                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00100-CR


DANIEL MARTINEZ                                                          APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      Appellant Daniel Martinez appeals his conviction for aggravated robbery

with a deadly weapon.       In two points, Appellant argues that the evidence is

insufficient to support his conviction and that the trial court erred by overruling his

request for a lesser-included-offense instruction. We will affirm.



      1
       See Tex. R. App. P. 47.4.
                             II. FACTUAL BACKGROUND

      On the evening of December 13, 2009, Jairo Reyes was playing pool at

the Rosedale Saloon in Fort Worth. He saw two women enter the bar; they

stayed for about twenty or twenty-five minutes and then left.    Later in the

evening, Reyes’s friend, who owned the bar, asked Reyes to help tend bar.

Around 1:20 a.m. or 1:30 a.m. the next morning, while Reyes was tending bar,

the two women returned. The women asked Reyes if he wanted to have a

couple of drinks with them. Reyes suggested that he and a friend join them for

drinks, but the women stated that they did not want anyone else to go along.

The bar was about to close, so the women suggested they go to Reyes’s house

for a drink.   Reyes did not want the women to know where he lived, so he

suggested that they get a motel room and drink there.

      Reyes and the women left the bar around 2:05 a.m. in Reyes’s car. Reyes

drove to a branch of Chase Bank, where he had an account, and withdrew $200

from the ATM to pay for the motel room. He then drove to a Days Inn motel that

was across the street and visible from the bank.

      When Reyes and the two women arrived at the motel room, Reyes and

one of the women began drinking beer and watching television while the other

woman stepped outside of the motel room to use Reyes’s cell phone. Although

the balcony door was shut, Reyes heard the woman say she was going to be

late, and then she said, ―Don’t worry, I’m at the hotel‖ and gave the name and




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address of the Days Inn. The woman eventually ended the cell phone call and

came back into the motel room.

      Approximately one minute later, Reyes heard a knock at the door. The

woman who had used Reyes’s cell phone immediately answered the door

without first asking who was at the door. Reyes saw two men standing in the

doorway—Appellant, who was holding a pocket knife, and another man, who was

holding a taser.

      The man with the taser jumped on the bed where Reyes was sitting and

used the taser to shock Reyes on his neck.2 Appellant held the pocket knife

within two inches of Reyes’s face and said, ―Mother-f-----, if you scream or say

something, I [sic] going to kill you.‖3 The men told Reyes to take off all of his

clothes, and Reyes took off everything except his underwear and socks. The

man with the taser tied Reyes’s hands and feet. Appellant took Reyes’s wallet,

car keys, and some cash from Reyes’s pants pocket and demanded that Reyes

disclose the PIN for his ATM card.

      Reyes gave Appellant his PIN, and Appellant wrote the PIN down on a

blank check that Reyes had in his wallet. Appellant told Reyes that if Reyes did

not give him the correct PIN, Appellant would call the man with the taser, and


      2
        Reyes testified that the jolt from the taser ―was not that strong‖ and only
left a mark the size of a mosquito bite.
      3
      Reyes testified that the women were standing by the television and did not
appear to be frightened of Appellant and the other man.


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that man would kill Reyes. Appellant then put the pocket knife on a table in the

motel room and left. The unidentified man with the taser picked up the pocket

knife.

         About three minutes after Appellant had left the motel room, the man with

the taser received a call on his cell phone. He then said to the two women,

―[L]et’s go,‖ and the three left the motel room. Reyes untied himself, dressed,

and called 9-1-1.

         While Reyes was speaking with police officers who had responded to his

call, one officer saw what appeared to be Reyes’s vehicle at the Chase Bank

across the street from the motel.       The officer drove to the bank and saw

Appellant in Reyes’s car in the bank’s drive-through ATM lane. The police found

Reyes’s ATM card, receipts from the ATM, a blank check belonging to Reyes

that had Reyes’s ATM PIN written on it, and Reyes’s driver’s license in

Appellant’s possession.

  III.    SUFFICIENT EVIDENCE EXISTS TO SUPPORT APPELLANT’S CONVICTION FOR
                  AGGRAVATED ROBBERY WITH A DEADLY WEAPON

         In his first point, Appellant argues that the evidence is insufficient to

support his conviction for aggravated assault with a deadly weapon. Appellant

challenges the deadly weapon element of the offense––claiming the evidence

was insufficient because no pocket knife was recovered.

         In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to



                                         4
determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010).

      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, 99 S. Ct.

at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009).          Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

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

intent to obtain or maintain control of the property, he intentionally, knowingly, or

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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) (West 2011).      A person commits aggravated robbery if he

commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (West

2011).

      To establish that the defendant’s use of a knife constituted the use of a

deadly weapon, the State is not required to introduce the knife in evidence; a

witness may establish the use of the knife as a deadly weapon by describing the

knife and the manner in which it was used. See Magana v. State, 230 S.W.3d

411, 414 (Tex. App.—San Antonio 2007, pet. ref’d); Billey v. State, 895 S.W.2d

417, 420 (Tex. App.—Amarillo 1995, pet. ref’d) (citing Morales v. State, 633

S.W.2d 866, 868 (Tex. Crim. App. 1982)). An ordinary knife is not a deadly

weapon per se; that is, it is not an object manifestly designed, made, or adapted

for the purpose of inflicting death or serious bodily injury. Tex. Penal Code Ann.

§ 1.07(a)(17)(A) (West 2011); Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim.

App. 2008) (citing McCain v. State, 22 S.W.3d 497, 502–03 (Tex. Crim. App.

2000)). When a knife is alleged to have been used as a deadly weapon and no

actual injury was sustained by the victim, the State must introduce evidence of

other factors to establish that the knife was used as a deadly weapon. Victor v.

State, 874 S.W.2d 748, 751–52 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

Those factors include the size, shape, and sharpness of the knife; the manner of

its use or intended use; the nature or existence of inflicted wounds; evidence of


                                        6
the knife’s life-threatening capabilities; the physical proximity between the victim

and the knife; and any words spoken by the one using the knife. Id.

      Here, Reyes testified at trial that the pocket knife had a sharp blade that

was approximately ―three or four inches‖ long and had a sharp tip and that

Appellant held the knife within two inches of Reyes’s face while pointing the

sharp end of the knife toward Reyes’s face and threatening to kill him if he did

not comply with Appellant’s demands. Reyes further testified that he was afraid

and was ―[one] hundred percent‖ sure that the pocket knife was capable of

causing him serious injury or death.

      Viewing the evidence in the light most favorable to the verdict, we hold that

the evidence is sufficient to permit any rational trier of fact to find that the knife—

which Appellant wielded two inches from Reyes’s face while threatening him with

death if he did not comply with Appellant’s demands—was used as a deadly

weapon and was capable of causing death or serious bodily injury. See, e.g.,

Magana, 230 S.W.3d at 414 (holding evidence sufficient to prove small pocket

knife not admitted in evidence was a deadly weapon when defendant inflicted

superficial wounds on victim while telling her that he wished she would die and

emergency room physician testified that he considered small pocket knife to be a

deadly weapon capable of causing serious injury or death).               We overrule

Appellant’s first point.




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IV.    TRIAL COURT DID NOT ERR BY OVERRULING APPELLANT’S REQUEST FOR AN
            INSTRUCTION ON LESSER-INCLUDED OFFENSE OF ROBBERY

      In his second point, Appellant argues that the trial court erred by overruling

his request for an instruction on the lesser-included offense of robbery.

      We use a two-step analysis to determine whether an appellant was entitled

to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993). First, we determine whether the lesser

offense is, in fact, a lesser-included offense of the charged offense. See Tex.

Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8

(Tex. Crim. App. 1998). Second, some evidence must exist in the record that

would permit a jury to rationally find that if the appellant is guilty, he is guilty only

of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734,

741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672B73.

      The State agrees that in the present case robbery is a lesser-included

offense under the first prong of the two-pronged test set forth above. See Little v.

State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983); Penaloza v. State, 349

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

      We thus next examine whether some evidence exists in the record that

would permit a jury to rationally find that if Appellant is guilty, he is guilty only of

the lesser offense. See Hall, 225 S.W.3d at 536. We evaluate the evidence in

the context of the entire record; there must be some evidence from which a



                                           8
rational jury could have acquitted Appellant of the greater offense while

convicting him of the lesser-included offense.    See Moore, 969 S.W.2d at 8.

Neither this court nor the trial court may consider whether the lesser-included-

offense evidence is credible, controverted, or in conflict with other evidence. Id.

Anything more than a scintilla of evidence may be sufficient to have entitled the

defendant to a lesser charge. Hall, 225 S.W.3d at 536. But a charge on the

lesser-included offense is not required when the defendant presents evidence

that no offense was committed and there is no evidence otherwise showing that

the defendant is guilty of a lesser-included offense. Lofton v. State, 45 S.W.3d

649, 652 (Tex. Crim. App. 2001).

      Appellant was the only defense witness. The only exhibit he offered in

evidence was a picture of the Rosedale Saloon. Appellant testified that he was

not involved in any robbery or aggravated robbery but rather was involved in a

drug deal. According to Appellant, a drug dealer and pimp named ―Indio,‖ whom

Appellant had just met, offered to pay Appellant $100 to accompany him to the

Days Inn to sell drugs. Appellant testified that Indio told him that some of his

―girls‖ were selling drugs,4 that they had found someone who wanted to buy

drugs, and that Indio needed Appellant’s help to complete the drug deal.

      Appellant testified that he and Indio drove to the Days Inn motel and that

he never completely entered the motel room because Indio did not want him to

      4
      Appellant also testified at trial that it was the women, and not the man,
who were going to purchase the drugs.


                                        9
look at the girls, who were allegedly naked. The person or people in the motel

room who were purchasing the drugs did not have enough money to pay for the

drugs, so Indio told Appellant to drive a car belonging to one of the women to an

ATM and to use the man’s ATM card to withdraw money from the ATM.

      Appellant said that he drove to the ATM and withdrew $240, as instructed

by Indio and was arrested there. Appellant testified that he did not have a pocket

knife at any time during the transaction.

      Appellant points to his testimony as entitling him to a lesser-included-

offense instruction.   Appellant, however, repeatedly testified that he was not

involved in any robbery or in any aggravated robbery but instead was involved in

a drug deal.    Examining the entire record, no evidence exists from which a

rational jury could have acquitted Appellant of aggravated robbery while

convicting him of robbery. See Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at

741; Rousseau, 855 S.W.2d at 672B73; see also Glassey v. State, 117 S.W.3d

424, 433–34 (Tex. App.—Fort Worth 2003, no pet.) (holding defendant charged

with attempted capital murder was not entitled to lesser-included instruction on

attempted murder). We overrule Appellant’s second point.

                                  V. CONCLUSION

     Having overruled Appellant’s two points, we affirm the trial court’s judgment.



                                                  SUE WALKER
                                                  JUSTICE



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PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 29, 2012




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