                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-15-00204-CR


                           JERMAIN GAITHER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 140th District Court
                                   Lubbock County, Texas
             Trial Court No. 2013-400,719, Honorable Jim Bob Darnell, Presiding

                                   December 7, 2015

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Jermain Gaither appeals his conviction for aggravated robbery. Through his sole

issue, he contends that the evidence was insufficient to prove, beyond reasonable

doubt, that the objects he and his accomplice exhibited during their robbery of a

convenience store were firearms or deadly weapons. We overrule the issue.

      The applicable standard of review is described in Murray v. State, 457 S.W.3d

446 (Tex. Crim. App. 2015). Under it, we decide “‘whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” Id. at 448, quoting,

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)

(emphasis in original). The standard burdens “the factfinder with resolving conflicts in

the testimony, weighing the evidence, and drawing reasonable inferences from basic

facts.” Id. And, the reviewing court must decide if “‘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.’” Id.

       Appellant does not dispute that he and an accomplice robbed the convenience

store. Nor does he deny that he carried an object that the store clerk characterized as a

“pistol.” Instead, he simply alleges that the clerk’s testimony about seeing only a barrel

protruding from his jacket sleeve was insufficient to establish that the object was an

actual firearm.

       Appellant correctly suggests that the clerk testified to seeing only a four or five

inch black barrel protruding from the jacket sleeve. So too did he testify that 1) two men

entered the store brandishing “guns,” 2) they were “pistols,” 3) the weapons each robber

carried looked similar, 4) the item pointed at him did not look like the toy guns with

which his child played, and 5) he was sure they were “real.”         To that we add the

following bit of evidence. The clerk was asked: “At one point when they were yelling at

you about a safe, did the man in the dark colored jacket [i.e. appellant] point that gun at

you and say anything to you?” His answer was: “He pointed the gun at me, said, ‘This

is real. If you don't open this safe, I'm going to shoot you in the leg.’" (Emphasis

added). So, contrary to appellant’s contention, the record contains more than merely

the clerk’s description of what appellant and his accomplice allegedly held. It contains



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appellant’s own representation or admission that what he wanted the clerk to believe

was a firearm was “real” and was going to be used to “shoot [the clerk] in the leg.” From

that amalgam of evidence, the jury could have rationally inferred, beyond reasonable

doubt, that what appellant used and exhibited “a deadly weapon, to-wit: a firearm”

during the robbery as alleged in the indictment.      So too could it have disregarded

appellant’s later contradictory statement to the arresting officer that the firearm was

merely a toy, a truism that appellant acknowledged in his brief.

      Accordingly, the judgment of the trial court is affirmed.

                                                                  Brian Quinn
                                                                  Chief Justice

Do not publish.




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