Affirmed and Memorandum Opinion filed June 9, 2015.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-14-00540-CR
                                NO. 14-14-00541-CR
                                NO. 14-14-00542-CR

                     SCOTT ALLEN WILLIS III, Appellant
                                          V.

                        THE STATE OF TEXAS, Appellee

                   On Appeal from the 356th District Court
                           Hardin County, Texas
            Trial Court Cause No. 22326, No. 22328, and No. 22332

                  MEMORANDUM                       OPINION


      Appellant Scott Allen Willis III was convicted by a jury of aggravated
robbery, aggravated kidnapping, and aggravated sexual assault. See Tex. Penal
Code Ann. §§ 20.04(b), 22.021, 29.03(a) (West 2011). He appeals his convictions
in five issues. In his first three issues, appellant challenges all three convictions on
the following grounds: (1) the trial court denied him equal protection when it
granted the State’s request to shuffle the jury; (2) article 35.11 of the Code of
Criminal Procedure is facially unconstitutional; and (3) article 35.11 is
unconstitutional as applied to him. In his last two issues, appellant challenges his
convictions for aggravated assault and aggravated kidnapping on the ground that
the evidence is legally insufficient to prove that he used or exhibited a firearm. We
affirm. 1

                        FACTS & PROCEDURAL BACKGROUND

       On April 7, 2013, Jennifer Lynn Rasmussen had just arrived home from
work when she was approached by appellant and an accomplice. Appellant pointed
a gun at Rasmussen’s head and said, “Give me the money, bitch.” Rasmussen
responded that she did not carry any cash but that she did have an ATM card. The
assailants then forced Rasmussen into the passenger seat of her car. Appellant
drove Rasmussen’s car to a local grocery store where the accomplice used
Rasmussen’s ATM card to withdraw money. Appellant and Rasmussen remained
in the car while the accomplice was withdrawing the money. During the
accomplice’s absence, appellant forced Rasmussen at gunpoint to perform oral sex
on him.

       During the investigation, the police searched appellant’s vehicle. Officer
Perry Stockwell observed a Colt semi-automatic handgun inside the vehicle.
Officer Stockwell testified that the handgun could be considered a firearm.
Detective Aaron Lewallen testified that the handgun found by Officer Stockwell
was a fully functional .45 caliber Colt Combat Commander. Detective Lewallen
confirmed that the handgun was designed and manufactured for the purpose of


       1
         This case was transferred to our court from the Beaumont Court of Appeals; therefore,
we must decide the case in accordance with its precedent if our decision would otherwise be
inconsistent with its precedent. See Tex. R. App. P. 41.3.

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firing a projectile. The handgun was admitted into evidence. Rasmussen testified
that the admitted handgun looked similar to the gun that appellant pointed at her.
Appellant’s girlfriend testified that appellant was carrying a gun on the night in
question.

      Appellant was indicted for aggravated robbery, aggravated kidnapping, and
aggravated sexual assault. After a jury panel had been seated, the State asked for a
jury shuffle pursuant to Texas Code of Criminal Procedure article 35.11.
Appellant’s counsel objected to the shuffle on the ground that the State had no
right to request it under the Code.2 The trial judge ordered the shuffle.

      After the shuffle, a jury was empaneled. Appellant pleaded not guilty to the
charges, and the case proceeded to trial. The jury found appellant guilty of the
charged offenses, and the trial court assessed punishment. For the aggravated
kidnapping, the trial court assessed punishment at twenty years’ imprisonment and
a $10,000 fine. For the aggravated robbery, the trial court assessed punishment at
life imprisonment and a $10,000 fine. For the aggravated sexual assault, the trial
court assessed punishment at life imprisonment and a $10,000 fine. The prison
sentences were to run concurrently. Appellant timely appealed.




      2
          The exchange surrounding the jury shuffle took place as follows:
      [STATE]: We are asking for a shuffle.
      [APPELLANT’S COUNSEL]: I’m not sure the State has the right to ask for a
      shuffle. I will have to look at the code. I object, Judge.
      [STATE]: 35.11 in the Code of Criminal Procedure.
      THE COURT: I don’t doubt you, but I’m going to look it up anyway. Have you
      had a chance to look at it?
      [APPELLANT’S COUNSEL]: Not really. I oppose the shuffle. If they are entitled
      to it, then they are entitled to it; but I oppose it.

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                                        DISCUSSION

A.       Appellant did not preserve his argument that the jury shuffled denied
         him equal protection under Batson.
         In his first issue, appellant contends that the State’s request for a jury shuffle
denied him equal protection. He essentially asks this court to extend the United
States Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79 (1986) to
article 35.11 jury shuffles. Appellant asserts that the State must have requested a
jury shuffle for discriminatory reasons.

         Appellant did not preserve this argument for our review by objecting to the
shuffle on Batson grounds. See Tex. R. App. P. 33.1 (to preserve error, an
objection must state the grounds for the ruling that the complaining party sought).
Even if he had objected, the trial court would not have erred in overruling the
objection. Batson held that a prosecutor’s use of peremptory strikes to eliminate
members of the defendant’s race from the jury violated a defendant’s equal
protection rights. 476 U.S. at 89. Appellant does not cite any binding authority
extending the Batson holding to encompass a jury shuffle, and we have found
none. Consequently, we apply a decision of the court of appeals that transferred
this appeal to us, which has declined to extend Batson in the manner appellant
seeks. Wearren v. State, 877 S.W.2d 545, 546 (Tex. App.—Beaumont 1994, no
pet.).

         Finally, even if Batson did apply to a shuffle, appellant did not establish a
prima facie case, there being no evidence in the record of the shuffle’s effect on
minority venirepersons. See Wearren, 877 S.W.2d at 546. Accordingly, we
overrule appellant’s first issue.




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B.     Appellant did not preserve his challenge to the constitutionality of Code
       of Criminal Procedure article 35.11.
       In his second and third issues, appellant challenges the constitutionality of
Code of Criminal Procedure article 35.11. He asserts that article 35.11 is
unconstitutional both facially and as applied. 3

       Issues of procedural default, such as preservation of error, are systemic and
must be reviewed by the courts of appeals, even when the issue is not raised by the
parties. Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014). To
preserve error for review, appellant had to challenge the constitutionality of article
35.11 in the trial court. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.
App. 2009) (facial challenge); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim.
App. 1995) (as-applied challenge). The record shows that he did not do so.
Accordingly, appellant did not preserve his challenge for our review, and we
overrule his second and third issues.

C.     The evidence was legally sufficient to prove the “used or exhibited a
       firearm” element of aggravated kidnapping and aggravated robbery.
       Appellant’s fourth and fifth issues pertain only to the convictions for
aggravated robbery and aggravated kidnapping. In his fourth issue, appellant
contends the evidence was legally insufficient to prove that he used or exhibited a
deadly weapon. In his fifth issue, appellant challenges the denial of his motion for
an instructed verdict. We consider these issues together as a challenge to the legal
sufficiency of the evidence to support the “used or exhibited a deadly weapon”

       3
          Article 35.11 states, in pertinent part: “The trial judge, on the demand of the defendant
or his attorney, or of the State’s counsel, shall cause a sufficient number of jurors from which a
jury may be selected to try the case to be randomly selected from the members of the general
panel drawn or assigned as jurors in the case.” Tex. Code Crim. Proc. Ann. art. 35.11 (West
2006).



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element of the offenses. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim.
App. 2003) (considering challenge to denial of a directed verdict as a challenge to
the legal sufficiency of the evidence).

      When evaluating the legal sufficiency of the evidence, we “consider all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and reasonable inferences therefrom, a rational fact finder
could have found the essential elements of the crime beyond a reasonable doubt.”
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the
factfinder’s (1) resolution of conflicts in testimony; (2) evaluation of the credibility
and weight of the evidence; and (3) responsibility to draw reasonable inferences
from basic facts to ultimate facts. See Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). This standard applies equally to circumstantial and direct
evidence. Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009). In
reviewing cases based on circumstantial evidence, we need not find that the State’s
evidence negated every reasonable hypothesis other than the defendant’s guilt. See
Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991), overruled on
other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). Our role
“is restricted to guarding against the rare occurrence when a factfinder does not act
rationally.” Isassi, 330 S.W.3d at 638 (quoting Laster, 275 S.W.3d at 517).
Accordingly, we will uphold the verdict unless a rational factfinder must have had
a reasonable doubt as to any essential element. Laster, 275 S.W.3d at 518.

      To determine whether the State has met its burden to prove a defendant
guilty beyond a reasonable doubt, we compare the elements of the crime as defined
by the hypothetically correct jury charge to the evidence adduced at trial. Thomas
v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). A hypothetically correct jury
charge (1) accurately sets out the law; (2) does not unnecessarily increase the

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State’s burden of proof or unnecessarily restrict the State’s theories of liability; and
(3) adequately describes the particular offense for which the defendant was tried.
Id. The “law as authorized by the indictment” consists of the statutory elements of
the offense and those elements as modified by the indictment. Id.

      Because the State specified a specific statutory manner and means in the
indictments, the “law as authorized by the indictment” in this case allowed the jury
to convict appellant of aggravated kidnapping and aggravated robbery only if he
used or exhibited a deadly weapon, namely a firearm. See id. at 10; see also Tex.
Penal Code Ann. § 20.04(b) (a person commits aggravated kidnapping if he (1)
intentionally or knowingly (2) abducts another person and (3) uses or exhibits a
deadly weapon during the commission of the offense); § 29.03(a) (a person
commits aggravated robbery if he (1) commits robbery and (2) uses or exhibits a
deadly weapon). “Deadly weapon” means “a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury” or “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) (West
Supp. 2014). “Firearm” means “any device designed, made, or adapted to expel a
projectile through a barrel by using the energy generated by an explosion or
burning substance or any device readily convertible to that use.” Id. § 46.01(3)
(West Supp. 2014). A handgun is by definition a firearm, and therefore a deadly
weapon. Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985); Aikens v.
State, 790 S.W.2d 66, 67–68 (Tex. App.—Houston [14th Dist.] 1990, no pet.).

      Appellant argues that the evidence presented at trial is legally insufficient to
establish that he used or exhibited a firearm during the commission of the offenses.
Appellant contends that because the State repeatedly referred to the alleged firearm
as merely a “gun,” the record contains no evidence that the item used by appellant

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was in fact a “firearm.” Appellant further asserts that the alleged weapon could
have been a BB gun, a pellet gun, a toy gun, or the like. Therefore, no rational
juror could have found beyond a reasonable doubt that appellant used or exhibited
a firearm. We disagree.

      Rasmussen testified that appellant held a gun to her head and to her side
during the events of April 7, 3013. Appellant’s girlfriend testified that appellant
was carrying a gun on the night in question. During his investigation, Officer
Stockwell observed a Colt semi-automatic handgun in appellant’s Chevrolet
Malibu. Detective Lewallen testified that the handgun found by Officer Stockwell
was a fully functional .45 caliber Colt Combat Commander. Officer Stockwell
testified that the handgun could be considered a firearm. A firearm is a deadly
weapon per se. Tex. Penal Code Ann. § 1.07 (a)(17)(A). The handgun was
admitted into evidence. Rasmussen testified that the admitted handgun looked
similar to the gun that appellant pointed at her.

      A rational juror could have concluded beyond a reasonable doubt from this
evidence that appellant used or exhibited a deadly weapon, namely a firearm,
during the commission of the aggravated robbery and aggravated kidnapping.
Therefore, with regard to aggravated robbery and aggravated kidnapping, the
evidence is legally sufficient to support appellant’s convictions. We overrule
appellant’s fourth and fifth issues.




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                                 CONCLUSION

      Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.


                                     /s/       Marc W. Brown
                                               Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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