                                    NO. 07-10-00160-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                     JANUARY 13, 2011


                           PETER MARK FARMER, APPELLANT

                                            v.

                            THE STATE OF TEXAS, APPELLEE


               FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 59,487-B; HONORABLE JOHN B. BOARD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION

      Appellant, Peter Mark Farmer, was convicted in a bench trial of aggravated

robbery with a deadly weapon.1 Punishment was enhanced by the allegation of one

prior felony conviction.2    The trial court sentenced appellant to confinement in the

Institutional Division of the Texas Department of Corrections (ID-TDCJ) for 25 years.

Appellant perfected his appeal contending that the evidence was insufficient to sustain

the conviction. We affirm.


      1
          See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2003).
      2
          See id. § 12.42(c)(1).
                           Factual and Procedural Background


       On March 11, 2009, appellant entered the Radio Shack retail store located in the

Wolflin Village shopping center in Amarillo.      After a few moments, a Radio Shack

employee, Garrett Hampton, began waiting on appellant. Appellant indicated he wished

to purchase an iPod Touch.         Hampton retrieved the iPod Touch appellant was

interested in and proceeded to demonstrate it to appellant. It was against store policy to

allow a customer to handle or touch the product until such time as payment was

tendered. Appellant tendered a pre-paid credit card, and the employee placed the iPod

Touch in a sack and handed it to appellant. While Hampton was ringing up the sale,

appellant bolted from the store with the merchandise. Concluding appellant was trying

to steal the iPod, Hampton gave chase, following appellant out the store entrance.

Hampton stopped immediately outside the store entrance but continued to observe

appellant until he went out of sight.       When the police arrived, Hampton gave a

statement to the officers about his observations.


       Joshua Scott Carson was also shopping in the Radio Shack store when appellant

bolted out the front door. Carson followed appellant and the clerk out the door. When

the clerk stopped immediately outside the door, Carson continued trying to catch

appellant. Appellant went around the side of another business adjacent to the Radio

Shack store, and Carson got to within about five or six feet of appellant. Appellant

turned and pulled a knife out of his pocket and threatened to stab Carson if he came

any closer. Carson testified that the knife blade was about six inches long. Carson

testified that at this particular point in time he was frightened. As a result of appellant’s

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threat, Carson kept back but continued to follow about 20 feet behind appellant. He

observed appellant get into a vehicle and leave the scene. Carson wrote the vehicle

license plate number down and later gave it to the police, along with a statement about

what he observed.


      In addition to Hampton and Carson, another customer, Nancy Wisenand, saw

appellant flee the store with the iPod. She gave a statement to the police outlining her

observations.


      All three witnesses were subsequently shown photographic line-ups, each of

which contained a picture of appellant.     When observing the photographic line-ups,

each witness identified appellant as the man who committed the robbery. At trial, each

of the witnesses testified and identified appellant as the perpetrator of the crime. At

trial, Carson testified he had some familiarity with knives because he collected them and

was learning to make knives. Carson stated, from his perspective, the knife appellant

had appeared to be capable of causing serious bodily injury or death.


      At the conclusion of the evidence, appellant was found guilty of aggravated

robbery with a deadly weapon. Appellant entered a plea of true when the enhancement

paragraph was read.      After hearing the evidence on punishment, the trial court

sentenced appellant to confinement in the ID-TDCJ for a term of 25 years. This appeal

followed. By two issues, appellant contends that the evidence is insufficient to sustain a

finding of guilt. We disagree and affirm




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                                 Evidentiary Sufficiency


      As an initial consideration, we observe that appellant's appeal contends that the

evidence is factually insufficient. Appellant's brief was prepared and filed before the

Texas Court of Criminal Appeals issued its opinion in Brooks v. State, No. PD-0210-09,

323 S.W.3d 893, 2010 Tex.Crim.App. LEXIS 1240, at *25-*26 (Tex.Crim.App. Oct. 6,

2010), wherein the court ruled that there is no distinction between a claim of legal as

opposed to factual insufficiency of the evidence. Further, the court expressly overruled

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported application to

factual sufficiency questions. Id. at *57. The court appears to urge the reviewing court

to apply a more rigorous application of the sufficiency test set forth in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).            See id. at *58.

Therefore, we will review appellant's claims of evidentiary sufficiency under the standard

of review set forth in Jackson. See 443 U.S. at 319.


Standard of Review


      In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Id.; Ross

v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We measure the legal sufficiency

of the evidence against a hypothetically correct jury charge. See Malik v. State, 953

S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when reviewing all of the evidence

under the Jackson standard of review, the ultimate question is whether the jury’s finding

of guilt was a rational finding. See Brooks, 2010 Tex.Crim.App. LEXIS 1240, at *37

                                            4
(discussing Judge Cochran’s dissent in Watson v. State, 204 S.W.3d 404, 448-50

(Tex.Crim.App. 2006), as outlining the proper application of a single evidentiary

standard of review).3


Analysis


      Appellant contends that the evidence is insufficient in two particulars.     First,

appellant contends that the evidence is insufficient to establish that Carson was in fear

of imminent bodily injury or death. Second, appellant contends that the evidence is

insufficient to establish that he exhibited a deadly weapon. We will address both of

appellant’s concerns.


      In order to prove appellant was guilty of aggravated robbery, as alleged in the

indictment, the State had to prove:


      1. Appellant

      2. on or about March 11, 2009,

      3. in Potter County, Texas,

      4. did then and there, while in the course of committing theft of property

      5. with intent to obtain and maintain control of that property,

      6. intentionally or knowingly




      3
         We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
We view such a statement, insofar as a modicum of evidence being sufficient evidence,
as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
                                            5
       7. threaten and place Joshua Scott Carson in fear of imminent bodily injury or

           death,

       8. and did then and there exhibit a deadly weapon, to-wit: a knife

       9. that in the manner of its use or intended use was capable of causing serious

           bodily injury or death,

       10. during the commission of the robbery.


See TEX. PENAL CODE ANN. §§ 29.02, 29.03(a)(2) (West 2003).4 A knife is not a per se

deadly weapon. See In re J.A.W., 108 S.W.3d 573, 576 (Tex.App.—Amarillo 2003, no

pet.). It can be a deadly weapon if in the manner of its use or intended use it is capable

of causing serious bodily injury or death. See § 1.07(17)(B) (West Supp. 2010).


       Addressing appellant’s initial contention first, we look to the testimony of Carson.

Carson testified that when he got within five or six feet of appellant, appellant wheeled

about pulling a knife. According to Carson, appellant then threatened to stab him with

the knife if Carson got any closer. Upon being asked what he thought after appellant

made the threat to him, Carson replied, “I don’t want to be stabbed.” Carson then

stated he was scared, specifically he was scared of internal injuries. This was the

testimony that supports the judgment of guilt regarding the issue of fear of imminent

bodily injury or death.


       Turning our attention to appellant’s second contention, that the evidence was

insufficient to establish that appellant exhibited a deadly weapon.           The record


       4
         Further reference to the Texas Penal Code shall be by reference to “section
___” or “§ ___.”
                                            6
demonstrates that Carson was within five to six feet of the knife in question. Further,

Carson was able to clearly see and describe the blade of the weapon as being

approximately six inches in length. Finally, appellant turned back toward Carson while

drawing the knife and then threatened to stab Carson with the knife.            Additionally,

Carson testified that, being a collector, he was familiar with knives and was learning

how to make knives. In Carson’s opinion, the knife in question was capable of causing

serious bodily injury or death.


       We note that this case was tried before the court without a jury. In a bench trial,

the trial court is the sole judge of the credibility of the witnesses and the weight to be

given their testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.

1992). Carson having testified that, in his opinion, the knife in question was capable of

causing serious bodily injury or death, it was up to the trial court to judge the credibility

of that testimony. Further, the statute speaks in terms of capability to cause death or

serious bodily injury, meaning that no actual death or serious bodily injury need have

occurred. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). To prove

that a particular knife is a deadly weapon, the State may produce testimony regarding

the size of the knife, the manner of its use, and its capability to cause serious bodily

injury or death. See Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App. 1983). In

addition, the fact finder may consider the words spoken by the appellant in making a

deadly weapon finding. See id.


       The testimony of Carson was that appellant threatened to stab him with a knife

that had a blade six inches long. Further, Carson was familiar with knives and felt

                                             7
threatened by appellant’s actions of turning toward him and brandishing the knife while

threatening to stab him. From our review of the evidence in the light most favorable to

the verdict, we cannot say a finding of guilty beyond a reasonable doubt was an

irrational finding. Accordingly, we overrule appellant’s issues.


                                        Conclusion


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




                                                        Mackey K. Hancock
                                                             Justice

Do not publish.




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