Mark Wayne Gass v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-93-066-CR

MARK WAYNE GASS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19,608-CR

O P I N I O N

Mark Wayne Gass appeals his conviction for aggravated robbery. A jury found him guilty

and assessed punishment at forty years in prison. We affirm.

In point one Gass contends that the evidence is insufficient to support his conviction for aggravated robbery. In reviewing the legal sufficiency of the evidence, we must determine whether, after 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. // Gass argues on appeal that the evidence does not exclude every reasonable hypothesis other than his guilty intent. However, the "reasonable hypothesis analytical construct," which applied to circumstantial evidence cases tried prior to Geesa, was abrogated by the Court of Criminal Appeals on November 6, 1991. //

Specifically, Gass complains that there was insufficient evidence to place him at the scene of the crime when the offense was committed. The indictment alleges that the offense was committed "on or about the 7th day of December, 1992." Without any support or reference to the record, Gass states in his brief, "It was the 7th when the police arrived but the crime was in acutuality [sic] committed on the 6th." According to Gass, "This [disparity in the dates] is very relevant because . . . [t]he uncontroverted evidence was that the Defendant was in Willowbrook Hospital December 6th and was released at 6:15 p.m. on December 7th." However, his record references to this "uncontroverted evidence" are all to the vague and uncertain testimony of Gass's father during the punishment phase of the trial, outside the scope of our review when considering the sufficiency of the evidence to support the jury's verdict of guilt.

Mark Christian, a criminal investigator for the Waxahachie Police Department, testified that he investigated an aggravated robbery that occurred in Waxahachie on December 7, 1992, "a little before midnight." Misty Mathis, the cashier at the convenience store where the robbery occurred, testified that at about 11:45 or 11:50 on Monday night, December 7, Gass came into the store, bought a piece of candy, and asked what time the store closed. Mathis told him that the store closed at midnight. A few moments later Gass returned to the store and indicated that he wanted to purchase another piece of candy. But when Mathis rang up the purchase, Gass displayed a knife with a four-inch blade and demanded the money in the register. On cross-examination Mathis testified that, although "earlier" she was not sure whether it was a Sunday night or a Monday night, she knew the offense occurred on December 7 and, after consulting a calendar, confirmed that it was in fact a Monday. Finally, Tanya Raymond testified that before midnight on December 7 she was visiting with Mathis when Gass came into the store the first time. A few moments later, while helping Mathis stock the cooler, she heard Mathis scream and ran out to see the same man fleeing from the store. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found, beyond a reasonable doubt, that Gass committed the offense on or about December 7, 1992. Accordingly, we overrule point of error one.

In point two Gass contends that the court erred in denying his motion to suppress evidence of the pretrial photographic identification by Mathis and Raymond as well as their in-court identification of him because they were tainted by the pre-trial identification procedures. Gass claims that the photographic identification was impermissibly suggestive because, although the witnesses described the robber as having a spider web tattoo on his hand, Gass was the only one of several suspects with spider web tattoos whose photograph was placed in the spread. The tattoo, however, was not visible in the photograph of Gass. Furthermore, none of the suspects' hands were visible in the six mug shots included in the photographic spread.

At the hearing on the motion to suppress, Christian testified that he selected the six photographs for the spread because all the individuals portrayed were white males with similar facial features and hair color. According to Christian, there was nothing suggestive about Gass's photograph, and he did not make any verbal statements or gestures to suggest that Gass was the primary suspect. Christian testified that both Mathis and Raymond selected the photograph of Gass from the spread, identifying him as the robber. Mathis and Raymond also testified that they identified Gass without any suggestion from Christian, the photographic spread, or the procedures used. According to Mathis, Christian gave her all the time she needed to view the photographs. Furthermore, Mathis unequivocally testified that she remembered what Gass looked like because he had come into the store twice on the night of the robbery, the store was well lit, and she was "real close" when she observed him. Finally, Raymond testified that she was sitting on the counter "[m]aybe three feet" from Gass and got a "[f]airly good look" at him when he came into the store the first time. We hold that this pretrial identification procedure was not suggestive and did not taint Mathis's and Raymond's in-court identification of Gass. // Accordingly, we overrule point of error two.

In point three Gass contends that the trial court erred in failing to submit a charge on the lesser-included offense of robbery. For a charge on the lesser-included offense of robbery to have been required, there must be some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is only guilty of the lesser offense of robbery. // The evidence may raise a lesser-included offense issue in one of two ways. First, there may be evidence that refutes or negates other evidence of the greater offense. Mere denial by the defendant of the commission of the offense will not in and of itself raise the issue. // Second, a lesser-included offense issue may be raised if the evidence is subject to different interpretations. // Gass's argument appears to be based upon his contention that, because Mathis described his demeanor before he demanded the money as friendly, a jury could rationally find that he did not place her in fear of serious bodily injury.

According to section 29.03(a)(2) of the Texas Penal Code, a person commits aggravated robbery if he commits robbery and he uses or exhibits a deadly weapon. // Threatening or placing another in fear of imminent bodily injury or death is an element of the underlying offense of robbery. // Therefore, even if Mathis's testimony concerning her fear was subject to different interpretations, raising a fact issue on that element of the offense would not permit a jury to find that, if Gass was guilty, he was only guilty of robbery. Furthermore, Mathis expressly testified that when she saw the knife she got scared and screamed. Because Mathis's testimony that Gass exhibited a knife was not controverted, if he was guilty, he could only be guilty of aggravated robbery. Therefore, we overrule point of error three.

In point four Gass contends that the court erred in failing to submit an instruction to the jury defining "deadly weapon." Without an objection at trial, Gass must prove that the court's failure to define deadly weapon was fundamental error that is, it was so egregious and created such harm that he has not received a fair and impartial trial. // The indictment charged Gass with using and exhibiting a deadly weapon, "to wit: a knife, which in the manner of its use and intended use was capable of causing death or serious bodily injury." As a result, the State was required to prove that the knife was a deadly weapon by the manner of its use or intended use and the trial court's instructions to the jury should have included the statutory definition of a deadly weapon by the manner of its use or intended use. //

However, Gass does not complain on appeal that he did not receive a fair and impartial trial because the jury was not asked to determine whether "in the manner of its use or intended use [the knife used was] capable of causing death or serious bodily injury." // Instead, he argues only that, because the State failed to establish that the knife presented in Court was the knife used in the commission of the crime, a fact issue was raised "as to the use of a deadly weapon." The knife presented by the State, however, was never offered into evidence as the knife actually used. Instead, it was presented outside the presence of the jury, only as a demonstrative aid which the prosecutor wished to use to assist Mathis in describing the actual knife used by Gass and the manner in which it was used. Moreover, the court sustained Gass's objection to the use of the knife because it "doesn't even look like the knife she saw." As a result, the knife was not presented to the jury, even as a demonstrative aid, during Mathis's testimony before the jury. Gass has failed to demonstrate how the attempted use of a knife, which the trial court refused to permit as a demonstrative aid, made the lack of a definition of "deadly weapon" egregious harm. As a result, we overrule point of error four.

In point five Gass contends that the trial court abused its discretion "in receiving testimony from a witnesses [sic] without instructing said witnesses as to "the Rule" when it had been timely invoked by the appellant." Rule 613 of the Texas Rules of Criminal Evidence provides, "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses . . . ." // At the beginning of the hearing on the motion to suppress, Gass invoked "the Rule" and the trial court responded, "All right. Just ask her to step outside." However, Gass failed to object to the testimony of any witness based on a violation of the Rule. Without an objection at trial, nothing is preserved for appellate review. // In determining whether the trial court abused its discretion in allowing a violation of or exemption from the Rule, the following questions must be considered: (a) Did the witness actually hear the testimony of or confer with another witness without court permission, and (2) Did the witness's testimony contradict the testimony of a witness he actually heard from the opposing side or corroborate the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence? // The record in this case is completely devoid of any indication that a witness actually heard the testimony of or conferred with another witness. // Without a record of such a violation of the Rule, we are unable to find that the trial court abused its discretion in allowing the witnesses to testify. We overrule point of error five.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 6, 1994

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