Stephens, Patsy Ruth v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed July 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00819-CR

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PATSY RUTH STEPHENS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 917,992

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

Patsy Ruth Stephens appeals a conviction for aggravated robbery on the grounds that: (1) the trial court erred in failing to suppress an out-of-court identification that was based on an unduly suggestive photo spread; and (2) the evidence was legally and factually insufficient to prove that she used or exhibited a deadly weapon. We affirm.

Identification

The argument portion of appellant s first issue asserts that the photo spread police presented to witnesses was unduly suggestive, but does not state how or why it was unduly suggestive or provide standards for determining under what circumstances such a photo spread becomes impermissibly suggestive.[1] In addition, at the identification hearing in the trial court, the photo spread was not offered into evidence or otherwise made a part of our record for appellate review. Therefore, we are unable to review the photo spread to determine whether it is suggestive. Under these circumstances, appellant s first issue presents nothing for our review and is overruled.

Deadly Weapon

Appellant s second through fifth issues challenge the legal and factual sufficiency of the evidence to prove that she used or exhibited a motor vehicle as a deadly weapon. Appellant contends that the evidence shows that she used her automobile only to escape and that she collided with the complainant accidentally while doing so, but does not prove that she used the vehicle with any intent to threaten or cause injury or death or in a manner that was capable of doing so.

Standard of Review

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, and the reasonable inferences therefrom, a rational jury could have found the accused guilty of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The question is not whether a rational jury could have entertained a reasonable doubt as to the appellant s guilt, but whether such a jury would necessarily have done so. Id. at 95-96. In reviewing factual sufficiency, we consider all the evidence in a neutral light to determine whether the proof of guilt is either so obviously weak as to undermine confidence in the jury s determination or, if adequate taken alone, is greatly outweighed by contrary proof. Id. at 97.

As relevant to the allegations in this case, a person commits the offense of aggravated robbery if, in the course of committing theft and with an intent to obtain or maintain control of property, he: (1) intentionally or knowingly places another in fear of imminent bodily injury; and (2) uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. 29.02(a)(2), 29.03(a)(2) (Vernon 2003). In the course of committing theft includes conduct that occurs during, or in immediate flight after, the commission of theft. Id. 29.01(1). A deadly weapon includes anything that in the manner of its use is capable of causing death or serious bodily injury. Id. 1.07(17)(B) (Vernon 2003).

An automobile can be a deadly weapon if it is driven in a manner to endanger lives. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). This is true even if the automobile is only driven recklessly, i.e., with deadly effect but not a deadly purpose. See Tyra v. State, 897 S.W.2d 796, 798-99 (Tex. Crim. App. 1995) (affirming affirmative deadly weapon finding for use of automobile in committing involuntary (intoxication) manslaughter).

Review of Evidence

In this case, the complainant was a supermarket employee who observed appellant shoplifting and pursued her into the parking lot of the store. As appellant got into her car with the stolen merchandise and began backing up, the complainant attempted to stop her by banging on the driver s side window and back of the car, but appellant continued backing up, striking the complainant slightly, and then drove away from the store. As to appellant s use of the car as a deadly weapon, the complainant testified that: (1) appellant knew the complainant was behind her car because appellant turned her head around and saw the complainant there and saw the complainant in her rearview mirror; (2) as the complainant stepped out of the way to avoid being hit, appellant turned, and the car hit the complainant s left side; and (3) the complainant thought at the time that appellant was going to run her down. This evidence is legally sufficient to prove that appellant knowingly placed the complainant in fear of imminent bodily injury and that appellant used a deadly weapon by driving her automobile in a manner that was capable of causing serious injury. Because appellant cites no evidence to refute this, the evidence is factually sufficient to prove these matters as well. Accordingly, appellant s second through fifth issues are overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 3, 2003.

Panel consists of Justices Yates, Hudson, and Edelman.

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

[1] See Tex. R. App. P. 38.1(h) (requiring brief to contain a clear argument for the contentions made).