                                                                      ACCEPTED
                                                                  12-14-00130-cr
                                                     TWELFTH COURT OF APPEALS
                                                                   TYLER, TEXAS
                                                            1/11/2015 9:20:52 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00130-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    1/11/2015 9:20:52 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                   JAWORSKI ADKINS,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-1676-13
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF


JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Jaworski Adkins

APPELLANT’S TRIAL COUNSEL
    A. Melvin Thompson
    2108 South Wall Street
    Tyler, Texas 75701
    903-596-7856

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jacob Putman
    Chris Gatewood
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)
                                 ii
                                 TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

       ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT
       EVIDENCE TO FIND APPELLANT GUILTY OF THE
       OFFENSE OF AGGRAVATED ROBBERY.

       ISSUE TWO: THERE WAS LEGALLY INSUFFICIENT
       EVIDENCE TO FIND THE USE OR EXHIBITION OF A
       DEADLY WEAPON.

       ISSUE THREE: THE JUDGMENT CONTAINS A CLERICAL
       ERROR WHICH DOES NOT ACCURATELY REFLECT THE
       TRIAL PROCEEDINGS.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

       A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
                                                  iii
       B. Law Requiring Display of Weapon. . . . . . . . . . . . . . . . . . . . . . . 5
       C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
       D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                  iv
                                   TABLE OF AUTHORITIES
STATUTES
TEX. CODE OF CRIM. PROC. ANN. Art. 42.01 §1 (Vernon 2013). . . . . . . . . 9
TEX. CODE OF CRIM. PROC. ANN. Art. 42.12§3g(a)(1)(F) (Vernon 2013). . 9
TEX. PENAL CODE ANN. §1.07(a)(17)(A) (Vernon 2013). . . . . . . . . . . . . . 5
TEX. PENAL CODE ANN. §29.02(a)(2) (Vernon 2013). . . . . . . . . . . . . 5, 6, 8
TEX. PENAL CODE ANN. §29.03(a)(2) (Vernon 2013). . . . . . . . . 1, 2, 5, 8, 9


CASES
Banks v. State, 708 S.W.2d 460, 461-62 (Tex. Crim. App. 1986).. . . 9, 10
Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). . . . . . . . . . . 9
Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).. . . . . . . . . 6
Forcey v. State, 265 S.W.3d 921, 925 (Tex. App. – Austin 2008,
     no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787
    61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). . . . . 4, 5
McCray v. State, 876 S.W.2d 214, 217 (Tex. App. – Beaumont 1994,
    no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). . . . . . 6
Pitte v. State, 102 S.W. 3d 786, 792 (Tex. App. – Texarkana 2003, no
pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218,
    72 L.Ed.2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). . . . . . 9
Williams v. State, 827 S.W.2d 614, 616 (Tex. App. – Houston
    [1st Dist.] 1992, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                                                        v
RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. Proc. 43.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10




                                                    vi
                                          NO. 12-14-00130-CR

JAWORSKI ADKINS,                                          §    IN THE COURT OF APPEALS
APPELLANT                                                 §
                                                          §
VS.                                                       §    12TH JUDICIAL DISTRICT
                                                          §
THE STATE OF TEXAS,                                       §
APPELLEE                                                  §    TYLER, TEXAS


                                       APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:

         Comes now Jaworski Adkins (“Appellant”), by and through his

attorney of record, James Huggler, and pursuant to the provisions of TEX.

R. APP. PROC.38, et seq., respectfully submits this brief on appeal.




                                  STATEMENT OF THE CASE

         Appellant was indicted in cause number 114-1676-13 for the felony

offense of Aggravated Robbery, a first degree felonies as alleged. I CR 1.1

TEX. PENAL CODE ANN. §29.03(a)(2) (Vernon 2013). A jury was selected,


1

The Clerk’s Record is designated “CR” with an arabic numeral following “CR” specifying the correct page in the record.
The record for trial cause number 114-0329-09 is designated “CR-A”; the record in trial cause number 114-0330-09 is
designated “CR-B”; and the trial cause number in 114-0331-09 is designated “CR-C”.
                                                          1
and following evidence and argument of counsel found Mr. Adkins guilty

of the aggravated robbery as charged in the indictment. I CR 95; XI RR

55.2 Following the punishment phase of trial, the jury assessed a sentence

of twenty-two years with no fine. I CR 119; XII RR 62. Notice of appeal

was timely filed. I CR 131. This brief is timely filed on or before January

12, 2015 following proper extension by this Court.




                                ISSUE PRESENTED

ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO
FIND APPELLANT GUILTY OF THE OFFENSE OF AGGRAVATED
ROBBERY.

ISSUE TWO: THERE WAS LEGALLY INSUFFICIENT EVIDENCE
TO FIND THE USE OR EXHIBITION OF A DEADLY WEAPON.

ISSUE THREE: THE JUDGMENT CONTAINS A CLERICAL ERROR
WHICH DOES NOT ACCURATELY REFLECT THE TRIAL
PROCEEDINGS.



                          STATEMENT OF THE FACTS

       Appellant was indicted in cause number 114-1676-13 and charged

with the first degree felony offense of Aggravated Robbery. I CR 1. TEX.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the volume and an arabic numeral following “RR” specifying the correct page.
                                              2
PENAL CODE ANN. §29.03(a)(2) (Vernon 2013).

      Mr. Adkins had a jury trial on both the issue of guilt and

punishment. This indictment occurred on October 11, 2013 and involved

an incident at the Conoco Crews ‘n Buy Mart in Lindale, Texas. X RR 16.

Claudette Phelps and Darthia Murray were clerks at the store. Mr.

Adkins came in, and after speaking with one of the clerks, reached into

the register and grabbed money. X RR 32.

      Following evidence, the jury found Mr. Adkins guilty of the offense

of aggravated robbery.     I CR 95; XI RR 55.        Following punishment

evidence presented by both the State and Mr. Adkins, the jury assessed

a sentence of 22 years confinement. I CR 119; XII RR 62.

      A further discussion of the facts is included in the argument

section of this brief.




                         SUMMARY OF ARGUMENT

      The major issue in this case are the use or exhibition of a deadly

weapon. In the first two issues, Appellant states that the evidence is

legally insufficient to establish the element of use or exhibition of a deadly

                                      3
weapon. The judgment for aggravated robbery in that case should be

reversed.

     The final issue raised by Appellant relates to the incorrect finding

of the use of a deadly weapon in the judgment, when there was no finding

by the jury to support that finding.




                              ARGUMENT

ISSUE ONE, RESTATED: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND APPELLANT GUILTY OF THE OFFENSE OF
AGGRAVATED ROBBERY.

ISSUE TWO, RESTATED: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND THE USE OR EXHIBITION OF A DEADLY
WEAPON.



                         A. Standard of Review

     Appellant contends that the evidence is legally insufficient to

support the verdict. The standard for reviewing a legal sufficiency

challenge is whether 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, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d

560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
                                       4
App. 1993). The evidence is examined in the light most favorable to the

verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871

S.W.2d at 186. A successful legal sufficiency challenge will result in

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457

U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).



                 B. Law Requiring Display of Weapon

     A person commits robbery if, “in the course of committing theft . . .

and with intent to obtain or maintain control of the property,” he

“intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” TEX. PENAL CODE ANN. §29.02(a)(2)

(Vernon 2013). A person commits aggravated robbery if he commits

robbery and “uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN.

§29.03(a)(2) (Vernon 2013). A firearm, which was alleged to have been

used, is a deadly weapon per se. TEX. PENAL CODE ANN. §1.07(a)(17)(A)

(Vernon 2013).



                     C. Application to These Facts

     The accused need not expressly threaten another or display a
                                     5
weapon to commit robbery. It is sufficient to constitute robbery if the

accused places the complainant in fear of bodily injury to the degree that

‘reason and common experience’ will likely induce the complainant to part

with the property against his will. Pitte v. State, 102 S.W.3d 786, 792

(Tex. App. – Texarkana 2003, no pet.). Under the ‘placed in fear’ language

in §29.02 . . ., the factfinder may conclude that an individual perceived

fear or was ‘placed in fear,’ in circumstances where no actual threats were

conveyed by the accused. Williams v. State, 827 S.W.2d 614, 616 (Tex.

App. – Houston [1st Dist.] 1992, pet. ref’d).

     The State alleged that Mr. Adkins used and or exhibited a deadly

weapon in the case. I CR 1; TEX. PENAL CODE ANN. §29.03(a)(2) (Vernon

2013). The evidence must demonstrate that the deadly weapon was used

or exhibited “during the transaction from which” the felony conviction is

obtained. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

The use of a deadly weapon during the commission of an offense means

that a deadly weapon was employed or utilized in order to achieve its

purpose. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).

Exhibition of a deadly weapon means the weapon was consciously shown

or displayed during the commission of the offense. Id.
                                      6
         There is no dispute that the offense involving Ms. Phelps was a

theft.     However, Ms. Phelps only saw the gun after the theft was

committed and Mr. Adkins had left the store. X RR 45-46. She reviewed

the store’s security video and saw no gun. X RR 45-46. The other clerk,

Ms. Darthia Muray did not see a gun. X RR 61. Mr. Adkins did not

display a weapon during the theft, and not make a statement that

indicated he had a weapon. X RR 78. At best, he intimidated her by

committing the theft. X RR 79. He did not point a gun at her, did not

threaten to shoot her, and did not use a gun during the theft. X RR 79.

          Other witnesses who testified also did not see a gun in the store

during the theft. Ms. Brittany Murray reviewed the statement she gave

officers and testified that she did not see a gun in the store. X RR 100-

101. Ms. Tawni Spencer did not see a gun when Mr. Adkins was inside at

the register. X RR 119.



                                D. Conclusion

         Unless a weapon is actually displayed to an individual, a conviction

for aggravated robbery cannot stand. While the elements of robbery can

be met if during the course of a theft, a person is placed in fear of
                                       7
imminent bodily injury, the elements of aggravated robbery require the

use or exhibition of a deadly weapon. TEX. PENAL CODE ANN. §§29.02(a)(2)

and 29.03(a)(2) (Vernon 2013). The threat of a firearm is not enough. The

conviction for the offense of aggravated robbery should be reversed and an

acquittal rendered on that charge of aggravated robbery.




ISSUE THREE: THE JUDGMENT CONTAINS A CLERICAL ERROR
WHICH DOES NOT ACCURATELY REFLECT THE TRIAL
PROCEEDINGS.

     In this case, the final judgment reflects that an affirmative finding

was made on the use of a deadly weapon. I CR 101. However, that issue

was not submitted ot the jury in this case. This error should be corrected

through modification of the judgments.

      The jury found Appellant guilty of the offense of aggravated

robbery, but the State included a separate paragraph in the indictment

alleging the use of a deadly weapon.      I CR 1.    That issue was not

submitted to the jury. I CR 80-95 and 109-119. The jury made no finding

of a deadly weapon in either of those two cases. However, §29.03 is an

aggravated felony specifically listed in the code of criminal procedure.
                                    8
TEX. CODE CRIM. PROC. ANN. art. 42.12 §3g(a)(1)(F) (Vernon 2013).

     A trial court’s pronouncement of a sentence is oral, while the

judgment, including the sentence assessed, is merely the written

declaration of the pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01

§1 (Vernon 2009); Banks v. State, 708 S.W.2d 460, 461-62 (Tex. Crim.

App. 1986). When there is a conflict between the oral pronouncement of

sentence and the sentence in the written judgment, the oral

pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex.

Crim. App. 2003).    The trial court pronounced sentence at 22 years

confinement and no fine. XII RR 62. Later in the proceedings, after the

jury had been discharged, the court stated the sentence again and

included language regarding a deadly weapon. XII RR 65. However, that

was in error because of the lack of an affirmative finding by the jury.

     The Court of Appeals may modify a trial court’s judgment. TEX. R.

APP. P. 43.2(b) (Vernon 2014). The courts of appeals have the authority

to reform judgments, with said reformations not limited to merely clerical

mistakes. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

When the court has the necessary data and evidence before it for

reformation, the judgment and sentence may be reformed on appeal.
                                    9
Banks, 708 S.W.2d at 462.

     A court of appeals modified a judgment to reflect the actual third

degree offense of kidnaping rather than a higher offense.    McCray v.

State, 876 S.W.2d 214, 217 (Tex. App. – Beaumont 1994, no pet.) See also

Forcey v. State, 265 S.W.3d 921, 925 (Tex. App. – Austin 2008, no pet.)

(Judgment modified to reflect fine amount of $2,000 pursuant to plea

agreement rather than $10,000 fine imposed). Because the jury did not

consider the issue of use of a deadly weapon,, this Court can modify the

judgments to comport with the record. TEX. R. APP. P. 43.2(b).




                                   10
                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that the trial court’s decision be reversed and judgment of acquittal

rendered; or in the alternative, if this Court only sustains issue one or

two, that the judgment be modified, and for other such relief as allowed

by law.



                                              Respectfully submitted,

                                               /s/ James Huggler
                                              James W. Huggler, Jr.
                                              State Bar Number
                                              00795437
                                              100 E. Ferguson, Suite 805
                                              Tyler, Texas 75702
                                              903-593-2400
                                              903-593-3830 fax

                                              ATTORNEY FOR
                                              APPELLANT




                                    11
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by regular mail on this the 11th day of

January, 2015.




 /s/ James Huggler
James W. Huggler, Jr.


Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702




                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,538 words as counted by
Corel WordPerfect version x5.


 /s/ James Huggler
James Huggler




                                     12
