                                                                               ACCEPTED
                                                                          07-15-00204-CR
                                                             SEVENTH COURT OF APPEALS
                                                                       AMARILLO, TEXAS
                                                                   10/26/2015 12:00:00 AM
                                                                         Vivian Long, Clerk


                    NO. 07-15-00204-CR

                          IN THE                          FILED IN
                                                   7th COURT
                                                       OctoberOF26,
                                                                  APPEALS
                                                                     2015
                    COURT OF APPEALS                 AMARILLO, TEXAS
               SEVENTH JUDICIAL DISTRICT          10/25/2015 10:33:47 PM
                     AMARILLO, TEXAS                    VIVIAN LONG
             _________________________________             CLERK


                     JERMAIN GAITHER
                             V.
                   THE STATE OF TEXAS
             _________________________________

        ON APPEAL FROM THE 140TH DISTRICT COURT
               OF LUBBOCK COUNTY, TEXAS
                  CAUSE NO. 2013-400,719
             _________________________________

                   BRIEF FOR THE STATE
             _________________________________

                                MATTHEW D. POWELL
                                Criminal District Attorney
                                Lubbock County, Texas

                                COURTNEY GRAFFT
                                JENNIFER SLACK
                                Assistant Criminal District Attorneys
                                (Trial Attorneys)

ORAL ARGUMENT WAIVED           JEFFREY S. FORD
                               Assistant Criminal District Attorney
                               Lubbock County, Texas
                               State Bar No. 24047280
                               P.O. Box 10536, Lubbock, TX 79408
                               Phone (806)775-1166
                               FAX: (806)775-7930
                               E-mail: JFord@co.lubbock.tx.us
                               (On appeal)
                               ATTORNEY FOR THE STATE
                          Identity of Parties and Counsel

Appellant:

       Jermain Gaither

Appellant’s trial attorneys:

       Russell “Rusty” Gunter, Attorney at Law, 1213 Avenue K, Lubbock, TX
       79401; phone (806)711-3933; fax (806)711-3935

       Matt Morrow, Attorney at Law, 806 Main Street, Lubbock, TX 79401;
       phone (806)763-4568

Appellant’s appellate counsel:

       Joel Cook, Law Offices of Wm. Everett Seymore, 810 Main Street,
       Lubbock, TX 79401; phone (806)747-3825; fax (806)747-3851

State of Texas:

At trial:

       Courtney Grafft and Jennifer Slack, Assistant Criminal District Attorneys,
       Lubbock County Criminal District Attorney’s Office, P.O. Box 10536,
       Lubbock, TX 79408; phone (806)775-1100; fax (806)775-7930

On appeal:

       Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County
       Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, TX 79408;
       phone (806)775-1166; fax (806)775-7930

Trial Judge:

       Honorable Jim Bob Darnell, Presiding Judge, 140th District Court of
       Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite
       349, Lubbock, TX 79401

                                         i
                                                Table of Contents

                                                                                                              PAGES

Identity of Parties and Counsel ...................................................................................i

Table of Contents ...................................................................................................... ii

Table of Authorities ..................................................................................................iv

Statement of the Case.............................................................................................. vii

Statement of the Facts ................................................................................................ 1

Summary of the Argument......................................................................................... 3

Argument and Authorities……………………………………….………………....5

Sole Issue Presented: Appellant argues that the evidence is legally insufficient to

support the deadly weapon element of the aggravated robbery offense because no

rational trier of fact could have found that the firearms used during the offense

were real and could cause death or serious bodily injury. When the evidence is

considered in the light most favorable to the verdict, any rational trier of fact could

have found every element of the offense beyond a reasonable doubt. The evidence

shows the following: (1) Appellant and his accomplice entered the 7-11 with the

intent to rob it; (2) Appellant and his accomplice pointed what appeared to the

victim to be firearms at him; (3) one of the robbers told the victim that the pistol

was real and that he would be shot if he did not comply with his demands; (4) the

victim believed that the threat posed by the robbers with their firearms was real
                                                            ii
and he was frightened for his life; and (5) Appellant stated during an interview

with police that he thought the firearm used by his accomplice was real. Was the

evidence sufficient to show that Appellant and/or his accomplice used or exhibited

a firearm during the commission of the offense? ...................................................... 5

         Standard of Review…………………………………………….…………..5

         I. The evidence is legally sufficient to show that Appellant and/or his
            accomplice used or exhibited a deadly weapon during the
            commission of an aggravated robbery.………………………………..7

             i. Lowe’s testimony that real pistols were pointed at him is sufficient
                evidence for a rational juror to find that a firearm was used in the
                commission of the offense…………………………………………….9

             ii. Appellant’s argument that his conviction should be reformed to
                 robbery since he only used a toy gun during the aggravated robbery
                 fails because of the Law of Parties …………………………………14

         Conclusion………………………………………………………................16

Conclusion and Prayer ............................................................................................. 17

Certificate of Service ............................................................................................... 17

Certificate of Compliance…………………………………………………………18




                                                           iii
                                   Table of Authorities

SUPREME COURT CASELAW                                                                PAGES

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)…………………………6, 7

TEXAS CASELAW

Arthur v. State,
  11 S.W.3d 386 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)………...9, 10

Banda v. State,
  758 S.W.2d 902 (Tex. App.—Corpus Christi 1988, no pet.)........................11, 13

Benavides v. State,
  763 S.W.2d 587 (Tex. App.—Corpus Christi 1988, pet. ref’d)………..10, 11, 13

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) (plur. op.)…………….........................6

Dobbs v. State,
 434 S.W.3d 166 (Tex. Crim. App. 2014)………………………..........................6

Ex parte Huskins,
  176 S.W.3d 818 (Tex. Crim. App. 2005)………………………………………..8

Ford v. State,
  152 S.W.3d 752 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)…………...10

Johnson v. State,
  No. 14-02-00901-CR, 2003 WL 22012693 (Tex. App.—Houston [14th Dist.]
  Aug. 26, 2003, pet. ref’d) (not designated for publication)................................13

Lucio v. State,
  351 S.W.3d 878 (Tex. Crim. App. 2011)………………………………………..7

O’Briant v. State,
  556 S.W.2d 333 (Tex. Crim. App. 1977)……………………..............................9
                                              iv
Price v. State,
  227 S.W.3d 264 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d)……..10, 13

Riddick v. State,
  624 S.W.2d 709 (Tex. App.—Houston [14th Dist.] 1981, no pet.)………...10-14

Toy v. State,
  855 S.W.2d 153 (Tex. App.—Houston [14th Dist.] 1993, no pet.)………...9, 10

True v. State,
  No. 01-08-00175-CR, 2009 WL 1688278, 2009 Tex. App. LEXIS 4503 (Tex.
  App.—Houston [1st Dist.] June 18, 2009, no pet.) (not designated for
  publication)…………………………………………………………………10, 13

Winfrey v. State,
  393 S.W.3d 763 (Tex. Crim. App. 2013)………………………..........................6

Wright v. State,
 591 S.W.2d 458 (Tex. Crim. App. [Pan. Op.] 1979)……….........................10, 14

TEXAS RULES AND STATUTES

TEX. PEN. CODE ANN. § 1.07(a)(17)(A)…………………………………………….8

TEX. PEN. CODE ANN. § 7.02(a)(2)………………………………………………..15

TEX. PEN. CODE ANN. § 29.03(a)(2)………………………………………………..7

TEX. PEN. CODE ANN. § 46.01(3)…………………………………………………...8

TEX. R. APP. P. 3.2…………………………………………………………………vi




                                         v
                                  NO. 07-15-00204-CR

                                        IN THE
                                  COURT OF APPEALS
                             SEVENTH JUDICIAL DISTRICT
                                   AMARILLO, TEXAS
                           _________________________________

                                   JERMAIN GAITHER
                                           V.
                                 THE STATE OF TEXAS
                           _________________________________

                                 BRIEF FOR THE STATE
                           _________________________________


To the Honorable Court of Appeals:

          The State of Texas, the prosecuting authority in Cause No. 2013-400,719 in

the 140th District Court of Lubbock County, and Appellee before the Seventh

Court of Appeals, respectfully submits this brief in reply to the brief filed by

Appellant appealing his conviction for the offense of Aggravated Robbery. The

parties will be referred to as “Appellant” and “State.”1




1
    TEX. R. APP. P. 3.2.
                                           vi
                                   Statement of the Case

        Appellant was charged by indictment on December 3, 2013, with the

offense of aggravated robbery. One felony enhancement paragraph was also

alleged in the indictment.2 Following a three-day jury trial, from April 20-22, 2015,

Appellant was found guilty of the offense.3 The trial court sentenced Appellant to

fifty-five (55) years imprisonment on April 23, 2015.4 The trial court certified that

Appellant has the right of appeal.5




2
  (Clerk’s Record “CR” p. 6).
3
  (CR p. 87) (Reporter’s Record “RR” vol. 5, p. 27).
4
  (RR vol. 7, p. 20).
5
  (CR p. 86) (RR vol. 7, p. 23).
                                               vii
                                 Statement of Facts

       Douglas Lowe, a convenience store clerk, was working alone at the 7-11 on

19th Street and Iola Avenue in Lubbock on the night of November 12, 2013.6 At

approximately 11:30 p.m., two individuals wearing masks entered the store.7 One

jumped over the counter and the other walked around the corner, each aiming a

firearm at Lowe.8 One man walked around the corner and told Lowe, “You know

what to do. You know what to do. Open the register.”9 Following his training

received as a 7-11 employee, Lowe opened the register and the men took the

money inside it.10 The men also broke into a filing cabinet and took rolls of

quarters that were inside.11 One of the men then demanded that Lowe open the

safe, despite the fact that one did not exist at the 7-11.12 When Lowe informed

them of this fact, the man pointed his firearm at Lowe and stated, “This is real. If

you don’t open this safe, I’m going to shoot you in the leg.”13 After taking some

cigarettes and more money from a cash dispensing machine, both subjects left the

7-11 and fled the scene in a vehicle that had pulled up during the robbery. 14


6
  (RR vol. 4, pp. 22-23).
7
  (RR vol. 4, p. 25).
8
  (RR vol. 4, p. 26).
9
  (RR vol. 4, p. 28).
10
   (RR vol. 4, p. 29).
11
   (RR vol. 4, pp. 31-32).
12
   (RR vol. 4, p. 32-33).
13
   (RR vol. 4, p. 33).
14
   (RR vol. 4, pp. 37-39).
                                          1
       During the robbery, Lowe was “scared to death” and felt that his life was in

danger during this incident.15 He did not activate the panic alarm because he was

too afraid to do so in the men’s presence, especially after being told that he would

be shot if he did not comply with their demands.16 Although Lowe was unable to

determine the exact type of firearms the men used, Lowe was able to identify them

as pistols and clearly saw four to five inches of the pistols’ barrels protruding from

out of the men’s long-sleeved shirts.17 Lowe was able to determine that one pistol’s

barrel had a black finish and was made of metal.18 He is familiar with the plastic

toy firearms his nephew plays with. With this fact in mind, Lowe did not believe

that the pistols used during the robbery looked anything like the toy firearms his

nephew plays with and “a hundred percent . . . thought it was the real thing aimed

at [him].”19 Lowe also testified that the pistol used by the robber looked “darn

real.” Both pistols used by the robbers were similar in appearance.20

       A tip given to police on November 15, 2013, led the police to Appellant.21

During his interview with police, Appellant admitted to taking part in the



15
   (RR vol. 4, pp. 33, 40). Two days later, Lowe was still emotional and upset because of the
incident when he was interviewed by police. (RR vol. 4, p. 127)
16
   (RR vol. 4, p. 35).
17
   (RR vol. 4, pp. 27, 57).
18
   (RR vol. 4, pp. 57-58).
19
   (RR vol. 4, p. 58).
20
   (RR vol. 4, p. 61).
21
   (RR vol. 4, p. 129).
                                              2
aggravated robbery of the 7-11.22 During his interview, Appellant claimed that he

used a toy gun during the aggravated robbery, but that the firearm used by his

accomplice “possibly could be real.”23 When asked a second time by police during

the interview, Appellant said that he “thought [the firearm used by his accomplice]

was real.”24



                              Summary of the Argument

       Appellant argues in his sole issue that the evidence is insufficient to show

the deadly weapon element of the offense. When the evidence is considered in the

light most favorable to the verdict, the deadly weapon element of the offense was

proven beyond a reasonable doubt. Lowe’s testimony shows that the pistols

exhibited by Appellant and his accomplice appeared to be actual firearms, as

demonstrated from the dark finish and metallic appearance of the visible portions

of the pistols. In addition, Lowe testified that neither pistol used during the

aggravated robbery appeared to be a toy. During the commission of the robbery,

one of the robbers told Lowe that his pistol was real and that Lowe would be shot

if he did not comply with his demands. Further, both pistols were brandished in a

manner consistent with the way a robber would display a firearm during a

22
   (RR vol. 4, p. 138).
23
   (RR vol. 4, pp. 144-46).
24
   (RR vol. 4, p. 146).
                                         3
robbery—pointed at the victim in a threatening manner in order to convince the

victim to hand over money. Finally, while Appellant claimed that he used a toy

gun during the aggravated robbery, Appellant himself stated in an interview with

police that he thought the firearm used by his accomplice was real.

      Appellant argues that the pistols used during the robbery were not

completely visible, and thus could have been anything from toys to metal tubes

that looked like firearm barrels. Appellant further argues that if the weapons used

during the aggravated robbery were not real firearms, the deadly weapon element

of aggravated robbery has been negated and the conviction should be reformed to

the lesser included offense of robbery. Appellant’s arguments fail, however,

because appellate courts have long held that a witness or victim does not need to

see the entire firearm used during the commission of an aggravated robbery in

order to uphold a conviction for aggravated robbery. Further, under the Law of

Parties, Appellant should be charged with the same crime as his accomplice, who

he believed used a real firearm during the aggravated robbery.




                                         4
                             Argument and Authorities

                                Sole Issue Presented

Appellant argues that the evidence is legally insufficient to support the deadly

weapon element of the aggravated robbery offense because no rational trier of fact

could have found that the firearms used during the offense were real and could

cause death or serious bodily injury. When the evidence is considered in the light

most favorable to the verdict, any rational trier of fact could have found every

element of the offense beyond a reasonable doubt. The evidence shows the

following: (1) Appellant and his accomplice entered the 7-11 with the intent to rob

it; (2) Appellant and his accomplice pointed what appeared to the victim to be

firearms at him; (3) one of the robbers told the victim that the pistol was real and

that he would be shot if he did not comply with his demands; (4) the victim

believed that the threat posed by the robbers with their firearms was real and he

was frightened for his life; and (5) Appellant stated during an interview with police

that he thought the firearm used by his accomplice was real. Was the evidence

sufficient to show that Appellant and/or his accomplice used or exhibited a firearm

during the commission of the offense?

                               Standard of Review

      In assessing the sufficiency of the evidence, an appellate court views the

evidence in the light most favorable to the verdict and determines whether any
                                          5
rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt.25 In conducting this review, an appellate court considers all

evidence in the record, whether it was admissible or inadmissible. 26 In criminal

cases, “only that evidence which is sufficient in character, weight, and amount to

justify a factfinder in concluding that every element of the offense has been proven

beyond a reasonable doubt is adequate to support a conviction.”27 Each fact need

not point directly and independently to the guilt of the appellant, “as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.”28

       A reviewing court is required to defer to the jury’s credibility and weight

determinations because “the jury is the sole judge of the witnesses’ credibility and

the weight to be given their testimony.”29 The standard gives “full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate




25
   Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).
26
   Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
27
   Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (plur. op.) (Cochran, J.,
concurring).
28
   Dobbs, 434 S.W.3d at 170.
29
   Brooks, 323 S.W.3d at 899 (emphasis taken from opinion).
                                              6
facts.”30 A reviewing court must presume that the jury resolved any conflicting

inferences in favor of the verdict and defer to that resolution.31

     I. The evidence is legally sufficient to show that Appellant and/or his
        accomplice used or exhibited a deadly weapon during the commission of
        an aggravated robbery

       Appellant was charged with and convicted of the offense of aggravated

robbery. The indictment alleged that Appellant did “heretofore on or about the 12th

day of November, A.D. 2013, did then and there, while in the course of committing

theft of property and with intent to obtain or maintain control of said property,

intentionally or knowingly threaten or place Douglas Lowe in fear of imminent

bodily injury or death, and the defendant did then and there use or exhibit a deadly

weapon, to-wit: a firearm.”32 The elements of the offense—as modified by the

language of the indictment—are as follows: (1) Appellant (2) while in the course

of committing theft of property (3) with intent to obtain or maintain control over

said property (4) threatened or placed Douglas Lowe in fear of imminent bodily

injury or death (5) and used or exhibited a deadly weapon.33

       Appellant’s sufficiency challenge focuses solely on the fourth element of the

offense, i.e., whether the evidence is sufficient to show that Appellant or his


30
   Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; accord Lucio v. State, 351 S.W.3d 878, 894 (Tex.
Crim. App. 2011).
31
   Jackson at 326, 99 S. Ct. at 2793; Dobbs at 170.
32
   (CR p. 6).
33
   See TEX. PEN. CODE ANN. § 29.03(a)(2).
                                              7
accomplice used or exhibited a deadly weapon during the commission of the

offense. “Deadly weapon,” for purposes of Appellant’s sufficiency challenge,

means “a firearm or anything manifestly designed, made, or adapted for the

purpose of inflicting death or serious bodily injury.”34 A “firearm” is “any device

designed, made, or adapted to expel a projectile through a barrel by using the

energy generated by an explosion or burning substance or any device readily

convertible to that use.”35

      After reviewing the evidence in the light most favorable to the verdict, the

evidence is sufficient to show that Appellant, his accomplice, or both parties used

firearms during the commission of the offense. First, Lowe was able to describe the

firearms used during the aggravated robbery with certainty and particularity

reasonable under the circumstances, testifying that the firearms looked very real to

him. Second, Lowe was afraid for his life because he believed the firearms were

real and capable of causing him death. Third, while Appellant claims that he only

used a toy gun, he himself believed the firearm used by his accomplice during the

aggravated robbery was real.

      All of the foregoing is sufficient to show that any rational trier of fact could

have found the deadly weapon element of the offense beyond a reasonable doubt.

34
  TEX. PEN. CODE ANN. § 1.07(a)(17)(A).
35
  TEX. PEN. CODE ANN. § 46.01(3). A firearm is considered a deadly weapon per se. See Ex
parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).
                                           8
Appellant, however, makes two arguments as to why the evidence is allegedly

insufficient to support the deadly weapon element of the offense. First, he argues

that the fact that Lowe only saw the barrel of the firearm during the aggravated

robbery is insufficient evidence for a rational juror to find that a firearm was used

during the aggravated robbery. Second, he argues that Appellant’s belief that the

firearm used by his accomplice “might” be real is insufficient to support a firearm

finding. Each argument will be addressed in turn.

       i. Lowe’s testimony that real pistols were pointed at him is sufficient
          evidence for a rational juror to find that a firearm was used or exhibited
          in the commission of the offense.

       When an indictment for aggravated robbery alleges that the defendant used

“a deadly weapon, to wit: a firearm,” the State must prove beyond a reasonable

doubt that the deadly weapon used during the aggravated robbery was a real

firearm.36 While the word “gun” can describe non-lethal weapons like BB guns,

blow guns, and pop guns, the jury is allowed to make reasonable inferences when

determining whether the firearm used in an aggravated robbery was a deadly

weapon.37 The use of the word “gun” instead of “firearm” during trial is sufficient

to authorize a jury to find that a deadly weapon was used during the commission of




36
  Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
37
  O’Briant v. State, 556 S.W.2d 333, 335-36 (Tex. Crim. App. 1977); Toy v. State, 855 S.W.2d
153, 159 (Tex. App.—Houston [14th Dist.] 1993, no pet.).
                                             9
the offense.38 The act of threatening a victim with a gun itself suggests that the

weapon used is a firearm, and not a non-lethal weapon.39 Further, “[a]

complainant’s uncontroverted testimony regarding the defendant’s use and

exhibition of a gun is legally [] sufficient to sustain a conviction for aggravated

robbery.”40

       In addition, there are several factors considered by an appellate court in

determining whether a jury’s inferences made from a victim’s testimony were

reasonable. These factors include: (1) the victim’s description of the firearm41; (2)

the manner in which the firearm was used during the offense42; and (3) the victim’s

reaction to being confronted with a firearm.43

       Based on these factors, there is little doubt that a reasonable jury, through

Lowe’s testimony, could have found that Appellant or his accomplice used a real

firearm during the aggravated robbery. Lowe was able to identify the finish on the

firearms as being dark in color and testified that he could determine that both

pistols’ barrels were made of metal. Further, Lowe testified with certainty that


38
   Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. [Pan. Op.] 1979).
39
   Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing
Riddick v. State, 624 S.W.2d 709, 711 (Tex. App.—Houston [14th Dist.] 1981, no pet.).
40
   True v. State, No. 01-08-00175-CR, 2009 WL 1688278 at *4, 2009 Tex. App. LEXIS 4503 at
*11 (Tex. App.—Houston [1st Dist.] June 18, 2009, no pet.) (not designated for publication)
(citing Ford v. State, 152 S.W.3d 752, 755-56 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)).
41
   See Arthur, 11 S.W.3d at 389.
42
   See Toy, 855 S.W.2d at 159.
43
   See Price v. State, 227 S.W.3d 264, 267 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d).
                                              10
neither firearm looked like a toy that his nephew played with, and that both

firearms looked “darn real.” Appellant, however, argues that Lowe’s testimony is

insufficient evidence for a juror to rationally find that firearms were used during

the aggravated robbery.44 While Lowe was unable to identify the exact type of

pistol used by Appellant and his accomplice, and did not see either pistol in its

entirety, this is not required for a conviction to be upheld.45 Further, it is likely that

Lowe was too frightened and distracted by the aggravated robbery taking place to

pay closer attention to the exact type, make, and model of the firearms used. As a

policy consideration, it is unreasonable to expect victims to be able to identify with

precise specificity exactly what kind of firearms were used in aggravated

robberies, especially given victims’ frightening and stressful experiences.

       In addition, there is no question that both firearms were exhibited in a

manner consistent with the way that real firearms would be used during an

aggravated robbery. Appellant and his accomplice both pointed firearms at Lowe

in a threatening manner, with one robber telling Lowe, “This [firearm] is real. If

you don’t open the safe, I’m going to shoot you in the leg.” The implication was


44
   (Appellant’s Br. at 11-19).
45
   See, e.g., Benavides, 763 S.W.2d at 588–89 (upholding conviction of a defendant when the
victim could only identify the firearm used in an aggravated robbery as an “automatic”); Banda
v. State, 758 S.W.2d 902, 903-04 (Tex. App.—Corpus Christi 1988, no pet.) (suggesting that the
“familiar shape” of the butt of a pistol seen by the victim can give rise to a reasonable inference
that the defendant had a pistol); Riddick, 624 S.W.2d at 710-11 (upholding conviction of
defendant when a witness saw only the end of a gun barrel sticking out of an unzipped bag).
                                                11
clear: these firearms (and the threat they posed) were real and capable of causing

serious bodily injury or death. Further, this kind of statement by an offender is

itself an indication that a firearm was used during an aggravated robbery.46

       Finally, it is undisputed that Lowe was afraid for his life during the incident

and was still emotional and upset days later when interviewed by the police. This

was doubtless due in large part to the credible threat he felt from the presence of

real firearms being pointed at him. Combined, these facts established during

Lowe’s testimony gives considerable support to the notion that a reasonable juror

could find that the firearms used during the aggravated robbery by Appellant and

his accomplice were real.

       Appellant argues that Lowe’s testimony is insufficient to support a finding

that a firearm was used during the commission of the aggravated robbery. In

particular, he contends that Lowe did not see enough of the pistols to establish that

they were firearms.47 It is true that the pistols used during the aggravated robbery

were partially obscured by the offenders’ long-sleeved shirts; however, Appellant’s

argument ignore decades of caselaw upholding convictions in cases in which

firearms used during aggravated robberies were not recovered or seen in their




46
   Riddick at 711 (stating that “the threats of the appellant to shoot [the victim] also supports the
use of a firearm”).
47
   (Appellant’s Br. at 15-16, 18, 25).
                                                 12
entirety.48 The identification of the exact kind of weapon used by an offender in an

aggravated robbery has never been necessary to sustain his or her conviction. Thus,

Appellant’s argument that firearms used during robberies must be entirely seen or

positively identified as firearms by victims in order to uphold an aggravated

robbery conviction is absurd and without merit or foundation in established

caselaw.

       Likewise, Appellant’s argument that the firearms used by Appellant and his

accomplice could have been something else (e.g., a metal tube or toy gun)49 are

improper. The jury is allowed to make reasonable inferences from the evidence

presented at trial to determine whether a firearm was used in an aggravated

robbery; there is no indication in the record that this jury did otherwise.50

       Appellant’s arguments regarding the sufficiency of the evidence supporting

the deadly weapon element of the offense ignores the factual similarities between

this case and the case of Riddick v. State, supra. In Riddick, the defendant robbed a


48
   See, e.g., Price, 227 S.W.3d at 266-67 (upholding a defendant’s conviction when no evidence
disproving the use of a firearm was presented at trial); Benavides at 588–89 (upholding
conviction of a defendant when the victim could only identify the firearm used in an aggravated
robbery as an “automatic”); Banda, 758 S.W.2d at 903-04 (suggesting that the “familiar shape”
of the butt of a pistol seen by the victim supported a reasonable inference that the defendant had
a pistol); Riddick at 710-11 (upholding conviction of defendant when a witness saw only the end
of a gun barrel sticking out of an unzipped bag); True, 2009 WL 1688278 at *4-5, 2009 Tex.
App. LEXIS 4503 at *10-12 (upholding the conviction of a defendant when the victim only saw
the grip of the pistol used by the defendant during the aggravated robbery).
49
   (Appellant’s Br. at 6, 25, 26).
50
   See Price at 266–67; Johnson v. State, No. 14-02-00901-CR, 2003 WL 22012693 at *2 (Tex.
App.—Houston [14th Dist.] Aug. 26, 2003, pet. ref’d) (not designated for publication).
                                               13
bank by displaying only the barrel of a pistol sticking out of a plastic bag. The

appellant’s conviction was upheld because the witness positively identified the

firearm used in the robbery as a pistol, and because it is not necessary for the

witness to have seen “the trigger, handle or cylinder or other indicia of a gun in

order to support the conviction of the use of a deadly weapon, to wit, a firearm.” 51

Further, the Riddick court reasoned that it is not necessary for the State to prove

that the firearm is operative.52 In addition, the statement by the defendant that the

victim would be shot if the victim did not comply indicated the use of a firearm in

the aggravated robbery.53 The similarity of Riddick to this case cannot be denied,

and it is clear from precedent that to uphold a conviction for aggravated robbery, it

is sufficient that a victim only saw the barrel of a firearm used during the

aggravated robbery.

       ii. Appellant’s argument that his conviction should be reformed to robbery
           since he only used a toy gun during the aggravated robbery fails because
           of the Law of Parties.

       Appellant also argues that he only used a toy gun during the commission of

the aggravated robbery, and thus the deadly weapon element of the aggravated

robbery offense was not met.54 Common sense suggests that nobody other than

Appellant would have a reason to lie about having a toy gun instead of a firearm
51
   Riddick at 710-11.
52
   Id. at 711 (citing Wright, 582 S.W.2d at 846).
53
   Id.
54
   (Appellant’s Br. at 5-6).
                                                14
when Appellant’s criminal charge depends on whether he used a toy gun or a

firearm. Further, there is evidence in the record that Appellant gave inconsistent

accounts about the aggravated robbery to the police and Appellant’s employer;

specifically, Appellant told his employer that he did not use a gun at all during the

aggravated robbery, but later told police that he used a toy gun.55 Given

Appellant’s conflicting accounts of the events, his assertion that he only used a toy

gun deserves little credence.

       Assuming, arguendo, that Appellant did in fact use a toy gun during the

aggravated robbery, Appellant admitted to police that he thought that the firearm

used by his accomplice was real.56 Under the Law of Parties, a person is criminally

responsible for the conduct of another if he acts “with intent to promote or assist

the commission of the offense [and] solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense.”57 Since Appellant himself believed

that his accomplice’s firearm was real, whether Appellant used a firearm or not

becomes irrelevant; the Law of Parties allows him to be charged with aggravated

robbery because he was a party to the offense and knew that a firearm would be

used in the commission of the offense. Given Lowe’s testimony and Appellant’s

statement to the police, a rational juror could have found that Appellant, his

55
   (RR vol. 4, pp. 144-45).
56
   (RR vol. 4, p. 146).
57
   TEX. PEN. CODE ANN. § 7.02(a)(2).
                                         15
accomplice, or both offenders used firearms because the firearms were similar in

their realistic appearance, they were exhibited in the same threatening manner, and

elicited the same terrified response from the victim.

                                    Conclusion

      The evidence is sufficient to show the deadly weapon element of the offense,

in that the evidence showed that Appellant, his accomplice, or both used firearms

during the commission of the aggravated robbery. The evidence showed that Lowe

was able to sufficiently identify the weapons used by Appellant and his accomplice

as firearms. Further, while Appellant claimed he used a toy gun during the offense,

he stated that he believed the firearm used by his accomplice was real. Regardless

of whether Appellant used a firearm or a toy gun, under the Law of Parties,

Appellant should be charged with the same offense as his accomplice (i.e.,

aggravated robbery) because the evidence showed that at least one firearm was

used and Appellant knew that a firearm would be used in the commission of the

offense. The cumulative force of all of the evidence shows that the jury’s guilty

verdict for the aggravated robbery charge was rational.

      Appellant’s sole issue should be overruled.




                                          16
                              Conclusion and Prayer

       For the reasons stated above, no reversible error has been committed and the

State respectfully requests that the Court should affirm the judgment and sentence

in all things.

                                              Respectfully submitted,

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford
                                              Assistant Criminal District Attorney
                                              Lubbock County, Texas
                                              State Bar No. 24047280
                                              P.O. Box 10536
                                              Lubbock, Texas 79408
                                              (806)775-1166
                                              FAX (806)775-7930
                                              E-mail: JFord@co.lubbock.tx.us

                               Certificate of Service

     I certify that a true copy of the foregoing brief has been delivered to Joel
Cook, Attorney for Appellant, by e-mail delivery to joel_cook@outlook.com on
October 25, 2015.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford
                                         17
                             Certificate of Compliance

     Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the
word count of the computer program used to prepare the foregoing State’s
Response, this document contains 3,346 words, inclusive of all portions required
by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford




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