                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00116-CR
                                  ________________________

                                 ANDRE NORRIS, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 364th District Court
                                    Lubbock County, Texas
              Trial Court No. 2013-437,508; Honorable Brad Underwood, Presiding


                                           October 21, 2014

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        Appellant, Andre Norris, was convicted by a jury of aggravated robbery,

enhanced, and assessed a sentence of thirty-five years confinement and a fine of

$2,500.1 In two points of error, Appellant asserts the trial court erred by (1) giving an


        1
           See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). An offense under this section is a felony
of the first degree. As enhanced, the offense was punishable by imprisonment for life, or for any term of
not more than 99 years or less than 15 years, and a fine not to exceed $10,000. See TEX. PENAL CODE
ANN. §§ 12.42 (c)(1) and 29.03(b) (West Supp. 2014 and West 2011).
incomplete or erroneous instruction on the use of a deadly weapon and (2) failing to

give an instruction on the lesser-included offense of robbery. We affirm.


                                           BACKGROUND


       In February 2013, an indictment issued alleging that Appellant, on or about

October 6, 2011, while in the course of committing theft of property and with intent to

obtain or maintain control of said property, intentionally or knowingly threatened or

placed Michael Lusk in fear of imminent bodily injury or death, and in the course thereof

used or exhibited a deadly weapon, to-wit: a firearm.              Count two of the indictment

alleged that, on the same date, Appellant intentionally and knowingly entered a

habitation, without the effective consent of Lusk, the owner thereof, and committed the

felony offense of aggravated assault.2


       The evidence at trial established that on October 6, 2011, Lusk returned to his

residence from work to find a light on in his master bedroom. When he reached the

bedroom, a young man appeared in the doorway and pointed a shotgun at him. The

man was working the bolt action on the gun and told Lusk to be still or be killed. Lusk

believed the man was going to shoot him and ducked behind a wall—afraid for his

safety. He then realized the shotgun being wielded by the intruder was one he kept in

his bedroom closet. Normally, the gun was unloaded; however, Lusk realized that it

was kept within three feet of its ammunition.           When the man walked past him in the

hallway, Lusk grabbed the barrel of the gun and wrestled with the man. Ultimately, the

intruder was able to flee the residence. Lusk attempted to follow the man into his


       2
          Simultaneous with the entry of judgment as to count one, the trial court granted the State’s
motion to dismiss count two of the indictment.
                                                  2
backyard but lost him in the alleyway. Lusk then called 911 and Lubbock County Police

officers arrived to secure the crime scene and commence a search for the intruder.

During the investigation, broken glass was discovered on both sides of Lusk’s backdoor

and the intruder’s ball cap was located. The bedroom was in disarray and jewelry worth

$5,000 was missing. Lusk was unable to identify the man who broke into his house,

explaining that during the encounter he was more concerned with securing the shotgun

than looking at the intruder.


       As part of their investigation, officers photographed the damage to Lusk’s house

and interior disarray.      They also collected the ball cap for DNA analysis and lifted

fingerprints off broken glass shards originating in and around Lusk’s backdoor. At trial,

testimony established that fingerprints lifted from the broken glass were identified as

belonging to Norris, and Daniel Lindley, a DPS forensic scientist, testified that DNA from

the ball cap was a “match” for Norris.3 After the State rested, Appellant rested without

putting on any evidence.


       During the charge conference, Norris requested a limiting instruction concerning

the fingerprint evidence produced by the State. That request was denied. Norris also

requested an instruction on the lesser-included offense of robbery and then modified

that request to include the lesser-included offense of criminal trespass. That request

was also denied.


       As presented to the jury, the abstract portion of the jury charge stated a “person

commits the offense of robbery if, in the course of committing theft . . . and with intent to


       3
          Lindley testified that the odds of finding someone at random having the same DNA result would
be one in fifty million.
                                                  3
obtain or maintain control of property of another, he intentionally or knowingly threatens

or places another in fear of imminent bodily injury.” The jury charge went on to state

that “[t]he offense is aggravated robbery if the person committing robbery uses or

exhibits a deadly weapon” and “[a] firearm is a deadly weapon.”


      The application portion of the charge stated, in pertinent part, as follows:


      Now bearing in mind the foregoing instructions, if you find from the
      evidence beyond a reasonable doubt that on or about October 6, 2011, in
      Lubbock County, Texas, as alleged in the indictment, the defendant,
      Andre Norris, did then and there, while in the course of committing theft of
      property and with intent to obtain or maintain control of said property,
      intentionally or knowingly threaten or place Michael Lusk in fear of
      imminent bodily injury or death and the defendant did then and there use
      or exhibit a deadly weapon, to-wit: a firearm, then you will find the
      defendant guilty of the offense of aggravated robbery and so say you by
      your verdict. If you have a reasonable doubt as to whether the defendant
      is guilty, then you should acquit the defendant and say by your verdict
      “Not guilty.”

      Upon submission, the jury found Norris guilty of aggravated robbery. Following

the punishment phase of the trial, the jury found the punishment enhancement

allegation to be true and sentenced him to thirty-five years confinement and a fine of

$2,500. This appeal followed.


                                  STANDARD OF REVIEW


      In analyzing a jury-charge issue, we first determine if error occurred, and, if so,

we then conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex. 2005). The

degree of harm required for reversal depends on whether the appellant has preserved

error by objection.   Id.   A jury-charge error requires reversal when, after proper

objection, the appellant suffers Asome harm@ to his rights. Id.; Almanza v. State, 686

S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh=g), reaffirmed by, Middleton v.
                                            4
State, 1215 S.W.3d 450, 453 (Tex. Crim. App. 2003). If an appellant fails to object at

trial and offers no objections to the charge, charge error does not require reversal

unless appellant shows Aegregious harm.@ Almanza, 686 S.W.2d at 174.


                      POINT OF ERROR ONE: DEADLY W EAPON INSTRUCTION


       Because there was evidence at trial that Lusk’s shotgun may have been

unloaded, Appellant asserts on appeal the trial court should have included an instruction

in its charge that a “deadly weapon” means a firearm if “you [the jury] find that in the

manner of its use or intended use it was capable of causing death or serious bodily

injury.” At trial, Appellant did not object to the trial court’s “deadly weapon” instruction,

nor did he request this additional instruction.


       The trial court submitted its deadly weapon instruction under Section

1.07(a)(17)(A) of the Texas Penal Code. See TEX. PEN. CODE ANN. § 1.07(a)(17)(A)

(West Supp. 2014) (“‘Deadly Weapon’ means a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury.”). Lusk

testified that, during the robbery, Appellant was carrying a shotgun, pointed it at him,

worked the gun’s bolt action, and threatened to kill him, and he was afraid for his safety.

Because Appellant did not object to the trial court’s “deadly weapon” instruction and did

not request any additional instructions in that regard, error, if any, does not require

reversal unless he is able to show Aegregious harm.@ See Almanza, 686 S.W.2d at 171.


       Since the adoption of the Penal Code in 1974, the issue of whether an object is a

deadly weapon is entirely controlled by legislation, Thomas v. State, 821 S.W.2d 616,

619 (Tex. Crim. App. 1991), and trial judges are not at liberty to omit the statutory

                                              5
definition of “deadly weapon” from their jury instructions under any circumstances where

it is the law applicable to the case. Id. Under section 1.07(a)(17)(A) of the Penal Code,

an object meets the statutory definition of a deadly weapon if it is a firearm. TEX. PEN.

CODE ANN. § 1.07(a)(17)(A) (West Supp. 2014). Accordingly, if the State proves at trial

that an object is in fact a firearm, the State need not “show that the object [is] really

capable of causing death, either in the manner of its actual use or in the manner of its

intended use.” Thomas, 821 S.W.2d at 620. See Hammons v. State, 856 S.W.2d 797,

800 (Tex. App.—Fort Worth 1993, pet. ref’d) (“Once such a showing is made, the State

need not verify that the object was actually capable of causing death.”).


      Here, the State introduced testimony corroborated by photographs illustrating

that Appellant carried and threatened Lusk with a shotgun during the robbery. See

Gregg v. State, 820 S.W.2d 191, 193 (Tex. App.—Fort Worth 1991, no pet.) (shotgun is

a deadly weapon per se); Rodriguez v. State, 644 S.W.2d 200, 203 (Tex. App.—San

Antonio 1982, no pet.) (a sawed-off shotgun is a firearm and by definition a deadly

weapon). Hence, there was no need for the jury to find, as suggested by Appellant, that

the shotgun was really capable of causing death or serious bodily injury, either in the

manner of its actual use or in the manner of its intended use, see Thomas, 821 S.W.2d

at 620; Hammons, 856 S.W.2d at 800, in order for the jury to find the shotgun was in

fact a “deadly weapon.”


      Indeed, the issue for the jury here was whether the shotgun was “used”

(employed or utilized in order to achieve its purpose) or “exhibited” (consciously

displayed) during the commission of the robbery. See Boston v. State, 373 S.W.3d 832,

837 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013) (“the mere

                                            6
carrying of a weapon during a robbery can be legally sufficient evidence for a jury to

conclude that the intended use of the weapon was that it be capable of causing death or

serious bodily injury”). See also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App.

1985) (“If the trier of fact finds that a pistol has been used in the commission of the

offense . . . then it has found that a deadly weapon has been used since a pistol is a

deadly weapon per se.”). Accordingly, we find the trial court did not err in its “deadly

weapon” instruction and overrule Appellant’s first point of error.


                   POINT OF ERROR TWO: LESSER-INCLUDED OFFENSE INSTRUCTION


        Appellant next asserts the trial court erred by not giving a lesser-included offense

instruction for robbery4 because there were material issues whether Appellant used or

exhibited a deadly weapon in light of testimony that the shotgun might be unloaded.

This issue is simply a rehash of Appellant’s first point of error.


        Robbery is a lesser-included offense of aggravated robbery. See Penaloza v.

State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). See also

Alonzo v. State, No. 07-12-00244-CR, 2014 Tex. App. LEXIS 3703, at *13 (Tex. App.—

Amarillo Apr. 7, 2014, pet. ref’d) (mem. op., not designated for publication). With the

first prong of our test satisfied, we must next determine whether there is some evidence

presented from which a jury could rationally find that Appellant is guilty of robbery but

not guilty of aggravated robbery. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.

Crim. App. 2000) (en banc).
        4
         A person commits robbery if, in the course of committing theft and with the intent to obtain or
maintain control over the property, he intentionally, knowingly, or recklessly causes bodily injury to
another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or
death. TEX. PENAL CODE ANN. § 29.02(a)(1), (2) (West 2011). A person commits aggravated robbery if he
commits robbery and uses or exhibits a deadly weapon. See id. § 29.03(a)(2) (emphasis added).

                                                   7
      Having considered all the evidence at trial, we find there is no evidence

contradicting Lusk’s testimony that a shotgun was carried by Appellant during the

robbery and that he was threatened with the weapon and feared for his safety. As such,

there is not a scintilla of evidence indicating a deadly weapon was not used or exhibited

during the robbery. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)

(“[T]here must be some evidence directly germane to the lesser-included offense for the

finder of fact to consider before an instruction on a lesser-included offense is

warranted.”).


      Accordingly, the trial court did not err in refusing to submit Appellant’s requested

lesser-included offense instruction because Appellant has not established that some

evidence in the record supports a finding that, if he was guilty, he was guilty solely of

the lesser-included offense of robbery. See Young v. State, 428 S.W.3d 172, 178 (Tex.

App.—Houston [1st Dist.] 2014, pet. denied).       Appellant’s second point of error is

overruled.


                                      CONCLUSION


      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                   Justice


Do not publish.




                                            8
