Lonnie Roshon Alexander v. The State of Texas--Appeal from 23rd District Court of Brazoria County

IN THE

TENTH COURT OF APPEALS

No. 10-93-114-CR

LONNIE ROSHON ALEXANDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 23rd District Court

Brazoria County, Texas

Trial Court # 24,758

O P I N I O N

Appellant was charged by indictment with the offense of Aggravated Robbery, Section 29.03, Texas Penal Code, enhanced by one previous conviction for Burglary of a Building and two previous convictions for Possession of a Controlled Substance. He was convicted by a jury which assessed his punishment at thirty-five years in the Texas Department of Criminal Justice, Institutional Division.

Appellant asserts two points of error on appeal as follows:

(1) The trial court erred in sustaining Appellant's conviction in that the evidence presented was insufficient to support a conviction for aggravated robbery.

(2) The trial court erred in sustaining Appellant's conviction in that there was insufficient evidence to support a conviction for placing another in fear of "imminent" bodily injury or death while in the course of committing theft.

We overrule both points of error and affirm the trial court's judgment. Since both points of error deal with sufficiency of the evidence, we will address both points together.

In reviewing a challenge to the sufficiency of evidence in a criminal case, the reviewing court is charged with determining whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But the inquiry does not require a reviewing court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 560 (1979); Butler v. State, (Tex. Crim. App. 1989) 769 S.W.2d 234, 239. This standard of review is applicable in both direct evidence and circumstantial evidence cases. Geesa v. State, (Tex. Crim. App. 1991) 820 S.W.2d 154. If the evidence establishes guilt beyond a reasonable doubt, and if the trier of evidence believes that evidence, the reviewing court is not in a position to reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, (Tex. Crim. App. 1988) 755 S.W.2d 866, 867.

Bearing in mind the foregoing rules, we hereby recite the following facts of the case at bar: At 3:00 A.M. on July 21, 1992, Susan Adams was working as a cashier at BUC-EE'S convenience store in Freeport, Brazoria County, Texas. Appellant entered the store in an intoxicated state and asked for a free package of cigarettes. When Ms. Adams refused, Appellant leaned over the two-foot wide counter, pulled a lock-blade knife from his pocket and began to open and close it in front of her. At this point, crying and afraid for her life, Ms. Adams gave the cigarettes to Appellant stating that he could owe it to her.

Appellant focused on Ms. Adams crying telling her over and over that she was "too pretty to cry." Appellant then asked for change for a dollar. This entire episode was witnessed by a cab driver Ms. McDowell who, after seeing the fear in Ms. Adams' face, used her car radio to summon the police. Freeport Police Officer James was the first to arrive and initially placed Appellant under arrest for public intoxication. A search of Appellant's person revealed the knife and cigarettes. After receiving Ms. Adams' statement, Appellant was arrested for aggravated robbery. At trial, Officer James testified that Appellant's knife was capable of causing death or serious bodily injury. A knife qualifies as a deadly weapon whenever it is "manifestly designed, made, or adopted for the purpose of inflicting death or serious bodily injury." Thomas v. State, (Tex. Crim. App. 1991) 821 S.W.2d 616, 620. The robbery did not have to be successful to prove that the knife was a deadly weapon. Tisdale v. State, (Tex. Crim. App. 1985) 686 S.W.2d 110 (op. on rehearing). Appellant did not have to wound Ms. Adams for his knife to be determined a deadly weapon. Davidson v. State, (Tex. Crim. App. 1980) 602 S.W.2d 272, 273. Since there was no actual injury, the State was required to and did support the capacity of the knife to cause serious bodily injury or death by showing the manner of use and/or the physical proximity of the appellant to Ms. Adams.

A reading of the record does not tell this court exactly how Appellant used the knife. Ms. Adams testified that Appellant leaned across the counter and opened and shut the knife . . "like this." Although we are unable to know what motions Ms. Adams was demonstrating, the jury could see and hear her testify, and weighed her credibility in reaching a verdict. It is also clear from the record that Ms. Adams feared that Appellant was going to use the knife on her.

There is no discrepancy in the record concerning the size or appearance of the knife. The knife was admitted without objection. Although there was no testimony that Appellant verbally directly threatened Ms. Adams, she testified that she felt very threatened by the knife and by Appellant's intoxicated demeanor. Also, Appellant had Ms. Adams trapped behind the counter throughout the entire robbery. He never put the knife down even after she gave him the cigarettes and the money. In Tisdale, supra, the court held that the actions of appellant in advancing on the clerk and displaying the open knife in his hand were sufficient to show his intent to use the weapon.

In the case at bar, when Appellant produced the knife, Ms. Adams started backing up. She cooperated with Appellant, giving him the cigarettes and money. She testified that she felt threatened and scared because of the knife. Appellant's acts of advancement while displaying the knife were sufficient to show his intent to use the weapon.

By Appellant's second point he contends the evidence was insufficient to prove Appellant placed Ms. Adams in fear of imminent bodily injury or death. We believe the evidence is more than sufficient to prove that Ms. Adams feared imminent bodily injury.

Ms. Adams testified repeatedly that she felt very threatened and tried to back away from the knife which Appellant held just a foot away from her. She demonstrated to the jury the distance between her and the knife. She said she was afraid of getting hurt and feared for her life. The definition of "imminent" as held in Devine v. State, (Tex. Crim. App. 1989) 786 S.W.2d 268, can be correctly applied to Ms. Adams' fear of harm. Appellant was within reach of Ms. Adams and she was in fear of serious bodily injury and thought Appellant would cause same.

The repetitive comments about her "prettiness" had a negative sexual connotation. Ms. Adams did not know what to expect from Appellant. The jury was fully warranted in concluding from Ms. Adams' testimony that Appellant intended to use the knife to cause her serious bodily injury. Appellant's actions were perceived by Ms. Adams as an implied threat, and the finder of fact could properly so find. Tisdale v. State, (Tex. Crim. App. 1985) 686 S.W.2d 110 (op. on rehearing). We hold that a rational trier of fact could find beyond a reasonable doubt that Ms. Adams was in "imminent" fear of bodily harm and accordingly overrule both of Appellant's points of error.

The judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed January 26, 1994

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