JOEL MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 29, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01065-CR
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JOEL MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-73356
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MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        The State presented evidence at trial that appellant Joel Munoz robbed the cashier at a sporting apparel store and that Munoz held a gun during the robbery. The jury convicted Munoz of aggravated robbery and assessed his punishment at five years' confinement and a $10,000 fine. On appeal, Munoz contends the evidence is legally and factually insufficient to support the conviction for aggravated robbery because there was no evidence of the use of a deadly weapon. Munoz further contends the trial court erroneously overruled Munoz's objections to references to a deadly weapon in the State's closing argument. Finally, Munoz complains the trial court interrupted Munoz's closing argument to comment on the evidence. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
        In his first and second issues, Munoz argues the State presented legally and factually insufficient evidence to support his conviction for aggravated robbery because there was no (or insufficient) evidence appellant used a deadly weapon during the robbery. Munoz was charged specifically with use of a firearm, rather than more generally with use of a deadly weapon. Thus, the State was required to prove the use of a firearm beyond a reasonable doubt. See Gomez v. State,
 685 S.W.2d 333, 336 (Tex. Crim. App. 1985). “Firearm” is defined in the penal code as:
 
any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
 
Tex. Pen. Code Ann. § 46.01(3) (Vernon 2003). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A) (Vernon Supp. 2008). Munoz concedes that the cashier testified he used a “gun” during the robbery.   See Footnote 1  But his argument-both at trial and in this Court-is that evidence of a “gun,” without more, is insufficient to support a finding of a firearm and, hence, a deadly weapon.
        We apply well-known standards when reviewing challenges to the sufficiency of the evidence. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. 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). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. Moreover, the court of criminal appeals has specifically held that “testimony using any of the terms 'gun,' 'pistol' or 'revolver' is sufficient to authorize the jury to find that a deadly weapon was used.” Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979).
        At trial, the store cashier, Nancy Avila, testified as follows:
 
 
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Munoz entered the store and asked her to show him a particular cap, “So I walked towards him, and that is when he pulled the gun out.”
 
 
 
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When asked how the gun looked, she replied “It was silver and black.”
 
 
 
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When asked to show the jury how Munoz pointed the gun at her, and asked “[D]id he point it exactly like you're doing now at your face,” she replied “Yes, sir.”
 
 
 
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When asked why she had grabbed her stomach and her head, she replied “I was three months pregnant . . . I didn't know where he was going to shoot.”
 
 
 
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When asked whether she was scared, and then whether she thought he might hurt her, she replied both times “Yes.”
 
 
 
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When asked whether she was in fear of her life, she replied “Yes. And my baby.”
 
 
 
Munoz argues the word “gun” may include “such nonlethal instruments as BB guns, blow guns, pop guns and grease guns.” But Avila's testimony establishes she believed the weapon was a firearm. The testimony establishes Avila feared for her life and for the life of her unborn child. Applying the evidentiary review standards set out above, we conclude there is ample evidence to allow a reasonable jury to conclude Munoz used a firearm in the commission of the robbery, and the great weight and preponderance of the evidence does not suggest otherwise. See Jackson, 443 U.S. at 319; Roberts, 220 S.W.3d at 524. Indeed, we conclude there is “nothing beyond supposition or guesswork to suggest the contrary.” See Davis, 180 S.W.2d at 287. We overrule Munoz's first and second issues.
        In his third and fourth issues, Munoz argues the trial court erroneously overruled his objections to two instances in the State's closing argument, when the prosecutor referred to the gun used in the robbery as a “deadly weapon.”   See Footnote 2  Munoz charges that the State's comments “suppl[ied] missing evidence on a crucial element of the indicted offense.” Proper jury argument must fall within one of four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to the argument of opposing counsel, or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). The State is permitted to draw reasonable inferences from the evidence. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977). The State's argument here was well within acceptable parameters: the prosecutor summarized Ms. Avila's testimony concerning the gun used by Munoz and made the reasonable deduction that it was a deadly weapon. See Guidry, 9 S.W.3d at 154. We have already concluded that, based on Avila's testimony, a reasonable jury could conclude Munoz used a deadly weapon in the course of the robbery. We likewise conclude the prosecutor was drawing a reasonable inference from Avila's testimony when he mentioned Munoz's use of a deadly weapon. See Griffin, 554 S.W.2d at 690. We overrule Munoz's third and fourth issues.         In his fifth issue, Munoz complains of a comment by the trial court during closing argument. Munoz's counsel stated:
 
[A]s far as Joel Munoz goes, I submit to you that the very most they proved and truly is robbery. And since the prosecution mentioned it, that carries two to 20 years. Okay? As opposed to five to life. But I believe that was referenced by the prosecutor -
 
The trial court then stated, “Mr. Watson, the reference[s] as to the penalty range are improper at this time.” Counsel responded, “All right, Judge.” He made no objection.
        On appeal, Munoz argues this interruption by the trial court amounted to a violation of his fundamental due process right to be tried by a fair, neutral, and detached magistrate. The general rule is that counsel must have objected to the trial judge's comments during trial in order to preserve error. Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (citing Tex. R. App. P. 33.1). However, as the court pointed out in Blue, we are not precluded, in a criminal case, from taking notice of “fundamental errors affecting substantial rights although they were not brought to the attention of the court.” See id. (quoting Tex. R. Evid. 103(d)). The Blue court found a violation of such a substantial right, concluding the trial court tainted appellant's presumption of innocence in front of the venire, by informing jurors that the defendant had gone “back and forth” on a plea offer made to him by the State. Id. at 132. No such egregious conduct took place in this case. On the contrary, the court's comment in this case was a correct statement of the law relating only to a procedural matter, i.e., when counsel could properly address punishment ranges. No reasonable juror could have taken the statement as a comment on Munoz's presumption of innocence. We conclude the trial court's statement was not fundamental error. Accordingly, by failing to object Munoz failed to preserve the issue for our review. See Tex. R. App. P. 33.1. We overrule his fifth issue.
        We affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071065F.U05
 
Footnote 1 Munoz does not challenge the robbery portion of his conviction, only whether the robbery was aggravated by the use of a deadly weapon.
Footnote 2 Munoz objected to the following two statements:
 
 
So we have a theft of money in the cash register. We have a threat to the cashier. Where are we? Second degree robbery. Why is it aggravated robbery? Because Joel Munoz put that deadly weapon in Ms. Avila's face.
 
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So all that means is, if you believe everything else beyond a reasonable doubt but you just don't believe a gun was used, it's second degree robbery. Okay? But we know from Ms. Avila's testimony there was a deadly weapon that day, and she was scared.