
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-10-00704-CR


Larry Dayries, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-1-DC-10-300102, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

A jury found appellant Larry Dayries guilty of aggravated robbery and assessed
punishment, enhanced by two previous felony convictions, at seventy years' imprisonment.  See Tex.
Penal Code Ann. § 29.03 (West 2011).  Appellant contends that the evidence is insufficient to
support the guilty verdict and that the trial court erred by admitting two photographs.  We overrule
these contentions and affirm the conviction.
On January 12, 2010, appellant entered an Austin grocery store and ordered a
sandwich at the prepared foods counter.  After eating the sandwich, appellant ordered a second
sandwich, which he said was for a friend.  The department supervisor became suspicious of
appellant's behavior and brought him to the attention of the store's loss prevention officer.  As this
officer watched, appellant put the second sandwich in his coat pocket and walked out of the store
without paying.
The loss prevention officer, Lance Johnson, testified that he followed appellant out
of the store, identified himself, and asked appellant to re-enter the store.  Appellant told Johnson that
he was not through shopping, but he continued to walk away from the store.  Johnson said that he
then attempted to block appellant's path.  At this point, appellant pulled a knife from his pocket and
opened it.  Johnson described the knife as having a curved and serrated three-inch blade and a
three-inch handle, both metal.  Johnson testified that he "kind of back[ed] up a little bit" and told
appellant that he was "making this a bigger deal than it needs to be."  Johnson took out his cell phone
and warned appellant that he would call the police.  Appellant began to lunge at Johnson, swinging
the knife as he did so.  Johnson said that "[e]very time he lunges, I take a step back, and then I
called 911."
Johnson testified that as he was backing away from appellant to maintain a safe
distance, he realized that he was standing beside appellant's car.  Appellant opened the driver's door
and got in the car.  Johnson said that he tried to prevent appellant from closing the door, but
appellant "[took] one more swipe up at my arm."  Appellant drove away before the police arrived,
but Johnson was able to describe appellant, the car, and the license plate number.  Johnson testified
that appellant's use of the knife during this encounter placed him in fear of imminent bodily injury
or death.
Appellant testified that he did not intend to steal the sandwich.  He said that he
walked out of the store to look for his friend, who was supposed to meet him at the store and pay for
the food.  Appellant said that Johnson approached him, cursed, and claimed to be a police officer. 
Appellant testified that he tried to leave because Johnson was being verbally abusive.  Appellant said
that he took his knife from his pocket while trying to find his car keys.  He denied opening the knife
or brandishing it at Johnson.
Under the indictment in this cause, the State had the burden to prove that, in the
course of committing theft and with the intent to obtain or maintain control of the property, appellant
intentionally or knowingly threatened or placed Johnson in fear of imminent bodily injury or death,
and that he used or exhibited a deadly weapon, the knife, while doing so.  See id. §§ 29.02(a)(2),
.03(a)(2) (West 2011).  Appellant contends that the evidence is insufficient to support a finding that
he placed Johnson in fear of imminent bodily injury or death.
When there is a challenge to the sufficiency of the evidence to sustain a criminal
conviction, the question presented is whether, after viewing all the evidence in the light most
favorable to the verdict, a 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 (1979).  The reviewing court
may impinge on the trier of fact's discretion only to the extent necessary to guarantee the
fundamental protection of due process of law.  Id.  The Jackson standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient to prove the
defendant's guilt beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010).
Appellant urges that Johnson's claim that he feared imminent injury or death is belied
by the evidence of his conduct.  Johnson testified that he attempted to maintain a safe distance after
appellant brandished the knife.  Johnson also continued his attempts to prevent appellant from
leaving the scene.  Appellant argues that "it may not be said that Johnson's subjective state during
the encounter was fearful.  A person in fear of death or serious bodily injury would not have
continued to try to detain a robber."
Appellant's argument fails to take into account that the State had only to prove that
he threatened or placed Johnson in fear of imminent bodily injury.  We must assume that the jury
believed Johnson's testimony describing how appellant lunged and slashed at him with the open
knife.  We conclude that this testimony rationally supports a finding that appellant threatened
Johnson with serious bodily injury.  Given appellant's conduct, it was also rational for the jury to
believe Johnson's testimony that he feared serious bodily injury.  There being no other challenge to
the sufficiency of the evidence, issue one is overruled.
In his second issue, appellant urges that the trial court erred by admitting in evidence
two photographs, State's exhibits 4 and 5, each a picture of a knife.  The photographs were offered
and admitted for demonstrative purposes only.  Demonstrative evidence is admissible if it is relevant
and material to an issue in the case and is not overly inflammatory, and if the original would have
been admissible.  Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981).  Appellant
contends that the photographs were unfairly inflammatory and prejudicial.  See Tex. R. Evid. 403. 
He argues that the object shown in exhibit 4 looks "like anything but a knife.  Instead, it looks like
a deadly mechanism of some kind."  He asserts that the knife pictured in exhibit 5 is larger than the
knife described by Johnson.
The actual knife wielded by appellant, had it been found by the police, would
certainly have been admissible.  Johnson testified that the handle of the knife shown in exhibit 4 is
similar to the handle of appellant's knife, and that the blade of the knife shown in exhibit 5 is similar
to the blade of appellant's knife.  We have examined the photographs.  Contrary to appellant's
arguments, the object shown in exhibit 4 is plainly a knife, and the blade of the knife shown in
exhibit 5 closely matches Johnson's description of appellant's knife (it is curved, serrated, and
approximately three inches long).  We find no abuse of discretion in the admission of these exhibits. 
Issue two is overruled.
The judgment of conviction is affirmed.


				__________________________________________
				Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Affirmed
Filed:   August 30, 2011
Do Not Publish
