SONNY KING v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-04-446-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 SONNY KING, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 377th District Court

of Victoria County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Sonny King, was charged with aggravated robbery. See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003). A jury found appellant guilty, and the trial court assessed punishment at confinement for forty years in the Texas Department of Criminal JusticeBInstitutional Division (TDCJ) and a fine of $10,000. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By seven issues, appellant contends the evidence was insufficient to support his conviction, the indictment was defective, the trial court erred in failing to submit to the jury the lesser included offense of robbery, the trial court abused its discretion in failing to exclude the testimony of Officer Michael Beyer during the punishment phase, the trial court erred in sentencing appellant to forty years confinement, and the trial court erred in refusing to grant a new trial based on jury misconduct. We affirm.

I. Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

II. Sufficiency of the Evidence

A. Standard of Review

In a legal sufficiency review, we consider all of the properly or improperly admitted evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Evidence is factually insufficient only when the evidence as to an element 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) (en banc). To review the factual sufficiency of the evidence, the appellate court must view the evidence in a neutral light. Id. "The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We also apply a hypothetically correct jury charge analytical construct in the context of a factual-sufficiency review. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).

B. Deadly Weapon

By his third issue, appellant contends there is no evidence or insufficient evidence to establish that he used or exhibited a deadly weapon. See Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 2003). Appellant claims that the State did not meet its burden of proving that the sharp object was, in the manner of use or intended use, capable of causing death or serious bodily injury.

Section 29.03 of the Texas Penal Code provides in pertinent part as follows:

(a) A person commits [aggravated robbery] if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another; [or]

(2) uses or exhibits a deadly weapon . . . .

(b) An offense under this section is a felony of the first degree.

Id. ' 29.03(a), (b). Section 29.02 defines robbery as intentionally, knowingly, or recklessly causing bodily injury to another in the course of committing theft and with intent to obtain or maintain control of the property. Id. ' 29.02(a)(1). The penal code defines a deadly weapon as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury," or as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. ' 1.07(a)(17)(A), (B) (Vernon Supp. 2004-05). Where the victim suffers no wounds, the State is required to prove (1) that the thing used as a weapon was capable of causing death or serious bodily injury, and (2) the weapon was displayed or used in a manner indicating an intent to cause death or serious bodily injury. Johnson v. State, 919 S.W.2d 473, 477 (Tex. App.BFort Worth 1996, pet. ref'd).

Because criminal intent is an intangible, it can be proved only by circumstantial evidence. Although a knife may not be a deadly weapon per se, a jury may consider all of the facts of the case, and the State can prove, even without expert testimony, that a particular knife is a deadly weapon by showing its size, shape, sharpness, the manner of its use, and its capacity to produce death or serious bodily injury. An intent to inflict serious bodily injury or death may be shown by evidence of assertive conduct by an attacker.

Id.; see Rogers v. State, 877 S.W.2d 498, 500 (Tex. App.BFort Worth 1994, pet. ref'd) (setting out that proof that a knife was used in manner intended to cause serious bodily injury can be established by its size and shape, manner of use, and verbal statements accompanying its use); see also McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000) (explaining utility knives do not qualify as deadly weapons because they are manifestly designed for other purposes).

Here, there is evidence that Juan Arrieta, the victim, was approaching his truck when he saw somebody inside the truck on the driver's side. Arrieta yelled, "[G]et out, get out of my car." The person in the truck, later identified as appellant, got out of the truck and came at Arrieta while displaying a sharp object. He threatened Arrieta and demanded money. Arrieta described the sharp object as having a wooden handle with a metal shank four to five inches long. He was not sure if it was a knife. Arrieta testified that he was scared. He "felt . . . threatened and [that his] life was in danger." When Arrieta told appellant he did not have any money, appellant took him to Arrieta's apartment. While they were in the apartment, appellant had the sharp object in his pants. Appellant took $15.00 and a video game system from the apartment. Arrieta testified that appellant struck him on the left side of his face with his fist.

Christopher Canales, a senior patrol officer with the Victoria Police Department, investigated the incident. He talked to Arrieta, took pictures and fingerprints, and observed the damage to the vehicle. Officer Canales testified that Arrieta told him that he confronted the person who was inside his vehicle and when the person exited the vehicle, he came around and displayed a weapon that Arrieta described as "a sharp, pointed object . . . possibly an ice pick." Arrieta told Officer Canales that appellant used the weapon in a threatening manner and told Arrieta to give him his money.

Appellant denied burglarizing Arrieta's vehicle and testified that Arrieta had loaned him the vehicle on previous occasions. He claimed Arrieta was lying when he picked him out of the lineup and that he was being framed. Appellant denied being at the apartments on the day of the incident or causing any damage to the vehicle.

Considering all of the evidence in the record in the light most favorable to the verdict, we conclude a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 97. Based on the evidence, a rational jury could have found that the testimony of appellant's assertive conduct with the sharp object, i.e., coming at Arrieta with the sharp object and threatening him with the object and demanding money, proved beyond a reasonable doubt the appellant used a sharp object against Arrieta in a manner indicating he intended to cause serious bodily injury to Arrieta. See Johnson, 919 S.W.2d at 477; see also Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 2003). Thus, we conclude the evidence is legally sufficient to establish that the pointed object was a deadly weapon under the circumstances. See McCain, 22 S.W.3d at 503.

Moreover, reviewing the evidence in a neutral light, Johnson, 23 S.W.3d at 11, and not substituting our own judgment because the jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, Wesbrook, 29 S.W.3d at 111, we conclude that, although appellant denied burglarizing Arrieta's vehicle, the evidence is not so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is not greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Thus, we conclude the evidence is factually sufficient to establish that the object appellant used was a deadly weapon.

Because we conclude the evidence is sufficient to support a finding that appellant used or exhibited a deadly weapon, we overrule appellant's third issue.

C. Serious Bodily Injury

By his first issue, appellant also contends the evidence is insufficient to support a finding that appellant caused serious bodily injury. See Tex. Pen. Code Ann. ' 29.03(a)(1) (Vernon 2003). However, we have concluded the evidence is sufficient to support appellant's conviction under section 29.03(2) of the penal code. See id. ' 29.03(a)(2). Because this is dispositive of appellant's evidentiary contentions regarding his conviction, we need not address appellant's first issue. See Tex. R. App. P. 47.1.

III. Indictment

In issue two, appellant contends the indictment was defective because the State failed to allege that the sharp object was capable of causing death or serious bodily injury. Appellant argues that the indictment's allegation that "the defendant did then and there use or exhibit a deadly weapon, to-wit: a sharp object" is insufficient to charge the use or exhibition of a knife or sharp object capable of causing death or serious bodily injury because knives and sharp objects are not deadly weapons per se. See McCain, 22 S.W.3d at 502; Jackson v. State, 913 S.W.2d 695, 697 (Tex. App.BTexarkana 1995, no writ). Appellant asserts that the State was required to prove, when charging appellant with aggravated robbery, that the knife was, in manner of use or intended use, capable of causing death or serious bodily injury.

Article 1.14(b) of the Texas Code of Criminal Procedure provides if a defendant does not make a pretrial objection to a defect, error, or irregularity of form or substance in an indictment, he waives his right to object and may not raise the objection on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). However, failure to object does not waive his right to challenge a fundamentally defective indictment. See Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998). In this case, appellant did not file a motion to quash or make any other pretrial objection to the indictment. As a result, we need only consider whether the indictment was fundamentally defective. See id.

An indictment is sufficient to charge an offense if it accuses a person of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547, 550 51 (Tex. Crim. App. 1997) (en banc). As long as an indictment meets this requirement, it is not fundamentally defective, even if it is substantively defective in failing to allege an element of an offense. See id.; Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995) (en banc).

In this case, the amended indictment charged appellant with the following:

. . . that SONNY KING, . . . on or about the 3rd day of July A.D., 2003, . . . did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to JUAN ARRIETA by striking said JUAN ARRIETA with defendant's hand, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a sharp object. . . . (Emphasis in original.)

The indictment referenced "a deadly weapon, to-wit: a sharp object." The jury's verdict states, "guilty of the offense of AGGRAVATED ROBBERY as alleged in the indictment."

We conclude the indictment here clearly alleged the offense of aggravated robbery, which the State intended to prosecute. See Duron, 956 S.W.2d at 550 51. Although it did not allege that the sharp object was, in manner of use or intended use, capable of causing death or serious bodily injury, it did allege that appellant used or exhibited a deadly weapon, to-wit: a sharp object. The allegation that appellant used a deadly weapon constitutes an allegation that the named weapon or instrument was, in the manner of its use or intended use, capable of causing serious injury or death. See Tex. Pen. Code Ann. ' 1.07(a)(17)(A), (B) (Vernon Supp. 2004-05) (providing that deadly weapon means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury); see also Johnson v. State, 815 S.W.2d 707, 709 (Tex. Crim. App. 1991) (en banc) (concluding allegation in indictment charging appellant with "causing death by striking with [his] feet and hands" clearly gave notice that State would attempt to prove "feet and hands" were used as deadly weapons). We conclude, therefore, the indictment was not fundamentally defective. Appellant's second issue is overruled.

IV. Lesser Included Offense

In issue four, appellant contends the trial court erred in failing to submit the lesser included offense of robbery to the jury. However, "if a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required." Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (en banc)).

In this case, although appellant testified that he was not at Arrieta's apartment on the date in question, the evidence before the jury for its consideration was that appellant exhibited a sharp object used to threaten Arrieta. See id. There is no evidence that the sharp object did not exist. See id. Thus, looking at all of the evidence presented at trial, see Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992) (en banc) (providing that an appellate court determines whether the trial court erred in refusing to charge jury on lesser included offense by looking at all evidence presented at trial), we conclude the trial court did not err in refusing to instruct the jury as to a lessor included offense. See Bignall, 887 S.W.2d at 24. We overrule appellant's fourth issue.

V. Admission of Testimony of Witnesses Under the Rule

In issue five, appellant contends the trial court abused its discretion when it allowed Officer Beyer to testify during the punishment phase when the Rule had been invoked and Officer Beyer admitted discussing matters pertaining to the case with Officer Pat Breedlove.

When a party invokes the Rule, the trial court orders witnesses to remain outside the courtroom. See Routier v. State, 112 S.W.3d 554, 590 (Tex. Crim. App. 2003); see also Tex. R. Evid. 614. "The Rule is designed to prevent witnesses from altering their testimony, consciously or not, based on other witnesses' testimony." See id. (citing Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989)). When a party complains of the admission of evidence in violation of the Rule, we look at whether the complaining party objected and was harmed. Id. (citing Webb, 766 S.W.2d at 240). Injury or prejudice is dependent on showing either that the witness actually conferred with or heard the testimony of the other witness and the witness's testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of another witness with whom he had conferred. See Webb, 766 S.W.2d at 240.

Appellant argues that he was harmed because the State needed Officer Beyer's testimony to establish that appellant was driving a stolen vehicle at or shortly prior to his arrest. He asserts this testimony would have corroborated Officer Breedlove's testimony. During the punishment phase of the trial, Officer Beyer testified that appellant had been pursued by Officer Breedlove because the officer believed he was driving a stolen pickup. The pursuit, however, was broken off because of reckless driving and because the officer was concerned that someone might be killed in a car crash. Officer Beyer also testified that he was able to identify appellant as the operator of the same vehicle that had fled the scene and that had later wrecked. When questioned regarding the Rule, Officer Beyer testified that he and Officer Breedlove had spoken earlier. At that time Officer Beyer mentioned to Officer Breedlove that "[he] got a witness and had the witness sit in the car with [him] and [they] spoke about who the witness identified."[1] Neither officer provided testimony about the referenced witness.

Based on the above testimony, we cannot conclude that Officer Beyer conferred with Officer Breedlove and then corroborated his testimony. See Webb, 766 S.W.2d at 240. The information exchanged was not a part of either officer's testimony. We cannot conclude that Officer Beyer's testimony injured or prejudiced appellant. See

id. The trial court did not abuse its discretion when it allowed Officer Beyer to testify during the punishment phase. See Green v. State, 934 S.W.2d 92, 101 02 (Tex. Crim. App. 1996) (setting out that an appellate court's standard of review on admission of evidence is whether the trial court abused its discretion). Appellant's fifth issue is overruled.

VI. Sentencing

In his sixth issue, appellant contends the trial court erred when it sentenced him to forty years confinement in the TDCJ.[2] Appellant asserts his sentence amounts to cruel and unusual punishment.

We first note that appellant did not object to his sentence on constitutional grounds, either at the time of sentencing or in any post-trial motion, and even constitutional claims can be waived by failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. ref'd) (failure to object to sentence as cruel and unusual waives error). Therefore, by failing to object to the trial court's sentence below, appellant has waived this issue on appeal. See Tex. R. App. P. 33.1(a) (providing that to preserve error for appellate review, party must present timely objection to trial court, state specific grounds for objection, and obtain ruling).

Moreover, Texas courts have held that if the punishment is within the range provided by law, it is not cruel and unusual within the constitutional prohibition. See Jackson v. State, 680 S.W.2d 809, 810 (Tex. Crim. App. 1984) (en banc); Swinney v. State, 828 S.W.2d 254, 259 (Tex. App.BHouston [1st Dist.] 1992, no pet.). It is within the discretion of the trial court to set the punishment, and, generally, the court's assessment of punishment will not be disturbed on appeal. See Jackson, 680 S.W.2d at 810; Swinney, 828 S.W.2d at 259. The range of punishment for "aggravated robbery," a first-degree felony, is life or a term of five to ninety-nine years incarceration and a fine not to exceed $10,000. See Tex. Pen. Code Ann. ' 12.32 (Vernon Supp. 2004-05). Appellant contends that because he should have been found guilty of only robbery, he should have received a maximum of twenty years for this offense. See id. ' 12.33 (setting out maximum punishment for robbery, a second degree felony, as two to twenty years incarceration). However, we have determined the record supports appellant's conviction for aggravated robbery; therefore, a sentence of forty years is within the range provided by law, and the trial court had discretion to set punishment within the limits prescribed by law. See Jackson, 680 S.W.2d at 810; Swinney, 838 S.W.2d at 259.

Moreover, during the punishment phase of the trial, the evidence established that appellant perpetrated a second offense against Arrieta approximately three weeks after the aggravated robbery. There was also evidence that appellant robbed a man at gunpoint, burglarized another vehicle, and stole a vehicle. Appellant was later seen operating the stolen vehicle in an erratic manner, fleeing apprehension in the vehicle, and eventually wrecking the vehicle. Appellant later pleaded to the felony offense of evading arrest. See Tex. Pen. Code Ann. ' 38.04 (Vernon 2003).

Appellant also relies on Solem v. Helm, 463 U.S. 277, 289 (1983), for the proposition that while a sentence may well be within the range permitted by statute, it may nonetheless run afoul of the Eighth Amendment prohibition against cruel and unusual punishment. See id. (setting out proportionality test to use in determining whether sentence that is within range permitted by statute nevertheless violates Eight Amendment's prohibition of cruel and unusual punishments). However, the viability and mode of application of proportionate analysis in non-death penalty cases is currently in question. See McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing various opinions issued in Harmelin v. Michigan, 501 U.S. 957 (1991) and their impact on Solem). Even assuming, however, proportionality review is viable and that appellant preserved error, forty years incarceration, which falls in the middle of the spectrum of appropriate sentences, is not grossly disproportionate to the offense he committed when viewed in light of appellant's prior history and is therefore not unconstitutional. We overrule appellant's sixth issue.

VII. Motion for New Trial

Finally, by his seventh issue, appellant complains that the trial court erred and abused its discretion when it refused to grant a new trial based on jury misconduct. See Tex. R. App. P. 21.3(g) (providing "when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial" the defendant must be granted a new trial). We review a trial court's denial of a motion for new trial under the abuse of discretion standard and "do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable." Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

The jury foreman's affidavit, filed in support of appellant's motion for new trial, set out that the jurors only found appellant guilty based on their belief that he would get a light sentence. It provided that the jurors would have found appellant not guilty had they known he would receive a forty year sentence. The supporting affidavit further explained that during the guilt phase of the trial the jurors expressed a concern about appellant's punishment. However, the trial court properly informed them that this was not an issue for their consideration. The jurors resolved their differences and found appellant guilty beyond a reasonable doubt. According to the affidavit, after determining appellant was guilty, "some of the jurors . . . spoke to the prosecutors and were relieved to find out [appellant] had other criminal charges pending against him . . . and [their] guilty verdict was the correct decision."

Based on our review of the affidavit, we cannot find any reason for granting a new trial. The trial court's decision was not arbitrary or unreasonable because the jury foreman's affidavit did not set forth a ground that establishes the jury engaged in misconduct that resulted in appellant not receiving a fair and impartial trial. See Tex. R. App. P. 21.3(g); Charles, 146 S.W.3d at 208. Therefore, the trial court did not abuse its discretion in denying appellant a new trial. See Charles, 146 S.W.3d at 208. We overrule appellant's seventh issue.

VIII. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 6th day of October, 2005.

[1]Officer Breedlove later testified that "[Officer Beyer] said something about the pursuit and I made some comment about the pursuit, him being there or whatever. That's when he went back over his report."

[2]Appellant also contends that the trial court's imposition of a $10,000 fine amounted to cruel and unusual punishment. However, appellant does not develop this contention in his brief, and therefore waives it. See Tex. R. App. P. 33.1(h) (providing brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record).