Lockett v. State, 05-92-00064-CR

• Decision Date: 31 March 1994
• Docket Number: No. 05-92-00064-CR,05-92-00064-CR
• Citation: 874 S.W.2d 810
• Parties: Donald Eugene LOCKETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 810

874 S.W.2d 810

Donald Eugene LOCKETT, Appellant, v. The STATE of Texas, Appellee.

No. 05-92-00064-CR

Court of Appeals of Texas Dallas.

March 31, 1994.

Discretionary Review Refused May 18, 1994.

R.D. Rucker, Dallas, for appellant.

Lori Ordiway, Dallas, for appellee.

Before BAKER, MALONEY and WHITTINGTON, JJ.

OPINION ON RECONSIDERATION ON STATE'S PETITION FOR

DISCRETIONARY REVIEW

MALONEY, Justice.

We withdraw our opinion of December 17, 1993. The following is now the Court's opinion.

The trial court convicted Donald Eugene Lockett of aggravated robbery, found the enhancement paragraph true, and assessed a fifty year sentence. In six points of error, appellant claims that: (1) the evidence is insufficient to support his conviction; (2) the indictment is void; (3) his confinement in the same cell with Lamar James Cole could have been conspiracy; (4) the State cannot charge two different parties with the same crime Because we find the evidence insufficient to support a finding of a deadly weapon, we reform the trial court's judgment to delete the word "aggravated" as well as any reference to a "deadly weapon." We affirm that part of the judgment as reformed finding appellant guilty of robbery. We reverse that part of the judgment which assesses punishment. We remand this cause for a new trial on punishment.

(5) his trial attorney did not subpoena known witnesses; and (6) his trial attorney provided ineffective assistance.

PROCEDURAL BACKGROUND

Appellant waived his right to trial by jury and pleaded not guilty. The trial court found appellant guilty of aggravated robbery. The trial court also found that appellant used or exhibited a deadly weapon. Appellant then pleaded true to the enhancement paragraph. The trial court found the enhancement paragraph true and assessed a fifty year sentence.

Appellant's attorney filed an Anders ¹ brief in which he concludes that the appeal is wholly frivolous and without merit. However, the brief raised one arguable point of error--sufficiency of the evidence.

Appellant's attorney delivered a copy of the brief to appellant. We advised appellant that he could examine the appellate record and file a pro se brief. Appellant filed a pro se brief. Appellant and his attorney raise the identical sufficiency point. Appellant also raises five additional points of error.

FACTUAL BACKGROUND

Early one morning, three men approached the complainant and her companions as they were leaving a Dallas nightclub. Appellant was one of those men. He cut complainant's purse strap and grabbed her purse. When complainant reached for her purse, appellant's knife cut her fingers.

SUFFICIENCY OF THE EVIDENCE

In appellant's second point of error pro se, he argues that the evidence was insufficient to show that he used or exhibited a deadly weapon. Specifically, appellant argues that the evidence does not establish that the knife used was a deadly weapon.

1. Standard of Review

When an appellant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jones v. State, 833 S.W.2d 118, 122 (Tex.Crim.App.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993). We find the evidence sufficient to sustain the conviction if the collective weight of all the incriminating circumstances warrants the conclusion. Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

The fact finder is the sole judge of the witnesses' credibility and their testimonial weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). The fact finder may reject all or part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). The fact finder need not believe even uncontroverted testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. [Panel Op.] 1978). The fact finder may draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.--Corpus Christi 1988, pet. ref'd). We do not disturb the fact finder's decision unless it is irrational or supported by only a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We do not substitute our judgment for that of the fact finder. Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Crim.App.1987), aff'd by an equally divided court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).

2. Applicable Law

a. Aggravated Robbery

A party commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he knowingly or intentionally threatens or places another in fear of imminent bodily injury or death. TEX.PENAL CODE ANN. § 29.02(a)(2) (Vernon 1989). The use or exhibition of a deadly weapon during the commission of a robbery aggravates the offense. TEX.PENAL CODE ANN. § 29.03(a)(2) (Vernon Supp.1994).

b. Deadly Weapon

When an indictment alleges that appellant "used or exhibited a deadly weapon, to-wit: a knife," the evidence must establish that the knife was in fact "deadly." Jones v. State, 843 S.W.2d 92, 96 (Tex.App.--Dallas 1992, pet. ref'd). A knife is not a "deadly weapon per se." ² Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991); Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App. [Panel Op.] 1979). 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)(11) (Vernon 1974).

"Serious bodily injury" is "bodily injury that creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." TEX.PENAL CODE § 1.07(a)(34) (Vernon 1974). If the evidence does not show that the knife caused death or serious bodily injury, then the State must produce evidence that shows the knife: (1) was capable of causing serious bodily injury; and (2) was displayed or used in a manner that establishes the intent to use the knife to cause death or serious bodily injury. Garza v. State, 695 S.W.2d 726, 728 (Tex.App.--Dallas 1985), aff'd on other grounds, 725 S.W.2d 256 (Tex.Crim.App.1987); see also Jones, 843 S.W.2d at 96 (applying Garza ). A knife need not wound a person to qualify as a deadly weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978). ³

The State need not introduce expert testimony to establish the "deadly" nature of a knife. Expert testimony can be "particularly useful in supplementing meager evidence on the issue." Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App. [Panel Op.] 1980).

We examine each case on its own facts to determine whether the fact finder could have concluded from the surrounding circumstances that the knife was used as a deadly weapon. Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App.1986). We can consider a defendant's verbal threats, the distance between the defendant and the victim, and the witnesses' descriptions of the knife in determining whether a defendant intended to use his knife as a deadly weapon. Id. at 946; Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App.1985) (op. on reh'g).

3. Application of the Law to the Facts

The indictment alleges that appellant committed aggravated robbery. It charges that appellant committed theft and "knowingly and intentionally threaten[ed] and place[d] the [complainant] in fear of imminent bodily injury and death"--a robbery. The indictment then alleges as the aggravating element that the defendant "use[d] and exhibit[ed] 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 State did not introduce the knife into evidence. No evidence showed that the knife was "manifestly designed, made, or adapted for the purpose of inflicting death or bodily injury." The knife was not a deadly weapon per se.

When asked when and if she feared some bodily injury or possible death, complainant responded "[a]s soon as I noticed a knife, yes, I was." She described appellant's knife as a pocketknife to one of the investigating officers. The following exchange between the complainant and defense counsel occurred:

Q. How big a knife was that?

* * * * * *

A. The blade was probably about that long (demonstrating).

Q. Is it just--

A. I didn't get a very good look at the knife, I mean, I saw the blade--

Q. He used it to cut the strap?

A. Yes.

Q. You don't think he was trying to stab you, or cut you with it, do you?

A. I have no idea what his intentions were, other than to rob me.

Q. Okay. But, if he wanted to stab you, he could have stabbed you?

A. Yes.....

* * * * * *

Q. But, at any rate, he cut the strap on your purse?

A. That's correct.

Q. Okay. And, did they immediately run?

A. [Appellant] did.

Additionally, in response to a question from the trial judge, complainant testified that appellant slashed her fingers to get her purse.

A police officer gave the only other evidence about the knife. Over defense counsel's objection, a police officer testified that "[a]t one time, one of the black suspect males pulled a pocketknife, and cut the strap on [complainant's] purse, when she went to reach for it, she stated that she was cut on the fingers."

The evidence showed that appellant "sliced" complainant's purse "off [her] shoulder" with "a knife." As appellant was fleeing, complainant "reached around, and tried to grab [her] purse." When she reached for her...