Bradley Lamar Morgan v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-212-CR

BRADLEY LAMAR MORGAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2000-793-C

O P I N I O N

Bradley Lamar Morgan appeals his conviction for aggravated robbery. Morgan brings three issues for our review; finding no error, we will affirm.

BACKGROUND

In June 2000, Mary Bowman was leaving the downtown office of the Texas Workforce Commission when Morgan stole her purse. He rode away on a bicycle, and a concerned citizen, who had witnessed the purse-snatching, knocked Morgan off his bicycle by using his pick-up truck to block Morgan s path. Morgan then fled on foot, encountered another bystander, and struck him in the face to prevent the man from following him. At this point, there were a number of individuals who were chasing after Morgan. He eventually abandoned Bowman s purse; one of the pursuers retrieved it and gave it back to her. When it seemed that the crowd had caught Morgan, he pulled out a long screwdriver and used it to keep his pursuers from getting too close by stabbing at Josef Ferstl and others. Morgan led them to an intersection on Waco Drive where he tried to car-jack a vehicle to escape, but was unsuccessful. He finally found a driver at the intersection who let him into the car, and the two individuals drove in reverse down Waco Drive. Finally, a Waco police officer stopped the vehicle and apprehended Morgan.

Morgan was indicted for aggravated robbery. He pled not guilty, and after a trial, a jury convicted him. Because Morgan had a prior felony conviction, the State sought to enhance the range of punishment from five to ninety-nine years to fifteen to ninety-nine years. Morgan pled true to the enhancement allegations, and the jury assessed punishment at forty years confinement. He then brought this appeal arguing that the evidence is (1) legally and (2) factually insufficient to prove one of the elements of the offense, and (3) the State made an improper argument during its closing in the punishment phase of trial.

ISSUES (1) AND (2): SUFFICIENCY OF THE EVIDENCE

Issue (1): Legal Sufficiency

Morgan contends that the evidence was legally insufficient to prove that he committed aggravated robbery because the State did not prove that the screwdriver was a deadly weapon, meaning that it was capable of causing death or serious bodily injury in its manner of use or intended use. The elements of the offense, as the State alleged in the indictment, are: Morgan committed the offense of aggravated robbery by 1) stealing Bowman s purse and 2) in the course of stealing her purse, 3) used or exhibited a deadly weapon, a screwdriver, 4) against Josef Ferstl. Tex. Pen. Code Ann. 29.02, 29.03(a)(2) (Vernon 1994). Morgan s complaint is that the evidence is legally insufficient to support a finding that the screwdriver was a deadly weapon as defined in Penal Code section 1.07(a)(17), which states:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) 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) (Vernon 1994). It is clear that a screwdriver is not a firearm or [] manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury, so it is not a deadly weapon per se as defined in section 1.07(a)(17)(A). See Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Crim. App. 1991). But items that are not deadly weapons per se have been found to be deadly weapons by the nature of their use or intended use under section 1.07(a)(17)(B). Hill v. State, 913 S.W.2d 581, 582-83 (Tex. Crim. App. 1996); see Stanul v. State, 870 S.W.2d 329, 335 (Tex. App. Austin 1994, pet. ref d) (defendant used floor as deadly weapon by striking victim s head against it); Lozano v. State, 860 S.W.2d 152, 156 (Tex. App. Austin 1993, pet. ref d) (defendant used lighter as deadly weapon by using it to start a fire); Enriquez v. State, 826 S.W.2d 191, 192 (Tex. App. El Paso 1992, no pet.) (defendant used soft drink bottle as deadly weapon by striking victim with it). Here, the evidence must show that Morgan s use or intended use of the screwdriver was capable of causing death or serious bodily injury. Hill, 913 S.W.2d at 582-83.

Ferstl testified that Morgan proceeded to swing [the screwdriver] and kind of stab at us to keep us from getting any closer to him, to retrieve the purse from him. In addition, the State presented expert testimony from Dr. Rod Ryan who stated that a screwdriver is capable of causing death or serious bodily injury. Dr. Ryan gave the examples of plunging the screwdriver into a person s chest, abdomen, face, or neck. On cross-examination, Dr. Ryan conceded that a person using a screwdriver as a weapon would have to be close enough to his intended victim to cause death or injury.

Morgan argues that the following facts are significant and show that the screwdriver could not have been a deadly weapon: (a) the separation between Morgan and Ferstl during their encounter demonstrates that Morgan was not close enough to Ferstl to use the screwdriver to harm him; (b) Ferstl suffered no injuries as a result of their stand-off; and (c) Morgan exhibited the screwdriver only after the purse had been taken. For these reasons, Morgan concludes that the evidence is insufficient to prove that he used the screwdriver in an intended use [that was] capable of causing death or serious bodily injury. Tex. Pen. Code Ann. 1.07(a)(17)(B).

The Court of Criminal Appeals addressed essentially the same issue in McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000). The Court stated that the analysis of this particular legal-sufficiency claim consists of two questions: (1) could the object (the screwdriver) be a deadly weapon as defined in subsection (B) of section 1.07(a)(17) of the Penal Code under the facts of the case?; and (2) if yes, then was that object used or exhibited during the offense? McCain, 22 S.W.3d at 502. The Court held that subsection (B) s plain language requires only that the actor intend a use of the object in which it would be capable of causing death or serious bodily injury. Id. at 503. According to the Court, [t]he placement of the word capable in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. Id. (citing Tisdale v. State, 686 S.W.2d 110, 114-15 (Tex. Crim. App. 1984)). When answering these questions, we must also adhere to the appropriate standard of review: in determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)); Westfall v. State, 970 S.W.2d 590, 595 (Tex. App. Waco 1998, pet. ref d).

The evidence shows that Morgan used the screwdriver to keep the group of citizens from apprehending him. Ferstl, who was named in the indictment, testified that Morgan proceeded to swing [the screwdriver] and kind of stab at us to keep us from getting any closer to him. Dr. Ryan testified that a screwdriver used to stab at a person is capable of causing death or serious bodily injury. Given this, we find that the evidence was legally sufficient for a factfinder to conclude that the intended use for the screwdriver was that it be capable of causing death or serious bodily injury. Tex. Pen. Code Ann. 1.07(a)(17)(B). Therefore, the evidence was legally sufficient to show that the screwdriver was a deadly weapon. The remaining question, under McCain, then, is whether Morgan used or exhibited the screwdriver during the criminal transaction. Ferstl testified that Morgan pulled the screwdriver out of his waistband and kind of stab[bed] at him and the other citizens. Hence, a factfinder could rationally conclude that the screwdriver was used during the crime. Morgan s first issue is overruled.

Issue (2): Factual Sufficiency

Morgan contends in his second issue that the evidence is factually insufficient to establish that he committed aggravated robbery because the State did not prove that the screwdriver was a deadly weapon.

In reviewing a factual sufficiency claim, we consider all of the evidence neutrally, not viewing it in the light most favorable to the verdict. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Fulgium v. State, 4 S.W.3d 107, 112 (Tex. App. Waco 1999, pet. ref d). We must also remain cognizant of the factfinder s role and unique position, a position that the reviewing court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).

Our ultimate decision is guided by the Court of Criminal Appeals determination that the evidence to support a criminal conviction may be factually insufficient in two distinct ways. Id. at 285-86. In the first, evidence is factually insufficient when the only evidence presented on the particular element supports the inference that the fact is true, but that evidence is simply too weak by itself to support a rational finding. Id. at 285. In the second, the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof so as to be clearly wrong or manifestly unjust. Id. at 285-86; Johnson, 23 S.W.3d at 11. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

We incorporate the evidence from our discussion of Morgan s legal sufficiency challenge into this discussion of his claim of factual insufficiency. The testimonies of Ferstl and Dr. Ryan, taken alone, establish that Morgan used the screwdriver to ward off his pursuers and that he stabbed at Ferstl and others in order to continue his escape. Morgan did not offer evidence during the guilt-innocence stage of trial in an attempt to contradict Ferstl s assertions. Therefore, there was no contrary proof that Morgan did not display the screwdriver or stab at Ferstl with it. After a neutral review of the evidence, we find that (1) the evidence supporting the jury s finding that Morgan used a screwdriver as a deadly weapon is not too weak to support such finding, and (2) because Morgan offered no proof to the contrary, such finding is not clearly wrong or manifestly unjust. Goodman, 66 S.W.3d at 285-86; Johnson, 23 S.W.3d at 11. Morgan s second issue is overruled.

ISSUE (3): IMPROPER ARGUMENT

Morgan s third issue contends that the trial court erred by overruling his objection to the State s closing argument during the punishment stage of trial, which suggested that he had committed other offenses. He complains of this statement by the prosecutor, which was made in rebuttal after Morgan s defense counsel had already argued to the jury:

[State]: There is one thing that the State and the defense agree on here, is that Bradley Morgan screwed up. He screwed up not once, not twice, not three times, but many times, and you have heard the evidence of that.

[Defense counsel]: Judge, the only evidence at all is three prior convictions. I would ask that the jury be instructed to disregard that. That is outside the record.

[Trial court]: Overruled.

A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). But when a prosecutor s statement falls outside of these parameters, the statements themselves cannot be error. Rather, it is the trial court s responses to defense counsel s objections to the statements that may be error. Chimney v. State, 6 S.W.3d 681, 703 (Tex. App. Waco 1999, no pet.). Usually three types of error are possible: (1) overruling the initial objection to the prosecutor s statement; (2) granting the initial objection, but denying a request for an instruction to the jury to disregard the statement; and (3) granting the initial objection and instructing the jury to disregard, but denying a motion for a mistrial. Id.

Here, Morgan complains of the first type of error. He contends that the prosecutor went outside the record by leaving the jury with the impression that Morgan had committed other offenses besides the prior convictions the jury had been made aware of and which were pled in the enhancement allegation of the indictment. Morgan concedes that there are three incidents that were fair game for argument. (Appellant s Brief P. 14). They are: (1) a prior conviction for assaulting a public servant; (2) an arrest for stealing an automobile and leading Waco police officers on a high-speed chase before they apprehended him; and (3) a recent conviction for aggravated robbery. Morgan, however, takes issue with the prosecutor s statement that he screwed up . . . many times besides the three incidents listed above.

The State argues that Morgan invited the prosecutor s comment, and correctly notes in its brief that a defendant cannot complain of improper prosecutorial argument if he invited the argument. Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App. 2001). The State points out that during the punishment stage of trial, Morgan s defense counsel argued:

The law demands that you give Bradley Morgan a severe sentence. Now the question before you is what are you going to do with Bradley Morgan? Are you to tell him and to tell society that there is no hope for that man, that we have totally lost faith in you, that no matter what you do for the next seven and a half years, for the next ten years, for the next twenty years we are throwing you away.

Or do you tell him and tell society that, Bradley, you screwed up and you screwed up several times. And as a result of that screw-up, you are going to the penitentiary for a long time. But we also know that there is some hope for you and we see some light for you.

(Emphasis added). We neither agree nor disagree with the State s argument that Morgan invited its argument. We will assume, without deciding, that the prosecutor s comment was not invited by Morgan and was improper. We address the issue of harm.

When a trial court errs by allowing a prosecutor to comment upon matters outside the record in closing argument, we must apply the standard of harm for non-constitutional errors. Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000). Rule of Appellate Procedure 44.2(b) provides that a non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). In Martinez, the Court held that determining harm under that standard in improper argument cases requires balancing the following factors: (1) severity of the misconduct, i.e., any prejudicial effect; (2) curative measures that were taken by the trial court; and (3) the certainty of the punishment assessed absent the misconduct. Martinez, 17 S.W.3d at 693.

The degree of misconduct, if any, was relatively mild in the present case. The prosecutor s comment that Morgan had screwed up not once, not twice, not three times but many times appears to be an acknowledgment of defense counsel s message to the jury that although his client screwed up several times, there is some hope for him to change his ways and, therefore, a long prison term would not be necessary. Moreover, the prosecutor did not attempt, through this comment, to convey any specific facts about the many other times Morgan had screwed up. To the extent that the prosecutor impliedly referred to facts outside the record, we find that the comment had little tendency to adversely influence the jury beyond the influence that was already exerted by defense counsel s similar comment.

The second factor may be quickly dispensed with. There was no curative instruction, and the State did nothing to emphasize the allegedly erroneous comment made. The comment was a very small portion of the State s entire argument at punishment.

The third factor does not weigh in favor of either the State or Morgan. The range of punishment from which the jury could assess Morgan s punishment was fifteen to ninety-nine years. The facts supporting Morgan s present conviction for aggravated robbery show that he: (1) stole a woman s purse in broad daylight; (2) punched an innocent bystander in the face because he happened to witness the purse-snatching; (3) used a screwdriver to stab at his pursuers to keep them from apprehending him; and (4) attempted more than once to commandeer a car on Waco Drive to escape. The enhancement allegation in the indictment reveals that Morgan had been convicted of assaulting a public servant. The record also indicates that Morgan had been arrested for stealing an automobile from a local car lot. This evidence of Morgan s criminal history was for the jury to consider and recommend an appropriate punishment.

Given the mildness of the prosecutor s comment and the strength of the evidence from which the jury determined Morgan s sentence, we find that any error associated with that comment was harmless. We overrule Morgan s third issue.

CONCLUSION

Having overruled all of Morgan s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 31, 2002

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