Flores v. State

• Decision Date: 31 March 2021
• Docket Number: NO. PD-0064-20,PD-0064-20
• Citation: 620 S.W.3d 154
• Parties: Juan Carlos FLORES, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

620 S.W.3d 154

Juan Carlos FLORES, Appellant

v.The STATE of Texas

NO. PD-0064-20

Court of Criminal Appeals of Texas.

Delivered: March 31, 2021

Karla Baugh, Paris, for State.

Jeromie Oney, for Appellant.

OPINION

Slaughter, J., delivered the opinion of the Court in which Richardson, Yeary, Newell, Walker, and McClure, JJ., joined.

Appellant Juan Carlos Flores entered a convenience store and committed a robbery. To facilitate the robbery, Appellant pretended he had a gun. The "gun," however, was an electric drill covered in plastic bags with a black sleeve over the drill bit. Believing the drill was a gun, the store owner gave Appellant the money from the register. Was the evidence legally sufficient to support the finding that the drill was a deadly weapon within the meaning of that term as defined in the Penal Code,¹ when Appellant never attempted to strike, stab, or "drill" anyone, nor did he threaten to do so? The answer is no. There was insufficient evidence to permit a jury to rationally conclude that Appellant used or intended to use the drill in a manner that was capable of causing death or serious bodily injury. We, therefore, reverse the judgment of the court of appeals which upheld Appellant's conviction for aggravated robbery based on his use or exhibition of a deadly weapon, and we remand this case to the trial court for reformation of Appellant's judgment to reflect a conviction for the second-degree felony offense of robbery and to hold a new trial on punishment.

I. Background

Convenience store owner Nanu Shapakota was working in the store one evening when Appellant entered wearing a mask and holding what Shapakota believed was a gun. Appellant demanded that Shapakota give him all the money in the register. She complied. After Appellant left, she called the police.

In the course of investigating the robbery, police discovered that the object Shapakota believed to be a gun was instead a cordless electric drill wrapped in two plastic bags. While the drill contained a drill bit at the end, Appellant had covered the bit with a black sleeve or other black object to disguise it as a gun barrel. At trial, Shapakota testified that Appellant pointed the drill at her as though it were a gun, but he never attempted to strike or hit her with it and never threatened to do so. In fact, she testified that Appellant even told her that he did not want to hurt her.²

The lead detective in the case, Detective Mackay, testified that in the surveillance video Appellant can be seen pointing and shaking the drill at Shapakota while demanding money, but he acknowledged that the drill was not used to strike or stab her and Appellant never activated the drill to try to injure her. Mackay opined that the drill was capable of causing death or serious bodily injury because "you could use it as a blunt object. You could hit somebody with it. You could stab somebody with it. You could drill them with it. You can use it in multiple ways." Another detective who responded to the scene, Sergeant Conrad, similarly testified that the drill was a deadly weapon because "just by the sheer weight of it[,] you could bludgeon somebody to death with it. With a bit in it, you can stab somebody. You could drill somebody with it in an area that could basically kill them." While, as the detectives stated, there are uses of a drill which could cause serious bodily injury or death, here, there was no testimony suggesting that Appellant used or intended to use the drill in any such manner. Moreover, in reviewing the surveillance video: (1) Appellant made no motion suggesting an intent to strike Shapakota with the drill from where he was standing a few feet away from her, separated by the cashier's counter;³ (2) there was no evidence that the drill was activated or even functional at the time of the robbery;⁴ and (3) there was no testimony as to whether the drill could have been used to stab or drill someone when it was covered in plastic bags and there was a sleeve over the bit end of the drill.

A jury ultimately convicted Appellant of aggravated robbery, with the aggravating element being his use or exhibition of a deadly weapon. See TEX. PENAL CODE § 29.03(a)(2). The trial judge sentenced Appellant to fifteen years in prison.

Appellant appealed, complaining that the evidence was insufficient to establish that he used or exhibited the drill as a deadly weapon, but the court of appeals disagreed. Flores v. State , No. 05-19-00034-CR, 2019 WL 6907076 (Tex. App.—Dallas Dec. 19, 2019) (mem. op., not designated for publication). The court reasoned that, although Appellant did not use the drill to "overtly harm Shapakota, he certainly used it for intimidation value to accomplish the crime." Id. at *2. The court further relied on the testimony of Sergeant Conrad stating that "a drill is a deadly weapon because the sheer weight could bludgeon someone to death or a drill bit could stab someone." Id. Thus, the court concluded that Appellant "used and exhibited the drill in such a way that it was capable of causing death or serious bodily injury, and he used it to facilitate the robbery." Id. We granted Appellant's petition for discretionary review to evaluate the court of appeals’ holding as to this sufficiency question.

II. Analysis

In reviewing the sufficiency of the evidence to support a conviction, we typically look to whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Long v. State , 535 S.W.3d 511, 519 (Tex. Crim. App. 2017). We view the evidence in a light most favorable to the prosecution by resolving any factual disputes in favor of the verdict and deferring to the fact-finder regarding the weighing of evidence and the inferences drawn from basic facts. Id. ; see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) ("This Court's role on appeal ‘is restricted to guarding against the rare occurrence when a fact finder does not act rationally,’ and we must ‘defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ") (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ). Sometimes, a sufficiency-of-the-evidence issue turns upon the meaning of the statute under which the defendant is being prosecuted. Long, 535 S.W.3d at 519. In those situations, after viewing the evidence in the light most favorable to the verdict, we ask if certain conduct actually constitutes an offense under the statute, which is a question of law we review de novo. Id.

Robbery is a second-degree felony. TEX. PEN. CODE § 29.02(b). If a person commits robbery and uses or exhibits a deadly weapon, then the offense is elevated to first-degree aggravated robbery. Id. § 29.03(a)(2), (b). Whether, in this case, the evidence was sufficient to convict Appellant for first-degree aggravated robbery instead of second-degree robbery hinges on whether the jury rationally concluded that Appellant "use[d] or exhibit[ed]" the drill as a deadly weapon during the robbery. Id. § 29.03(a)(2). For purposes of this case, a "deadly weapon" is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B).⁵

In conducting its analysis of this sufficiency issue, the court of appeals properly noted that under this Court's decision in McCain v. State , a "two-step process" must be conducted to determine whether the element of use or exhibition of a deadly weapon is satisfied. Flores , 2019 WL 6907076, at *1 (citing 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000) ). But the court of appeals then erroneously cited that two-step process as being: "first analyze whether [the] object could be a deadly weapon and if so, then determine whether the deadly weapon was ‘used’ or ‘exhibited’ during the offense." Id. (emphasis added). Contrary to the court of appeals’ suggestion, under the first step in McCain , the question is not whether the object "could" possibly be a deadly weapon under a hypothetical scenario; instead, it is whether the object "could be a deadly weapon under the facts of the case. " McCain , 22 S.W.3d at 502 ; see also id. at 503 ("[A]n 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.") (emphasis added). As we explained in Prichard v. State , under the broad language in Penal Code Section 1.07(a)(17)(B), "a ‘deadly weapon’ may be ‘anything,’ and there is no limitation as to what type of thing may be considered a deadly weapon." 533 S.W.3d 315, 320 (Tex. Crim. App. 2017). Thus, generally speaking, the nature of the object itself does not limit whether that object may be a deadly weapon; rather, it is only the "manner of [the defendant's] use or intended use" that provides any meaningful limitation to the broad statutory definition.

In McCain , we held that the evidence was sufficient to find that a butcher knife was a deadly weapon even though the knife remained in the defendant's back pocket during the robbery and the defendant never made any verbal threat to use the knife. McCain , 22 S.W.3d at 499. McCain involved a violent attack wherein the defendant kicked in the victim's kitchen door and began punching her. Id. During the attack, the victim saw what she believed to be a knife sticking out of the defendant's back pocket. Id. She was afraid that the defendant would stab her with it. Id. The victim ultimately escaped and returned with the police. Id. Police later arrested the Appellant and found on his person a butcher knife with a nine-inch blade. Id.

In holding that the evidence was sufficient for finding that the knife was a "deadly weapon," we reasoned that the statute does not require that the actor actually intended death or serious bodily injury; the actor need only "intend[ ] a use of the object in which it would...