Robert James Lee v. State of Texas--Appeal from 114th District Court of Smith County

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NO. 12-01-00114-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

ROBERT JAMES LEE,

 
APPEAL FROM THE 114TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXAS
PER CURIAM

Appellant Robert James Lee appeals his conviction for aggravated robbery for which he was sentenced to thirty-six years of imprisonment. In one issue, Appellant asserts that the evidence was legally insufficient to prove that the BB gun used to affect the robbery was a deadly weapon, and, therefore, the evidence was legally insufficient to support a conviction for aggravated robbery. We affirm.

 

Background

On December 6, 2000, Appellant robbed the Best Buy store in Tyler, Smith County, Texas. Appellant confronted the store clerk and demanded money from her register while drawing his jacket aside to expose a pistol stuck in his waistband. Although Appellant never drew the pistol, he told the clerk that if she screamed, he would shoot the first person he saw in the parking lot.

After leaving Best Buy, Appellant proceeded to the Cracker Barrel Restaurant in northern Smith County where he committed a similar robbery. A high-speed police chase through Smith and Van Zandt counties ensued after which Appellant was apprehended. At the time of Appellant's arrest, a BB gun was found in his vehicle. The gun was not loaded with either BB's or a CO2 cylinder which was necessary to fire the gun, nor were any BB's or CO2 cylinders found in the vehicle.

The store clerk testified that the butt of the BB gun which was recovered looked like the butt of the gun Appellant displayed during the robbery. Detective Clay Perrett testified that the BB gun was capable of causing serious bodily injury or death, but on cross-examination admitted that when unloaded, the BB gun would not be capable of causing serious bodily injury or death unless it was used as a club. Appellant testified at both stages of the trial, admitting to using the BB gun in the robbery but stating that it was not loaded with either BB's or a CO2 cartridge.

The jury found Appellant guilty of aggravated robbery and sentenced him to thirty-six years of imprisonment.

 

Deadly Weapon

In one issue Appellant asserts that the evidence was legally insufficient to prove that the BB gun used to affect the robbery was a deadly weapon, and, therefore, the evidence was legally insufficient to support a conviction for aggravated robbery.

The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a mere modicum of evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

A person commits the offense of aggravated robbery if, in the course of committing robbery, he uses or exhibits a deadly weapon. Tex. Pen. Code. Ann. 29.03 (Vernon 1994). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code. Ann. 1.07(17)(B) (Vernon 1994).

Appellant does not dispute that he used or exhibited the BB gun during the robbery but contends that the BB gun was not a deadly weapon. Specifically, Appellant contends that the BB gun was not capable of causing death or serious bodily injury because it was not loaded.

The court of criminal appeals has recently held that whether a BB gun is loaded is not significant in a deadly weapon analysis. Adame v. State, No. 594-01, slip op. at 3, 2002 WL 342713 (Tex. Crim. App. March 6, 2002). What is significant is whether there is evidence that the BB gun is capable of causing serious bodily injury. Id. With testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding. Id. Here, Detective Perrett testified that the BB gun Appellant used to rob Best Buy was capable of causing serious bodily injury. Furthermore, because Appellant threatened to shoot the first person he encountered in the parking lot if the clerk screamed, the jury could rationally infer that the BB gun was capable of inflicting serious bodily injury. See id. at 3-4. Accordingly, Appellant's sole issue is overruled.

The judgment of the trial court is affirmed.

 

Opinion delivered March 20, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)