Brown v. State

Full title: WILLIE LEE BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 27, 2005

Nos. 05-04-00371-CR, 05-04-00372-CR (Tex. App. Jan. 27, 2005)

Opinion

Nos. 05-04-00371-CR, 05-04-00372-CR

Opinion issued January 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-49224-Vr F03-49159-VR. Affirmed.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.

OPINION

Opinion By Justice WHITTINGTON.

Willie Lee Brown appeals his convictions for aggravated robbery and evading arrest. After the jury found appellant guilty of both offenses, the trial judge assessed punishment, enhanced by two prior felony convictions, at twenty-five years' and twenty years' confinement respectively. In three points of error, appellant contends the evidence is legally and factually insufficient to support the finding that appellant intentionally or knowingly used a deadly weapon during the commission of the aggravated robbery offense and that the trial judge erred in sentencing appellant to a term of confinement outside the legal range of punishment for evading arrest. Concluding no reversible error has been shown, we affirm the trial court's judgments.

Legal and Factual Sufficiency in Cause Number 05-04-00371-CR

In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated robbery because the State failed to prove that the knife appellant used during the offense was a deadly weapon. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). We view the evidence in the light most favorable to the verdict. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), petition for cert. filed, Dec. 20, 2004, No. 04-7807; Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). As such, the factfinder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001); see Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The factfinder may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). "[A] person `uses or exhibits a deadly weapon' under the aggravated robbery statute if he employs the weapon in any manner that `facilitates the associated felony.'" McCain v. State, 22 S.W.3d 497, 502 (Tex.Crim.App. 2000). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2004-05). In discussing how an object can have more than one purpose, one of which is as a deadly weapon, the court in McCain stated

[the] plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.

McCain, 22 S.W.3d at 503. Although appellant claims the evidence is legally and factually insufficient to support the deadly weapon finding, we cannot agree. Kay Wood, a volunteer receptionist at a Seagoville senior center, testified that on March 3, 2003, she had gone to a friend's house to check on him following his open heart surgery. When she arrived, he did not answer the door. The neighborhood was deserted. Concerned, she stood on his porch and tried to reach him by cell phone. Appellant walked by the house on the opposite side of the street, turned around, and walked back to the porch where Wood was standing. He was holding a knife which he pointed at her stomach. He told her he wanted her car. Wood testified the knife blade was five inches long. Terrified, she handed him the car keys. Still holding the knife pointed at her stomach, he reached over and took the cell phone from her hand. He then asked her for money. According to Wood, that is when she "really got scared" because she had very little cash. She gave him what she had, about six to ten dollars. She asked him for an envelope in the car glove box and the rest of the keys. He retrieved the envelope from the car and gave it to her. He then tried to leave. When he could not start the car, he returned to the porch and told her the car did not start. She told him how to start the car, and he eventually drove off, throwing all Wood's keys, except the car keys, on the lawn. Wood testified there was "not a soul" on the street except the two of them and that she was "terrified." She thought the knife looked bigger on the day of the offense than it did in court. Officer Wendell Jones testified he responded to the 9-1-1 call from Wood. When he arrived, he found Wood hiding behind the house. She was "real frightened" and "afraid that [appellant] was going to return." As he spoke with her, he saw Wood was shaking and upset. Wood described the knife as a pocketknife with a large chrome blade. Officer Keith Harner testified he was on patrol in an unmarked car on March 5, 2003. He was running license plate numbers to check for outstanding warrants. He pulled behind a white Mazda Protege, entered the license plate number into the computer, and discovered the car was stolen. Officer Harner pulled up next to the car and saw the driver who he identified in court as appellant. He called for backup. After additional officers arrived in a marked car, he assisted in the stop. Appellant jumped out of the car and ran but was caught. When the officers returned him to the location of the stop, they handed Officer Harner a silver necklace and a knife. When shown the knife that Wood had identified as the one appellant pointed at her, he confirmed it was the knife found near appellant at the time of his arrest. According to Officer Harner, the knife could be used as a deadly weapon. Officer Jesse Resendez testified he and his partner responded to Officer Harner's call in a marked police car. When appellant jumped out of the car and ran, Officer Resendez was one of three officers who chased him. The officers located appellant hiding under a porch in a nearby neighborhood. Officer Resendez had to crawl under the porch of a house and physically pull appellant out. He discovered a knife near appellant. When shown the knife Wood identified as appellant's, he confirmed that was the knife found near appellant. According to Officer Resendez, the knife he recovered was a deadly weapon. This evidence shows appellant had a knife that could be used as a deadly weapon and that he used the knife and intended its use in a manner which would be capable of causing death or serious bodily injury. Thus, the evidence is legally sufficient to support the finding that appellant used or exhibited a deadly weapon. Regarding his factual sufficiency challenge, we note the jury was the factfinder in this case and, as such, was entitled to believe or disbelieve the witnesses' testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding appellant used or exhibited a deadly weapon. The State's evidence was not too weak to support this finding beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support the finding that appellant used or exhibited a deadly weapon. In reaching these conclusions, we necessarily reject appellant's argument that this Court's opinion in Lockett v. State, 874 S.W.2d 810 (Tex.App.-Dallas 1994, pet. ref'd) mandates reversal of his conviction. In Lockett, the defendant was one of three men who approached the complainant and her companions as they left a nightclub. Lockett, 874 S.W.2d at 813. Lockett used a pocketknife to cut the complainant's purse strap in order to take her purse. When the complainant reached for her purse, her fingers were cut. Lockett, 874 S.W.2d at 813. During trial, the State did not introduce the knife as evidence. Lockett, 874 S.W.2d at 815. When asked when and if she feared some bodily injury or possible death, the complainant responded, "[A]s soon as I noticed a knife, yes, I was." When asked if she thought he was trying to stab or cut her, the complaint said she did not know what he was trying to do. Lockett, 874 S.W.2d at 815. This Court concluded there was no evidence the knife was capable of causing death or serious bodily injury or that Lockett intended to inflict serious bodily injury or death to steal the complainant's purse; rather it showed he inadvertently cut her fingers while stealing the purse. Lockett, 874 S.W.2d at 816. In contrast, the evidence in this case shows appellant approached Wood with the knife in his hand and pointed it at her stomach. Wood testified she was "terrified." She described the knife as a chrome knife with a five inch blade. The knife was admitted into evidence, thereby allowing the jury to view it. Two police officers testified the knife appellant used could be used as a deadly weapon. That appellant did not verbally threaten Wood is not dispositive; however, that appellant intended to use and did use the knife in a manner which would be capable of causing death or serious bodily injury is. Because the facts in this case are distinguished from those in Lockett, we reject appellant's argument that we must reverse his conviction. We conclude the evidence is legally and factually sufficient to support the jury's finding that appellant used or exhibited a deadly weapon. We overrule appellant's first and second points of error.

Sentencing Error in Cause No. 05-04-00372-CR

In his third point of error, appellant claims the trial judge erred in sentencing appellant to a term of years outside the legal punishment range for the offense of evading arrest and that we must reverse this cause for new punishment. Appellant argues his sentence is void because the punishment orally assessed, twenty-five years' confinement, exceeds that mandated by section 12.33(a) of the penal code. See Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). Although we agree the twenty-five sentence exceeds that allowed by Texas law, we nevertheless conclude we need not reverse this cause for a new punishment hearing. Appellant was charged and convicted of evading arrest, enhanced by two prior felony convictions. See Tex. Pen. Code Ann. § 38.04(b)(1) (Vernon 2003). The punishment range for this offense is a term of not more than twenty years or less than two years. See Tex. Pen. Code Ann. § 12.33(a), 12.42(a)(2) (Vernon 2003). At the conclusion of punishment, the trial judge orally assessed punishment at twenty-five years' confinement, a sentence outside the punishment range. A sentence that exceeds the punishment range is void and cannot be enforced. See Fullbright v. State, 818 S.W.2d 808, 809 (Tex.Crim.App. 1991). However, the written judgment reflects a sentence of twenty years' confinement. Appellant is not currently serving a twenty-five-year sentence; rather, he is serving the twenty-year sentence assessed in the written judgment. Thus, the judge's error arises not from the imposition of a void sentence, but from the variance between the oral pronouncement of sentence and the court's written judgment. See Ribelin v. State, 1 S.W.3d 882, 885 (Tex.App.-Fort Worth 1999, pet. ref'd). Under such circumstances, we reverse only if this variance affected appellant's substantial rights. See Tex.R.App.P. 44.2(b); Ribelin, 1 S.W.3d at 885. As previously noted, the twenty-year sentence assessed in the written judgment is within the punishment range permitted by section 12.33(a). See Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). Appellant is serving this twenty-year sentence concurrently with his twenty-five year sentence for aggravated robbery in cause number 05-04-00371-CR. In light of this, we fail to see how appellant's substantial rights have been affected. Nor can we conclude appellant has been harmed by the variance between the oral pronouncement and the written sentence. Accordingly, we disregard the variance and overrule appellant's third point of error. See Ribelin, 1 S.W.3d at 885. We affirm the trial court's judgments.