                                       NO. 07-01-0137-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JUNE 17, 2003
                             ______________________________

                                  IN THE MATTER OF J.A.W.

                             ______________________________

           FROM THE COUNTY COURT AT LAW NO. 3 OF BRAZORIA COUNTY;

                  NO. 7995B; HON. JAMES BLACKSTOCK, PRESIDING
                          _____________________________

                                         Opinion
                             ______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

       Appellant, J.A.W., a minor, appeals an order committing him to the Texas Youth

Commission (TYC) for an indeterminate period not to exceed his 21st birthday. Via six

issues, appellant complains that 1) the evidence was legally and factually insufficient; 2)

the trial court erred by admitting the victim’s out-of-court written statement into evidence;

3) he received ineffective assistance of counsel; 4) fundamental error occurred when the

victim’s out-of-court statement was admitted into evidence for all purposes; and 5) the trial

court erred by “admitting, as well as considering,” inadmissible evidence concerning his




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
probation in Matagorda County. We reverse and render judgment dismissing the cause

with prejudice.

                                      Background

       Because appellant has challenged the sufficiency of the evidence, we will set forth

the relevant facts adduced at trial. The State filed a petition in which it alleged that

appellant had committed robbery and aggravated robbery on two separate dates. The

victim named was Arre Daniel Thomas (Thomas). At trial, Thomas testified that on

September 25, 2000, he was asleep in his home which is located behind his place of

business, H.K. Grocery. Thomas was awakened by appellant who had entered his abode

and began striking him, demanding money. Eventually appellant left and Thomas noticed

money he believed to be on a table was gone. However, he did not see appellant take the

money and he was not sure that the money had been left on the table.

       On the following day, September 26, 2000, Thomas was working at the front of the

grocery store when he saw appellant with a knife and he was “striking” the concrete with

it. Thomas became afraid and went to the back of the store. Appellant followed him and

demanded his money. According to Thomas, appellant also threatened him by saying:

“I will beat you worse than I did yesterday.” In a statement given to the police, Thomas

advised that appellant pulled a yellow-handled knife on him. However, at trial, Thomas

insisted that he did not see and appellant did not pull a knife during the incident at the

back of the store.

       Next, Thomas testified that he ran to a service station wherein he encountered

Kenneth Davis (Davis), an employee. Davis called the police for Thomas and advised that

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he had been robbed and that the robber had pulled a knife. Upon arrival, Detective

Worsham (Worsham) was advised that appellant pulled a knife on Thomas and demanded

money. The two drove around to see if Thomas could point appellant out to the detective.

Later, appellant was found and arrested. Thomas gave Worsham a written statement

which was introduced at trial.

       In his defense, appellant called three witnesses. The first person, Johnnie Lewis

(Lewis), testified that Thomas advised him that Thomas had identified the wrong person.

The next witness, Lacey Goodrum (Lacey), testified that she had been with appellant the

morning of the 26th around 9:00 a.m. to 11:00 a.m. She further testified that she never saw

appellant with a knife.

       Thereafter, the trial court read its charge to the jury. It asked the jury to determine

the truthfulness of two accusations. The first involved the purported robbery that occurred

on September 25, 2000. The second involved the allegation that appellant committed

aggravated robbery upon Thomas on September 26, 2000. The aggravated robbery

described to the jury consisted of appellant robbing Thomas while using or exhibiting a

deadly weapon. The jury found the first accusation “not true” and the second “true.”

Afterwards, a disposition hearing was held by the judge. A pre-disposition report was

prepared wherein information regarding appellant’s Matagorda probation, among other

offenses, was introduced.        The trial court committed appellant to the TYC for an

indeterminate period not to exceed his 21st birthday. A motion for new trial was filed and

a hearing was held. The trial court denied the motion, and appellant timely noticed his

appeal.

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                Issues One and Two - Legal and Factual Insufficiency

       In his first two issues, appellant contends that the evidence is both legally and

factually insufficient. That is, attack is made upon the element of the offense concerning

the use or exhibition of a deadly weapon during the commission of the offense. According

to appellant, the State failed to prove that he did so. We sustain the contention.

       Standard of Review

       In reviewing a legal sufficiency point, the appellate court “must consider only the

evidence and inferences tending to support the findings of the juvenile court.” In re Garza,

984 S.W.2d 344, 346 (Tex. App.--Amarillo 1998, no pet.). Under this test, evidence and

inferences tending to contradict those findings are disregarded. Id. However, in assessing

whether the evidence is factually sufficient, the court’s focus is not so restricted. The

question that it must answer in a juvenile case is whether the record, considered as a

whole, shows that the State sustained its burden to prove beyond a reasonable doubt that

the accused engaged in delinquent conduct. Id. Thus, we must consider all the evidence

in making our determination. Id.

       Furthermore, for one to be guilty of aggravated robbery, one must, in the course of

committing theft and with the intent to obtain or maintain control of property, knowingly or

intentionally threaten or place another in fear of imminent bodily injury or death. TEX . PEN .

CODE ANN . §29.02 (Vernon 1994). In addition, the State must also prove an aggravating

element. That relied upon at bar and submitted to the jury was that involving the use or

exhibition of a deadly weapon during the course of the robbery. TEX . PEN . CODE ANN .

§29.03 (Vernon 1994). With this said, we now turn to the issues at hand.

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       Application of Standard

       From the recitation of the evidence mentioned above, we conclude that some

evidence appears of record illustrating that a robbery occurred and that appellant “pulled”

a knife on Thomas while committing the robbery. However, we are troubled by the lack of

any evidence regarding the size, shape, and sharpness of the knife. No one presented

any evidence touching upon those issues. Rather, the evidence simply describes the

weapon used to prove the aggravating element of the charge as a “knife.”

       It has long been the law of Texas that a knife is not a deadly weapon per se. Blain

v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (reversing and rendering a judgment

of acquittal in absence of any evidence illustrating the knife to be a deadly weapon);

Hatchett v. State, 930 S.W.2d 844, 848 (Tex. App.--Houston [14th Dist.] 1996, pet. ref’d).

Thus, it is incumbent upon the State to prove that the knife constituted a deadly weapon by

showing its size, shape and sharpness, the manner of its use or intended use, and its

capacity to produce death or serious bodily injury. Blain v. State, 647 S.W.2d at 294. And,

while the instrument may have been brandished and may have placed the victim in fear,

that alone is not enough to establish it as a deadly weapon. Id.

       Here, the record before us simply evinces that the knife was brandished and

Thomas was scared. Again, nothing describes the weapon’s shape, size, sharpness, or

capacity to produce death or serious bodily injury. Furthermore, the police did not find the

weapon allegedly used by appellant; so, it was not admitted into evidence. Nor was a

facsimile tendered. Also absent was any description of how appellant used the knife, other

than the statement that he “pulled” it. Similarly, nothing was said of the proximity of

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appellant to Thomas when the knife was pulled, other than that they were behind the store.

Whatever the distance, however, it was far enough to allow appellant to run away unhurt.

And, that appellant verbally threatened Thomas is of little import since the threat consisted

of the representation that he would “beat” Thomas as opposed to cut or stab him. Under

these circumstances, we hold that no evidence supports the jury’s determination that

appellant used or exhibited a deadly weapon in the robbery.

       Finally, because no one sought and the trial court did not submit an instruction on

the lesser-included offense of robbery viz the September 26th incident, we cannot modify

the judgment to find appellant culpable of that lesser offense. See Collier v. State, 999

S.W.2d 779 (Tex. Crim. App. 1999) (in which a plurality of the court, joined with a

concurring judge, concluded that a court of appeals could not render a judgment upon a

lesser-included offense in the absence of a jury instruction on that offense). Accordingly,

we reverse the judgment of the juvenile court and render judgment dismissing the case

with prejudice. TEX . FAM . CODE ANN . §54.03(g) (Vernon 2002) (requiring the case to be

dismissed with prejudice if the trial court or jury found that the minor did not engage in

delinquent conduct); TEX . R. APP . P. 43.3 (requiring an appellate court to enter the

judgment which the trial court should have entered). Our holding obviates the need to

address any other issue raised by appellant.


                                                  Brian Quinn
                                                    Justice




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