                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00337-CR

ROLAND LEYBA,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                            Trial Court No. 2009-26-C2


                          MEMORANDUM OPINION


      A jury found Roland Leyba guilty of aggravated robbery and assessed a forty-

five-year prison sentence. Raising three issues, Leyba appeals.

      Issues one and two assert, respectively, that the evidence is legally and factually

insufficient to support the deadly-weapon element of the jury’s guilt finding on the

charge of aggravated robbery. “A robbery becomes an aggravated robbery if the actor

‘uses or exhibits a deadly weapon.’” McCain v. State, 22 S.W.3d 497, 501 (Tex. Crim.

App. 2000) (citing TEX. PENAL CODE § 29.03(a)(2).
        When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in

favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

        The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). The court held that the Jackson v. Virginia legal-

sufficiency standard is the only standard a reviewing court should apply in determining

the sufficiency of the evidence. Id. Because we cannot review the evidence for factual

sufficiency, we overrule issue two and will proceed to a sufficiency review for issue

one.

        The evidence shows that Leyba entered a convenience store where Juawice Jones,

an assistant manager, was working. Leyba was carrying a baseball bat and told Jones to

open up the cash register or he would hit her. Jones opened the register, and Leyba

grabbed a handful of money and left. Jones got a description of the car that Leyba fled

in, and police quickly apprehended him. Leyba’s sufficiency argument is that he did

not display or carry the bat in a menacing manner, nor did he hold it as if he were going

Leyba v. State                                                                      Page 2
to use it. Instead, the bat was cradled under his arm. A security videotape of the

robbery confirms Leyba’s claim that he did not raise the bat or wield it menacingly.

        A baseball bat is not a deadly weapon per se. In re S.B., 117 S.W.3d 443, 446 (Tex.

App.—Fort Worth 2003, no pet.); Hammons v. State, 856 S.W.2d 797, 800 (Tex. App.—

Fort Worth 1993, pet. ref’d). But anything that, in the manner of its use or intended use,

is capable of causing death or serious bodily injury is a deadly weapon. TEX. PENAL

CODE ANN. § 1.07(a)(17)(B) (West 2011). Objects used to threaten deadly force are

deadly weapons. Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006). The State

must show that the weapon used was capable of causing serious bodily injury or death

in its use or intended use. Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002).

“[A] person ‘uses or exhibits a deadly weapon’ under the aggravated robbery statute if

he employs the weapon in any manner that ‘facilitates the associated felony.’” McCain,

22 S.W.3d at 502 (quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)).

Contrary to Leyba’s position, the law does not require that the actor commit an overt

gesture with the weapon; the mere 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 id. at 503.

        Jones said that Leyba was right in front of the counter and told her to open up

the register. When she paused, Leyba lifted the bat “up on the counter.” The videotape

shows that Leyba was holding the bat and that at one point it was on or over the

counter, less than a few feet away from Jones. When Jones paused again, Jones testified

that Leyba said, “open up the MF’ing drawer before I hit you B-I-T-C-H,” except that

Leyba v. State                                                                       Page 3
Leyba did not spell out the profanity. She felt threatened and was in fear of bodily

injury. He repeated it five or six times and was pushing the register buttons to get it to

open. After he said it the last time, Jones realized that the bat was coming closer, so she

pushed the button to open the drawer. Leyba grabbed money from the register, and

some fell to the floor. He told her to give him the money on the floor, but she did not

because she was afraid he would hit her with the bat when she leaned over because he

had already threatened to hit her. Two police officers testified that the bat was capable

of causing serious bodily injury or death.

        We disagree with Leyba’s heavy reliance on S.B., which we find to be

distinguishable and was not a robbery case. There, the victim did not feel threatened

with imminent bodily injury and there was no evidence of the actual size or shape of

the bat used or its capability to inflict death or serious injury. See S.B., 117 S.W.3d at

447-48. Based on Leyba’s exposure of the bat during the robbery and his verbal threats

to hit Jones, we hold that a rational jury could have found beyond a reasonable doubt

that Leyba used or exhibited a deadly weapon. Because the evidence is sufficient, we

overrule issue one.

        Subsection 12.42(d) of Penal Code authorizes a punishment range of 25 to 99

years for a habitual offender if the State proves that a defendant committed a second

felony offense after the conviction for the first felony offense became final. TEX. PENAL

CODE ANN. § 12.42(d) (West 2011). Of the four prior California felony convictions that

the State had given notice of, at trial they elected to use the convictions in cause

numbers 03NF2378 and 05CV2688.          The State introduced evidence of these prior

Leyba v. State                                                                       Page 4
convictions, but the documents did not include the date of the second offense.

        Issue three asserts that the State failed to prove that the second felony conviction

was for an offense committed after the date that the first felony conviction became final.

The State concedes that the documentation on the second conviction does not reflect an

offense date but contends that Leyba’s testimony established that the second offense

was committed after the first conviction had become final. See Flowers v. State, 220

S.W.3d 919, 920-21 (Tex. Crim. App. 2007).

        Cause number 03NF2378 reflects a robbery conviction and that Leyba was

sentenced to two years in prison on November 25, 2003. Cause number 05CV2688

reflects Leyba’s conviction for carrying a concealed dagger and that he was sentenced

on September 15, 2005 to thirty-two months in prison. Leyba testified that he thought

he had served all two years on the robbery, but that would conflict with his September

15, 2005 sentencing date. Leyba obviously did not serve all two years because he was

not in prison when he was arrested for carrying the knife; he said that he was living

with his girlfriend in California and was carrying an “onion knife” for protection when

he was stopped by police and was found to be in possession of the knife. Leyba also

said that California paroles convicts after they have served eighty percent of their

sentence, so if he was released after serving eighty percent of his two-year sentence,

there was time for him to be arrested for and convicted on the dagger charge on

September 15, 2005. The jury was thus permitted to find that Leyba was mistaken that

he had served the full two years of his robbery sentence and that the knife-carrying

offense occurred after he had been released from prison on his robbery sentence. There

Leyba v. State                                                                        Page 5
was legally sufficient evidence that the second felony conviction was for an offense

committed after the date that the first felony conviction became final.1 We overrule

issue three.

        Having overruled all of Leyba’s issues, we affirm the trial court’s judgment.




                                                      REX D. DAVIS
                                                      Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 12, 2011
Do not publish
[CRPM]




1 The State further notes that California enhancement law is similar to Texas law and that, for the
concealed-dagger offense to be enhanced by the prior robbery conviction, the prior prison term for the
robbery conviction must have been found true in the trial of the concealed-dagger offense. See CAL.
PENAL CODE §§ 667(b), 667.5(d).

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