                             NUMBER 13-09-348-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

TARIQ INAYATULLAH KHAN,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                        MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      Appellant, Tariq Inayatullah Khan, appeals from a conviction for aggravated

robbery with a deadly weapon. He was sentenced to five years= imprisonment and

assessed a $5,000 fine. By one issue, appellant argues that the evidence is insufficient

to sustain the deadly weapon finding. We affirm.
                                  I. BACKGROUND FACTS

       Appellant was indicted by a grand jury for the offense of aggravated robbery, a

first-degree felony. TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). He was accused of

stealing a pair of weight lifting gloves from a Wal-Mart store. Appellant was also charged

with intentionally, knowingly, or recklessly causing or threatening to cause bodily injury to

a Wal-Mart security officer in the course of the theft. The allegation was that appellant

had threatened the security guard with a knife. The jury returned a guilty verdict, and

punishment was assessed at five years= imprisonment, suspended.               The trial court

ordered the period of community supervision to last for a term of five years. Appellant, a

citizen of Pakistan, was deported shortly after the trial.

       Appellant argues by his sole issue that the trial court erred in sustaining a finding of

a deadly weapon because there was insufficient evidence to support the finding.

Specifically, he argues that no knife was ever found, no witnesses, other than the victim,

claimed to have seen the knife, and although a review of all portions of the video showed

numerous onlookers, no one testified that they had seen a knife.

       Rey Alvarez, a loss prevention officer for Wal-Mart, was the alleged victim in this

case. Alvarez testified that on the evening of October 7, he was working loss prevention

and noted appellant behaving suspiciously. According to Alvarez, appellant rolled a pair

of gloves into a pair of blue jeans that was in his basket, and walked from the sporting

goods department to the automotive department. He testified that he then observed

appellant attempt to conceal the gloves in his front waistline. Alvarez said he saw

appellant unbutton his shirt and tuck in the front waistline to secure the gloves. When


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appellant concealed the gloves, his back was toward the surveillance video cameras that

Wal-Mart had set up in the store. But Alvarez testified that even though it could not be

seen on the video, he saw appellant tuck the gloves in his waistline. Alvarez further

testified that he confronted appellant at the vestibule door.

        Alvarez said that he introduced himself to appellant as a Wal-Mart employee and

asked appellant to come back inside. Appellant refused and told Alvarez that he was

going to sue him. Then, appellant put his hands on Alvarez and the two Atussled.@ This

continued into the parking lot, where Alvarez claims that he tried to get control of

appellant. Alvarez testified that he heard something fall and then appellant reached

toward his left waistline, brought out a knife, and said ACome on.@ Alvarez testified that,

at that point, he backed off. He described the knife as a silver buck knife with a dark

brown handle and a gold tip at the end. Alvarez said that the incident occurred around

dusk. He testified that the knife placed him in fear of imminent bodily injury or death.1

        Alvarez testified that he then called police. After appellant left in his automobile,

Alvarez found appellant=s wallet on the ground. Counsel for the State introduced the

surveillance videotapes of the incident.

        On cross-examination, defense counsel pointed out, through Alvarez, that Alvarez

was dressed in plain clothes when he confronted appellant. He did not show appellant

any sort of formal identification at the time he made contact with appellant. Alvarez

testified that he was much taller than appellant. He agreed that the video did not show


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         Alvarez brought a knife with him to trial that he said was similar to the one he claimed appellant
exhibited. Appellant objected to its introduction. It was offered and accepted into evidence as a
demonstrative aid.

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appellant putting the gloves in his shirt. But Alvarez said that he had a “clear shot” and

saw appellant hiding the gloves inside his shirt. Alvarez agreed with defense counsel

that he couldn=t produce the gloves, but stated it was because appellant drove off in his

car after exhibiting the knife. Alvarez also agreed that there were many people shown on

the videotape, but that no one came to Alvarez=s aid.

      Officer William Whitfield testified that, while on duty, he responded to a call that a

suspect had pulled a knife on a loss prevention employee at Wal-Mart. He spoke with

Alvarez who said that he couldn=t believe that Athis guy had just pulled a knife on him.@

Alvarez gave the officer appellant=s wallet. Officer Whitfield testified that a knife is

capable of causing serious bodily injury. On cross-examination, the officer agreed that

Alvarez did not describe the knife to him, other than to say it had a silver blade. Officer

Whitfield agreed that if someone comes up to an individual in plain clothes, purporting to

be a Wal-Mart employee, one might be “a little leery”. It would not be unusual for a

person to push away from another under these circumstances.

      Detective Jeffrey Lehnert testified that he was informed that after the incident,

appellant had come to the police station to retrieve his wallet. Detective Lehnert came in

contact with appellant a few days after the incident. He reviewed the surveillance video,

which he said showed appellant and Alvarez struggling in the parking lot and noted that

when appellant took something from his waistband, Alvarez backed off.            On cross

examination, counsel for appellant questioned the officer about why it had taken the State

almost a year to indict appellant. He said he could not explain the delay. Detective

Lehnert also said that when appellant came to the police station, appellant=s credit cards


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were returned to him. He agreed that no knife was recovered.

                                 II. STANDARD OF REVIEW

       When conducting a legal sufficiency review, a court must ask whether Aany rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt,@ not whether the court believes that the evidence at trial established guilt beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see Brooks v.

State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). A legal

sufficiency analysis requires a court to view all of the evidence in a light most favorable to

the prosecution in order to determine whether a reasonable trier of fact could have found

all of the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S.

at 318-19. This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson, 443 U.S. at 319.

                            III. APPLICABLE LAW AND ANALYSIS

       Use or exhibition of a deadly weapon during the commission of a robbery elevates

the offense from second-degree robbery to first-degree aggravated robbery. TEX. PENAL

CODE ANN. '' 29.02, 29.03. For a knife to be a deadly weapon, it must be used or

intended to be used in a manner that is capable of causing serious bodily injury or death.

Id. ' 1.07 (a)(17)(B) (Vernon 2003). A person uses or exhibits a deadly weapon under

the aggravated robbery statute if he employs the weapon in any manner that facilitates

the associated felony. McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000). A

knife is not a deadly weapon per se. See Robertson v. State, 163 S.W.3d 730, 732 (Tex.


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Crim. App. 2005); Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991).

However, a knife may become a deadly weapon depending on the manner in which the

actor uses it.

       The plain language of section 1.07(a)(17)(B) of the penal code does not require

that the actor actually intend death or serious bodily injury; an object is a deadly weapon if

the actor intends a use of the object in which it would be capable of causing death or

serious bodily injury. See TEX. PENAL CODE ANN. ' 1.07 (a)(17)(B). The placement of

the word Acapable@ in the provision enables the statute to cover conduct that threatens

deadly force, even if the actor has no intention of actually using deadly force. McCain v.

State, 22 S.W.3d at 503.

       Factors to be considered in determining whether a knife is intended to be used as

a deadly weapon include: (1) the distance between the accused and the victim; (2)

threats or words used by the defendant; (3) the size and shape of the weapon; (4) the

weapon's ability to inflict death or serious injury; and (5) the manner in which the

defendant used the weapon. Bailey v. State, 46 S.W.3d 487, 491 (Tex. App.−Corpus

Christi 2001, pet. ref'd); Billey v. State, 895 S.W.2d 417, 420-21 (Tex. App.−Amarillo

1995, pet. ref'd). Also, an intent to inflict serious bodily injury or death may be shown by

evidence of assertive conduct by an attacker. Ortiz v. State, 993 S.W.2d 892, 894 (Tex.

App.BFort Worth 1999, no pet.). The actual knife used in the commission of an offense

need not be introduced into evidence if a witness is able to testify about the knife and the

manner in which it was used. Billey, 895 S.W.2d at 420. Either expert testimony or lay

testimony may be sufficient to support a deadly weapon finding. English v. State, 647


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S.W.2d 667, 668-69 (Tex. Crim. App.1983); Bailey, 46 S.W.3d at 492.

       Here, Alvarez testified that he was engaged in a physical skirmish with appellant

when appellant pulled out a knife. Alvarez described the length of the knife blade as

three to four inches long and introduced a knife that Alvarez claimed was similar to the

one that appellant brandished. Alvarez testified, without objection, that he feared for his

life and believed the knife used was capable of causing serious bodily injury or death.

After Alvarez saw the knife, he took a step backward and let appellant know that Alvarez

was no longer interested in apprehending him. While no one other than Alvarez saw the

knife and the knife was not seen on the video, it is the jury’s province to resolve conflicts in

the evidence, to weigh the evidence, and to draw reasonable inferences. Jackson, 443

U.S. at 319.

       Viewing the evidence in accordance with the standard set forth in Jackson, we find

that the evidence supports the jury=s deadly weapon finding. A rational trier of fact could

have found that appellant used a deadly weapon based upon the evidence presented to

the jury at trial. Accordingly, the evidence was legally sufficient to support the deadly

weapon finding in this case. We overrule appellant=s sole issue.

                                      IV. CONCLUSION

       Having overruled appellant=s sole issue, we affirm the conviction.


                                                      ROSE VELA
                                                      Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of December, 2010.

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