Witt v. State

745 S.W.2d 472, 1988 Tex. App. LEXIS 182, 1988 WL 6778
CourtCourt of Appeals of Texas
DecidedFebruary 4, 1988
DocketNo. 01-86-00747-CR
StatusPublished
Cited by3 cases

This text of 745 S.W.2d 472 (Witt 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
Witt v. State, 745 S.W.2d 472, 1988 Tex. App. LEXIS 182, 1988 WL 6778 (Tex. Ct. App. 1988).

Opinion

LEVY, Justice.

A jury found appellant, Kenneth Dale Witt, guilty of aggravated robbery as charged in the indictment, and also found that he had used a deadly weapon in the commission of the offense. At the punishment phase of the trial, the jury determined an enhancement paragraph to be true and assessed punishment at 50 years confinement.

Appellant appeals this conviction asserting five points of error.

Ms. Dan Marie Williams, a 7-Eleven convenience store employee, testified that appellant entered the store where she was working. After selecting several items, Witt approached the check-out counter, where he pulled out a knife from under his shirt and demanded all the cash. William Peoples and his wife, Christina Peoples, entered the store as Witt was leaving, and each had an opportunity to clearly observe him. Witt was observed leaving the scene in the passenger seat of a two-door white Mustang automobile. Both Dan Marie Williams and Christina Peoples wrote down the Mustang’s license plate number.

Appellant asserts in his first and second points of error that the evidence was insufficient to support his conviction for aggravated robbery. Witt contends that the evidence failed to show either that the knife used was a deadly weapon, as alleged in the indictment, or that Dan Marie Williams was in fear of imminent bodily injury or death.

In reviewing sufficiency of the evidence on appeal, we adhere to the standard established by the United States Supreme Court, inquiring whether, after viewing the evidence in the light most favorable to the prosecution, 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, 99 S.Ct. 2781-2789, 61 L.Ed.2d 560 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984).

The Texas Penal Code defines a deadly weapon as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or ... anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex.Penal Code Ann. sec. 1.07(a)(11) (Vernon 1974). Although knives have been held not to be deadly weapons per se,

[t]he state can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape and sharpness, the manner of its use, or intended use and its capacity to produce death or serious bodily injury. In determining the deadliness of a weapon the jury may consider all of the facts of a case, including words spoken by the accused.

Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983) (citations omitted).

Testimony pertaining to the size of the blade, the blade’s appearance of sharpness, the use of any brandishing motions, or the victim’s fear of serious bodily injury or death, can all be offered to establish that a knife is a deadly weapon. Id. As this Court has previously held, “[w]hen ... serious bodily injury has not been shown, the court must discern the manner of the knife’s use or intended use, its size and shape, and its capacity to produce death or serious bodily injury in determining whether a knife was a deadly weapon.” Batro v. State, 635 S.W.2d 156, 158 (Tex.App.—Houston [1st Dist.] 1982, no pet.) (citations omitted).

In the instant case, the knife was never recovered and therefore was not introduced into evidence, and the complainant received no bodily injuries. However, this situation need not preclude a finding that the knife used was a deadly weapon. See Blain, 647 S.W.2d at 293; Hicks v. State, 723 S.W.2d 238, 240 (Tex.App.—Houston [1st Dist.] 1986, no pet.); Batro v. State, 635 S.W.2d at 156.

Complainant, Dan Marie Williams, testified that appellant held a knife on her within arm’s reach. She described the knife blade as being more than four inches long and being shiny and looking sharp, with a very sharp pointed tip. Williams further testified that during the encounter [474]*474she “got very shaky and scared and nervous,” that she was “very afraid,” felt that she was at risk, and that her life was in danger.

A police officer who had investigated many stabbings and cuttings testified that a knife having a blade at least four inches long with a very sharp pointed tip could cause serious bodily injury or even death. In Hicks, this Court found a knife with a 2 Vi inch blade, waved within two feet of the victim, to be a deadly weapon. Hicks, 723 S.W.2d at 239-240. The jury heard Williams describe the knife, its proximity to her, and her fear of injury and even for her life. In considering all the evidence before it, the jury was not unreasonable either in determining that the knife was a deadly weapon or in finding all the essential elements of aggravated robbery proven beyond a reasonable doubt.

Appellant’s first and second points of error are overruled.

Appellant avers in his third point of error that the trial court committed reversible error in admitting Officer Gerry Joseph Moran’s testimony relating what two eyewitnesses had told him that they observed. Moran was one of the first police officers to arrive at the 7-Eleven following the robbery. Appellant claims that because Moran was not a witness to the offense, his testimony relating to the statements of the eyewitnesses was hearsay and thus inadmissible. Appellant raised this same objection to the testimony at trial, and his objection was overruled.

Appellant also asserts that Moran’s testimony constituted impermissible bolstering of Mr. and Mrs. Peoples’ unim-peached testimony identifying appellant as the person who had committed the offense. See Williams v. State, 531 S.W.2d 606, 611 (Tex.Crim.App.1975); Jackson v. State, 507 S.W.2d 231 (Tex.Crim.App.1974). In both Williams and Jackson, the police officers testified that prior to trial the witness had identified the appellant as the culprit. In such a situation, the officers’ testimony bolstered the identification testimony of the witnesses who had previously testified.

A careful reading of Moran’s testimony shows the case at bar to be distinguishable from both Williams and Jackson. Moran testified to what the Peoples told him that the “suspect” did. He never testified that the “suspect” was the appellant, and he did not reveal the Peoples’ description of the “suspect.” Moran’s testimony did not identify, and thus did not bolster, the Peoples’ identification of the appellant as the person the Peoples had observed at the 7-Eleven.

Both Mr. and Mrs. Peoples testified, without objection, about what had happened when they approached and entered the 7-Eleven. Officer Moran’s testimony, to which appellant objected, merely reiterated without significant variation the facts to which the Peoples had previously testified. .

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745 S.W.2d 472, 1988 Tex. App. LEXIS 182, 1988 WL 6778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witt-v-state-texapp-1988.