                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00156-CR



         JUSTIN EUGENE CLARK, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 204th District Court
                 Dallas County, Texas
             Trial Court No. F-1262793-Q




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                          MEMORANDUM OPINION
        Justin Eugene Clark entered an open plea of guilty 1 and signed a written judicial

confession to the charge of aggravated robbery with a deadly weapon, including the State’s

allegations concerning the use of a deadly weapon. 2

        At his hearing, Clark testified that approximately a month after he turned seventeen years

old, he left the residential drug treatment center where he had been staying and stole a car

belonging to Amber Taylor, a counselor at the center. Clark then drove to Dallas, where he

consumed Xanax and marihuana and then, with an accomplice he had never met before, robbed

Debbie Richardson. 3 Clark testified that he was armed with an unloaded pellet pistol he had

stolen from Walmart. The trial court found Clark guilty, assessed punishment at ten years’

imprisonment for aggravated robbery, 4 and signed a written judgment containing an affirmative

deadly weapon finding.

        Clark has filed an appeal of this conviction and raised as his sole issue a claim that the

record contains insufficient evidence to conclude the pellet gun was a deadly weapon. The State

responded that the guilty plea and judicial confession are sufficient, by themselves, to support the

1
 The record contains a document titled “plea agreement” signed by the State and Clark. The parties agree Clark
entered an open plea and do not claim any plea agreement exists. The trial court’s certification of Clark’s right to
appeal states that this case is not a plea bargain.
2
 See TEX. PENAL CODE ANN. § 29.03 (West 2011); see also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2)
(West Supp. 2013).
3
 Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue.
See TEX. R. APP. P. 41.3.

4
 In a companion case, the trial court assessed punishment at two years’ imprisonment for Clark’s unauthorized use
of a motor vehicle.

                                                         2
deadly weapon finding or, alternatively, that the record contains sufficient evidence to support

the finding.

I.       A Guilty Plea and a Written Judicial Confession Provide Sufficient Evidence

         The State takes the position that Clark’s argument on appeal completely ignores the fact

that Clark both entered a plea of guilty and signed a written judicial confession, facts which

make a significant difference in our analysis. The indictment alleges that Clark committed

aggravated robbery by the statutory alternative 5 of using or exhibiting a deadly weapon, to-wit:

“A FIREARM AND A PELLET GUN.” Because of the nature of the charge, the use or

exhibition of a deadly weapon was an element of the charged offense.

         The judgment of conviction contains an affirmative deadly weapon finding as well as a

finding of guilt of the charged offense. A deadly weapon finding requires evidence that “(1) the

object meets the statutory definition of a dangerous weapon, TEX. PENAL CODE [ANN.]

§ 1.07(a)(17)(B); (2) the deadly weapon was used or exhibited ‘during the transaction from

which’ the felony conviction was obtained, Ex parte Jones, 957 S.W.2d 849, 851 (Tex. Crim.

App. 1997); and (3) . . . other people were put in actual danger.” Drichas v. State, 175 S.W.3d

795, 798 (Tex. Crim. App. 2005). Firearms are per se deadly weapons unless they are used in

such a manner that it is reasonably apparent that death or serious bodily injury could not result.
5
 The statute defining the offense of aggravated robbery includes three alternative means of committing the offense:
(1) causing serious bodily injury to another, (2) using or exhibiting a deadly weapon, or (3) causing “bodily injury to
another person or threaten[ing] or place[ing] another person in fear of imminent bodily injury or death, if the other
person is: (A) 65 years of age or older; or (B) a disabled person.” See TEX. PENAL CODE ANN. § 29.03. Because
the State only alleged a single means of commission, the State is bound by its allegation. See Johnson v. State, 364
S.W.3d 292, 294 (Tex. Crim. App. 2012) (“[T]he failure to prove the statutory language pled renders the evidence
legally insufficient to support the conviction.”); Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001)
(“[W]hen the controlling statute lists several alternative acts intended by the defendant and the indictment limits the
State’s options by alleging certain of those intended acts, the hypothetically correct charge should instruct the jury
that it must find one of the intended acts alleged in the indictment.”).
                                                          3
See Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh’g,

en banc) (shotgun); Bell v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973) (pistol). A BB or

pellet gun is not a “firearm” within the meaning of the Texas Penal Code and is deemed not to be

a deadly weapon per se. See Daughtery v. State, 62 S.W.3d 913, 917 (Tex. App.—Eastland

2001, pet. ref’d). A deadly weapon is “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B)

(West Supp. 2013). 6

         When a defendant has pled not guilty, we review the sufficiency of the evidence based on

the standards announced in Jackson v. Virginia, which requires us to consider the evidence in the

light most favorable to the verdict and to determine whether any rational trier of fact could have

found the existence, beyond a reasonable doubt, of the essential elements of the crime. Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 319

(1979). The Jackson standard of review, however, does not apply when defendants plead guilty

or nolo contendere. Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986); Ex parte

Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988) (citing Boykin v. Alabama, 395 U.S. 238,

(1969)); O’Brien v. State, 154 S.W.3d 908, 910 (Tex. App.—Dallas 2005, no pet.).

         When a defendant enters a plea of “guilty” or “no contest” to a felony offense, Article

1.15 of the Texas Code of Criminal Procedure requires the State to offer evidence of guilt. TEX.

CODE CRIM. PROC. ANN. art. 1.15 (West 2005). “Article 1.15 . . . is an additional procedural

safeguard required by the State of Texas but not by federal constitutional law.” Williams, 703

6
 For instance, an automobile, although not designed for use as a deadly weapon, can be used in such a fashion that it
becomes a deadly weapon. Noyola v. State, 25 S.W.3d 18, 20 (Tex. App.—El Paso 1999, no pet.).
                                                         4
S.W.2d at 678. Our review is limited to a determination of whether the State introduced

evidence of guilt “embrac[ing] every essential element of the offense charged.” Stone v. State,

919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Chindaphone v. State, 241 S.W.3d 217, 219 (Tex.

App.—Fort Worth 2007, pet. ref’d).

            A written judicial confession that a deadly weapon was used or exhibited is sufficient to

support a deadly weapon finding, regardless of whether additional evidence was presented at

trial. Keller v. State, 125 S.W.3d 600, 605–06 (Tex. App.—Houston [1st Dist.] 2003), pet.

dism’d, improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004) (per curiam); Espinoza

v. State, No. 04-13-00462-CR, 2014 Tex. App. LEXIS 3532, at *10 (Tex. App.—San Antonio

Apr. 2, 2014, no pet.) (mem. op., not designated for publication); Cobbs v. State, Nos. 07-11-

00200-CR, 07-11-00201-CR, 07-11-00202-CR, 2012 Tex. App. LEXIS 6374, at **7–8 (Tex.

App.—Amarillo July 18, 2012, no pets.) (mem. op., not designated for publication); see Menefee

v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.

Crim. App. [Panel Op.] 1979) (op. on reh’g, en banc). The record contains sufficient evidence to

demonstrate compliance with Article 1.15 of the Texas Code of Criminal Procedure.

II.         Any Error in Failing to Explicitly Consider Evidence that the Object Was Not a
            Deadly Weapon Has Not Been Preserved for Appellate Review

            As pointed out by Clark, the record contains some evidence that the weapon carried and

displayed by Clark was not a deadly weapon. The State conceded at trial that the police had

recovered the weapon and that it was a pellet gun, not a firearm. 7 Clark testified that the pellet

gun was not loaded at the time of the robbery. As noted above, a deadly weapon finding is both

7
    When pronouncing sentence, the trial court stated that Clark “really didn’t use a real gun.”
                                                             5
an element of the offense with which Clark was charged as well as an affirmative finding. Thus,

evidence that the weapon was an unloaded pellet gun is some evidence of innocence.

       When evidence of innocence is introduced during a bench trial, the trial court is not

required to withdraw a guilty plea and enter a plea of not guilty as it would be in a jury trial.

Aldrich v. State, 104 S.W.3d 890, 892–93 (Tex. Crim. App. 2003); Moon v. State, 572 S.W.2d

681 (Tex. Crim. App. 1978) (“The majority of the Court now adopts for its opinion the

dissenting opinion on original submission.”). In a bench trial, the trial court is merely required to

consider the evidence of innocence when determining guilt. Aldrich, 104 S.W.3d at 893.

       In Aldrich, the defendant assigned points of error challenging both the sufficiency of the

evidence and the trial court’s explicit refusal to consider the evidence of innocence. Id. at 892.

The Texas Court of Criminal Appeals held that because “‘appellant made a judicial confession

sufficient to sustain the conviction . . . the only question presented for review is whether the

appellant’s plea of guilty should have been withdrawn by the court and a plea of not guilty

entered.’” Id. (quoting Moon, 752 S.W.2d at 682). Because Aldrich had not objected to the trial

court’s explicit refusal to consider the evidence of innocence, the Texas Court of Criminal

Appeals concluded that any error was not preserved for appellate review.

       Unlike Aldrich, the trial court in this case did not explicitly refuse to consider evidence of

innocence. The record in this case is silent concerning whether the trial court considered the

evidence of innocence or whether it relied solely upon Clark’s guilty plea and written stipulation.

Regardless, similar to the situation in Aldrich, Clark did not object at trial. Further, Clark has

raised no issue on appeal alleging that the trial court erred in failing to consider the evidence of

                                                 6
innocence. Any error by the trial court in not explicitly considering the evidence of innocence

has not been preserved or assigned for our review.

III.   The Record Contains Sufficient Evidence for the Trial Court to Have Rejected
       Evidence that the Pellet Gun Was Not a Deadly Weapon

       Assuming, without deciding, that our review of Clark’s guilty plea proceeding taken

pursuant to Article 1.15 of the Texas Code of Criminal Procedure requires us to consider both

exculpatory and inculpatory evidence, we conclude there was sufficient evidence presented in

this case for the trial court to have reasonably rejected the evidence of innocence and to have

relied on the guilty plea and judicial confession to conclude that the pellet gun was a deadly

weapon.

       Clark concedes that the Texas Court of Criminal Appeals has held a BB or pellet gun can

be a deadly weapon. In Adame v. State, the court held evidence “that appellant displayed the BB

gun to the convenience store clerk and that the gun was capable of causing serious bodily injury

if pointed and fired at someone” was sufficient. Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim.

App. 2002). The Adame court explicitly rejected the argument that the State was obligated to

prove that the BB gun was loaded. Id. The court stated,

       It is not necessary, however, to place an additional evidentiary burden on the State
       to affirmatively prove that a BB gun, which is not a deadly weapon per se, was
       loaded at the time of the commission of the offense. Rather, in proving use of a
       deadly weapon other than a deadly weapon per se, the State need show only that
       the weapon used was capable of causing serious bodily injury or death in its use
       or intended use.

Id. The court further stated, “It is reasonable to infer that defendants use loaded guns to facilitate

convenience store robberies.” Id.

                                                  7
       Clark argues we should disregard Adame because the Texas Court of Criminal Appeals’

reasoning was flawed saying that it (1) ignored the temporal aspect of the BB gun’s use or

intended use, (2) ignored other factors related to the weapon’s capability of causing death or

serious bodily injury, (3) presumed that the gun was loaded, (4) assumed a particular BB gun

was capable of causing serious bodily injury merely because some BB guns are, and (5) utilized

conclusory statements in its reasoning. Clark urges this Court to follow the reasoning of Judge

Meyers’ concurrence in Adame. See id. at 583 (Meyers, J., concurring). We are obligated to

follow the majority opinions of the Texas Court of Criminal Appeals as our precedent, not

minority opinions.

       Clark also argues that this case is distinguishable from Adame and argues that this case is

more closely akin to Mosley v. State, 545 S.W.2d 144 (Tex. Crim. App. 1976). In Mosley, the

record contained evidence that the BB gun’s “projectile had a very low velocity and rarely went

over five feet.” Id. at 145. This record does not contain any similar evidence establishing a low

velocity and trajectory. Clark argues, because this case does not contain evidence that the pellet

gun had a powerful velocity, similar to Applewhite v. State, No. 05-11-00959-CR, 2013 Tex.

App. LEXIS 6778, at **5–6 (Tex. App.—Dallas June 3, 2013, pet. ref’d) (mem. op., not

designated for publication) (evidence pellet gun made pea-sized dents in metal), we must

presume the pellet gun lacks sufficient velocity.        Applewhite does not support such a

presumption, and such a presumption is contrary to Adame. Mosley is distinguishable from

Adame because in Mosley there was evidence of a low velocity and trajectory, whereas there was

no such evidence in Adame. Compare Mosley, 545 S.W.2d at 145 with Adame, 69 S.W.3d at

                                                8
582. Because there is no evidence in Clark’s appellate record regarding velocity and trajectory

(such as in Mosley), Adame controls.

       Clark’s final argument is that this case is distinguishable from Adame because Clark

testified that the pellet gun was not loaded. Although the record conclusively establishes the

weapon exhibited was a pellet gun, the record does not conclusively establish that the pellet gun

was unloaded.     Clark’s self-serving testimony that the gun was empty could have been

disbelieved by the trial court. In fact, the trial court expressed doubts about Clark’s truthfulness

and stated to Clark when pronouncing sentence, “[Y]ou can’t be truthful.” The trial court could

have disbelieved Clark’s self-serving testimony and made the reasonable inference, as permitted

by Adame, that the pellet gun was loaded.

       Similar to Adame, the trial court could have concluded that the brand new gun stolen

from Walmart was in working order and capable of firing a projectile which could cause serious

bodily injury. See Adame, 69 S.W.3d at 582. The victim in this case testified that she was

entering her car as Clark and another man approached. Clark pointed the pellet gun at her and

demanded her money, car keys, and cell phone. Because of the proximity of Clark to his victim

(only an arm’s length distance), the trial court could also have concluded that the pellet gun was

capable of being used as a club. See Delgado v. State, 986 S.W.2d 306, 309 (Tex. App.—Austin

1999, no pet.) (finding rational juror could have concluded gun was capable of inflicting serious

bodily injury when used as club). “Objects that are not usually considered dangerous weapons

may become so, depending on the manner in which they are used during the commission of an

offense.” Drichas, 175 S.W.3d at 798.

                                                 9
       A loaded pellet gun could cause serious bodily injury (such as damage to an eye). Even

if accepted as true, Clark’s testimony that the pellet gun was not loaded did not preclude a deadly

weapon finding by the trial court.

IV.    The Deadly Weapon Finding Contains a Clerical Error

       During our review of this case, we noticed that the judgment incorrectly states that Clark

exhibited a firearm. The affirmative deadly weapon finding provides, “YES, A FIREARM.” As

noted above, the State conceded that Clark used a pellet gun, and the trial court stated Clark

“really didn’t use a real gun.” This Court has authority to modify a judgment to make the record

speak the truth when the matter has been called to our attention by any source. French v. State,

830 S.W.2d 607, 609 (Tex. Crim. App. 1992). “Our authority to reform incorrect judgments is

not dependent on the request of any party, nor does it turn on a question of whether a party has or

has not objected in trial court; we may act sua sponte and may have a duty to do so.” Rhoten v.

State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). We modify the judgment to

correctly reflect that Clark used a deadly weapon which was not a firearm. The deadly weapon

finding is modified to “YES,” and the reference to a firearm is deleted from the judgment.

V.     Conclusion

       We conclude that Clark’s guilty plea and written stipulation are sufficient to comply with

Article 1.15. See TEX. CODE CRIM. PROC. ANN. art. 1.15. Any error in not explicitly considering

evidence that the pellet gun was not a deadly weapon has not been preserved for appellate review

and, assuming our review can consider such contrary evidence, the record contains sufficient




                                                10
evidence for the trial court to have rejected such evidence. The record contains sufficient

evidence that Clark used or exhibited a deadly weapon.

       We modify the deadly weapon finding in the judgment to merely state “YES” and affirm,

as modified.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:      May 8, 2014
Date Decided:        May 21, 2014

Do Not Publish




                                              11
