                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00048-CR

ROBERT GRIM,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2008-1232-C2


                           MEMORANDUM OPINION


       A jury convicted Robert Grim of aggravated robbery and sentenced him to thirty

years in prison. On appeal, Grim challenges: (1) the denial of his motion to suppress;

(2) the legal and factual sufficiency of the evidence to support the jury’s deadly weapon

finding; and (3) the definition of “robbery” in the trial court’s jury charge. We affirm.

                                MOTION TO SUPPRESS

       In issue one, Grim challenges the trial court’s denial of his motion to suppress the

victim’s in-court identification, arguing that an illegal seizure occurred. At trial, Grim
moved to exclude the identification as impermissibly suggestive and did not challenge

the legality of the seizure. Thus, the State contends that the argument presented on

appeal is not preserved and should have been pursued via an ineffective assistance

claim. In his reply brief, Grim agrees with the State and asserts that trial counsel was

ineffective for failing to challenge the legality of the seizure at trial. He urges us to

accept his ineffective assistance claim as an amendment to his brief. See TEX. R. APP. P.

38.7. We will do so. See Houston v. State, 286 S.W.3d 604, 612 (Tex. App.—Beaumont

2009, pet. ref’d); see also TEX. R. APP. P. 38.9.

        To prove ineffective assistance, an appellant must show that: (1) counsel’s

performance was deficient; and (2) the defense was prejudiced by counsel’s deficient

performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L.

Ed. 2d 471 (2003). The record is silent as to any reasons explaining trial counsel’s

actions and we will not so speculate. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.

Crim. App. 1999). Absent a record revealing trial counsel’s strategy or motivation,

Grim cannot defeat the strong presumption that trial counsel’s actions fell within the

wide range of reasonable professional assistance. Id. An ineffective assistance claim is

better raised through an application for a writ of habeas corpus. See Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003). We overrule issue one.

                          LEGAL AND FACTUAL SUFFICIENCY

        In issues two and three, Grim challenges the legal and factual sufficiency of the

evidence to support the jury’s deadly weapon finding.


Grim v. State                                                                           Page 2
        The indictment alleges that Grim “use[d] or exhibit[ed] a deadly weapon, to-wit:

a firearm.” The handgun admitted into evidence was found in the home of Arthur

Romero, where Grim lived. Romero testified that he received the handgun as a gift,

that it had no clip or ammunition, that it was broken, and that it had never been fired.

Officer John Leach testified that the handgun was a small black .25 caliber semi-

automatic weapon that was neither operable nor had a clip. The handgun matched the

victim’s description of the weapon used during the robbery.

        A deadly weapon constitutes: (1) a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury; or (2)

“anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” TEX. PEN. CODE ANN. § 1.07 (17)(A)-(B) (Vernon Supp. 2009).

Grim contends that Romero’s handgun satisfies neither definition because the State

failed to present evidence that it has the characteristics or capabilities of a firearm.

        A firearm is a deadly weapon per se. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.

Crim. App. 2005). The State is required to prove only the use of a deadly weapon; if its

proof shows a firearm, it need not prove that it was operable. Wright v. State, 582

S.W.2d 845, 847 (Tex. Crim. App. 1979); see Walker v. State, 543 S.W.2d 634, 637 (Tex.

Crim. App. 1976) (Finding a .45 automatic pistol to be a “firearm,” even assuming that

the weapon’s clip and firing pin were missing at the time of the robbery).

        Romero testified that the handgun is a real firearm and, even if broken, could be

used to threaten bodily injury or death. The victim testified that he felt “scared” when

he saw the handgun and thought he might be hurt or killed. The evidence in the record


Grim v. State                                                                              Page 3
establishes that the handgun used during the robbery, even though inoperable, was a

firearm “manifestly designed, made, or adapted for the purpose of inflicting death or

serious bodily injury.” TEX. PEN. CODE ANN. § 1.07 (17)(A); see Walker, 543 S.W.2d at 637

(Forty-five automatic, even without a firing pin and clip, “was manifestly designed and

made for the purpose of inflicting death or serious bodily injury and [] this fact was evident

to the senses and understanding of the victim.”); see also Aikens v. State, 790 S.W.2d 66,

67-68 (Tex. App.—Houston [14th Dist.] 1990, no pet.). The evidence is legally and

factually sufficient to support the jury’s deadly weapon finding. See Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Jackson v. Virginia, 443 U.S. 307, 318-19,

99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.

Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We overrule

issues two and three.

                                  JURY INSTRUCTION

        In issue four, Grim argues that the trial court instructed the jury on a different

manner of committing aggravated assault than that alleged in the indictment.

        The indictment alleges that Grim committed the offense of aggravated assault by

“intentionally or knowingly threaten[ing] or plac[ing] [the victim] in fear of imminent

bodily injury or death.” In its charge, the trial court included the following definition:

“A person commits the offense of robbery if, in the course of committing theft and with

intent to obtain and maintain control of property of another, he intentionally or

knowingly causes bodily injury to another.” Grim did not object to the charge. On

appeal, he contends that the definition of “robbery” misled the jury because: (1) it


Grim v. State                                                                           Page 4
includes the lesser mental state of recklessness;1 and (2) the jury could have believed

that it was proper to convict him on a theory not alleged in the indictment.2

        When, as here, an appellant fails to object to the charge at trial, he must show

egregious harm to prevail on appeal. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.

Crim. App. 2005); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

“Errors that result in egregious harm are those that affect ‘the very basis of the case,’

‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Ngo,

175 S.W.3d at 743 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

To determine whether “error was so egregious that a defendant was denied a fair and

impartial trial,” we examine: (1) the entire jury charge; (2) the state of the evidence; (3)

the arguments of counsel; and (4) any other relevant information in the record.” Id. at

750 n.48; Almanza, 686 S.W.2d at 171.

        Throughout trial and closing arguments, neither the State nor the defense

suggested that bodily injury had been intentionally or knowingly caused. Rather, the

evidence showed that the firearm was aimed at the victim, placing him in fear of

imminent bodily injury or death.              Most importantly, the trial court’s application

paragraph properly instructed the jury that, to find Grim guilty of aggravated robbery,

they must conclude beyond a reasonable doubt that he “intentionally or knowingly


1        A person commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to
another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or
death. TEX. PEN. CODE ANN. § 29.02(a) (Vernon 2003) (emphasis added).

2       Grim bases his second argument on testimony that, at one point during the robbery, Grim
grabbed the victim around the neck, which could lead the jury to conclude that the victim suffered bodily
injury.


Grim v. State                                                                                       Page 5
threaten[ed] or place[d] [the victim] in fear of imminent bodily injury or death.” The

application paragraph for the lesser included offense of robbery also tracked this

language. There is no indication in the record that the jury failed to follow the trial

court’s application paragraph. Grim cannot establish egregious harm resulting from the

erroneous definition of robbery. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App.

1999) (“Where the application paragraph correctly instructs the jury, an error in the

abstract instruction is not egregious.”); see also Williams v. State, 226 S.W.3d 611, 618

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (“Appellant does not direct us to any

evidence that the jury did not follow the instructions in the application paragraph, and

our review of the record reveals none.”). We overrule issue four.

        Having overruled Grim’s four issues, we affirm the judgment.



                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 24, 2010
Do not publish
[CRPM]




Grim v. State                                                                      Page 6
