                                  IN THE
                          TENTH COURT OF APPEALS

                                   No. 10-09-00308-CR

BRODERICK KEITH LEWIS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                               From the 12th District Court
                                  Walker County, Texas
                                  Trial Court No. 23,958


                           MEMORANDUM OPINION

       Broderick Keith Lewis was convicted of the offense of aggravated robbery after a

trial before the court. See TEX. PENAL CODE ANN. § 29.03 (West 2003). His punishment

was assessed at 40 years in prison. Lewis complains that there was a fatal variance

between the indictment and the proof at trial which rendered the evidence legally

insufficient, that exhibits admitted into evidence have been irretrievably lost due to no

fault of Lewis, and that he received ineffective assistance of counsel. We affirm the

judgment of the trial court.
                                        State’s Brief

        The State’s brief was due on September 6, 2010. On September 13, 2010, after not

receiving a brief, this Court sent a letter instructing the State to file a brief or a request

for extension within 14 days or to notify the Court that no brief will be filed. However,

no brief has been filed, and the State has not requested additional time to file a brief.

        There is no rule specifically addressing the State’s failure to file a brief in

response to an appellant’s brief. In Siverand v. State, 89 S.W.3d 216 (Tex. App.—Corpus

Christi 2002, no pet.), the court discussed the available options when the State does not

file a brief. The first option would be to accept an appellant’s argument and reverse the

conviction. Siverand v. State, 89 S.W.3d at 219. However, the trial judge would be at a

disadvantage with no one to defend his ruling. Id. The second option would be to

abandon our roles as impartial jurists, become advocates for the State, and advance

arguments on behalf of the State to affirm the trial court’s judgment. Id. Such a position

would run afoul of the Code of Judicial Conduct requiring impartiality and also the

rules of appellate procedure requiring parties to advance their own arguments. TEX. R.

APP. P. 38.1(h) and 38.2(a)(1); Siverand v. State, 89 S.W.3d at 219. We are unable to

advance arguments on behalf of either party. Lawton v. State, 913 S.W.2d 542, 554 (Tex.

Crim. App. 1995); Siverand v. State, 89 S.W.3d at 219.

        As stated in Siverand, we believe the better option is to treat the State’s failure to

file a brief as a confession of error. Siverand v. State, 89 S.W.3d at 220; see also Hawkins v.

State, 278 S.W.3d 396, 399 (Tex. App.—Eastland 2008, no pet.). The confession of error

by the State is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App.

Lewis v. State                                                                          Page 2
2002); Siverand v. State, 89 S.W.3d at 220. We must make an independent examination of

the merits of the issues presented for review. Siverand v. State, 89 S.W.3d at 220. We are

limited in that examination to the arguments advanced by the State in the trial court so

that we do not advance new arguments on behalf of the State. Saldano v. State, 70

S.W.3d at 884; Hawkins v. State, 278 S.W.3d at 399; Siverand v. State, 89 S.W.3d at 220.

                                        Lost Record

        Lewis complains in his third issue that his conviction must be reversed because

exhibits necessary to the resolution of this appeal were lost. Upon the filing of the

reporter’s record, it was determined that many of the exhibits were not included and

that others had been replaced by consulting with the State and not the defense. We

abated the appeal for a hearing before the trial court as required by Rule of Appellate

Procedure 34.6. TEX. R. APP. P. 34.6(e)(2) & (f). At that hearing, the majority of the lost

exhibits were ultimately located and included in a supplemental record. Those that

were not located were determined by the trial court to not be necessary to the appeal’s

resolution. TEX. R. APP. P. 34.6(f)(3). Lewis did not object to those exhibits before the

trial court and has not filed any additional briefing after the abatement complaining

that the exhibits are inaccurate or that the exhibits still missing are necessary to the

resolution of this appeal. Therefore, we overrule issue three.

                                         Variance

        In his first issue on appeal, Lewis argues that the trial court erred in finding him

guilty of aggravated robbery because there was a fatal variance between the indictment

and the evidence at trial, which rendered the evidence legally insufficient.               The

Lewis v. State                                                                        Page 3
indictment alleged that Lewis committed the offense of aggravated robbery and that he

used or exhibited a deadly weapon, to wit: a firearm. Lewis contends that because there

was evidence that a BB gun rather than a firearm was used in the robbery and there was

no evidence of the BB gun’s character as a deadly weapon, the evidence was legally

insufficient.

Facts

        Troy Joseph testified at trial that he was working the night shift at Sonic. He and

some other employees, Kimberly Clifton and Don Huey, went in his pickup to the bank

to make the nightly deposit. Joseph pulled up to the deposit box, and he saw two

individuals that suddenly appeared from around a corner wearing ski masks approach

his pickup and one of them was holding a “gun,” which was pointed at him. Joseph

attempted to flee, accelerated and lost control of his pickup. The pickup flipped and

rolled down an embankment. Joseph and the other occupants were able to get out of

the pickup, ran away, and called 911.

        Joseph described the gun he saw as a “handgun, maybe like a 9 millimeter.

Something like a Glock or a Ruger. Not a large gun but definitely wasn’t a revolver or

anything like that, something with a clip. It was a dark-handled gun. I’m not sure if it

was metallic or black metallic, something like that.” Joseph acknowledged that there

are BB guns that look similar to a 9 millimeter Glock; however, the BB guns generally

have markings in orange that demonstrate that they are not real firearms. Joseph

testified that he is familiar with guns from prior employment and personal ownership

of them and that there was nothing about the gun he saw to indicate it was a BB gun.

Lewis v. State                                                                       Page 4
        Kimberly Clifton was sitting in the front seat of Joseph’s pickup on the night of

the offense. She testified that she saw two men wearing face masks with the eyes cut

out of them approach the pickup and that both men had a gun. One of them was

pointed at Joseph’s chest. Joseph attempted to drive away, but lost control of the

pickup and it rolled over down a hill. After the truck rolled over, she ran away and was

chased by a person in a black hoodie who had a gun in his hand. She escaped by

getting into a car that a co-worker was driving that had been right behind Joseph’s

truck for safety purposes at the bank. She was in fear for her life during the incident.

Clifton described the guns as black and shiny, metal, and automatic rather than a

revolver. Clifton said she is familiar with BB guns that look similar to real guns.

        Detective Kenneth Foulch investigated the robbery. Detective Foulch reviewed

the surveillance video from the bank. In the video, two people are present. Detective

Foulch testified that one of the persons in the video appears to have a “handgun” and

that the gun looks like a firearm. Lewis came to the police station voluntarily for

questioning and initially told Foulch that he was not involved but that Joshua Wallace

had come to his residence and told him that he had committed a robbery later that night

and showed him a black gun. Lewis consented to a search of his residence during

which a white ski mask with eye holes cut out and a black hoodie were located in a

bedroom.         Lewis then stated that those items belonged to Wallace who he then

contended actually lived at his residence.

        The video of the robbery from the bank indicates that two hooded individuals

approached a white pickup. Both individuals appeared to have some type of gun in

Lewis v. State                                                                        Page 5
their hands and both individuals pointed them at the white pickup driven by Joseph.

After the truck attempted to flee, both of them took off running after the truck.

        During his investigation, Detective Foulch spoke with a person claiming to have

knowledge of the robbery. Based upon that conversation, Detective Foulch went to a

location to recover a handgun.         At that location, Detective Foulch found a gun

underneath a metal building. Detective Foulch testified that the gun he found looked

like a “9 millimeter sigasauer.” The State introduced the gun into evidence. Detective

Foulch testified that the gun he found was actually a BB gun although it appears to be a

real gun. Detective Foulch was never able to determine if the BB gun he found was the

gun used in the robbery or if it was connected to Lewis.

        Some months after his arrest, Lewis was back at the police station to undergo a

polygraph examination. As the examiner was preparing Lewis by asking him the

questions he would formally ask during the examination, Lewis admitted to

participating in the robbery, stating “I didn’t do it but I was part of it.”

        Joseph was recalled to the stand and shown the BB gun admitted into evidence

by the State. Joseph testified that the BB gun could have been the gun used in the

robbery. While in jail, Lewis separately told two jail employees that the gun used by

Wallace in the robbery was a BB gun. Lewis told the first jail employee that he was in

the car with Wallace and that the masks and guns were already in the car when he got

into it. Further, Lewis told that employee that the robbery was committed by Wallace

and Don Huey. Lewis told the second jail employee that he was there but did not take



Lewis v. State                                                                      Page 6
part in the robbery, although Wallace gave him $500 of the money that was stolen in the

robbery.

Applicable Law

        A variance occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.

Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a

crime, but has proven its commission in a manner that varies from the allegations in the

charging instrument. Id. We treat variance claims as a problem with the sufficiency of

the evidence. Id. A variance that is not prejudicial to a defendant’s substantial rights is

immaterial. Gollihar v. State, 46 S.W.3d at 248. In determining whether a defendant’s

substantial rights have been prejudiced we consider whether (1) the indictment, as

written, informed the defendant of the charge against him sufficiently to allow him to

prepare an adequate defense at trial, and (2) whether prosecution under the indictment

as drafted would subject the defendant to the risk of being prosecuted later for the same

crime. Id.

Sufficiency of the Evidence

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must 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.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the

Lewis v. State                                                                             Page 7
        responsibility of the trier of fact fairly 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. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, *43-

44, 2011 WL 4347044, *16 (Tex. Crim. App. Sept. 14, 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Analysis

        Lewis argues that there is a variance between the indictment and evidence

offered because the State did not prove the use of a firearm, but only a BB gun. Because

the State did not file a brief, we are limited to the arguments the State presented to the


Lewis v. State                                                                              Page 8
trial court. The State argued at trial that the BB gun looked like a real gun. The trial

court asked whether a finding that the gun used in this case was a BB gun would be a

problem because the indictment alleged use of a firearm. The State responded:

        No, sir, because I believe that the indictment is based on what the victim’s
        perspective was. My argument about the BB gun is in response to what
        she’s saying; but I believe that the case is based on the victim’s perspective
        and that they believed that it was a firearm; and we’re not offering that as
        the gun used in this case. So I don’t think it matters at all. They believed
        it was a firearm. We don’t have any way to know, because we don’t know
        whether we’ve ever recovered the real weapon or not; and I think it is
        sufficient for them to testify that they believed that he had a gun; and that
        makes it sufficient to meet the elements of the indictment.

        A “firearm” is a deadly weapon, per se. See Boyett v. State, 692 S.W.2d 512, 517

(Tex. Crim. App. 1985); Arthur v. State, 11 S.W.3d 386, 398 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d). A “gun,” however, is a much broader term than “firearm” and

may include such non-lethal instruments as BB guns, blow guns, pop guns, and grease

guns. See Benavides v. State, 763 S.W.2d 587, 588 (Tex. App.—Corpus Christi 1988, pet.

ref’d); Arthur v. State, 11 S.W.3d at 398. When the State alleges in the indictment for

aggravated robbery that the deadly weapon used by the defendant was a firearm it is

required to prove, beyond a reasonable doubt, that the deadly weapon used was, in

fact, a firearm. See Gomez v. State, 685 S.W.2d 333, 335-36 (Tex. Crim. App. 1985); Arthur

v. State, 11 S.W.3d at 398.

        ‚Testimony using any of terms ‘gun,’ ‘pistol’ or ‘revolver’ is sufficient to

authorize the jury to find that a deadly weapon was used.‛ Wright v. State, 591 S.W.2d

458, 459 (Tex. Crim. App. 1979); see also Price v. State, 227 S.W.3d 264, 266-67 (Tex.



Lewis v. State                                                                           Page 9
App.—Houston *1st Dist.+ 2007, pet. dism’d, untimely filed) (holding, based on

testimony by one victim that the appellant put a gun in her face and second victim that

the appellant pointed a gun at him, the jury could have found beyond a reasonable

doubt that the gun the appellant used and exhibited during the robbery, which was

never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.—

Houston *1st Dist.+ 2006, pet. ref’d) (op. on reh’g) (holding evidence was legally

sufficient to support finding that the gun used was a firearm based on witness

testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d

277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding evidence was legally sufficient

to allow the jury to conclude that the appellant used a firearm where the victim testified

that appellant pointed a gun at her and she was afraid she was going to die that night,

even though she was not asked to identify the type of weapon and the record contained

no other relevant evidence on that point).

        Additionally, where the accused threatens the victim with a gun, the act itself

suggests that the gun is a firearm rather than merely a gun of the non-lethal variety.

Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.—Houston *14th Dist.+ 1999), pet. dism’d,

improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002); Toy v. State, 855 S.W.2d

153, 159 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Benavides v. State, 763 S.W.2d

587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d).




Lewis v. State                                                                     Page 10
        Lastly, we note that the trial court as factfinder is free to draw reasonable

inferences and make reasonable deductions from the evidence as presented within the

context of the crime. Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.]

2006, pet. ref'd); Toy, 855 S.W.2d at 159; Benavides, 763 S.W.2d at 588-89. As such, the

factfinder may draw the reasonable inference or make the reasonable deduction the gun

used in the commission of the crime was a firearm. Cruz, 238 S.W.3d at 388; Davis, 180

S.W.3d at 286; Benavides, 763 S.W.2d at 589.

        At trial, the State argued that it was only required to show that the victim

believed at the time of the offense that the item used during the commission of the

robbery was a firearm.      The evidence showed that both Joseph and Clifton had

familiarity with guns and believed the weapons used in the offense were guns,

although a BB gun can look like a real gun. The video of the robbery shows what

appear to be firearms being pointed at the victims. There was no evidence other than

statements made by Lewis himself that the weapons used were actually BB guns. The

trial court could have determined that anything Lewis had told others was not credible,

having given differing accounts of his involvement in the robbery and having accused

Huey as being the second robber, which was impossible because Huey was a passenger

in Joseph’s pickup during the robbery. The trial court could have determined that the

BB gun admitted into evidence had no connection at all to the robbery other than

appearing to be similar looking in size and color to the guns actually used. Viewing the

evidence in the light most favorable to the verdict, there was not a variance between the


Lewis v. State                                                                    Page 11
indictment and the evidence presented at trial. The evidence was legally sufficient for

the trial court to have found that the robbery was committed with a firearm. See Wyatt

v. State, No. 14-10-00872-CR, 2011 Tex. App. LEXIS 3914 at *12 (Tex. App.—Houston

[14th Dist.] May 24, 2011, no pet.) (mem. op.) (not designated for publication) (evidence

legally insufficient to determine gun was a firearm although a BB gun was recovered

from the defendant’s residence because the evidence did not show that the gun was

connected to the robbery). We overrule issue one.

                                   Factual Sufficiency

        Lewis complains in his second issue that the evidence was factually insufficient

for the trial court to have determined that a deadly weapon was used in the offense

because of the lack of evidence of a firearm. After Lewis filed his brief, the Court of

Criminal Appeals has determined that factual sufficiency no longer applies in criminal

cases. See, e.g., Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.);

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010). Lewis does not argue that the

evidence of a deadly weapon was legally insufficient, and based on our holding in issue

one that the evidence was legally sufficient for the trial court to have determined that a

firearm was used in the commission of a robbery, it is unnecessary to conduct a

sufficiency analysis pursuant to Jackson v. Virginia. We overrule issue two.

                           Ineffective Assistance of Counsel

        Lewis complains that he received ineffective assistance of counsel because his

trial counsel failed to subpoena Huey to testify on his behalf.         To prevail on an

ineffective assistance claim, Lewis must establish that (1) his trial counsel’s performance

Lewis v. State                                                                      Page 12
was deficient by falling below an objective standard of reasonableness and (2) his trial

counsel’s deficiency caused him prejudice, which means that there is a probability

sufficient to undermine confidence in the outcome that but for his trial counsel’s errors,

the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Perez v. State, 310 S.W.3d

890, 892-93 (Tex. Crim. App. 2010).

        Lewis is required to satisfy both prongs by a preponderance of the evidence;

failure to demonstrate either deficient performance or prejudice will defeat a claim of

ineffectiveness. Perez, 310 S.W.3d at 893. It is not necessary to conduct the Strickland

analysis in any particular order; if an appellant cannot demonstrate sufficient prejudice,

a court may dispose of the claim on that ground. Strickland, 466 U.S. at 697. When

making this determination, any constitutionally deficient acts or omissions will be

considered in light of the totality of the evidence before the jury. Ex parte Ellis, 233

S.W.3d 324, 31 (Tex. Crim. App. 2007).

        Lewis’s trial counsel filed a motion for new trial based on Huey’s non-attendance

at trial but did not allege ineffective assistance for failing to call Huey. The motion was

denied. However, a hearing to determine his trial counsel’s strategy would not be

necessary when determining whether Lewis established the prejudice ground of

Strickland because counsel’s trial strategy is not relevant to whether the result of the

proceeding would have been different. Lewis contended in his motion for new trial


Lewis v. State                                                                      Page 13
that he was ‚denied a fair trial as a material defense witnesses (sic), Don Huey, was

kept from the trial for fear of arrest.       Mr. Huey would have testified he, as a

witness/victim of this robbery, saw the weapons used and thought they were BB guns.‛

Lewis contends that this ‚would have further bolstered the evidence that no deadly

weapon was shown or used during the robbery.‛ During the trial, Lewis’s trial counsel

stated that Huey would not voluntarily come to the trial because he had outstanding

warrants pending against him.         Additionally, Huey had been implicated as an

accomplice in the robbery and there is no evidence in the record to establish that Huey

would indeed have so testified. We do not find that Lewis has met his burden to

establish that but for this single alleged error during his trial that the result would have

been different. We overrule issue four.

                                        Conclusion

        Finding no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 4, 2012
Do not publish
[CRPM]




Lewis v. State                                                                       Page 14
