KEITH MARTIN TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 13, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00269-CR
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KEITH MARTIN TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-00643-UM
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OPINION
Before Justices Morris, Whittington, and Richter
Opinion By Justice Richter
        Keith Martin Taylor appeals his jury conviction for aggravated robbery with a deadly weapon. In two issues, Taylor argues the evidence is legally and factually insufficient to support the deadly weapon finding. In three additional issues, Taylor argues the court erred in failing to instruct the jury on the lesser-included offense of robbery, in including a definition of reasonable doubt in the guilt-innocence charge, and in including a parole law instruction in the punishment charge. Concluding Taylor's issues have no merit, we affirm.
Background
        The robbery occurred at a busy gas station on a Friday afternoon. Natalie Stamey was putting air in her rear passenger tire when she saw Taylor enter her car, sit down on the driver's seat, and reach for the car key which she had left on the passenger seat. Stamey yelled at Taylor to get out of her car and then ran to him and tried to pull him out. Unfazed, Taylor closed the door on Stamey, hit her repeatedly with it when she did not move out of the door jamb, and looked for the ignition. Stamey tried to take the key from Taylor, but he bit her, started the car, and began pulling out of the gas station, dragging her with him. As Taylor accelerated, Stamey fell. Taylor continued, but was arrested at a nearby store about thirty minutes later. He was subsequently charged by indictment which alleged in relevant part that he used Stamey's car as a deadly weapon during the commission of the robbery.
        At trial, Stamey recounted the robbery. She testified she was dragged about fifteen to twenty feet before she fell and suffered bruises to the right side of her body. In her opinion, Taylor drove her car in a manner “capable of causing serious bodily injury or death.” Stamey's testimony was corroborated by the investigating officer and a witness to the robbery. Taylor did not testify and called only one witness, who testified at punishment that Taylor was a “good kid” but had “fallen” into drugs.
        Finding Taylor used Stamey's car as a deadly weapon when he dragged her as he drove off, the jury convicted Taylor of aggravated robbery with a deadly weapon and assessed an enhanced punishment of thirty years' confinement and a $5000 fine.
Deadly Weapon Finding
        In his first two issues, Taylor challenges the legal and factual sufficiency of the evidence to support the finding that he used Stamey's car as a deadly weapon. To prove Taylor used the car as a deadly weapon, the State had to show Taylor used the car (1) to facilitate the commission of the robbery and (2) in a manner capable of causing serious death or bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2006); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000). Specific intent to use a car as a deadly weapon is not required. Drichas, 175 S.W.3d at 798. In arguing the evidence is insufficient to support the deadly weapon finding, Taylor disputes only that he drove the car “as to endanger Stamey's life.” He does not dispute he used the car to facilitate the commission of the robbery. Taylor maintains he started the car and accelerated it to effectuate the robbery and not to injure Stamey. Taylor further maintains that Stamey's injuries resulted not from the manner in which he drove the car but from Stamey failing to let go of the car door once he started the car and falling as the car accelerated.         
        We review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). Under this standard, the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
        Under the standard of review for a challenge to the factual sufficiency of the evidence, we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), pet. for cert. filed, -- U.S.L.W. --- (U.S. March 13, 2007) (No. 06-11318). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, “albeit to a very limited degree.” Marshall, 210 S.W.3d at 625. We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
        Viewing the evidence here under the appropriate standards, we conclude the evidence is both legally and factually sufficient to prove Taylor used the car as a deadly weapon. From the evidence that Taylor drove off with Stamey in the door jamb and then accelerated while continuing to drag her, we conclude a rational jury could have found beyond a reasonable doubt that Taylor drove the car in a manner capable of causing serious bodily injury or death. See Callison v. State, 218 S.W.3d 822, 827 (Tex. App.-Beaumont 2007, no pet.) (evidence sufficient to show car driven as deadly weapon where appellant drove car with victim hanging out of driver's window); Noyola v. State, 25 S.W.3d 18, 20 (Tex. App.-El Paso 1999, no pet.) (evidence sufficient to show car driven as deadly weapon where appellant quickly accelerated in reverse and dragged victim behind car). Taylor's manner of driving the car posed a real danger to Stamey as he dragged her fifteen to twenty feet. That he may have intended to drive the car only to effectuate the robbery is of no consequence as specific intent to use a car as a deadly weapon is not required. Drichas, 175 S.W.3d at 798. Similarly, that Stamey's injuries may have been sustained because she “failed to let go of the car door once he started the car” as she tried to keep Taylor from taking her car is also of no consequence. In determining whether the evidence is sufficient to prove Taylor used the car as a deadly weapon, we look not for how Stamey sustained her injuries but for how Taylor drove the car. We resolve Taylor's first and second issues against him.
Lesser Included Offense Instruction
        In his third issue, Taylor asserts the trial court erred when it failed to instruct the jury on the lesser-included offense of robbery. Taylor requested this instruction at trial because of a “perceived failure of proof of the aggravating feature”-that he used the car as a deadly weapon. In arguing the court erred in denying the instruction, Taylor raises the same argument raised in his first two issues-that he did not drive the car “as to endanger Stamey's life,” rather it was Stamey who risked injury by failing to let go of the car to prevent the theft.
        A defendant is entitled to an instruction on a lesser-included offense when the lesser offense is included within the proof necessary to establish the offense charged and some evidence is presented that would permit the jury to find that if the defendant is guilty, he is guilty only of the lesser offense. McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Robbery is a lesser-included offense of aggravated robbery, the difference between the two being the use or exhibition of a deadly weapon. See Tex. Pen. Code Ann. § 29.02, 29.03(a)(2) (use or exhibition of deadly weapon during commission of robbery elevates offense to aggravated robbery) (Vernon 2003); Ex parte Walton, 626 S.W.2d 528, 530 (Tex. Crim. App. 1981). A defendant charged with aggravated robbery is entitled to an instruction on robbery if any evidence exists in the record from which a rational jury could find that the defendant did not use or exhibit a deadly weapon. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).
        Having already concluded here that the evidence supports the jury's finding that Taylor used the car as a deadly weapon in the commission of the robbery, we conclude Taylor's claim that the trial court erred in failing to instruct the jury on robbery is without merit. No evidence exists from which a rational jury could have found Taylor did not use a deadly weapon and was thus guilty only of robbery. We resolve Taylor's third issue against him.
“Reasonable Doubt” Definition
        In his fourth issue, Taylor complains the trial court erred by improperly including a “reasonable doubt” definition in its guilt-innocence charge to the jury. Specifically, Taylor complains of the following italicized portion of the charge:
 
        The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.
        It is not required that the prosecution prove guilt beyond all reasonable doubt; it is required that the prosecution's proof excludes all “reasonable doubt” concerning the defendant's guilt.
 
 
 
        In the event you have reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit him and say by our verdict “Not guilty.”        
 
Taylor argues that the italicized language amounts to a definition of reasonable doubt because it states what reasonable doubt “is not” and follows the paragraph assigning the burden to the State to prove guilt beyond a reasonable doubt. Taylor further argues that because it defines “reasonable doubt,” the italicized language violates the holding in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) that “the better practice is to give no definition of reasonable doubt at all to the jury.” As the State points out, however, we specifically rejected this argument in O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-2003, pet. ref'd), and since then, in Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 1050 (2005), the court of criminal appeals has specifically held that a trial court does not abuse its discretion by including the complained-of language. We are bound by precedent set by the court of criminal appeals and have no authority to disregard it. Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.-Fort Worth 2003, pet. ref'd). We resolve Taylor's fourth issue against him.
Parole and Good Conduct Time Instruction
        In his final point of error, Taylor complains the trial court erred in instructing the jury in the punishment charge regarding parole eligibility and good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, §4(a) (Vernon 2006). Taylor argues the court erred because, having been convicted of aggravated robbery, he is ineligible for parole and good conduct time credit. See Tex. Gov't Code Ann. §508.149(a)(12) (Vernon 2004). In making this argument, Taylor recognizes that the parole and good conduct time instruction the trial court gave is mandatory. See Tex. Code Crim. Proc. Ann. art. 37.07, §4(a). Nonetheless, Taylor maintains the court's “first and only duty is to provide the jury with perfectly accurate instructions on the law applicable to the case,” see id. art. 36.14, and because the instruction did not apply to him, the court should not have included it in its charge. We disagree.
        Although the parole eligibility and good conduct time instruction may appear to conflict with the court's duty to properly set forth the law applicable to the case since Taylor is not eligible for parole and good conduct time, the instruction refers to parole and good conduct time only as possibilities, not certainties. Additionally, the charge provided to the jury here also included language admonishing the jury not to consider how parole law or good conduct time may apply to Taylor and informing the jury he may serve his entire sentence without early release. Given this, we conclude the court provided the jury with accurate instructions on the law applicable to the case and did not err in including the mandated parole and good conduct time instruction. Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.-Fort Worth 2000, pet. ref'd) (concluding trial court did not violate mandate to properly instruct jury on law applicable to case when it instructed jury on parole and good conduct time in case where appellant not eligible; instruction referred to possibilities, not certainties, and court also instructed jury not to consider effect of good conduct time and parole law on appellant). We resolve Taylor's fifth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060269F.U05