Garcia v. State

• Decision Date: 17 December 1981
• Docket Number: No. B14-81-221-CR,B14-81-221-CR
• Parties: Christobal GARCIA, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 831

625 S.W.2d 831

Christobal GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. B14-81-221-CR.

Court of Appeals of Texas, Houston (14th Dist.).

Dec. 17, 1981.

Leonard M. Roth, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Houston, for appellee.

Before PAUL PRESSLER, MURPHY and SAM ROBERTSON, JJ.

SAM ROBERTSON, Justice.

The jury rejected appellant's plea of not guilty to the offense of aggravated robbery and the court, finding that he had previously been convicted of two separate felonies as alleged, assessed his punishment at life imprisonment. We affirm.

In his first ground of error, appellant contends that the trial court erred in overruling his motion to dismiss for failure to comply with the Speedy Trial Act, Tex. Code Crim.Pro.Ann. art. 32A.02 (Vernon Supp. 1980-1981).

Appellant was indicted on September 5, 1978 and, before his arrest, the state first announced ready for trial on December 8, 1978. In April 1979, appellant was arrested in Calhoun County for another offense, and he was informed on April 21 that a hold had been placed on him by the Houston Police Department. Thereafter, the state again announced ready, appellant filed a pauper's oath, and counsel was appointed to represent him. His case was reset by agreement from July 27 to August 8 when the state again announced ready. Again the case was reset by agreement until September 18, then on an almost daily basis until September 26 when the state announced ready and the defense was not. On October 1, the case was tried, some 163 days after appellant was arrested.

The Texas Speedy Trial Act requires a court to set aside an indictment "if the state is not ready for trial" within certain time limits. When the state announces readiness for trial within the applicable time, the statute is prima facie satisfied subject to rebuttal. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). In the case before us, the state repeatedly announced ready within the 120 day time limit. Furthermore, the agreed resettings of the case are clearly excluded from the time as "a period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel ...." Tex. Code Crim.Pro.Ann. art. 32A.02, § 4(3). The only evidence offered by appellant in rebuttal of the state's announcement of ready was that subpoenas had not been issued by the state for its witnesses. This is insufficient evidence to rebut the state's prima facie showing of compliance with the statute. Appellant's first ground of error is overruled.

In his second and third grounds of error, appellant complains of the sufficiency of the evidence on two counts. First, he contends that the state failed to prove that the complaining witness was in fear of imminent bodily injury or death. Second, he contends that the state failed to prove the use or exhibition of a deadly weapon.

In Texas, a person commits a robbery if, in the course of a theft, he "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 1974). Fear of bodily injury means fear of "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(7) (Vernon 1974). The complainant here testified that appellant approached him from behind and that he "felt something" in his back. He asked "what do you need," and appellant answered "give me the money." The witness then told appellant to "take the knife away" and, as he moved, saw a knife with a blade between 3 and 5 inches long in appellant's hand. Further, the witness testified that he was afraid. We find this to be sufficient evidence to support the jury's verdict and overrule appellant's second ground of error.

In his third ground of error, appellant contends that the state failed to prove the use or exhibition of a deadly weapon. Under the Texas Penal Code, a robbery is aggravated when the above mentioned fear of bodily harm is occasioned by the use or exhibition of a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 1974). A deadly weapon can be "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)(11)(B) (Vernon 1974).

Because an ordinary pocketknife is not, per se, a deadly weapon Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978), we have examined the record to determine the sufficiency of the evidence as to whether by the manner of its use or intended use such a knife was capable of creating "a substantial risk of death ..., serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(34) (Vernon 1974).

The jury in the case before us heard testimony from a police officer with ten years experience that he had seen many stabbings from knives of the type testified to by the complainant and that such pocketknives are capable of causing serious bodily injury. This same jury heard testimony that the complainant felt something pushed in his back and saw appellant holding a knife. We find this sufficient evidence to support the verdict and overrule appellant's third ground of error.

In his fourth and fifth grounds of error, appellant contends the trial court erred in not dismissing the first of two enhancement paragraphs in the indictment. His grounds for such contention are two-fold. First, he contends that he was not represented by counsel at a revocation of probation hearing, and second, he contends the enhancement is based on an ambiguous and void order. The exemplified copies of the Texas Department of Corrections records introduced before the court to prove the first enhancement...