David Franklin West v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-93-262-CR

DAVID FRANKLIN WEST,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 29,138

O P I N I O N

In 1989, a jury convicted David Franklin West of aggravated robbery and assessed punishment at fifteen years' imprisonment. See Tex. Penal Code Ann. 29.03 (Vernon Supp. 1994). We granted an out-of-time appeal, and West appeals on two points. We will affirm.

FACTS

Edwin Collins owned and operated The Hitchin' Post, a twenty-four-hour convenience store near Whitney. He testified that at approximately 12:45 a.m. on February 24, 1989, a white El Camino pulled into the parking lot. West, whom Collins knew, entered the store and asked for some camera film. Collins handed West a roll of film. West pretended to read the film package, telling Collins that his eyes had been injured in a welding accident and that he could not read the printing. West then asked for an additional roll of film.

As Collins was getting the film, West struck at him with a metal pipe. Collins stated that he instinctively put his arm up and deflected the blow. // Had he not, Collins believed West's blow would have hit him in the temple. Collins testified that West hit him "so damn hard, the pipe flew out of his hand." // The force knocked Collins into the counter. He recovered and grabbed a pistol from underneath the counter. He yelled at West to stop and followed him out of the store. Collins shot at the car as West drove away.

INSUFFICIENT EVIDENCE

In his first point, West complains that the evidence is insufficient to support a conviction for aggravated robbery because there is no evidence that his conduct occurred "in the course of committing theft." He argues that he was not "in the course of committing theft" but rather was "seeking revenge" against Collins. Defense witnesses testified that, prior to the incident, West had "hocked" his motorcycle boots to Collins for $10 with the agreement that Collins would hold the boots for thirty days. According to the defense, Collins sold the boots for approximately $100 before the thirty days had run.

Anthony Anderson, West's friend and co-worker, testified that he was driving the El Camino on the night in question. He and West had left work together and had gone to a dance hall. After the men left the bar, West told Anderson that a man working at The Hitchin' Post owed him over $100. Anderson's statement, given to police after the incident, stated that West told him he was going to "scare" the money out of Collins. At trial, however, Anderson testified that West told him "he was going to tell [Collins] in so many words he was going he wanted his money." After West had retrieved the money Collins owed him, Anderson was going to borrow some money from West until pay day.

Anderson waited in his car while West entered The Hitchin' Post. Through the store window, he observed Collins bent over behind a counter. At that point, he saw the pipe "sticking out of the back of [West's] shirt." Anderson became frightened and his only thought was of "strong-armed robbery." He started to drive away, but decided to enter the store and get West to come out. Anderson stepped out of his truck and started toward the door when West, followed by Collins carrying a pistol, came running from the store. Anderson and West got into the truck and drove away. Collins' shots hit the vehicle twice. Anderson did not see West strike at Collins. Anderson and West were apprehended shortly after the incident.

West's brother, Earl, testified that he had previously had problems with Collins. He had "hocked" a radio for $10 to be repaid within seven days. Collins, however, sold the radio before the end of the seven days. Earl testified that he had been with West when he hocked his motorcycle boots for $10 and that Collins had given West thirty days to repay the money. Shawn Wooten testified that he and West went to The Hitchin' Post in the fall of 1988. West asked Collins if he still had his boots. Collins answered that he did, but that West would have to pay $100 to get them back.

In reviewing a sufficiency point, we must determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). West argues that, because Collins did not testify that West demanded or attempted to obtain and exercise control over money or property, there is no direct evidence that his conduct occurred "in the course of committing theft." Thus, West argues, his conviction is based on circumstantial evidence and cannot be sustained unless the evidence excludes every reasonable hypothesis other than his guilt. See Gunter v. State, 858 S.W.2d 430, 438 (Tex. Crim. App. 1993). // West argues that a reasonable hypothesis is that he committed assault rather than aggravated robbery.

We initially point out that the jury was charged on aggravated robbery, robbery, aggravated assault, and assault. Based on the evidence, the jury convicted West of aggravated robbery. The jury, as the trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given to the evidence. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). It may believe or disbelieve all or any part of a witness' testimony. Id.

The State argues that there is direct evidence that West sought a roll of film from Collins, and thus a rational trier of fact could have determined that West exercised control or intended to exercise control of Collins' property during the commission of the offense. The State correctly asserts that actual success in obtaining the property is not an element of aggravated robbery and failure to obtain the property does not render the evidence insufficient. See Watts v. State, 516 S.W.2d 414, 415 (Tex. Crim. App. 1974).

Even if we were to apply the "reasonable alternative hypothesis" analysis, West's assertion of revenge does not demonstrate that a finding of guilt beyond a reasonable doubt on the aggravated robbery charge was not a rational finding. See Gunter, 858 S.W.2d at 440. The evidence is not rendered insufficient simply because a defendant presented a different version of the facts. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). We must review all of the evidence in the light most favorable to the prosection to determine whether that evidence excludes every reasonable hypothesis except that of the defendant's guilt. See id. Although faced with conflicting inferences, the reviewing court must presume that the trier of fact resolved any such conflict in favor of the prosecution and must defer to that resolution. See id.

Anderson, the man who was with West minutes before the incident, testified that West entered The Hitchin' Post to "get" money from Collins. The jury could have reasonably inferred that West's attempt to obtain money from Collins was thwarted when he dropped the pipe.

We find that, whether by direct or circumstantial evidence, 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. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule point one.

In his second point, West argues that the court erred in allowing testimony that the pipe was a deadly weapon. Wayne Vicars, a captain with the Hill County sheriff's department, was asked whether, in his opinion, the pipe used was a "deadly weapon." The court overruled West's objection that there had been no showing that Vicars was an expert witness. Vicars testified that the metal pipe, by its use or intended use, was capable of causing death or serious bodily injury. West complains that Vicars' testimony constituted a legal opinion.

Whether a weapon is deadly is a question for the trier of fact. Griffin v. State, 198 S.W.2d 587, 589 (Tex. Crim. App. 1946). In determining whether a weapon is deadly, all the facts of the case may be considered, including the shape and size of the weapon, its sharpness, its capacity to produce death or serious bodily injury, the manner of its use, and any words spoken by the accused. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). A weapon may be considered deadly if it is displayed in a manner which conveys a threat, express or implied, that serious bodily injury or death will result. Jackson v. State, 668 S.W.2d 723, 725 (Tex. App. Houston [14th Dist.] 1983, pet. ref'd).

The charge defined "deadly weapon," in part, as "anything that in the manner of its use or intended use is capable of causing death or serious injury." In addition to Vicars' opinion, the jury saw Collins reenact the blow West delivered and had the metal pipe itself in evidence. Assuming that Vicars had not been qualified as an expert, his testimony was cumulative and harmless. See Tex. R. App. P. 81(b)(2). We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 24, 1994

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