

NO. 07-09-0141-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
 NOVEMBER 23, 2010

 
 

 
 
MARLIN JIM CROSS IV, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 47TH DISTRICT
COURT OF RANDALL COUNTY;
 
NO. 19,919-A; HONORABLE HAL MINER, JUDGE

 
 

 
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            Appellant, Marlin
Jim Cross IV, was convicted by a jury of aggravated robbery and burglary of a
habitation[1] and sentenced to two
concurrent sentences of fifteen and five years, respectively.  By four issues, Appellant seeks to overturn the
aggravated robbery conviction by asserting the State failed to prove the use or
exhibition of a deadly weapon.  We
affirm.  
Background
            On August
20, 2008, the Randall County Grand Jury returned a two count indictment against
Appellant.  Court One alleged that, on or
about May 9, 2008, Appellant, while in the course of committing theft of
property and with intent to obtain and maintain control of said property, did intentionally
and knowingly threaten and place Benton Cambern in fear of imminent bodily
injury and death, and did intentionally and knowingly use and exhibit a deadly
weapon, namely: a golf club, that in the manner of its use and intended use was
capable of causing death and serious bodily injury.  Count two alleged that, on or about May 9,
2008, Appellant did intentionally and knowingly enter a habitation without the
effective consent of Benton Cambern, the owner thereof, and therein attempted
to commit and committed theft.
            At trial, Cambern, a college student
living in Amarillo, Texas, testified that, on May 9, 2008, he was packing his
car in anticipation of driving to Pampa, Texas, to start a summer job as an
electrician.  During the process, he entered
and exited his house through a door adjoining his garage.  His garage door was open and his car was
parked in the driveway.  
            While he was in the house, he heard
a jingling sound in the garage and ran to the garage door where he observed Appellant
running away carrying two sets of golf clubs. 
Cambern pursued Appellant to a car parked in the alley behind a fence
next to his driveway.  As Appellant attempted
to place the golf bags in the car, Cambern ran to the front of the car and
placed his hands on its hood.  He could
see three persons through the windshield--Appellant, a driver (later identified
as Nathan St. Clair), and a female passenger in the backseat.  He yelled at them to stop but the car began
to back up.  Fearing Appellant was going
to escape, Cambern ran to the driver's side of the
car, struck the driver in the face and took the keys out of the ignition.  He then began backing up the alley away from
the front of the car while dialing 911.  
            As he was dialing, the driver exited
and approached Cambern asking that he return the keys.  As Cambern continued to back up, he observed Appellant
yanking an eight iron from one of the golf bags.  Although his first thought was to get a gun
he had packed in his car, he did feel "very threatened" and
"scared," and he believed he had better get out of the way or he was "going
to get the tar beat out of [him]."  
            Cambern bolted toward his vehicle, running
past Appellant.  As he did, Appellant
raised the golf club "like he [was] going to hit me with it like you would
a baseball bat . . . like you are going to slug someone."  At that time, Appellant was approximately four
feet away and Cambern expected to "get swung at or hit, so [he] arched his
back and hurried as quick[ly] as [he] could to the car to get [his]
gun."  After Cambern retrieved the gun
from his car, Appellant and his cohorts ran away, leaving the golf clubs beside
the car in the alley.  
            Cambern testified Appellant was
"holding [the golf club] like he was going to swing, and that's when I
took off, four feet away, when he was going to hit [me]."  "[Appellant] pulled [the golf club] out
and put it in a threatening manner. . . ." 
Cambern also testified that "[o]ne of those [golf clubs] hurt to
get hit with . . . I've been hit with them before on accident" and
"had some pretty severe bumps from them." 
            St. Clair, the driver of the vehicle,
testified that he, Appellant, and Appellant's girlfriend were driving through
the neighborhood when they observed Cambern's open garage door.  Appellant told St. Clair to stop when he
observed the golf clubs in the garage. 
Appellant then ran from the car, grabbed the clubs, and brought them back
to the car.  As Appellant was running to
the car, he noticed Cambern coming out of the garage.  St. Clair testified, in a signed statement to
police, that after Cambern struck him in the face and retrieved the car keys,
"[Appellant] picked up the iron and told Cambern to give the keys back or
he would knock the f--- out" of him. 
He also wrote, in his signed statement, that Appellant handed him a club
and told him to hit Cambern.[2]
            Appellant was convicted of
aggravated robbery and burglary of a habitation and sentenced to two concurrent
sentences of fifteen and five years confinement,
respectively.  He seeks to overturn the
aggravated robbery conviction by attacking the legal and factual sufficiency of
two findings: (1) whether the golf club used was a "deadly weapon"
and (2) whether Appellant "exhibited or used" the golf club in the
course of committing theft.
            I.          Legal and Factual Sufficiency
            Heretofore appellate courts have struggled with the
distinction between legal and factual sufficiency of the evidence challenges.  The Texas Court of Criminal Appeals has
recently held that the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt
is the standard set forth in Jackson v. Virginia.[3]  See
Brooks v. State, No. PD-0210-09, 2010 WL 3894613
(Tex.Crim.App. Oct. 6, 2010) (plurality op.)[4]  Under
that standard, in assessing the sufficiency of the evidence to support a
criminal conviction, this Court considers all the evidence in the light most
favorable to the verdict and determines whether, based on that evidence and
reasonable inferences to be drawn therefrom, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.   Id. (citing Jackson, 443 U.S. at 319).
            


II.         Aggravated
Robbery--Deadly Weapon
            A person is
guilty of aggravated robbery if he or she uses or exhibits a deadly weapon in
the course of committing a robbery.  Tex.
Penal Code Ann. § 20.03(a)(2) (Vernon 2003).[5]  See Gomez
v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985) (proof of the use or
exhibition of a deadly weapon is an essential element of the offense).  A "deadly weapon" means a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury or anything that in the manner of its use or intended use
is capable of causing death or serious bodily injury.  § 1.07(a)(17)(A),(B).  
            Because a golf club is made for a purpose
other than to inflict death or cause serious bodily injury, the eight iron at issue will not qualify as a deadly weapon unless
actually used in such a way as to be capable of causing death or serious bodily
injury.  Thomas v. State, 821 S.W.2d 616, 620
(Tex.Crim.App. 1991).  See § 1.07(a)(17)(B).  Thus, the eight iron
can qualify as a deadly weapon "by showing, among other things, the manner
of the [object's] use or intended use, its size and shape, and its capacity to
produce death or serious bodily injury." 
Billey v. State,
895 S.W.2d 417, 421 (Tex.App. --Amarillo 1995, pet. ref'd).  See
Denham v. State, 574 S.W.2d 129, 130
(Tex.Crim.App. 1983).
            Each case is examined on its own
facts to determine whether the fact finder could have concluded from the
surrounding circumstances that an object is capable of causing death or serious
bodily injury.  See Billey, 895 S.W.2d at 421 (citing Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App. 1986)).  The Court of Criminal Appeals has utilized
several factors to assist in such a determination:  
(1) the physical
proximity between the victim and the object;
Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.App. 1984); (2) the threats
or words used by the assailant; Williams
v. State, 575 S.W.2d 30 (Tex.Crim.App. [Panel Op.] 1979);
(3) the size and shape of the weapon; Blain
v. State, 647 S.W.2d 293, 294 (Tex.Crim.App. 1983); (4) the weapon's
ability to inflict death or serious injury; id.
and (5) the manner in which the defendant used the
weapon.  Id.
Charleston v. State, 33 S.W.3d
96, 100 (Tex.App.--Texarkana 2000, pet. ref'd).
            The State is not required to
establish that the object is a deadly weapon through expert testimony; Denham, 574 S.W.2d at 131, though expert
or lay testimony may be sufficient to support a finding; English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim.App. 1983), and
introducing the object in evidence assists the jury in its determination.  Charleston,
33 S.W.3d at 100 (citing English, 647
S.W.2d at 669).  The presence or severity
of wounds may also be considered, but wounds are not a prerequisite to a
finding that the object is a deadly weapon. 
Hammons v. State,
856 S.W.2d 797, 800-01 (Tex.App.--Fort Worth 1993, no pet.) (citing Denham, 574
S.W.2d at 130)).  
            Here, interpreting the evidence in a
light most favorable to the verdict, Appellant and Cambern were only four feet
apart when Appellant yanked the eight iron from the golf bag and told Cambern
to give him the car keys or he would "knock the f--- out" of
him.  Cambern felt "very
threatened" and "scared" and he believed Appellant was going to
beat him with the club.  Cambern also
testified that getting hit with a golf club "hurt" and could cause
"some pretty severe bumps."  In
addition, the jury had an opportunity to visualize the eight iron
and judge for themselves whether the club was, under the circumstances, capable
of causing death or serious bodily harm. 
            We find that, from all the
circumstances, a rational trier of fact could have found Appellant intended to
use the eight iron in a manner capable of causing
serious bodily injury.  See generally Adame v. State, 69 S.W.3d 581, 585 (Tex.Crim.App. 2002) (BB pistol pointed
at robbery victim); McCain v. State,
22 S.W.3d 497, 503 (Tex.Crim.App. 2000) (butcher knife partially visible in
robber's back pocket by robbery victim); Charleston,
33 S.W.3d at 99-100 (wrench held over the head of the robbery victim); Hammons, 856 S.W.2d at 800-01 (robbery
victim struck by baseball bat); Enriquez
v. State, 826 S.W.2d 191, 192-93 (Tex.App.--El Paso 1992, no pet.) (robbery victim struck by 16-ounce soft drink bottle with Styrofoam
sleeve); Jackson v. State, 668 S.W.2d
723, 725 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd) (robbery victim
struck by ax handle).  
            Appellant points to the absence of
certain evidence as supporting his assertion that the State failed to meet its
burden of proof.  He also asserts the
golf club was not a deadly weapon because Cambern was not struck.  We are unpersuaded.  A deadly weapon finding may be found where
the robbery victim was threatened, as here, but not struck by the weapon.  See McCain, 22 S.W.3d at 497;
Charleston, 33 S.W.3d at 99-100; Billey, 895 S.W.2d at 422-23.  Further, "it is sufficient if the weapon
is capable of causing death or serious bodily injury or is displayed in a
manner conveying an express or implied threat that serious bodily injury will
result if the aggressor is not satisfied." 
Hammons, 856 S.W.2d at 801
(citing Jackson v. State, 668 S.W.2d
723, 725 (Tex.App. --Houston [14th Dist.] 1983, pet. ref'd)).  Appellant's
first and second issues are overruled.
            III.        In the Course of Committing Theft
            Appellant also
asserts that he did not possess the eight iron in the
course of committing a theft because he had abandoned the theft when he
brandished the eight iron and only sought return of the car keys.
            "'In the course of committing a
theft,' means conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of
theft."  § 29.01(1).  See Garza v. State, 937 S.W.2d 569, 570-71 (Tex.App.--San Antonio
1996, pet. ref'd).  The actual
commission of theft is not a prerequisite of the offense of robbery; id. (citing Autry v. State, 626 S.W.2d 758, 762
(Tex.Crim.App. 1982), cert. denied,
459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982)), and the attempt or
commission of theft may be inferred from circumstances, actions, and
conduct.  Johnson v. State, 541 S.W.2d 185, 187
(Tex.Crim.App. 1976).
            The record indicates Appellant
brandished the eight iron to obtain the car keys
retrieved by Cambern and escape with, or without, the golf clubs.  In either instance, he used the eight iron "in the course of committing a theft."  § 29.01(1). 
See Chamberlin v. State, 704 S.W.2d 801, 802-03 (Tex.App.--Dallas, no pet.).  Moreover, even if he intended to abandon the golf
clubs when he threatened Cambern, his proscribed conduct would still constitute
robbery.  Id. at 803.  Appellant's third and fourth issues are overruled. 
Conclusion
            The trial
court’s judgment is affirmed.    
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice  
 
Do not publish.




[1]See Tex. Penal Code Ann. §§ 29.03, 30.02
(Vernon 2003).


[2]St. Clair's rendition of the events
that day was inconsistent and contradictory. 
He also maintained that, while he was making the statement, he was
"coming off drugs," the officers were coercing him, and hinting at
what he needed to say.  In conducting a
sufficiency of the evidence review, we consider the evidence in a light most
favorable to the jury's verdict; Brooks
v. State, No. PD-0210-09, 2010 Tex.Crim.App. LEXIS 1240, at 14 (Tex.Crim.App. Oct. 6,
2010), while giving due deference to the jury's credibility and weight
determinations.  Id.
at *25-26. See Marshal v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006).  The jury is the “exclusive judge of the
credibility of witnesses,” and the reconciliation of conflicts in the testimony
is also within the “exclusive province of the jury.”  Tex. Code Crim. Proc. Ann.
arts. 36.13 & 38.04 (Vernon  1979 & 2007); Jones v. State,
944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118
S.Ct. 100, 139 L.Ed.2d 54 (1997).  Accordingly,
the jury was free to believe or disbelieve St. Clair's claims of his
drug-induced state or alleged police misconduct.  See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991).    


[3]Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d
560 (1979).


[4]While
we are not bound by a plurality decision, Pearson
v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the
combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary
sufficiency standard of review distinct from legal sufficiency.
 


[5]Citation
to provisions of the Texas Penal Code throughout the remainder of this opinion
will be simply as "section ____" or "§ ____."


