

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
Phillip Leonard Daughtery
Appellant
Vs.                   No.
11-01-00187-CR  -- Appeal from Taylor
County
State of Texas
Appellee
 
After
Phillip Leonard Daughtery waived his right to a trial by jury and entered a
plea of guilty to aggravated robbery, the trial court heard evidence to support
the plea and ordered a presentence investigation.  There was no plea bargain agreement.  After that investigation and after hearing additional testimony,
the court sentenced appellant to confinement for 5 years with credit for 346
days of  confinement pending trial.  We affirm.
                                                                    Point
of Error
Appellant
presents one point of error which reads in full as shown:
The trial
court erred in finding that the evidence was sufficient to support a finding of
guilty on the charge of aggravated robbery.
 
                                                   Evidence
at Hearings on Guilty Plea
Appellant
did not sign the Aagreement
to stipulate testimony@ which
is often used with pleas of guilty.  The
reporter=s record of the hearing on March 12, 2001,
shows that the trial court admonished appellant and made sure that he was
voluntarily waiving his right to a trial by jury and voluntarily entering a
plea of guilty without a plea bargain agreement.  The court then told appellant that the district attorney was
going to put on evidence to establish guilt, that they would recess the
hearing, that the court would order a presentence report which would take 30 to
45 days, and that there would be another hearing for any additional evidence
that the State might have or that appellant and his attorney might have.




The State=s first witness was Tina Salas.  She testified that she was working as a
store clerk at the Allsup=s convenience store on Ambler Street in Abilene on May 15, 2000, when
the store was robbed at about 4:10 a.m. 
Salas identified appellant as one of the three men who came into the
store that night.  Later, appellant came
back into the store by himself, and she could Asee his gun@ and
put her hands up.  Salas said that
appellant pointed the gun at her chest and that she started thinking about her
children because she thought he Awas going to kill@ her.  Salas told appellant that
he could have the money and gave it to him. 
After appellant left the store, Salas called the police to see if they
had received the alarm which she sent.  
The dispatcher told her that Asomebody was on the way.@  When the police arrived, Salas
described the robber.  About 45 minutes
later, Salas identified appellant when the police brought him back to the
store. 
The State=s second witness was Jerry Lee Culberson, one
of the three men who went into the store on the night of the robbery.  When they came out, they sat in the car with
a fourth man Afor a minute,@ and then appellant Agrabbed a gun@ and
said:
There ain=t nobody here, there ain=t no customers, so I think I=m going to go in there and I=m going to get it.
 
Culberson said that he
was surprised when appellant robbed the store. 
Culberson also identified the Apellet gun@ that
appellant used.  The next morning, they
learned that appellant had been arrested. Culberson went to the police to give
them a statement after hearing a report that appellant had told the police that
they Aall robbed the store last night.@ 
Culberson did not get any of the money, and he was not charged with
anything.  Culberson was driving his car
that night, but it was not his gun. Culberson did take appellant back to the
apartments after the robbery.  




The State=s third witness, Shane Samson, was the one
who had the Apellet gun@ which appellant used when he robbed the Allsup=s store. 
Samson was with appellant and two other young men on the night of the
robbery.  Appellant, Culberson, and
Rashad went into the store the first time while Samson stayed in the car.  Samson identified the pellet gun which he
had in the car with him that night.  It
is a ABB or pellet gun that you pump up.@ 
Samson said that appellant picked up the gun and said that there was no
one in the store and that he Awas going to rob it.@  Samson said that he thought
appellant was Ajust joking around about it.@ 
Samson testified that appellant came back to the car Aabout a couple of minutes later@ and said that he did it.  The driver Agot panicky,@ and
they took off.  They went back to the
apartments, and appellant showed them the money which he got.  Samson said that he did not get any of the
money and that he went with Culberson to the police to give them a
statement.  Samson also was not charged
with any offense connected with the robbery. 
Samson said that he did not recall if the gun had any ammunition in it
that evening.  Samson said that he took
the pellet gun to the police when he went to give his statement.
The State=s final witness was Detective James A. Davis
of the Abilene Police Department.  He
testified that he was the detective who investigated Athe robbery of the Allsup=s convenience store located at 2702 Ambler
Avenue@ on May 15, 2000.  Appellant had already been arrested by a patrol officer when the
case was assigned to Detective Davis. 
Detective Davis interviewed appellant after he had been identified by
the convenience store clerk.  Appellant
agreed to waive his rights to counsel and to give a voluntary statement which
reads in part as shown:
My name is
Phillip Daughtery.  I am 17 years of
age....On Sunday I was at my sister=s house at Abilene North Apts. 
There were some other guys there too. 
When I got ready to go home, I asked the one named Jerry for a
ride.  We got in his car and he drove to
the Allsup=s.  At
the store they wanted me to go in and steal some burritos.  I didn=t want to do that because the clerk seemed nice.  I walked back to the car.  Jerry and Rashad went in the store.  When they came back, me and the white guy
with them had been talking.  He wanted
me to rob the store.  The white dude
gave me a BB rifle, it had an Eagle on the side of it.  I took the gun back in the store.  I pointed the gun at the clerk and she
started giving me the money.  I didn=t say anything to her.  I just took the money and ran back to the
car.
 
We all
drove off, back to the apartments.  I
saw a cop drive by so I tried to get them to take me home.  We drove off & saw another cop, so I got
out of the car.  But he saw me &
stopped me.  He gave me a ride back to
the store and I guess the clerk recognized me.
 
I would
apologize to the clerk, she seemed nice. 
It wasn=t a real gun.
 




Detective
Davis testified that appellant admitted that he had gone into the store and
pointed  Aa BB gun, pellet gun type rifle@ at the clerk and took the money. 
Detective Davis then identified the pellet rifle which had been brought
to the police station by Samson. Detective Davis said that the gun could be Apumped@ to where it had very near the velocity of a .22-caliber weapon which
is capable of causing serious bodily injury or death.  His testimony on direct examination by the district attorney
reads in part as shown:
Q: That is
a Daisy brand pellet gun, slash, BB gun, is it not?
 
A: Yes.
 
                                                           *     *   
*
 
Q: In your
opinion, is that weapon capable of causing death or serious bodily injury?
 
A: Very
much so.
 
Q: As a
matter of fact, there=s a
warning to that effect on the gun itself, is there not?
 
A: There
is.
 
                                                           *    *   
*
 
Q: And
what does it say?
 
A: It says
AWarning. 
Misuse or careless use may cause serious injury or death.  For use by ages 16 or older.@
 
During his
cross-examination, Detective Davis agreed that there was not any ammunition
with the gun when it was brought to the police station.  Detective Davis also agreed that the pellet
gun was not a firearm.  At this point,
the State rested.  Defense counsel asked
to wait on Apunishment witnesses@ until the punishment hearing which was to be
held after the presentence investigation and report.




The
reporter=s record for the punishment hearing on April
25, 2001, shows that the State had no additional evidence and that appellant=s trial counsel called three witnesses to
testify.  Appellant was the first
witness.  He testified in support of his
application for probation.  Appellant
also admitted that he Awent
into that store with the BB rifle@ and that he knew then that he would Ado some time@ if he
was caught.  Appellant testified that he
was eligible for probation and that he had never spent any time in jail before
he was arrested for this offense. 
Appellant admitted that he had spent a Acouple of weeks in juvenile@ for two arrests for possession of marihuana.  He received probation for those two juvenile offenses.  Appellant also testified that his father,
his aunt, his uncles, his grandparents, his cousin, and his sister were with
him to support his application for probation. 
The second defense witness was appellant=s father.  He did not testify
about the facts of the offense, but he supported appellant=s application for probation.  The last defense witness was appellant=s uncle. 
He did not testify about the facts of the offense, but he supported
appellant=s application for probation.
After
hearing arguments by the attorneys of record, the trial court announced its
ruling in open court, finding appellant guilty of Aaggravated robbery@ and assessing his punishment as confinement
for five years.
                                                               Standard
of Review
Appellate
courts must give great deference to the trial court=s Adetermination of the historical facts that the record supports.@  See,
e.g., Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).  The trial court was free to believe all or
any part of the testimony of each of the witnesses, and the record supports the
trial court=s finding that appellant was guilty of the
offense of aggravated robbery.  
We will
discuss all four cases which are cited in appellant=s brief. 
The first case is Mosley v. State, 545 S.W.2d 144
(Tex.Cr.App.1976).  In that case, the
defendant had used Aan
unloaded B.B. gun@; the
record also showed that the gun Aconstantly misfired,@ had a very low velocity, and Ararely went over five feet.@  The court=s opinion on rehearing makes it clear that
the Adevice in question@ was not a deadly weapon and that the opinion
Adid not attempt to exclude all types of air guns
or pistols from the definition of a firearm.@  In the case before us,
Detective Davis testified that the ADaisy brand pellet/BB gun@ was a deadly weapon and also that the gun had a warning label stating
that it could  Acause serious injury or death.@  




The next
case cited by appellant is Holder v. State, 837 S.W.2d 802 (Tex.App. - Austin
1992, pet=n ref=d).  In that case, a jury had
found the defendant guilty.  In the case
before us, appellant had entered a voluntary plea of guilty.  Also, in Holder, the evidence showed
that the Aair-powered BB pistol@ was not loaded.  In the case before us, there is no showing that the Apellet/BB gun@ was loaded or not.  Moreover,
in Holder, the State=s expert witness did not testify that the Aair-powered BB pistol@ was a deadly weapon.  In the case before us, as already noted,
Detective Davis did testify that the ADaisy brand pellet/BB gun@ was a deadly weapon and quoted the warning on the gun.
The third
case cited by appellant is Coronado v. State, 25 S.W.3d 806 (Tex.App. - Waco
2000, pet=n ref=d).  In that case, the defendant
pleaded guilty to the offense of murder, and the evidence showed that two
persons were killed in the same criminal transaction.  The issue was whether the defendant should have been permitted to
withdraw his plea of guilty.  In this
case, there is no showing that appellant attempted to withdraw his plea of
guilty on the basis that it was not a voluntary plea.  
The last case cited by appellant is Adame v. State, 37 S.W.3d 141 (Tex.App.
- Waco 2001, pet=n granted). 
In that case, the jury convicted the defendant of aggravated
robbery.  The majority opinion states
that the undisputed facts show that the defendant walked into a convenience
store concealing a ABB
pistol@ under his sweatshirt, that he briefly
pointed it at the attendant, and that he put it on the counter while the money
was removed from the cash register. 
There was no evidence showing whether the pistol was loaded or not; the
majority held that the evidence was legally insufficient to prove that the ABB pistol@ was a deadly weapon, citing Mosley v. State, supra.  The Waco Court of Appeals modified the
judgment of the trial court to show a conviction of the lesser included offense
of robbery and remanded for a new punishment hearing.  We agree with the dissent in Adame that the nonverbal
threat when the gun was pointed at the clerk was sufficient evidence that the
gun was used as a deadly weapon.  See
also McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App.2000); Delgado v. State,
986 S.W.2d 306, 309 (Tex.App. - Austin 1999, no pet=n).     
                                                This
Court=s Ruling
The
judgment of the trial court is affirmed.
 
BOB
DICKENSON
SENIOR JUSTICE
December 6, 2001
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of:  Arnot, C.J., and
McCall, J., and Dickenson, S.J.[1]




[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th
District of Texas at Eastland sitting by assignment.


