
                                          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 "§ ____."



