Johnson, Torrance Habit v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Opinion filed August 26, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00901-CR

____________

TORRANCE HABIT JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 896,236

O P I N I O N

Appellant, Torrance Habit Johnson, was convicted by a jury of aggravated robbery, and sentenced to eight years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

At around 5:00 p.m. on December 8, 2001, a black man wearing a blue Dallas Cowboys jersey entered the Irvington Cleaners with a gun, and told everyone to get down. The man forced the cashier to empty the register, and he took two purses that were underneath the front counter. He then fled the scene, and two women from the store chased after him.

Ruben Alvarez, who was standing across the street from the cleaners, heard the women screaming for help. He told the man in the blue jersey to stop, and then tried to dial 911 on his cell phone. The man put a gun to Alvarez=s stomach, and demanded his phone. Alvarez complied, and the man ran to a nearby car wash and disappeared. The hijacker emerged a short time later wearing a white t-shirt. Meanwhile, one of the women from the store stopped a passing car and dialed 911 from the driver=s cell phone. When police arrived, several witnesses identified appellant as the perpetrator. Appellant was charged with, and subsequently convicted of, aggravated robbery.

In his first issue, appellant challenges the legal sufficiency of the evidence supporting his conviction because the State failed to establish he used or exhibited a deadly weapon. When reviewing the legal sufficiency of the evidence, 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

A person commits 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). 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 v. State, 11 S.W.3d 386, 389 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). 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 only one victim testified he used or exhibited a deadly weapon, police reports failed to acknowledge any weapon appellant may have used, and police failed to find a gun at the crime scene. Although the weapon used by appellant was not recovered, one victim identified a black gun, used for demonstrative purposes, as being similar to the weapon used by appellant. Moreover, three other victims testified appellant pointed a small black gun at them. Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (holding 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). The jury, as the exclusive judge of witness credibility, was entitled to believe the victims. 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 a rational jury was entitled to conclude appellant robbed the complainant with a firearm. Accordingly, we find the evidence legally sufficient to support the jury=s verdict, and appellant=s first issue is overruled.

In his second issue, appellant challenges the factual sufficiency of the evidence supporting his conviction because although appellant took money and purses from victims in the cleaners, he failed to use or exhibit a firearm. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the manifestly unjust standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the against the great weight and preponderance standard applies. Id. Under the Texas Court of Criminal Appeals=modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

With respect to factual sufficiency, appellant cites his own testimony that he fired no shots and exhibited no firearm. The jury, however, is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

The jury was entitled to determine the weight to be given the evidence and the credibility of the witnesses and whether or not to believe the testimony of any witness. By its verdict, the jury apparently chose to believe the victims=version of the events, not appellant=s. Viewing the evidence without the prism of in the light most favorable to the prosecution, we find the evidence factually sufficient to support the verdict. Appellant=s second issue is overruled.

The judgment of the trial court is overruled.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed August 26, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

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