In the Matter of R.L.--Appeal from 73rd Judicial District Court of Bexar County

No. 04-97-00971-CV
IN THE MATTER OF R.L.
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 97-JUV-01861
Honorable Juan Gallardo, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: December 9, 1998

AFFIRMED

R.L. was adjudicated delinquent in a bench trial for committing aggravated robbery. The trial judge imposed a fourteen-year determinate sentence. R.L. appeals, arguing that the trial judge erred by relying on Barehill v. State, 740 S.W.2d 572 (Tex. App.--Houston [1st Dist.] 1987, no pet.), in finding that R.L. used or exhibited a deadly weapon. We affirm.

Facts

Pedro Ruiz, Jr., a convenience store manager, testified that the store was robbed by R.L. and another man. He stated that R.L. approached him and threatened to "cap" him unless he handed over all the store's money. As he made this threat, R.L. had his hand on a bulge in his waistband. Ruiz believed the bulge was a gun. He testified that he complied with R.L.'s demand because he was afraid he would be shot if he did not comply.

In his closing argument, R.L.'s counsel argued that because no one actually saw a weapon and no weapon was recovered, the evidence was insufficient to establish that a weapon was used. In response, the prosecutor argued that an appellate court affirmed an aggravated robbery conviction involving similar facts in Barehill v. State. The judge relied on that case in finding that R.L. used a gun.

Discussion

R.L. argues that the trial judge erred by relying on Barehill because it was decided by the First Court of Appeals and thus is not controlling authority in this district. The State construes this argument as a challenge to the sufficiency of the evidence.

In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the trial judge's decision and determine whether any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. See In re A.C., 949 S.W.2d 388, 389 (Tex. App.--San Antonio 1997, no writ); Gonzalez v. State, 954 S.W.2d 98, 100 (Tex. App.--San Antonio 1997, no pet.). In reviewing a factual sufficiency challenge, we consider all the evidence while being appropriately deferential to the judgment of the trier of fact, and we will set aside the trial judge's decision only if the evidence is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See A.C., 949 S.W.2d at 389-90. In undertaking this review, we examine and compare relevant decisions of the court of criminal appeals, of this court, and of other intermediate appellate courts. While it is true that authority from other intermediate appellate courts is not binding on us, we frequently rely on their reasoning when we find their reasoning persuasive. See, e.g., Garza v. State, 937 S.W.2d 569, 571-72 (Tex. App.--San Antonio 1996, pet. ref'd).

In Barehill, the court held that the use of a deadly weapon may be established even if the victim did not actually see the gun. See 740 S.W.2d at 574. As in this case, the defendant attempted to make the victims believe he had a gun and threatened to shoot them, but none of the victims actually saw a gun. See id. at 573. There was also evidence that the defendant used a gun three days later to rob the same store. See id. at 574. The facts in Barehill are obviously similar to the facts in this case, and R.L. has not directed us to any decision of this court or the court of criminal appeals that is inconsistent with Barehill. To the contrary, we note that Barehill is consistent with authority from the court of criminal appeals and other appellate courts. See Woods v. State, 653 S.W.2d 1, 4 (Tex. Crim. App. 1982) (although victim did not see gun, defendant said he had a gun and later fired shots at police officer); Benavidez v. State, 670 S.W.2d 297, 301 (Tex. App.--Amarillo 1983, no pet.) (although victim did not see gun, defendant poked something in victim's back that felt and sounded like gun); Miller v. State, 629 S.W.2d 843, 844 (Tex. App.--Houston [14th Dist.] 1982, no pet.) (although victim did not see gun, defendant said he had gun and victim thought she felt gun at her back). We consider these decisions persuasive and relevant to the facts of this case. Accordingly, the trial judge did not err by relying on Barehill.

We conclude that the evidence of R.L.'s threatening behavior, including his threat to "cap" Ruiz and his placing his hand on the bulge in his waistband, combined with Ruiz's testimony that he believed the bulge was a gun, is both legally and factually sufficient to establish that R.L. used a gun in the commission of the robbery. See Barehill, 740 S.W.2d at 574; Miller, 629 S.W.2d at 844. We therefore affirm the judgment of the trial court.

Tom Rickhoff, Justice

DO NOT PUBLISH

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