Taylor, Rodney v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed March 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01194-CR

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RODNEY TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris  County, Texas

Trial Court Cause No. 857,378

M E M O R A N D U M O P I N I O N

Appellant, Rodney Taylor, was convicted of aggravated robbery. Appellant claims the trial court abused its discretion in denying his motion for a directed verdict because there was no evidence he used a deadly weapon. We affirm.

Appellant was charged by indictment with the offense of aggravated robbery. The complainant, Wisam Albarbarawi, testified that on September 19, 2000, appellant approached him at a gas station and asked for money to fix a tire. Albarbarawi testified that appellant then took out a knife, pointed it at Albarbarawi=s side, and grabbed his wallet from his hand. Albarbarawi eventually recovered his wallet, but without $500 in cash. At the conclusion of the State=s case-in-chief, appellant moved for a directed verdict, which the trial court denied. The jury convicted appellant of aggravated robbery and assessed punishment at nineteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice plus a $500 fine.

In his sole issue on appeal, appellant contends the trial court erred in denying his motion for directed verdict. A challenge to the trial court=s ruling on a motion for directed verdict is in actuality a challenge to the legal sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990); Johnson v. State, 32 S.W.3d 388, 392 (Tex. App.CHouston [14th Dist.] 2000, no pet.). In evaluating legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788B89 (1979)).

An individual commits the offense of aggravated robbery if he or she commits robbery and Auses or exhibits a deadly weapon.@ Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 1994). Appellant=s only complaint on appeal is that there was no evidence that he used or exhibited a deadly weapon. Although appellant claims he did not have any weapon, Albarbarawi unambiguously testified that appellant was holding a knife in his hand when he grabbed Albarbarawi=s wallet. Although a knife is not a deadly weapon per se, a knife is a deadly weapon if used in a manner in which it would be capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Appellant claims the State presented no evidence that the knife in this case was capable of causing death or serious bodily injury. We disagree.

Albarbarawitestified that appellant pointed the knife at his side and that he thought appellant would Ahit@ him with it. At the time, appellant was standing one or two feet away, close enough to grab the wallet from Albarbarawi=s hand. Albarbarawi testified that he did not try to stop appellant from taking his wallet because he was Aafraid from the knife,@ and that he thought he could be Ainjured from this knife.@ Finally, with respect to the size of the knife=s blade, Albarbarawi testified with the use of hand gestures that are not fully reflected in the record:

Q: Not a big one, not a small one. What did you see?

A: No. It=s a small knife.

Q: How small? . . . . Can you open your fingers and tell me?

A: It was probably like that.

Q: Is that about C

A: If you C

Q: Inches C

A: Cclose it C if you open it, open like that.

Q: So about two inches closed is what you saw?

A: Yes, ma=am. Probably like that.

Although Albarbarawi said the knife was Atwo inches closed,@ he apparently used his fingers to show the jury how big the knife was when Aopen@Cthe only time the blade would be visible. Albarbarawi=s visual description of the blade is not reflected in the record on appeal. We thus view this testimony as supporting a finding that appellant=s knife was capable of causing death or serious bodily injury. See Rogers v. State, 756 S.W.2d 332, 336B37 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (concluding that undescribed testimonial gestures about the location of the defendant=s hands could have a significant impact on the jury=s assessment and thus should be viewed as supporting the jury=s verdict).

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant used or exhibited a deadly weapon while committing a robbery. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 13, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish CTex. R. App. P. 47.2(b).