Affirmed and Opinion Filed January 2, 2018




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-00026-CR

                        WARREN TYRONE CALHOUN, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1654594-N

                            MEMORANDUM OPINION
                       Before Justices Lang-Miers, Brown, and Whitehill
                                 Opinion by Justice Whitehill
       A jury convicted appellant of aggravated robbery, and assessed punishment at eighteen

years imprisonment after he pled true to an enhancement paragraph.

       Appellant argues that (i) the evidence is insufficient to support the deadly weapon

finding, (ii) the trial court should have excluded statements he made to officers before he was

given Miranda warnings, and (iii) his common law allocution right was violated. The State

requests that we modify the judgment to reflect that the deadly weapon was not a firearm.

       We conclude that the evidence supports the deadly weapon finding because (i) the

evidence established that the gun was capable of causing serious bodily injury and (ii) appellant

pointed the air gun at the complainant and threatened him. And appellant did not preserve his

remaining issues for our review. We thus modify the judgment and affirm as modified.
                                        I.     BACKGROUND

        Appellant’s pregnant girlfriend loaned him her car to get her some pickles from the

convenience store. He robbed the store instead.

        Wearing gloves and a ski mask, appellant entered the convenience store and pointed a

gun at Antonio Navarez, the clerk. Appellant told Navarez that he would kill him if he did not

give appellant the money. Navarez thought the gun was a semi-automatic, and complied with

appellant’s demand. Appellant took the money and ran. The police later recovered the gun and

learned it was an air pistol.

        Navarez called the police, and a chase ensued with appellant abandoning the car and

fleeing on foot. Senior Corporal George Prock and his canine partner Drummer eventually

caught appellant.

        Prock asked appellant why he ran away. Appellant replied, “I didn’t mean to rob him.”

When another officer asked him if he owned the car, appellant admitted to the robbery and said

that his girlfriend was going to be mad that he stole her car.

        Drummer found the air gun in tall grass near where appellant was detained. A warning

label on the gun said that the gun could cause death or serious injury. Officer Kearney also

testified that the gun could cause serious bodily injury.

        The jury found appellant guilty of aggravated robbery. He pled true to an enhancement

paragraph, and the jury assessed punishment at eighteen years imprisonment.

                                             II.   ANALYSIS

A.      First Issue: Is the evidence sufficient to support the deadly weapon finding?

        Appellant challenges the sufficiency of the evidence to support the trial court’s finding

that he used or exhibited a deadly weapon. We disagree because the trial testimony, surveillance




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video, and warning label on the air pistol all support the finding that appellant used or exhibited a

deadly weapon in the commission of the robbery.

       1.      Standard of Review and Applicable Law

       We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979).

       This standard gives full play to the fact finder’s responsibility to resolve testimonial

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

Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the fact finder is

the sole judge of the evidence’s weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04;

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

       Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the factfinder’s.

See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine

whether the necessary inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must

presume that the factfinder resolved any conflicting inferences in the verdict’s favor and defer to

that resolution. Id. at 448–49. The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt.

Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

       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

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serious bodily injury.” TEX. PENAL CODE § 1.07(a)(17). Expert or lay testimony may support a

deadly weapon finding. See Tucker v. State, 274 S.W.3d 688, 691–92 (Tex. Crim. App. 2008).

        2.     The Evidence

        Appellant points to the undisputed fact that the gun was an air gun, not a firearm, and

argues that the pistol was not a deadly weapon because: (i) the gun’s CO2 canister was empty,

(ii) he did not threaten to hit Navarez with the gun, and (iii) there was no evidence that BBs or

pellets were in or found near the gun. These arguments are not persuasive for three reasons:

        One, Navarez testified that appellant pointed the gun at him and said to give him the

money or he would kill him.

        Two, Officer Kearney testified about the surveillance video showing appellant point the

gun at Navarez and taking money from the register. He also explained that the gun was capable

of causing serious bodily injury and could “hurt someone severely.”

        Three, the gun’s warning label said, “Warning not a toy. Misuse, careless use may cause

serious injury or death . . . .” See Gallagher v. State, No. 05-06-011010-CR, 2007 WL 3105642,

at *3 (Tex. App.—Dallas 2007, no pet.) (mem. op.) (considered warning label on soft-pellet air

pistol in deciding whether it could cause serious injury or death).

        Nonetheless, appellant urges that Nevarez was never “actually endangered” by his threat

because the CO2 canister was empty. This argument, however, misapplies the analysis. A BB

gun is not a deadly weapon per se. Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002).

But whether the gun is loaded is not significant in a deadly weapon analysis. Instead, the

question is whether the evidence shows that the gun is capable of causing serious bodily injury.

Id. at 582.

        Here, the evidence shows that appellant pointed the gun at Nararez and threatened to

shoot him, and further showed that the gun was capable of causing serious bodily injury.

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Therefore the evidence is sufficient to support the deadly weapon finding, and we resolve

appellant’s first issue against him.

       3.      Reforming the Judgment

       The State asks that we modify the judgment to delete the words “a firearm” from the

deadly weapon finding. An appellate court has “the power to correct and reform a trial court

judgment ‘to make the record speak the truth when it has the necessary data and information

to do so, or make any appropriate order as the law and nature of the case may require.”

Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

       Here, the indictment charged that appellant used a deadly weapon “To wit: an air

pistol.” The jury found appellant guilty “as charged in the indictment.” And the record

supports the conclusion that the deadly weapon appellant used was an air pistol, not a

firearm. We therefore modify the judgment to delete the words “a firearm” from the deadly

weapon finding.

B.     Second and Third Issues: Did the trial court err by failing to exclude statements
       appellant made before he was Mirandized?

       Appellant’s second and third issues complain about testimony concerning incriminating

statements he made to officers before he was advised of his Miranda rights. Specifically,

appellant complains about the admission of his “I didn’t mean to rob him” statement, and to

testimony that he admitted committing the robbery and stole his girlfriend’s car.

       Generally speaking, however, for “a complaint for appellate review” to be preserved, “the

record must show that . . . the complaint was made to the trial court by a timely request,

objection, or motion” and that “the trial court . . . ruled on the request, objection, or motion,

either expressly or implicitly . . . or. . . refused to rule on the request, objection, or motion, and

the complaining party objected to the refusal.” See TEX. R. APP. P. 33.1. All “but the most


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fundamental rights,” including many constitutional rights, are waived if they are not raised at

trial. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002). Thus, failing to object

to the admission of evidence waives appellate complaints concerning the admissibility of that

evidence even if the error concerns a constitutional right. Id. at 889.

       Here, these issues were not preserved for our review because appellant did not object to

the complained-of testimony. TEX. R. APP. P. 33.1. We thus resolve appellant’s third and fourth

issues against him.

C.     Fourth Issue: Was appellant’s allocution right violated?

       Although appellant acknowledges that the trial court met the statutory allocution

requirements, he insists that he also has a common law allocution right that was violated.

       “Allocution” refers to a trial judge asking a criminal defendant to “speak in mitigation of

the sentence to be imposed.” Smith v. State, No. 05-15-01191-CR 2017 WL 46235, at *4 (Tex.

App.—Dallas Jan. 31, 2017, no pet.) (mem. op.). Article 42.07, which implements statutory

allocution in Texas, requires that the defendant be asked, before sentence is pronounced,

“whether he has anything to say why the sentence should not be imposed against him.” See TEX.

CODE CRIM. PROC. art. 42.07. The circumstances when sentence cannot be pronounced are

limited to when a defendant (i) has been pardoned, (ii) is incompetent to stand trial, or (iii)

escapes and another person is brought to sentencing who is not the defendant. See id.

       Appellant argues that there is also a common law right to allocution that is broader than

the statutory right. Appellant, however, did not assert a common law allocution right in the court

below. Instead, when the trial court asked where there was any reason why appellant should not

be sentenced, his counsel replied, “None.”

       The denial of the allocution right must be preserved. See Grahm v. State, 498 S.W.2d

197, 198 (Tex. Crim. App. 1973); Wilson v. State, No. 05-13-00831-CR, 2013 WL 4399193, at

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*7 (Tex. App.—Dallas Aug. 15, 2013, no pet.) (mem. op.). And appellant provides no authority

for the premise that a common law allocution right, if any, would have any different preservation

rules than the statutory right. Because appellant’s common law allocution argument was not

preserved, we need not determine whether Texas recognizes a common law allocution right, and

we resolve appellant’s fourth issue against him. See TEX. R. APP. P. 33.1.

                                       III. CONCLUSION

       We resolve all of appellant’s issues against him. We modify the judgment to delete the

words “a firearm” from the deadly weapon finding, and affirm as modified.




                                                     /Bill Whitehill/
                                                     BILL WHITEHILL
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47
170026F.U05




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       JUDGMENT

WARREN TYRONE CALHOUN,                               On Appeal from the 195th Judicial District
Appellant                                            Court, Dallas County, Texas
                                                     Trial Court Cause No. F-1654594-N.
No. 05-17-00026-CR         V.                        Opinion delivered by Justice Whitehill.
                                                     Justices Lang-Miers and Brown
THE STATE OF TEXAS, Appellee                         participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is modified to
delete the words “a firearm” from the deadly weapon finding, and as modified, is AFFIRMED.


Judgment entered January 2, 2018.




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