David P. Miller v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00647-CR
David P. MILLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2003CR2467
Honorable Mary Rom n, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

David P. Miller appeals the trial court's judgment convicting him of aggravated robbery with a deadly weapon and sentencing him as a repeater to eighteen years confinement in the Texas Department of Criminal Justice - Institutional Division. We affirm.

1. Miller first argues no reasonable fact finder could have found beyond a reasonable doubt that the closed lock-blade knife he used or exhibited during the robbery was a deadly weapon because the knife blade is only about three inches long, and the knife could only be opened with two hands, which was impossible since Miller was "tussling" with Christopher Riddle, the store clerk, after the robbery. However, the record establishes that Riddle released his hold on Miller and went back inside the store only after another clerk told him that Riddle "needed to let [Miller] go, he has a knife." Riddle released Miller to avoid being stabbed. And Officer Kenney Randall testified that the knife could be a deadly weapon and that he had seen death or serious bodily injury result from similar knives. From this evidence, the trial judge, acting as the fact finder, could reasonably conclude that the lock-blade knife was a deadly weapon and used by Miller "in [a] manner that 'facilitate[d] the associated felony'" of robbery. McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000). No more is required.

2. Miller next argues the trial court erred in admitting the knife into evidence because it was seized as a result of an unlawful, warrantless arrest. At trial, however, Miller did not object to the introduction of the knife into evidence on this ground. Rather, Miller objected during Riddle's testimony on the ground that the State had not established the chain of custody and objected later during Officer Randall's testimony without stating a basis for his objection. Accordingly, this complaint was waived. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000) ("Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1.").

We affirm the trial court's judgment.

Sarah B. Duncan, Justice

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