Petrick v. State

• Decision Date: 18 June 1992
• Docket Number: No. 01-91-00389-CR,01-91-00389-CR
• Citation: 832 S.W.2d 767
• Parties: Patrick Dennis PETRICK, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 767

832 S.W.2d 767

Patrick Dennis PETRICK, Appellant, v. The STATE of Texas, Appellee.

No. 01-91-00389-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

June 18, 1992.

Rehearing Denied July 9, 1992.

Discretionary Review Refused Oct. 14, 1992.

Charles E. Hill, III, San Francisco, Cal., for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Susan Brown, Glenn Gotschall, Asst. Dist. Attys., Houston, for appellee.

Before SAM BASS, MIRABAL and O'CONNOR, JJ.

OPINION

SAM BASS, Justice.

This appeal is from a conviction for aggravated robbery. After finding an enhancement paragraph true, the jury assessed punishment at 45-years confinement and a $5000 fine.

We reverse and remand for a new trial.

On the afternoon of October 16, 1986, Ms. Karen Shaunessy and Mr. Timothy Clingman were working at a Photomax store located at Gessner and I-10. The phone rang at 5:45 p.m., and Mr. Clingman answered it. A male voice on the other end said only one word, "Karen." Thinking this was rather strange, Mr. Clingman handed the phone to Ms. Shaunessy. He noticed that she did not say much during the conversation, but she seemed to stiffen up and become tense.

The phone call lasted about 30 seconds to one minute. When Ms. Shaunessy hung up the phone, she told Mr. Clingman that the caller was her ex-boyfriend, appellant in this case. She said this was the first contact that he had made with her in two months, and she was upset by the call.

Ms. Shaunessy went home at 6:30 p.m., about 45 minutes after her phone conversation with appellant. About 10 minutes later, while Mr. Clingman was in the back of the store preparing to close for the evening, he heard someone come inside. He walked to the front and saw two men standing at the counter. One man came behind the counter, produced a hunting knife, and told Mr. Clingman it was a robbery. Mr. Clingman testified that the knife was "very similar in size and shape to what's called a buck folding hunter blade, was five and a half inches long."

The assailant backed Mr. Clingman into a storage room. Mr. Clingman was looking at the assailant's face the entire time, and noticed his intense, "wild looking" eyes. He testified that the look in the assailant's eyes, coupled with the knife, scared him very badly. He thought the assailant might kill him to prevent him from making an identification. The assailant told Mr. Clingman not to try anything. Mr. Clingman responded that he was scared to death and said, "Believe me, I'm not going to die over company money. Go for it."

Mr. Clingman heard the bell on the cash register, indicating that the accomplice had opened it. The assailant then asked where the rest of the money was kept. "He held the knife in his hand with the blade pointing upward, held it right here and went like that...." (The record does not reflect what motion the witness made during this testimony.) Mr. Clingman testified that he felt as though his life was threatened. He told the assailant that more money was in the filing cabinet.

The assailant took out a roll of strapping tape and taped Mr. Clingman's hands together, then taped both hands to his left ankle. He had the knife in his hand at all times.

Mr. Clingman heard the front door open again, and the accomplice said, "We got to go." The assailant jumped up and ran out of the store. Mr. Clingman hobbled to the front of the store to find a customer who had just walked in on the robbery. The customer untaped him and called the police.

While waiting for the police to arrive, Mr. Clingman began wondering if the person who had performed the robbery was the same person that called Ms. Shaunessy. He called her at home, and described to her the person that had just robbed him. She said it sounded like it could be her ex-boyfriend. She told him she had some negatives from which they could print a picture of the caller, and she would bring them to the store immediately.

The police arrived before Ms. Shaunessy. Mr. Clingman described the knife to police as a "folding pocket knife has about a four-inch blade, open and locks open." He also gave them the same description of the assailant that he had given Ms. Shaunessy. When Ms. Shaunessy arrived and began printing the pictures, Mr. Clingman immediately recognized the person in the pictures, who was appellant, as his assailant. In a subsequent police photo spread line up, he was unable to conclusively identify the assailant.

In his first point of error, appellant claims the evidence was insufficient to support his conviction. Specifically, he argues that the State failed to show he exhibited a deadly weapon during the commission of the crime.

In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). If there is evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

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.PENAL CODE ANN. § 1.07(a)(11)(B) (Vernon 1974). A knife qualifies as a deadly weapon, just as does any other object, whenever it is "manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991). Further, a knife may be a deadly weapon, depending on its size, shape, sharpness, the manner of its use or intended use, and its capacity to cause death or serious bodily injury. Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983).

Wounds need not be inflicted before a knife can be determined to be a deadly weapon. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App. [Panel Op.] 1980). If there was no actual injury, the State is required to support the capacity of the knife to cause serious bodily injury or death by factors such as the manner of use, the size of the blade, threats made by the accused, or the physical proximity of the accused and his victim. Blain v. State, 647 S.W.2d at 294.

A reading of the record does not tell us exactly how appellant used the knife. We know that Mr. Clingman testified that appellant pointed the knife upward and "went like that." Although we do not know what motion Mr. Clingman was demonstrating, the jury was able to see and hear Mr. Clingman testify, and weighed his credibility in reaching a verdict. We also know from the record that Mr. Clingman felt that his life was threatened by appellant's use of the knife.

There was a discrepancy in testimony concerning the size of the knife. The police officer testified that Mr. Clingman told him the blade was four inches long. Mr. Clingman testified that the knife had a folding hunter blade, which was five and one-half inches long. Appellant argues in his brief that Mr. Clingman was testifying to the length of the whole knife--that is, the blade plus the handle. However, the record clearly shows that he was describing the blade of the knife.

Although there was no testimony that appellant verbally threatened Mr. Clingman, Mr. Clingman stated that he was "scared to death" by the knife and appellant's wild-looking eyes. Also, appellant had Mr. Clingman cornered throughout the entire robbery. He never put down the knife, even when he was binding Mr. Clingman's hands and left foot.

In Tisdale v. State, 686 S.W.2d 110 (Tex.Crim.App.1985) (op. on reh'g), appellant pulled a knife with a two and five-eights inch blade on a convenience store clerk. Id. at 113. The clerk testified that when appellant displayed the knife, she backed up and allowed him to take the money from the register. Id. at 114. She said that she felt threatened by the knife. Id. The court held that the actions of appellant in advancing on the clerk and displaying the open knife in his hand were sufficient to show his intent to use the weapon. Id. at 115.

The facts of the case before us are very similar to those of Tisdale. When appellant produced the knife, Mr. Clingman started backing up. He cooperated with appellant, telling him where the money was located. He said he felt threatened and scared because of the knife. Just as in Tisdale, appellant's acts of advancement while displaying the knife were sufficient to show his intent to use the weapon.

The first point of error is overruled.

In his third point of error, appellant claims that the trial court abused its discretion by denying his oral motion for continuance so he could present his alibi witnesses. As a general rule, a motion for continuance must be in writing and sworn to by a person having personal knowledge of the facts. However, this rule is not absolute. O'Rarden v. State, 777 S.W.2d 455, 459 (Tex.App.--Dallas 1989, pet. ref'd). When the circumstances surrounding the trial court's denial of an oral motion for continuance amount to a denial of the rudiments of due process, such denial is subject to appellate review. Id. at 459-60.

To determine if appellant's right to due process was violated, it is important to look at the facts leading up to the motion for continuance. The jury was selected on the afternoon of February 28, 1991. The State put on its first witness on Friday, March 1, 1991, at 10:29 a.m. Appellant's attorney knew the State had subpoenaed six witnesses to testify. Presuming that it would take all day Friday for the State to put on its case, he told his alibi witnesses, who were coming from another state, to be in court on Monday, March 4, 1991.

During the lunch...