Billey v. State

• Decision Date: 30 January 1995
• Docket Number: No. 07-93-0468-CR,07-93-0468-CR
• Citation: 895 S.W.2d 417
• Parties: Tommy Joe BILLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 417

895 S.W.2d 417

Tommy Joe BILLEY, Appellant, v. The STATE of Texas, Appellee.

No. 07-93-0468-CR.

Court of Appeals of Texas Amarillo.

Jan. 30, 1995.

Discretionary Review Refused May 10, 1995.

W. Clay Abbott, Lubbock, for appellant.

Travis Ware, Dist. Atty., Michael West, Asst. Dist. Atty., Lubbock, for appellee.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

In two points of error, appellant Tommy Joe Billey challenges his conviction of the offense of aggravated robbery, a first degree felony. His punishment, enhanced by two prior felony convictions, was assessed by the trial jury at sixty (60) years confinement in the Texas Department of Criminal Justice, Institutional Division. In his two points, appellant contends the trial court erred in failing to: (1) direct a verdict of not guilty as the evidence was insufficient to sustain a conviction; and (2) suppress evidence obtained in violation of the Fourth Amendment to the United States Constitution. For reasons explained below, we affirm the judgment of the trial court.

On October 2, 1993, appellant entered a small grocery store in Lubbock, Texas owned by Susan George, approached the counter and demanded that George place all of the money from the cash register into a plastic bag. Appellant then pulled up his shirt and displayed a sheathed hunting knife that he was carrying in the front of his pants. George complied with appellant's demands and appellant left the store with approximately $300.

Two days later, while evading police detention, appellant allegedly took an overdose of drugs. While appellant was being observed at University Medical Center in Lubbock, the police questioned him regarding the robbery of the grocery store. After receiving his Miranda rights, ¹ appellant signed a form consenting to a search of his motel room, where police seized a knife found under a mattress of one of the beds. The knife was introduced as demonstrative evidence during appellant's trial for the offense of aggravated robbery. Additional facts will be discussed as may be necessary in addressing appellant's points of error.

In his first point, appellant asserts the trial court erred in denying his motion for a directed verdict of not guilty because the State's evidence was insufficient to prove the use and exhibition of a deadly weapon, to-wit, a knife, as charged in the indictment. An appellate challenge to a trial court's ruling on a directed verdict motion is actually a challenge to the sufficiency of the evidence to support the judgment of conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993); Ex parte Kunkle, 852 S.W.2d 499, 504 (Tex.Crim.App.1993), cert. denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). In determining whether the evidence is sufficient to support a conviction for the offense charged, an appellate court is not to ascertain whether it believes the evidence establishes guilt beyond a reasonable doubt, Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); rather, the applicable standard of review is "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, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App.1991). In reviewing all of the evidence, as we must, to test its sufficiency, our focus is not on what the State's evidence failed to show; instead, our focus is on the evidence actually introduced. Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). Additionally, as a reviewing court, we may not resolve any conflict of fact, weigh the evidence or assign credibility to the witnesses as such functions are solely in the province of the jury. Juarez v. State, 796 S.W.2d 523, 524 (Tex.App.--San Antonio 1990, pet. ref'd). After applying these standards, if we find that the State introduced some evidence to support each element of the offense, we must hold that the denial of the directed verdict was proper because such evidence raised factual issues for the jury to determine. Bustillos v. State, 832 S.W.2d 668, 676 (Tex.App.--El Paso 1992, pet. ref'd); Harris v. State, 790 S.W.2d 778, 779 (Tex.App.--Houston [14th Dist.] 1990, pet. ref'd); Ellis v. State, 714 S.W.2d 465, 471 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd).

In the first count of the indictment upon which the State proceeded to trial, the State alleged that appellant:

[I]ntentionally, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten and place SUSAN GEORGE in fear of imminent bodily injury, and the defendant 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.

The trial court's charge to the jury tracked the language of the indictment. To prove the aggravation of the robbery, this indictment and the corresponding charge required the State to prove, initially, that the knife involved in the robbery was a deadly weapon, and secondly, that the knife was used and exhibited during the robbery. In his argument under this first point, appellant challenges only the sufficiency of the State's evidence to establish that the knife was a deadly weapon.

Appellant initially argues that as the knife used in the robbery was not identified and introduced into evidence, it is impossible to determine whether the actual knife was capable of being a deadly weapon. Appellant fails to recognize, however, that the actual knife used in the commission of an offense need not be introduced into evidence if a witness is able to testify about the knife and the manner in which it was used. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982); Odom v. State, 852 S.W.2d 685, 687 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd); Aleman v. State, 795 S.W.2d 332, 335 (Tex.App.--Amarillo 1990, no pet.).

Here, George and her oldest daughter, Heather, testified regarding the knife and the manner in which appellant used it. Moreover, a knife which George identified as being similar to the one used during the robbery was introduced into evidence for illustrative purposes. Detective Van Roy Pierce with the City of Lubbock Police Department testified that a knife of that type could cause death or serious bodily injury. Thus, we find appellant's initial contention to be without merit. Having done so, we must next determine whether the evidence was sufficient to establish that the actual knife used in the robbery was a deadly weapon.

When an indictment alleges that an appellant "used or exhibited a deadly weapon, to-wit: a knife," the evidence must first establish that the knife was, in fact, "deadly." Lockett v. State, 874 S.W.2d 810, 814 (Tex.App.--Dallas 1994, no pet.); Jones v. State, 843 S.W.2d 92, 96 (Tex.App.--Dallas 1992, pet. ref'd). Texas defines a deadly weapon as:

(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)(17) (Vernon 1994). It is the general rule that a knife is not a deadly weapon per se. Lewis v. State, 628 S.W.2d 276, 278 (Tex.App.--Amarillo 1982, no pet.). However, some varieties of knives may qualify as deadly weapons under the first provision of the definition because they are designed for the purpose of inflicting serious bodily injury or death. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991) (bayonets, scimitars and swords of various kinds can be deadly weapons under section 1.07(a)(11)(A), which is the progenitor of the present section 1.07(a)(17)).

Even so, most knives can only qualify as deadly weapons under the second provision. Qualification may be established by showing, among other things, the manner of the knife's use or intended use, its size and shape, and its capacity to produce death or serious bodily injury. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App.1980). Each case must be examined on its own facts to determine whether the fact finder could have concluded from the surrounding circumstances that the knife was used or was to be used as a deadly weapon. Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App.1986). Factors that may be considered are an accused's express and implied threats, the distance between the accused and the victim, and the victim's description of the knife in determining whether it was intended to be used as a deadly weapon. Id. at 946. A person need not be wounded for a knife to be used as a deadly weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978).

A proper discussion of this question requires a detailed review of the testimony elicited during the guilt/innocence phase of the trial. The record reveals that George testified that on October 2, 1993, she was working as the cashier at her convenience store. Her two children, Tiffany age nine, and Heather age eleven, were behind the checkout counter with her watching a football game on a portable television set.

Around noontime, appellant came into the store to get change for the pay phone located outside the front of the store. Approximately thirty to forty minutes later, he came into the store a second time and spoke with George concerning the football game. When appellant entered the store a third time, he went straight to the counter, laid a plastic bag on the counter and demanded, in a low voice, ² that George place the money from the cash register into the bag.

In disbelief, George asked appellant "if he was kidding," to which appellant responded by pulling up his shirt and displaying a silver and black...