Washington, Damien v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01095-CR

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DAMIEN WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 904,391

O P I N I O N

Appellant, Damien Washington, was charged by indictment with the felony offense of robbery. He was further charged with using and exhibiting a deadly weapon during the offense, namely, a firearm. A jury convicted appellant as charged in the indictment and assessed his punishment at 10 years= imprisonment. On appeal, appellant challenges the sufficiency of the evidence to support his conviction. We affirm.

On February 23, 2002, Julie Ann Torres took her two nephews, ages seven and nine, to the store. When they returned to her apartment complex, Torres noticed a black man smoking a cigarette in the front parking lot. He wore a light blue jersey with dark numbers or letters, baggie jeans, and had braided hair. Finding all the parking spaces at the front of her building filled, Torres drove around and parked in the back of the complex. Her nephews gathered their belongings, and exited the back seat of the car. Torres stepped out of the driver=s seat, and as she walked from her car, the man she had previously seen in the front parking lot approached her, put a gun to her stomach, and said, just do it. Torres immediately handed him her purse, and her attacker fled the scene. Two days later, while viewing a photo spread, Torres identified appellant as her attacker. Appellant was charged with, and subsequently convicted of, aggravated robbery.

Standard of Review

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may believe or disbelieve any portion of the witnesses= testimony. Sharp. v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). The evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.). We consider the factfinder=s weighing of the evidence and can disagree with the factfinder=s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, we are not free to reweigh the evidence and set aside a verdict merely because a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must defer to jury findings and find the evidence factually insufficient only where necessary to prevent manifest injustice. Id.

Firearm

In his first and second issues, appellant contends the evidence is insufficient because the State failed to establish that the gun allegedly used during the commission of the offense constituted a firearm as alleged in the indictment. A person is guilty of aggravated robbery if, while in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 29.03(a) (Vernon 1994). When the State alleges in the indictment for aggravated robbery that the deadly weapon used by the defendant was a firearm, as it did here, it is required to prove beyond a reasonable doubt that the deadly weapon was, in fact, a firearm. Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

A deadly weapon is, a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. ' 1.07(17) (Vernon 2003). A firearm, therefore, is a deadly weapon. Arthur, 11 S.W.3d at 389. A gun, however, is a broader term than firearm and may include non-lethal instruments such as BB guns, blow guns, pop guns, and grease guns. Id.

Appellant argues the State never presented evidence establishing the gun used here was in fact a firearm because in describing the weapon, the complainant failed to use the word handgun, revolver, automatic, or similar term that has been judicially recognized as a firearm. Although the weapon used by appellant was not recovered, the complainant identified a black semi-automatic pistol, used for demonstrative purposes, as being similar to the weapon used by appellant. Moreover, the Court of Criminal Appeals has held that use of the word gun by the victim of a crime is sufficient evidence from which a jury may rationally conclude that a deadly weapon was used. Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979). The jury, as the exclusive judge of witness credibility, was entitled to believe the complainant. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Viewing the evidence in the light most favorable to the prosecution, we believe the jury was entitled to conclude appellant robbed the complainant with a firearm. Furthermore, we cannot say the jury=s decision is against the great weight of the evidence so as to be clearly wrong and unjust. Appellant=s first and second issues are overruled.

Identification

In his third and fourth issues, appellant contends the evidence is insufficient because his conviction rested solely on the complainant=s identification. The complainant described appellant to police almost immediately after her attack and identified appellant two days later from a police photo spread. The complainant testified she had no doubt that appellant was the man that attacked her, which is sufficient evidence to support the conviction. Batts v. State, 673 S.W.2d 666, 668 (Tex. App.CSan Antonio 1984, no pet.) (complainant=s testimony, standing alone, was sufficient to sustain a robbery conviction).

In his defense, appellant offered the testimony of his thirteen-year-old sister, Laporsha Washington. Ms. Washington testified appellant was at home at the time of the robbery; however, this evidence must be weighed against the State=s evidence. Ms. Washington testified appellant left on two different occasions during that evening, allegedly to go to the local auto parts store. Ms. Washington was impeached to some extent by her admission that she never went to police with her alibi testimony but, instead, waited until trial to acknowledge her brother=s innocence.

Viewing the evidence in the light most favorable to the prosecution, we believe the jury was entitled to conclude that appellant was the man that robbed the complainant. Furthermore, the jury disregarded appellant=s alibi witness as was its right. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.]1991, no pet.) (holding jury is entitled to accept the State=s version of the facts and reject appellant=s version or reject any of the witnesses=testimony). We find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, the evidence was both legally and factually sufficient to support the verdict. Appellant=s third and fourth issues are overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed July 24, 2003.

Panel consists of Justices Yates, Hudson, and Edelman.

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