                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-176-CR


NATHAN DARRELL NEIGHBORS                                        APPELLANT
A/K/A NATHANN HERCULES
NEIGHBORS

                                             V.

THE STATE OF TEXAS                                                   STATE

                                         ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                         ------------

                         MEMORANDUM OPINION 1

                                         ------------

                                   I. Introduction

     Appellant Nathan Darrell Neighbors a/k/a Nathann Hercules Neighbors

appeals his felony conviction of aggravated robbery with a deadly weapon. In

three points, appellant argues that the evidence was legally and factually




     1
         … See T EX. R. A PP. P. 47.4.
insufficient to support his conviction and that the trial court erred by refusing

to submit a lesser included offense charge of robbery to the jury. We affirm.

                             II. Background Facts

      On March 15, 2003, Paradise Liquors’s owner Delaware Wafayee and his

employee, Lorenzo Corral, were locking the doors after closing when a man,

who was wearing a ski mask, approached Wafayee from behind with a gun and

ordered him to open the door and disarm the security system. The man then

forced Wafayee and Corral to the back office where the safe was located.

After Wafayee opened the safe, the man put down the gun and began to stuff

the cash in a bag. Corral saw the gun on the ground, lunged for the weapon,

and began to struggle with the man. Corral kept holding the weapon and hit

the man with the butt of the gun, which caused the man to bleed profusely.

During the struggle, the man’s mask also came off. While Corral and the man

were wrestling for the gun, Wafayee grabbed a nearby champagne bottle and

hit the man on the head seven or eight times. Wafayee then ran out of the

office to press the panic button, and Corral quickly followed still holding the

gun. While Wafayee called 9-1-1 and Corral watched for the police by the

entrance, the man, who was bleeding from his head and face, emerged from

the office and walked towards the door. Although Wafayee could tell that the

man was a black male, neither he nor Corral could clearly see his facial features

                                       2
because he was covered in blood. Corral pointed the gun at the man, but the

man told Corral that he was leaving no matter what so he had better shoot him.

Corral pulled the trigger but nothing happened, and the man left the store.

      Officer Sylvester Brown of the Arlington Police Department arrived shortly

thereafter, but he could not locate the man. Officer Robert Petty collected the

suspect’s gun, and Investigator Kathy Isbell collected the suspect’s ski mask,

a sample of his blood, and some of his scalp tissue with hair. Detective Richard

Daniel Nutt entered the DNA evidence obtained from the samples into the

Combined DNA Indexing System (CODIS)—a DNA database that compares

unknown DNA samples with known samples. Because of the lack of leads, the

case quickly became inactive, but it was reopened in March 2006 when CODIS

found a match to the DNA sample that had been submitted in 2003.            The

Arlington Police Department identified appellant as the match and obtained

arrest and search warrants to get a buccal swab.2 The DNA evidence taken

from the crime scene positively matched the DNA evidence obtained from

appellant’s buccal swab.




      2
      … Detective Nutt testified that a buccal swab is similar to a long Q-tip,
which he rubbed in between appellant’s cheek and gums to collect a DNA
sample.

                                       3
      A grand jury indicted appellant for aggravated robbery. At trial in May

2007, appellant requested a lesser included charge of robbery, which the trial

court denied. A jury convicted appellant of aggravated robbery with a deadly

weapon, a firearm, and recommended punishment at fifty-five years’

confinement, which the trial court assessed accordingly. Appellant timely filed

this appeal.

                          III. Sufficiency of the Evidence

      In his first two points, appellant claims that the evidence was legally and

factually insufficient to identify him as the person who robbed the Paradise

Liquor store.

A.    Standard of Review

      1.       Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

                                         4
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.

Crim. App. 2007).      We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      The sufficiency of the evidence should be measured by the elements of

the offense as defined by the hypothetically correct jury charge for the case.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v.

State, 166 S.W.3d 466, 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such

a charge would be one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily restrict the State’s theories of liability, and

                                        5
adequately describes the particular offense for which the defendant was tried.

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953

S.W.2d at 240. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the charging instrument. See

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

      2.    Factual Sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.




                                       6
      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. W e may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.   Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

                                        7
must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

B.    Analysis

      To convict appellant of aggravated robbery, the State was required to

prove that appellant, in the course of committing theft and with intent to obtain

or maintain control of property, intentionally or knowingly threatened or placed

another in fear of imminent bodily injury or death while using or exhibiting a

deadly weapon.       T EX. P ENAL C ODE A NN . §§ 29.02, 29.03 (Vernon 2003);

Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980); Chandler v.

State, 855 S.W.2d 38, 41 (Tex. App.—Fort Worth 1993, no pet.). Appellant

argues that the evidence was legally and factually insufficient because neither

witness could identify him as the person who robbed the Paradise Liquor store.

However, the Texas Court of Criminal Appeals has held that DNA evidence is

admissible to prove identity. Glover v. State, 825 S.W.2d 127, 128 (Tex.

Crim. App. 1992); King v. State, 91 S.W.3d 375, 380 (Tex. App.—Texarkana

2002, pet. ref’d).

      At trial, Wafayee and Corral testified that they were unable to identify the

robber because initially he wore a mask and because when the mask was




                                        8
removed during the struggle, the robber’s face was covered with blood.3

However, after the incident, the police collected evidence including the black

ski mask, a blood swab, and scalp tissue with hair. 4 Carolyn Van Winkle, who

worked in the Tarrant County Medical Examiner’s office, tested the blood on

the ski mask and the blood sample and determined that the profiles obtained

from the evidence were from the same male donor.5 Detective Nutt submitted

the data into CODIS, but CODIS did not contain a match for the DNA until

March 2006. Once CODIS found a match, Detective Nutt identified the match

as appellant and obtained a buccal swab. Van Winkle tested the buccal swab

and determined that the two DNA samples she previously had tested matched

the DNA evidence from appellant’s buccal swab.        In 2007, at the State’s

request, Van Winkle tested the scalp sample, which also matched appellant’s



      3
       … Wafayee also testified that he could not identify appellant in a photo
line-up.
      4
       … Appellant also argues that the State did not properly identify the
evidence collected at the scene as the items tested for DNA evidence.
However, crime scene investigator Isbell testified that she collected, packaged,
and sealed a blood sample, scalp tissue, and a black ski mask from the liquor
store. Medical examiner Carolyn Van Winkle testified that she received the
evidence in sealed conditions and that the seals had not been tampered with.
Additionally, Isbell’s initials were on the seals of the exhibits.
      5
      … Van Winkle testified that she did not test the scalp sample because
when she received multiple samples in one case, she limited the amount of
samples that she tested.

                                       9
DNA profile. Van Winkle testified that the likelihood that appellant was not the

donor of the DNA evidence collected at the Paradise Liquor store was one in

9.5 quadrillion.

      After reviewing all of the evidence, we conclude that it shows that the

DNA samples obtained from the Paradise Liquor store, which included the ski

mask, the blood swab, and the scalp tissue, matched appellant’s DNA profile

collected from the buccal swab. Thus, the DNA evidence proved appellant’s

identity as the perpetrator of the Paradise Liquor store robbery in March 2003.

See Glover, 825 S.W.2d at 128; King, 91 S.W.3d at 380. Therefore, viewing

all of the evidence in the light most favorable to the verdict, we hold that a

rational trier of fact could have found beyond a reasonable doubt that appellant

committed aggravated robbery. See T EX. P ENAL C ODE A NN. § 29.03; Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. When

viewing all of the evidence in a neutral light, we hold that the evidence

supporting the conviction is not so weak that a reasonable juror’s determination

is clearly wrong and that any conflicting evidence does not greatly outweigh the

evidence in support of the conviction so that a juror’s determination is

unequivocally unjust. See Watson, 204 S.W.3d at 414-15, 417; Drichas, 175

S.W.3d at 799; Johnson, 23 S.W.3d at 11. We overrule appellant’s first and

second points.

                                      10
                    IV. Lesser Included Offense of Robbery

      In his third point, appellant argues that the trial court erred by not

submitting the lesser included offense of robbery to the jury.

A.    Standard of Review

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,

672- 73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. T EX.

C ODE C RIM. P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998).

      An offense is a lesser included offense if . . . it is established by proof of

the same or less than all the facts required to establish the commission of the

offense charged.” T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall, 225

S.W.3d at 536. This inquiry is a question of law. Hall, 225 S.W.3d at 535.

It does not depend on the evidence to be produced at the trial but is performed

by comparing the elements of the offense as they are alleged in the indictment

or information with the elements of the potential lesser included offense. Id.

at 525, 535-36.




                                        11
      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant is guilty, he is guilty only of the lesser

offense. Id. at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005); Rousseau, 855 S.W.2d at 672-73. The evidence must be evaluated in

the context of the entire record. Moore, 969 S.W.2d at 8. There must be

some evidence from which a rational jury could acquit the appellant of the

greater offense while convicting him of the lesser included offense. Id. The

court may not consider whether the evidence is credible, controverted, or in

conflict with other evidence. Id. Anything more than a scintilla of evidence

may be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d

at 536.

B.    Analysis

      Appellant argues that he was entitled to a charge on the lesser included

offense of robbery because there was some evidence that the gun he used was

not capable of firing, and thus the gun could not qualify as a deadly weapon.

The Texas Penal Code defines robbery as follows:

      (a) A person commits an offense if, in the course of committing
      theft . . . and with intent to obtain or maintain control of the
      property, he:

            (1) intentionally, knowingly, or recklessly causes bodily
            injury to another; or


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             (2) intentionally or knowingly threatens or places
             another in fear of imminent bodily injury or death.

T EX. P ENAL C ODE A NN. § 29.02(a). Robbery becomes aggravated robbery if the

offender uses or exhibits a deadly weapon. Id. § 29.03.

      Appellant has satisfied the first requirement because robbery is a lesser

included offense of aggravated robbery. Ex Parte Walton, 626 S.W.2d 528,

530 (Tex. Crim. App. 1981); Russell v. State, 804 S.W.2d 287, 289 (Tex.

App.— Fort Worth 1991, no pet.). We must next determine if there is some

evidence that if appellant is guilty, he is guilty only of the lesser offense. See

Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741; Rousseau, 855 S.W.2d

at 672-73.

      The Texas Penal Code defines a deadly weapon as

      (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.

T EX. P ENAL C ODE A NN. § 1.07(a)(17) (Vernon Supp. 2007). Thus, if the State

proves at trial that a firearm was used in the commission of a robbery, the

firearm meets the statutory definition of deadly weapon. Thomas v. State, 821

S.W.2d 616, 620 (Tex. Crim. App. 1991).          Additionally, the State is not

required to verify that the firearm was actually capable of causing death, either


                                       13
in the manner of its actual use or in the manner of its intended use. Id.; see

also Walker v. State, 543 S.W.2d 634, 636-37 (Tex. Crim. App. 1976) (holding

that a .45 automatic was a deadly weapon even though missing a firing pin and

without a clip because it was manifestly designed and made for the purpose of

inflicting death or serious bodily injury, which was evident to the senses and

understanding of the victim).

      Here, the gun Corral wrestled away from appellant did not fire when

Corral attempted to shoot appellant as he was leaving.         Investigator Isbell

collected the gun, and Arlington Police Department range master Keith Scullin

fired the gun and testified that it was operable. Regardless, even if the gun

was not functioning at the time of the robbery, it qualified as a firearm and thus

a deadly weapon. See Thomas, 821 S.W.2d at 620-21; Walker, 543 S.W.2d

at 637.   Because appellant used and exhibited a deadly weapon during the

course of robbing the Paradise Liquor store, he cannot be guilty only of robbery;

thus, the trial court did not err by refusing to submit the lesser included charge

of robbery to the jury. See Hall, 225 S.W.3d at 536; Thomas, 821 S.W.2d at

620; Walker, 543 S.W.2d at 636-37. We overrule appellant’s third point.




                                       14
                               V. Conclusion

      Having overruled appellant’s three points, we affirm the trial court’s

judgment.




                                         PER CURIAM

PANEL F:     LIVINGSTON, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 12, 2008




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