. Although unable to describe the man’s face, the complainant testified that a man fitting appellant’s general description robbed her of her car at gunpoint. Minutes later appellant was arrested after attempting to avoid a confrontation with the police and driving the stolen car into a ditch. Officers found a handgun not belonging to the complainant in the passenger compartment of the auto. When viewing this evidence in the light most favorable to the verdict, we conclude that 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, 309, 99 S.Ct. 2781, 2783-84, 61 L.Ed.2d 560 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We therefore overrule appellant’s first point.

In his second point of error appellant asserts that the trial court committed reversible error in overruling appellant’s objection to the state’s jury argument, which, according to the appellant, went outside the record. We do not agree with appellant’s contention.

In the course of his final argument, the prosecutor stated:

Nothing in that charge tells you you have to leave your common sense when you go back in the jury room to deliberate the case. Take that back with you and look at the facts of this case and I think you will find Robert Aikens, Jr. is guilty of aggravated robbery as charged.
[Defense counsel] talked about the police investigation. They didn’t take fingerprints, didn’t check the gun. I will tell you what, if you think that’s a problem when this trial is over with, you come see me and I will let you—

Defense counsel objected, and the trial judge overruled the objection. Without further objection from defense counsel, the prosecutor later added:

Robert Grassia is the Chief of Police in Rosenberg. You go see him and tell him you didn’t like what his officers had done. That’s fine. That’s your right as citizens, those of you that live in Rosenberg, but don’t turn Robert Aikens loose because you don’t like what the police officers did.

Appellant asserts that the prosecutor went outside the record when he “informed the jury that if they had a doubt that the appellant used or exhibited the firearm recovered by the police, due to how the officers proceeded in the case, then they should nevertheless affirm the conviction and simply complain to the police chief about the matter.” However, the prosecutor made no allusion to information or evidence not presented at trial, but gave the jury suggestions for their post trial conduct. Although appellant could have argued that the prosecutor’s admonition was improper, the prosecutor’s arguments did not address facts outside the record. Since appellant’s trial objection and his argument on appeal do not comport with the alleged error, any error the trial court made in permitting the prosecutor’s statements was waived. See Gibson v. State, 726 S.W.2d 129, 130-31 (Tex.Crim.App.1987); Tex.R.App.P. 52(a).

Even had appellant properly preserved the error, we do not find that the prosecutor’s arguments were improper. The Court of Criminal Appeals has dictated [69]

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Bluebook (online)
790 S.W.2d 66, 1990 Tex. App. LEXIS 960, 1990 WL 57392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aikens-v-state-texapp-1990.