CHRISTOPHER WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 13, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01404-CR
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CHRISTOPHER WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F07-50077-Y
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OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Christopher Williams was convicted of aggravated robbery and sentenced to twenty years in prison. In six issues, he claims the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
 
background
        James Rose was a truck driver. On the afternoon of March 19, 2007, he was parked at a truck stop located in the vicinity of Lancaster Road in Dallas, Texas. The windows of the truck were rolled down. As he sat inside the truck working on his laptop computer, a man later identified as Clarence Anderson approached the driver's side window and asked Rose if he “was looking for anything.” Rose told the man that he “might be looking for some weed.” Anderson replied that he “might be able to get something” and then walked away.
        A short while later, Anderson returned and climbed up on the step beneath the driver's side window. Rose “felt uncomfortable about that and [he] told him to get down,” but Anderson “said he wanted to see what time it was.” When Rose glanced at the clock above his head, Anderson put a knife to the back of his neck and demanded the laptop. Rose told Anderson that he was not going to give up the laptop because he “had just bought it.” Anderson asked Rose “if it was worth [his] life.” Rose recalled that he “was scared to death.”
        Shortly after Anderson demanded the laptop, a man later identified as appellant appeared on the passenger side of the vehicle and started crawling through the open window “with both arms in the truck.” Rose reached into his pocket and gave Anderson nine dollars “and some loose change,” but Anderson told Rose they were “not leaving without the laptop.” He then told appellant to “grab” Rose's cell phone, which was hanging from a clip on the dashboard. As appellant tried to grab the cell phone, Rose “grabbed a hold of it and jerked it out of his hand,” tearing off the antenna. By this point, Rose could no longer feel the knife touching his neck. Rose elbowed Anderson in the face and Anderson scratched the back of Rose's neck with the knife as he fell off the truck. Appellant ran away. Rose described the scratch on the back of his neck as “small” and acknowledged that he did not believe Anderson cut him intentionally.
        Rose testified that the knife was approximately six inches in length and that the ratio of handle to blade was approximately three inches of blade to three inches of handle. He said it looked like a “[s]mall hunting knife.” He also said “the blade was made to look like a hook and it was an old timer or something like that and it ha[d] a red quick twist blade on it.” Rose testified that the knife was in “plain view” when appellant was inside the truck cab. He estimated appellant was approximately three feet away from the knife.         After he fell off the truck, Anderson got up off of the ground, grabbed a “ratchet extension,” and started banging on the passenger door of the truck. Rose was trying to roll the windows up, lock the doors, and call 911. A few moments later, Rose told Anderson that he had called 911 and had found his pocket knife. Anderson left.
        While Rose stood in front of his truck waiting for the police, Anderson and appellant “came back” and could be seen walking along a nearby street. Rose told them they “had better stay away” from him because he had called 911 and the police were on their way. Rose later saw Anderson and appellant leave in a vehicle he described as a “tan-like woody Caravan.” An unidentified woman was driving.
        Dallas Police Officer Joe King responded to the 911 call and took descriptions of the suspects, including the clothing they were wearing, and their vehicle. Police officers later found a van matching the description given by Rose parked in the middle of the road a short distance from the truck stop. A license plate check showed that the van was reported stolen out of Grand Prairie. Officer Brian Johnson found Anderson in the parking lot of a convenience store a few blocks away and detained him. A man in the parking lot told Johnson that the other suspect was inside a McDonald's restaurant across the street. Inside the restaurant, another officer found appellant sitting beside a woman and detained him.
        King was told by other officers that two suspects were being detained at a nearby McDonald's. Rose was brought to the McDonald's and identified both Anderson and appellant as the men that robbed him. King did not talk to either suspect but he witnessed the identification and remembered that Rose did not “seem hesitant” in identifying appellant and Anderson. King also testified that he did not see any injuries on Rose and Rose did not request medical treatment.
        According to Johnson, Rose was “shaking” his cell phone at appellant and accusing him of pulling the antenna out of the phone. Johnson also recalled that Rose and appellant were “cussing at each other” and that Rose claimed appellant “needed to be robbed.” Anderson told Johnson that appellant was the aggressor, that he was “just trying to sell the guy weed,” and that he “got wrapped up in it.” Rose testified that, after he identified appellant, appellant asked him to tell the officers he “didn't have the knife” and that he “didn't help with the robbery.” The suspects were placed under arrest and transported to the police station.
        After their arrest, Anderson and appellant both gave voluntary written statements to a Dallas Police detective. Appellant's statement was admitted into evidence by the State without objection as State's exhibit number one. It reads as follows:
 
I Christopher Williams was at the truck stop when a driver asked me if I had any whead [sic] so I told him yes. [A]nd when Youngster stepped up on the pas[s]enger sid[e] he put a knife to the man's neck and said give me the laptop[.] [A]nd that's when I tried to grab his phone and walked off.
 
Anderson's statement was offered into evidence by the defense without objection:
 
Me and Little was [at] the chrome lot[.] [T]he driver [asked] me for some weed. I [pulled] out a knife and told the driver to give me the la[p]top[.] Little took the money [and] we took off running. I lost the knife[.] The driver call[ed] the police. About one hour [later] the police picked us up. I was just tr[y]ing to get home.
 
        Appellant claimed that he only approached Rose's truck to sell him a “dime bag” of marijuana and that he did not know Anderson was planning a robbery. He also said he did not know Anderson and that he met him for the first time on the day before the robbery. Appellant claimed that he stepped up to the passenger side of the truck and handed Rose a five-ounce bag of marijuana, after which Rose gave him ten dollars, including three dollars in quarters, and thanked him. According to appellant, at that point Anderson stepped up to the driver's side of the truck and pulled out a screwdriver, not a knife. Appellant climbed down from the truck and started to walk away. As he looked back over his shoulder, he noticed that Anderson was holding the screwdriver to Rose's neck. Appellant estimated he was no more than three yards away and he could see that Anderson was robbing Rose.
        After leaving the truck stop, appellant walked to a nearby convenience store and bought cigarettes and sodas, after which he walked to a McDonald's and purchased food that he ate with his girlfriend. He had just finished lunch when the police arrived. When the police brought appellant out of the McDonald's and asked Rose if he was “the one,” Rose said that, although appellant had been at the truck stop, “he didn't do nothing.” According to appellant, Rose never accused him of committing the crime. Appellant also denied trying to take Rose's cell phone and denied giving a written statement to the police. Appellant claimed he told the police that he would not make a statement without a lawyer present and that he had “no idea” who wrote the statement that was admitted as State's exhibit number one. On cross-examination, however, he appeared to acknowledge responsibility for the statement:
 
Q. [PROSECUTOR]: All right. And you said that you didn't really know Clarence Anderson?
 
 
 
A. [APPELLANT]: No, ma'am, I didn't.
 
 
 
Q. In your statement, you called Mr. Anderson Youngster?
 
 
 
A. Yes.
 
 
 
Q. Is that a nickname you had for him?
 
 
 
A. That is what they was calling him.
 
 
 
. . . .
 
 
 
Q. But you told the Court earlier--you testified that Clarence, you saw Clarence Anderson pull out a screwdriver?
 
 
 
A. Yes, ma'am, I did.
 
 
 
Q. Even though in your statement you say it was a knife?
 
 
 
A. Yes.
 
        Appellant had waived his right to a jury trial and entered a plea of not guilty to the offense of aggravated robbery. After hearing the evidence, the trial court found him guilty, entered an affirmative deadly weapon finding, and assessed punishment at twenty years in prison. This appeal followed.
Standards of Review
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Discussion
        Party Liability; Deadly Weapon
        In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support the aggravated robbery conviction because the State failed to prove he acted as a party to the offense. In his third and fourth issues, appellant claims the evidence is legally and factually insufficient to support the conviction because the State failed to establish that he knew a deadly weapon would be used to commit the offense.
        The indictment alleges that appellant:
 
Unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of JAMES ROSE, hereinafter called complainant, the said property being A COMPUTER, CELLULAR PHONE AND CURRENT MONEY OF THE UNITED STATES OF AMERICA, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury or death, and the defendant did then and there use and exhibit a deadly weapon, to wit: a KNIFE.         
 
        A person commits aggravated robbery if, in the course of committing theft and with intent to obtain and maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and, during the commission of the offense, uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003).
        In order to convict appellant as a party to aggravated robbery, the State had to prove he was criminally responsible for the aggravating element. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986) (in order to convict defendant as party to aggravated offense, State must prove defendant was criminally responsible for aggravating element); Wooden v. State, 101 S.W.3d 542, 547-48 (Tex. App.-Fort Worth 2003, pet. ref'd) (same). “In other words, the defendant must have, with intent to promote or assist the aggravated robbery, solicited, encouraged, directed, aided, or attempted to aid the other person in” using or exhibiting a deadly weapon. See Wooden, 101 S.W.3d at 548.
        A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. § 7.02(a)(2).
        In determining whether appellant was guilty as a party, the fact finder could consider events occurring before, during, and after commission of the offense and may rely on actions of the appellant that show an understanding and common design to commit the offense. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.). Mere presence of the appellant at the scene of the offense will not support a conviction; however, it is a circumstance which, combined with other facts, may show the appellant was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987); Edwards v. State, 106 S.W.3d 833, 842 (Tex. App.-Dallas 2003, pet. ref'd).
        According to Rose's testimony, after he talked to Anderson about buying marijuana, Anderson returned a short time later accompanied by appellant. At some point, Anderson pulled out a knife and demanded Rose's laptop computer. While Anderson held the knife to Rose's neck, appellant partially crawled through the passenger window and tried to take his cell phone. Rose remembered that Anderson told appellant to grab the cell phone. Rose said the knife was in “plain view” and estimated appellant was only three feet away. Anderson and appellant fled but returned a short time later and taunted Rose, claiming he had not actually called the police. Rose saw them leave the area together. In his written statement to the police, appellant admitted that he tried to grab Rose's cell phone while Anderson held the knife to Rose's neck. While they were being detained, appellant and Anderson blamed each other for the robbery.
        In its role as the exclusive judge of the witnesses' credibility and the weight to be given to their testimony, the trial court could have reasonably concluded that, even though appellant did not threaten Rose, his actions during the robbery showed an understanding and common design to commit the offense. In addition, Rose's testimony that appellant and Anderson were seen together after the offense and left the truck stop together supports the conclusion that they were acting in concert during the offense. As the trier of fact, the trial court could have reasonably concluded that appellant was aware of Anderson's use of the knife during the robbery and that he acted with the intent to promote or assist Anderson by continuing to participate in the robbery after Anderson displayed the knife. The trial court was also free to reject appellant's claim (in his written statement) that he was only trying to steal Rose's cell phone and that he climbed down from the truck and walked away after he saw Anderson pull out a weapon. Under the circumstances, we therefore conclude that the evidence, viewed under the appropriate standards, is legally and factually sufficient to show that appellant was a party to the offense and was criminally responsible for Anderson's use of a knife during the robbery. We overrule appellant's first, second, third, and fourth issues.
        Knife
        In his fifth and sixth issues, appellant argues that the evidence is legally and factually insufficient to support the deadly weapon finding.
        An ordinary knife like the one used in this case is not a deadly weapon per se; that is, it is not an object manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2008); McCain v. State , 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000); see also Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005). A knife becomes a deadly weapon if, in the manner of its use or intended use, it is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008); McCain , 22 S.W.3d at 503. This capability must be evaluated in light of the facts that existed when the offense was committed. Brown v. State , 716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986).
        The State need not produce the alleged knife at trial to obtain a deadly weapon finding. Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982); Villarreal v. State, 255 S.W.3d 205, 209 (Tex. App.-Waco 2008, no pet.). In fact, a deadly weapon finding may be made, if otherwise supported by the evidence, regardless of whether any wounds were inflicted. See McCain, 22 S.W.3d at 503; Villarreal, 255 S.W.3d at 209; Rogers v. State, 877 S.W.2d 498, 500 (Tex. App.-Fort Worth 1994, pet. ref'd); Victor v. State, 874 S.W.2d 748, 751-752 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). To determine whether a particular knife is a deadly weapon, courts consider the following factors: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) any testimony of the knife's life-threatening capabilities. Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991); Miller v. State, 177 S.W.3d 1, 4 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). When no actual injury is sustained by the victim, the prosecution must introduce evidence of other factors to establish that the knife is a deadly weapon. Victor, 874 S.W.2d at 751-752. Both expert testimony and lay testimony may be independently sufficient to support a deadly weapon finding. Banargent v. State, 228 S.W.3d 393, 398 (Tex. App.-Houston [14th Dist.] 2007, no pet.). No one factor is determinative, and the fact finder must examine each case on all of its facts to determine whether the knife is a deadly weapon. Garcia, 17 S.W.3d at 4.
        In this case, the knife was not introduced into evidence and there was no expert or lay opinion testimony. According to the record, Rose testified as to the size and shape of the knife but there was no testimony concerning sharpness. Rose stated that Anderson stuck the knife to the back of his neck and demanded the laptop. Anderson asked Rose if the laptop was “worth his life” when he refused to surrender the computer. Rose recalled that he “was scared to death.” Rose also claimed he received a “small scratch” from the knife, although King did not see any injuries on Rose and Rose did not request medical treatment or believe appellant intentionally cut him. Given the
testimony regarding the size and shape of the knife and the manner in which Anderson used it, we believe the evidence, viewed under the appropriate standards, is legally and factually sufficient to show that the knife was capable of causing death or serious bodily injury and was a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008). We overrule appellant's fifth and sixth issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071404F.U05