ACCEPTED 07-15-00204-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 10/26/2015 12:00:00 AM Vivian Long, Clerk
NO. 07-15-00204-CR
IN THE FILED IN 7th COURT OctoberOF26, APPEALS 2015 COURT OF APPEALS AMARILLO, TEXAS SEVENTH JUDICIAL DISTRICT 10/25/2015 10:33:47 PM AMARILLO, TEXAS VIVIAN LONG _________________________________ CLERK
JERMAIN GAITHER V. THE STATE OF TEXAS _________________________________
ON APPEAL FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY, TEXAS CAUSE NO. 2013-400,719 _________________________________
BRIEF FOR THE STATE _________________________________
MATTHEW D. POWELL Criminal District Attorney Lubbock County, Texas
COURTNEY GRAFFT JENNIFER SLACK Assistant Criminal District Attorneys (Trial Attorneys)
ORAL ARGUMENT WAIVED JEFFREY S. FORD Assistant Criminal District Attorney Lubbock County, Texas State Bar No. 24047280 P.O. Box 10536, Lubbock, TX 79408 Phone (806)775-1166 FAX: (806)775-7930 E-mail: JFord@co.lubbock.tx.us (On appeal) ATTORNEY FOR THE STATE Identity of Parties and Counsel
Appellant:
Jermain Gaither
Appellant’s trial attorneys:
Russell “Rusty” Gunter, Attorney at Law, 1213 Avenue K, Lubbock, TX 79401; phone (806)711-3933; fax (806)711-3935
Matt Morrow, Attorney at Law, 806 Main Street, Lubbock, TX 79401; phone (806)763-4568
Appellant’s appellate counsel:
Joel Cook, Law Offices of Wm. Everett Seymore, 810 Main Street, Lubbock, TX 79401; phone (806)747-3825; fax (806)747-3851
State of Texas:
At trial:
Courtney Grafft and Jennifer Slack, Assistant Criminal District Attorneys, Lubbock County Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, TX 79408; phone (806)775-1100; fax (806)775-7930
On appeal:
Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, TX 79408; phone (806)775-1166; fax (806)775-7930
Trial Judge:
Honorable Jim Bob Darnell, Presiding Judge, 140th District Court of Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite 349, Lubbock, TX 79401
i Table of Contents
PAGES
Identity of Parties and Counsel ...................................................................................i
Table of Contents ...................................................................................................... ii
Table of Authorities ..................................................................................................iv
Statement of the Case.............................................................................................. vii
Statement of the Facts ................................................................................................ 1
Summary of the Argument......................................................................................... 3
Argument and Authorities……………………………………….………………....5
Sole Issue Presented: Appellant argues that the evidence is legally insufficient to
support the deadly weapon element of the aggravated robbery offense because no
rational trier of fact could have found that the firearms used during the offense
were real and could cause death or serious bodily injury. When the evidence is
considered in the light most favorable to the verdict, any rational trier of fact could
have found every element of the offense beyond a reasonable doubt. The evidence
shows the following: (1) Appellant and his accomplice entered the 7-11 with the
intent to rob it; (2) Appellant and his accomplice pointed what appeared to the
victim to be firearms at him; (3) one of the robbers told the victim that the pistol
was real and that he would be shot if he did not comply with his demands; (4) the
victim believed that the threat posed by the robbers with their firearms was real ii and he was frightened for his life; and (5) Appellant stated during an interview
with police that he thought the firearm used by his accomplice was real. Was the
evidence sufficient to show that Appellant and/or his accomplice used or exhibited
a firearm during the commission of the offense? ...................................................... 5
Standard of Review…………………………………………….…………..5
I. The evidence is legally sufficient to show that Appellant and/or his accomplice used or exhibited a deadly weapon during the commission of an aggravated robbery.………………………………..7
i. Lowe’s testimony that real pistols were pointed at him is sufficient evidence for a rational juror to find that a firearm was used in the commission of the offense…………………………………………….9
ii. Appellant’s argument that his conviction should be reformed to robbery since he only used a toy gun during the aggravated robbery fails because of the Law of Parties …………………………………14
Conclusion………………………………………………………................16
Conclusion and Prayer ............................................................................................. 17
Certificate of Service ............................................................................................... 17
Certificate of Compliance…………………………………………………………18
iii Table of Authorities
SUPREME COURT CASELAW PAGES
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)…………………………6, 7
TEXAS CASELAW
Arthur v. State, 11 S.W.3d 386 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)………...9, 10
Banda v. State, 758 S.W.2d 902 (Tex. App.—Corpus Christi 1988, no pet.)........................11, 13
Benavides v. State, 763 S.W.2d 587 (Tex. App.—Corpus Christi 1988, pet. ref’d)………..10, 11, 13
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.)…………….........................6
Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014)………………………..........................6
Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005)………………………………………..8
Ford v. State, 152 S.W.3d 752 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)…………...10
Johnson v. State, No. 14-02-00901-CR, 2003 WL 22012693 (Tex. App.—Houston [14th Dist.] Aug. 26, 2003, pet. ref’d) (not designated for publication)................................13
Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011)………………………………………..7
O’Briant v. State, 556 S.W.2d 333 (Tex. Crim. App. 1977)……………………..............................9 iv Price v. State, 227 S.W.3d 264 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d)……..10, 13
Riddick v. State, 624 S.W.2d 709 (Tex. App.—Houston [14th Dist.] 1981, no pet.)………...10-14
Toy v. State, 855 S.W.2d 153 (Tex. App.—Houston [14th Dist.] 1993, no pet.)………...9, 10
True v. State, No. 01-08-00175-CR, 2009 WL 1688278, 2009 Tex. App. LEXIS 4503 (Tex. App.—Houston [1st Dist.] June 18, 2009, no pet.) (not designated for publication)…………………………………………………………………10, 13
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013)………………………..........................6
Wright v. State, 591 S.W.2d 458 (Tex. Crim. App. [Pan. Op.] 1979)……….........................10, 14
TEXAS RULES AND STATUTES
TEX. PEN. CODE ANN. § 1.07(a)(17)(A)…………………………………………….8
TEX. PEN. CODE ANN. § 7.02(a)(2)………………………………………………..15
TEX. PEN. CODE ANN. § 29.03(a)(2)………………………………………………..7
TEX. PEN. CODE ANN. § 46.01(3)…………………………………………………...8
TEX. R. APP. P. 3.2…………………………………………………………………vi
v NO. 07-15-00204-CR
IN THE COURT OF APPEALS SEVENTH JUDICIAL DISTRICT AMARILLO, TEXAS _________________________________
JERMAIN GAITHER V. THE STATE OF TEXAS _________________________________
To the Honorable Court of Appeals:
The State of Texas, the prosecuting authority in Cause No. 2013-400,719 in
the 140th District Court of Lubbock County, and Appellee before the Seventh
Court of Appeals, respectfully submits this brief in reply to the brief filed by
Appellant appealing his conviction for the offense of Aggravated Robbery. The
parties will be referred to as “Appellant” and “State.”1
1 TEX. R. APP. P. 3.2. vi Statement of the Case
Appellant was charged by indictment on December 3, 2013, with the
offense of aggravated robbery. One felony enhancement paragraph was also
alleged in the indictment.2 Following a three-day jury trial, from April 20-22, 2015,
Appellant was found guilty of the offense.3 The trial court sentenced Appellant to
fifty-five (55) years imprisonment on April 23, 2015.4 The trial court certified that
Appellant has the right of appeal.5
2 (Clerk’s Record “CR” p. 6). 3 (CR p. 87) (Reporter’s Record “RR” vol. 5, p. 27). 4 (RR vol. 7, p. 20). 5 (CR p. 86) (RR vol. 7, p. 23). vii Statement of Facts
Douglas Lowe, a convenience store clerk, was working alone at the 7-11 on
19th Street and Iola Avenue in Lubbock on the night of November 12, 2013.6 At
approximately 11:30 p.m., two individuals wearing masks entered the store.7 One
jumped over the counter and the other walked around the corner, each aiming a
firearm at Lowe.8 One man walked around the corner and told Lowe, “You know
what to do. You know what to do. Open the register.”9 Following his training
received as a 7-11 employee, Lowe opened the register and the men took the
money inside it.10 The men also broke into a filing cabinet and took rolls of
quarters that were inside.11 One of the men then demanded that Lowe open the
safe, despite the fact that one did not exist at the 7-11.12 When Lowe informed
them of this fact, the man pointed his firearm at Lowe and stated, “This is real. If
you don’t open this safe, I’m going to shoot you in the leg.”13 After taking some
cigarettes and more money from a cash dispensing machine, both subjects left the
7-11 and fled the scene in a vehicle that had pulled up during the robbery. 14
6 (RR vol. 4, pp. 22-23). 7 (RR vol. 4, p. 25). 8 (RR vol. 4, p. 26). 9 (RR vol. 4, p. 28). 10 (RR vol. 4, p. 29). 11 (RR vol. 4, pp. 31-32). 12 (RR vol. 4, p. 32-33). 13 (RR vol. 4, p. 33). 14 (RR vol. 4, pp. 37-39). 1 During the robbery, Lowe was “scared to death” and felt that his life was in
danger during this incident.15 He did not activate the panic alarm because he was
too afraid to do so in the men’s presence, especially after being told that he would
be shot if he did not comply with their demands.16 Although Lowe was unable to
determine the exact type of firearms the men used, Lowe was able to identify them
as pistols and clearly saw four to five inches of the pistols’ barrels protruding from
out of the men’s long-sleeved shirts.17 Lowe was able to determine that one pistol’s
barrel had a black finish and was made of metal.18 He is familiar with the plastic
toy firearms his nephew plays with. With this fact in mind, Lowe did not believe
that the pistols used during the robbery looked anything like the toy firearms his
nephew plays with and “a hundred percent . . . thought it was the real thing aimed
at [him].”19 Lowe also testified that the pistol used by the robber looked “darn
real.” Both pistols used by the robbers were similar in appearance.20
A tip given to police on November 15, 2013, led the police to Appellant.21
During his interview with police, Appellant admitted to taking part in the
15 (RR vol. 4, pp. 33, 40). Two days later, Lowe was still emotional and upset because of the incident when he was interviewed by police. (RR vol. 4, p. 127) 16 (RR vol. 4, p. 35). 17 (RR vol. 4, pp. 27, 57). 18 (RR vol. 4, pp. 57-58). 19 (RR vol. 4, p. 58). 20 (RR vol. 4, p. 61). 21 (RR vol. 4, p. 129). 2 aggravated robbery of the 7-11.22 During his interview, Appellant claimed that he
used a toy gun during the aggravated robbery, but that the firearm used by his
accomplice “possibly could be real.”23 When asked a second time by police during
the interview, Appellant said that he “thought [the firearm used by his accomplice]
was real.”24
Summary of the Argument
Appellant argues in his sole issue that the evidence is insufficient to show
the deadly weapon element of the offense. When the evidence is considered in the
light most favorable to the verdict, the deadly weapon element of the offense was
proven beyond a reasonable doubt. Lowe’s testimony shows that the pistols
exhibited by Appellant and his accomplice appeared to be actual firearms, as
demonstrated from the dark finish and metallic appearance of the visible portions
of the pistols. In addition, Lowe testified that neither pistol used during the
aggravated robbery appeared to be a toy. During the commission of the robbery,
one of the robbers told Lowe that his pistol was real and that Lowe would be shot
if he did not comply with his demands. Further, both pistols were brandished in a
manner consistent with the way a robber would display a firearm during a
22 (RR vol. 4, p. 138). 23 (RR vol. 4, pp. 144-46). 24 (RR vol. 4, p. 146). 3 robbery—pointed at the victim in a threatening manner in order to convince the
victim to hand over money. Finally, while Appellant claimed that he used a toy
gun during the aggravated robbery, Appellant himself stated in an interview with
police that he thought the firearm used by his accomplice was real.
Appellant argues that the pistols used during the robbery were not
completely visible, and thus could have been anything from toys to metal tubes
that looked like firearm barrels. Appellant further argues that if the weapons used
during the aggravated robbery were not real firearms, the deadly weapon element
of aggravated robbery has been negated and the conviction should be reformed to
the lesser included offense of robbery. Appellant’s arguments fail, however,
because appellate courts have long held that a witness or victim does not need to
see the entire firearm used during the commission of an aggravated robbery in
order to uphold a conviction for aggravated robbery. Further, under the Law of
Parties, Appellant should be charged with the same crime as his accomplice, who
he believed used a real firearm during the aggravated robbery.
4 Argument and Authorities
Sole Issue Presented
Appellant argues that the evidence is legally insufficient to support the deadly
weapon element of the aggravated robbery offense because no rational trier of fact
could have found that the firearms used during the offense were real and could
cause death or serious bodily injury. When the evidence is considered in the light
most favorable to the verdict, any rational trier of fact could have found every
element of the offense beyond a reasonable doubt. The evidence shows the
following: (1) Appellant and his accomplice entered the 7-11 with the intent to rob
it; (2) Appellant and his accomplice pointed what appeared to the victim to be
firearms at him; (3) one of the robbers told the victim that the pistol was real and
that he would be shot if he did not comply with his demands; (4) the victim
believed that the threat posed by the robbers with their firearms was real and he
was frightened for his life; and (5) Appellant stated during an interview with police
that he thought the firearm used by his accomplice was real. Was the evidence
sufficient to show that Appellant and/or his accomplice used or exhibited a firearm
during the commission of the offense?
Standard of Review
In assessing the sufficiency of the evidence, an appellate court views the
evidence in the light most favorable to the verdict and determines whether any 5 rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt.25 In conducting this review, an appellate court considers all
evidence in the record, whether it was admissible or inadmissible. 26 In criminal
cases, “only that evidence which is sufficient in character, weight, and amount to
justify a factfinder in concluding that every element of the offense has been proven
beyond a reasonable doubt is adequate to support a conviction.”27 Each fact need
not point directly and independently to the guilt of the appellant, “as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.”28
A reviewing court is required to defer to the jury’s credibility and weight
determinations because “the jury is the sole judge of the witnesses’ credibility and
the weight to be given their testimony.”29 The standard gives “full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
25 Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). 26 Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). 27 Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (plur. op.) (Cochran, J., concurring). 28 Dobbs, 434 S.W.3d at 170. 29 Brooks, 323 S.W.3d at 899 (emphasis taken from opinion). 6 facts.”30 A reviewing court must presume that the jury resolved any conflicting
inferences in favor of the verdict and defer to that resolution.31
I. The evidence is legally sufficient to show that Appellant and/or his accomplice used or exhibited a deadly weapon during the commission of an aggravated robbery
Appellant was charged with and convicted of the offense of aggravated
robbery. The indictment alleged that Appellant did “heretofore on or about the 12th
day of November, A.D. 2013, did then and there, while in the course of committing
theft of property and with intent to obtain or maintain control of said property,
intentionally or knowingly threaten or place Douglas Lowe in fear of imminent
bodily injury or death, and the defendant did then and there use or exhibit a deadly
weapon, to-wit: a firearm.”32 The elements of the offense—as modified by the
language of the indictment—are as follows: (1) Appellant (2) while in the course
of committing theft of property (3) with intent to obtain or maintain control over
said property (4) threatened or placed Douglas Lowe in fear of imminent bodily
injury or death (5) and used or exhibited a deadly weapon.33
Appellant’s sufficiency challenge focuses solely on the fourth element of the
offense, i.e., whether the evidence is sufficient to show that Appellant or his
30 Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; accord Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). 31 Jackson at 326, 99 S. Ct. at 2793; Dobbs at 170. 32 (CR p. 6). 33 See TEX. PEN. CODE ANN. § 29.03(a)(2). 7 accomplice used or exhibited a deadly weapon during the commission of the
offense. “Deadly weapon,” for purposes of Appellant’s sufficiency challenge,
means “a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury.”34 A “firearm” is “any device
designed, made, or adapted to expel a projectile through a barrel by using the
energy generated by an explosion or burning substance or any device readily
convertible to that use.”35
After reviewing the evidence in the light most favorable to the verdict, the
evidence is sufficient to show that Appellant, his accomplice, or both parties used
firearms during the commission of the offense. First, Lowe was able to describe the
firearms used during the aggravated robbery with certainty and particularity
reasonable under the circumstances, testifying that the firearms looked very real to
him. Second, Lowe was afraid for his life because he believed the firearms were
real and capable of causing him death. Third, while Appellant claims that he only
used a toy gun, he himself believed the firearm used by his accomplice during the
aggravated robbery was real.
All of the foregoing is sufficient to show that any rational trier of fact could
have found the deadly weapon element of the offense beyond a reasonable doubt.
34 TEX. PEN. CODE ANN. § 1.07(a)(17)(A). 35 TEX. PEN. CODE ANN. § 46.01(3). A firearm is considered a deadly weapon per se. See Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). 8 Appellant, however, makes two arguments as to why the evidence is allegedly
insufficient to support the deadly weapon element of the offense. First, he argues
that the fact that Lowe only saw the barrel of the firearm during the aggravated
robbery is insufficient evidence for a rational juror to find that a firearm was used
during the aggravated robbery. Second, he argues that Appellant’s belief that the
firearm used by his accomplice “might” be real is insufficient to support a firearm
finding. Each argument will be addressed in turn.
i. Lowe’s testimony that real pistols were pointed at him is sufficient evidence for a rational juror to find that a firearm was used or exhibited in the commission of the offense.
When an indictment for aggravated robbery alleges that the defendant used
“a deadly weapon, to wit: a firearm,” the State must prove beyond a reasonable
doubt that the deadly weapon used during the aggravated robbery was a real
firearm.36 While the word “gun” can describe non-lethal weapons like BB guns,
blow guns, and pop guns, the jury is allowed to make reasonable inferences when
determining whether the firearm used in an aggravated robbery was a deadly
weapon.37 The use of the word “gun” instead of “firearm” during trial is sufficient
to authorize a jury to find that a deadly weapon was used during the commission of
36 Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). 37 O’Briant v. State, 556 S.W.2d 333, 335-36 (Tex. Crim. App. 1977); Toy v. State, 855 S.W.2d 153, 159 (Tex. App.—Houston [14th Dist.] 1993, no pet.). 9 the offense.38 The act of threatening a victim with a gun itself suggests that the
weapon used is a firearm, and not a non-lethal weapon.39 Further, “[a]
complainant’s uncontroverted testimony regarding the defendant’s use and
exhibition of a gun is legally [] sufficient to sustain a conviction for aggravated
robbery.”40
In addition, there are several factors considered by an appellate court in
determining whether a jury’s inferences made from a victim’s testimony were
reasonable. These factors include: (1) the victim’s description of the firearm41; (2)
the manner in which the firearm was used during the offense42; and (3) the victim’s
reaction to being confronted with a firearm.43
Based on these factors, there is little doubt that a reasonable jury, through
Lowe’s testimony, could have found that Appellant or his accomplice used a real
firearm during the aggravated robbery. Lowe was able to identify the finish on the
firearms as being dark in color and testified that he could determine that both
pistols’ barrels were made of metal. Further, Lowe testified with certainty that
38 Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. [Pan. Op.] 1979). 39 Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing Riddick v. State, 624 S.W.2d 709, 711 (Tex. App.—Houston [14th Dist.] 1981, no pet.). 40 True v. State, No. 01-08-00175-CR, 2009 WL 1688278 at *4, 2009 Tex. App. LEXIS 4503 at *11 (Tex. App.—Houston [1st Dist.] June 18, 2009, no pet.) (not designated for publication) (citing Ford v. State, 152 S.W.3d 752, 755-56 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)). 41 See Arthur, 11 S.W.3d at 389. 42 See Toy, 855 S.W.2d at 159. 43 See Price v. State, 227 S.W.3d 264, 267 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d). 10 neither firearm looked like a toy that his nephew played with, and that both
firearms looked “darn real.” Appellant, however, argues that Lowe’s testimony is
insufficient evidence for a juror to rationally find that firearms were used during
the aggravated robbery.44 While Lowe was unable to identify the exact type of
pistol used by Appellant and his accomplice, and did not see either pistol in its
entirety, this is not required for a conviction to be upheld.45 Further, it is likely that
Lowe was too frightened and distracted by the aggravated robbery taking place to
pay closer attention to the exact type, make, and model of the firearms used. As a
policy consideration, it is unreasonable to expect victims to be able to identify with
precise specificity exactly what kind of firearms were used in aggravated
robberies, especially given victims’ frightening and stressful experiences.
In addition, there is no question that both firearms were exhibited in a
manner consistent with the way that real firearms would be used during an
aggravated robbery. Appellant and his accomplice both pointed firearms at Lowe
in a threatening manner, with one robber telling Lowe, “This [firearm] is real. If
you don’t open the safe, I’m going to shoot you in the leg.” The implication was
44 (Appellant’s Br. at 11-19). 45 See, e.g., Benavides, 763 S.W.2d at 588–89 (upholding conviction of a defendant when the victim could only identify the firearm used in an aggravated robbery as an “automatic”); Banda v. State, 758 S.W.2d 902, 903-04 (Tex. App.—Corpus Christi 1988, no pet.) (suggesting that the “familiar shape” of the butt of a pistol seen by the victim can give rise to a reasonable inference that the defendant had a pistol); Riddick, 624 S.W.2d at 710-11 (upholding conviction of defendant when a witness saw only the end of a gun barrel sticking out of an unzipped bag). 11 clear: these firearms (and the threat they posed) were real and capable of causing
serious bodily injury or death. Further, this kind of statement by an offender is
itself an indication that a firearm was used during an aggravated robbery.46
Finally, it is undisputed that Lowe was afraid for his life during the incident
and was still emotional and upset days later when interviewed by the police. This
was doubtless due in large part to the credible threat he felt from the presence of
real firearms being pointed at him. Combined, these facts established during
Lowe’s testimony gives considerable support to the notion that a reasonable juror
could find that the firearms used during the aggravated robbery by Appellant and
his accomplice were real.
Appellant argues that Lowe’s testimony is insufficient to support a finding
that a firearm was used during the commission of the aggravated robbery. In
particular, he contends that Lowe did not see enough of the pistols to establish that
they were firearms.47 It is true that the pistols used during the aggravated robbery
were partially obscured by the offenders’ long-sleeved shirts; however, Appellant’s
argument ignore decades of caselaw upholding convictions in cases in which
firearms used during aggravated robberies were not recovered or seen in their
46 Riddick at 711 (stating that “the threats of the appellant to shoot [the victim] also supports the use of a firearm”). 47 (Appellant’s Br. at 15-16, 18, 25). 12 entirety.48 The identification of the exact kind of weapon used by an offender in an
aggravated robbery has never been necessary to sustain his or her conviction. Thus,
Appellant’s argument that firearms used during robberies must be entirely seen or
positively identified as firearms by victims in order to uphold an aggravated
robbery conviction is absurd and without merit or foundation in established
caselaw.
Likewise, Appellant’s argument that the firearms used by Appellant and his
accomplice could have been something else (e.g., a metal tube or toy gun)49 are
improper. The jury is allowed to make reasonable inferences from the evidence
presented at trial to determine whether a firearm was used in an aggravated
robbery; there is no indication in the record that this jury did otherwise.50
Appellant’s arguments regarding the sufficiency of the evidence supporting
the deadly weapon element of the offense ignores the factual similarities between
this case and the case of Riddick v. State, supra. In Riddick, the defendant robbed a
48 See, e.g., Price, 227 S.W.3d at 266-67 (upholding a defendant’s conviction when no evidence disproving the use of a firearm was presented at trial); Benavides at 588–89 (upholding conviction of a defendant when the victim could only identify the firearm used in an aggravated robbery as an “automatic”); Banda, 758 S.W.2d at 903-04 (suggesting that the “familiar shape” of the butt of a pistol seen by the victim supported a reasonable inference that the defendant had a pistol); Riddick at 710-11 (upholding conviction of defendant when a witness saw only the end of a gun barrel sticking out of an unzipped bag); True, 2009 WL 1688278 at *4-5, 2009 Tex. App. LEXIS 4503 at *10-12 (upholding the conviction of a defendant when the victim only saw the grip of the pistol used by the defendant during the aggravated robbery). 49 (Appellant’s Br. at 6, 25, 26). 50 See Price at 266–67; Johnson v. State, No. 14-02-00901-CR, 2003 WL 22012693 at *2 (Tex. App.—Houston [14th Dist.] Aug. 26, 2003, pet. ref’d) (not designated for publication). 13 bank by displaying only the barrel of a pistol sticking out of a plastic bag. The
appellant’s conviction was upheld because the witness positively identified the
firearm used in the robbery as a pistol, and because it is not necessary for the
witness to have seen “the trigger, handle or cylinder or other indicia of a gun in
order to support the conviction of the use of a deadly weapon, to wit, a firearm.” 51
Further, the Riddick court reasoned that it is not necessary for the State to prove
that the firearm is operative.52 In addition, the statement by the defendant that the
victim would be shot if the victim did not comply indicated the use of a firearm in
the aggravated robbery.53 The similarity of Riddick to this case cannot be denied,
and it is clear from precedent that to uphold a conviction for aggravated robbery, it
is sufficient that a victim only saw the barrel of a firearm used during the
aggravated robbery.
ii. Appellant’s argument that his conviction should be reformed to robbery since he only used a toy gun during the aggravated robbery fails because of the Law of Parties.
Appellant also argues that he only used a toy gun during the commission of
the aggravated robbery, and thus the deadly weapon element of the aggravated
robbery offense was not met.54 Common sense suggests that nobody other than
Appellant would have a reason to lie about having a toy gun instead of a firearm 51 Riddick at 710-11. 52 Id. at 711 (citing Wright, 582 S.W.2d at 846). 53 Id. 54 (Appellant’s Br. at 5-6). 14 when Appellant’s criminal charge depends on whether he used a toy gun or a
firearm. Further, there is evidence in the record that Appellant gave inconsistent
accounts about the aggravated robbery to the police and Appellant’s employer;
specifically, Appellant told his employer that he did not use a gun at all during the
aggravated robbery, but later told police that he used a toy gun.55 Given
Appellant’s conflicting accounts of the events, his assertion that he only used a toy
gun deserves little credence.
Assuming, arguendo, that Appellant did in fact use a toy gun during the
aggravated robbery, Appellant admitted to police that he thought that the firearm
used by his accomplice was real.56 Under the Law of Parties, a person is criminally
responsible for the conduct of another if he acts “with intent to promote or assist
the commission of the offense [and] solicits, encourages, directs, aids, or attempts
to aid the other person to commit the offense.”57 Since Appellant himself believed
that his accomplice’s firearm was real, whether Appellant used a firearm or not
becomes irrelevant; the Law of Parties allows him to be charged with aggravated
robbery because he was a party to the offense and knew that a firearm would be
used in the commission of the offense. Given Lowe’s testimony and Appellant’s
statement to the police, a rational juror could have found that Appellant, his
55 (RR vol. 4, pp. 144-45). 56 (RR vol. 4, p. 146). 57 TEX. PEN. CODE ANN. § 7.02(a)(2). 15 accomplice, or both offenders used firearms because the firearms were similar in
their realistic appearance, they were exhibited in the same threatening manner, and
elicited the same terrified response from the victim.
Conclusion
The evidence is sufficient to show the deadly weapon element of the offense,
in that the evidence showed that Appellant, his accomplice, or both used firearms
during the commission of the aggravated robbery. The evidence showed that Lowe
was able to sufficiently identify the weapons used by Appellant and his accomplice
as firearms. Further, while Appellant claimed he used a toy gun during the offense,
he stated that he believed the firearm used by his accomplice was real. Regardless
of whether Appellant used a firearm or a toy gun, under the Law of Parties,
Appellant should be charged with the same offense as his accomplice (i.e.,
aggravated robbery) because the evidence showed that at least one firearm was
used and Appellant knew that a firearm would be used in the commission of the
offense. The cumulative force of all of the evidence shows that the jury’s guilty
verdict for the aggravated robbery charge was rational.
Appellant’s sole issue should be overruled.
16 Conclusion and Prayer
For the reasons stated above, no reversible error has been committed and the
State respectfully requests that the Court should affirm the judgment and sentence
in all things.
Respectfully submitted,
MATTHEW D. POWELL Criminal District Attorney State Bar No. 00784782
By: /s/ Jeffrey S. Ford Jeffrey S. Ford Assistant Criminal District Attorney Lubbock County, Texas State Bar No. 24047280 P.O. Box 10536 Lubbock, Texas 79408 (806)775-1166 FAX (806)775-7930 E-mail: JFord@co.lubbock.tx.us
Certificate of Service
I certify that a true copy of the foregoing brief has been delivered to Joel Cook, Attorney for Appellant, by e-mail delivery to joel_cook@outlook.com on October 25, 2015.
MATTHEW D. POWELL Criminal District Attorney State Bar No. 00784782
By: /s/ Jeffrey S. Ford Jeffrey S. Ford 17 Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the word count of the computer program used to prepare the foregoing State’s Response, this document contains 3,346 words, inclusive of all portions required by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.
MATTHEW D. POWELL Criminal District Attorney State Bar No. 00784782
By: /s/ Jeffrey S. Ford Jeffrey S. Ford