Christopher Zambrano v. State ( 2002 )

                                  NUMBER 13-00-00290-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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CHRISTOPHER ZAMBRANO,                                                  Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                         On appeal from the 24th District Court

                                 of Jackson County, Texas.

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                           OPINION ON  REMAND

                     Before Justices Hinojosa, Yañez, and Castillo

                                  Opinion by Justice Castillo

Appellant Christopher Zambrano was found guilty by a jury of the offense of aggravated robbery and sentenced to ninety-nine years in prison and a $10,000.00 fine.  From this conviction he appealed, challenging in four points of error the legal and factual sufficiency of the evidence for his conviction.  His first three issues asserted that the evidence was legally and factually insufficient: 1) to sustain a conviction for aggravated robbery; 2) to sustain a finding that appellant used or exhibited a deadly weapon; and 3) to sustain a finding that the ABB pistol@ used by appellant was a deadly weapon.  His fourth issue attacked the legal and factual sufficiency of the evidence as to the question of identity. 

On original submission of this case, we overruled appellant=s fourth point of error and granted his first three grounds, finding that the evidence was legally insufficient to support the finding of the use or display of a deadly weapon and thus not legally sufficient to support a conviction on the charge of aggravated robbery, because it was not reasonable, under the facts of this case, to infer that the BB gun was loaded, and hence the jury could not have reasonably found it to be a deadly weapon.^[1]  One of the cases on which we relied was the court of appeals decision in  Adame v. State, 37 S.W.3d 141 (Tex. App.BWaco 2001), rev=d, 69 S.W.3d 581 (Tex. Crim. App. 2002).  Subsequently, the court of criminal appeals reversed Adame and, on the State=s petition for discretionary review in this case, vacated our opinion on original submission and instructed us to reconsider our opinion in light of the opinion in Adame.^[2]   We have done so and now affirm.^[3]

Relevant facts

Theresia Zarate, one of the victims in this case, worked at a Pizza Hut as the manager.  Both she and her husband, Epifanio Zarate, the second victim, knew appellant, who was an employee of the Pizza Hut and also a personal friend. Appellant had worked at the Pizza Hut that day and had twice been visited by a man who came demanding money and whom appellant stated he had to pay that night.  Appellant had asked, and received, permission from Theresia to leave at around 11:00 p.m. that same day stating that he had to go pick up his children from out of state and needed to get up at 4:00 in the morning.  Shortly after midnight on July 3, 1999, while she and her husband were leaving the restaurant, a man walked in and demanded money, asking for the money bag.  She and her husband claimed not to have it, stating they had given it to another employee. The assailant was waving a gun back and forth and told them to lay down and, as they persisted in saying they did not have the money, the assailant told them, Agotdammit, don=t lie to me, I=ll shoot you.@ Theresia gave him the change bag and the assailant said that was not what he wanted; he wanted the money in the safe.  Later when she had a hard time opening the safe, she heard the assailant say, Agotdammit, if you don=t open the safe I=m going to shoot you@ and she heard him cock the gun.  Both of the victims recognized the speech patterns of the assailant as being those of appellant.   Both also noted that the assailant knew: (1) that Epifanio smoked, telling him to use his lighter to light up the dark; (2) that they were supposed to have a money bag; and (3) the existence and location of the ground safe.  Theresia specifically noted the assailant=s pants which were still covered with flour from work that day; his shoes which she had laughed about earlier in the day; and his knowledge of the location of the light switch in the cooler, which was generally known only by staff.

After the assailant left, the victims called the police.  When the police arrived, they informed the investigating officer of their suspicion of appellant and the officer went to appellant=s home, where he found appellant=s car in the driveway. After receiving no answer after knocking on the door for five to ten minutes, the officer went to look at appellant=s car in the driveway.  Shining a light in the car, the police saw a weapon in plain view, and a hat described by the victims.  The police took the Zarates to the scene where Epifanio identified the gun as the one used in the robbery and Theresia identified the hat and gun, and a pair of sunglasses as having been used in the robbery.  After obtaining a search warrant, the police entered appellant=s home and car.  In the car, they found the bank bag from Pizza Hut with the money still in it, the gun, the sunglasses, the hat, and a pair of gloves. Theresia stated that the assailant had worn sunglasses and those found by the police appeared to be the type the offender was wearing, but she was not certain he wore gloves.  From appellant=s home, the officers recovered a jacket and a pair of pants which Theresia identified as worn by the assailant that night.  Another officer testified that evidence was received that appellant arrived home around 1:00 to 1:30 a.m. and had then left in another person=s vehicle, leaving his car at home where the vehicle stayed until secured by police at around 3:30 a.m.

The officer who recovered the gun, which was a BB pistol, did not check it to see if it was loaded, but the officer who inventoried it stated that, to his knowledge,  there were no BB pellets inventoried.

Appellant did not testify or put on any witnesses.

Sufficiency of the Evidence

We review the legal sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979), and the factual sufficiency of the evidence under the standard of Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim. App. 2000).

Appellant=s first three issues challenge the sufficiency of the evidence to prove that the BB pistol used was a deadly weapon.  We note in this regard that the penal code defines a deadly weapon as:

(A) a firearm or anything manifestly designed, made, or adapted for

the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable

of causing death or serious bodily injury.      

Tex. Pen. Code Ann.'1.07(a)(17) (Vernon 1994).

Appellant originally made arguments under these issues, challenging the sufficiency of the evidence to prove that the BB pistol was a deadly weapon under either of the two definitions set out above.

The first argument is that the BB pistol was not a deadly weapon per se as it was not a firearm.  Appellant also argues under this point that because the BB pistol was not a firearm under the definition of section 46.01(3) of the penal code,^[4] it was not a handgun as defined by section 46.01(5)^[5] of the penal code.  In reference to the second part of his argument, at oral argument appellant also claimed that, since the BB pistol did not meet the definition of a handgun under section 46.01(5), the State entirely failed to prove the indictment as pled, which specifically claimed that a handgun was used. As to the second part of this argument, on the definition of a handgun, it is clear that the definition of handgun set out in section 46.01(5) is limited to the offenses set out in chapter 46 of the penal code.  Ex parte Campbell, 716 S.W.2d 523, 526 (Tex. Crim. App. 1986); Garcia v. State, 791 S.W.2d 279, 282 (Tex. App.BCorpus Christi 1990, pet. ref=d). In alleging a handgun was used in the commission of an offense, the State need not prove that the handgun meets the definition contained in section 46.01(5) of the penal code unless the State is charging a defendant with an offense under section 46. Garcia, 791 S.W.2d at 283. Indeed, section 46.01, which is a definitions section, itself specifically states, AIn this chapter ... @ Tex. Pen. Code Ann '46.01(Vernon Supp. 2002)(emphasis added).  Appellant=s argument that the State failed to prove the BB pistol was a handgun is therefore without merit.  See Colon v. State, 680 S.W.2d 28, 30 (Tex. App.BAustin 1984, no pet.).  As to the first part of the argument that a BB pistol is not a deadly weapon per se, this is apparently conceded by the State, which relies only on the second definition of deadly weapon, claiming that the BB pistol, in the manner of its use or intended use, was capable of causing serious bodily injury or death.  See Tex. Pen. Code Ann. '1.07 (a)(17)(B)(Vernon 1994).  This is the subject of appellant=s second argument and thus we turn to that question.

Appellant argues that since there was no evidence that the BB pistol was used or threatened to be used as a bludgeon, and no evidence it was loaded at the time of the robbery, there was no evidence that it could cause serious bodily injury or death, citing Holder v. State, 837 S.W.2d 802 (Tex. App.BAustin 1992, pet ref=d).^[6]  To these arguments, the State responds by referring us to the more recent case of Delgado v. State, 986 S.W.2d 306 (Tex. App.BAustin 1999, no pet.).  We find that Delgado  states the proper standard under existing law and analyze this case in light of that standard.  The critical question in Delgado was whether the jury could rationally infer, from the evidence presented in the case, that the BB pistol was a deadly weapon at the time of the offense.  Id. at 308-09.  Unlike Delgado, there is no evidence in the present case that the BB pistol was ever used or threatened to be used for striking the victims.  Thus, the only way any harm could have been inflicted would have been by shooting.

We must consider then whether, under the evidence in this case, a jury could have rationally inferred that the BB pistol was capable of causing serious bodily injury.  Id. At trial, there was testimony that appellant pointed the gun at the victims, cocked it, and threatened to shoot. Like in Delgado, this evidence gives rise to an inference that the pistol was loaded and thus a deadly weapon. There was also expert testimony that if the BB pistol was fired at someone, it was capable of causing serious bodily injury.

Under the court of criminal appeals recent decision in Adame, such evidence is sufficient.  Adame, 69 S.W.3d at 582.  The court of criminal appeals has clarified that, where there is testimony that the type of gun used was capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding.  Id.   The court has also found it reasonable for a jury to infer that a BB pistol was loaded where a defendant points a BB pistol at a victim during a robbery.  Id.  Indeed, the court has found that it is reasonable to infer that defendants use loaded weapons during convenience store robberies.  Id.

In his brief on remand, appellant adds two additional arguments.

First, appellant claims that since the State used the term Ahandgun@ in the indictment, rather than using the language, Ain the manner of its use or intended use is capable of causing serious bodily injury or death,@ the State was required to prove that the handgun was a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.

Appellant contends that the State must use the language of Ain the manner of its use or intended use is capable of causing serious bodily injury or death,@ in the indictment in order to charge a defendant with aggravated robbery using a deadly weapon under penal code section 29.03(a)(2),^[7] when the deadly weapon being alleged is not a deadly weapon per se.  Appellant further argues that, because the State used the term Ahandgun@ in the indictment in the instant case, the State was required to prove that the BB pistol was a deadly weapon per se under section 1.07(a)(17)(A), and in the absence of such proof, the evidence is insufficient to sustain his conviction for aggravated robbery.  Appellant provides no authorities which support these contentions.    

Appellant intermingles the notions of pleading and proof.  The State did not specifically plead a deadly weapon per se merely by alleging that a handgun was used.  Colon, 680 S.W.2d at 29-30 (where State alleged defendant used or exhibited a Adeadly weapon: to wit, a handgun,@ State did not have to prove that Ahandgun@ was a firearm); see also Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985)(necessary elements of aggravated robbery do not include alleging the type of deadly weapon, citing Weaver v. State, 551 S.W.2d 419 (Tex. Crim. App. 1977));  Weaver, 551 S.W.2d at 420 (description of deadly weapon not necessary allegation in indictment).  Nor did the State plead a deadly weapon per se by its failure to include the phrase, Awhich in the manner of its use or intended use is capable of causing serious bodily injury or death@ following the word Ahandgun.@ The term Adeadly weapon@ is defined by statute and so a specific definition need not be included in the indictment.  Hudson v. State, 629 S.W.2d 227, 231 (Tex. App.BFort Worth 1982, no pet.).  Accordingly, absent an adequate motion to quash, the State was not required to plead the deadly weapon any more specifically than it did in order for the indictment to permit the jury to find that appellant used or exhibited a deadly weapon under either definition of section1.07(a)(17), which was supported by the evidence at trial.  See Cooper v. State, 573 S.W.2d 533, 535 (Tex. Crim. App. 1978)(where State alleged only that the defendant, A . . . did then and there by using and exhibiting a deadly weapon, to wit: A KNIFE,@ the indictment was sufficient to sustain a conviction for aggravated robbery, even though the knife was not a deadly weapon per se, where no motion to quash was filed); Peralez v. State, 630 S.W.2d 330, 331 (Tex. App.B Houston [14th Dist.] 1982,  no pet.)(indictment for aggravated robbery that failed to allege deadly weapon used or exhibited more specifically than a knife was sufficient absent a motion to quash). As we have noted, there was sufficient evidence for the jury to find that the BB pistol was a deadly weapon under section 1.07(a)(17)(B).

Appellant=s second new contention is that there is a fatal variance between the indictment and the proof at trial.  However, appellant provides no legal authority for this claim and hence has waived it.^[8]  Tex. R. App. P. 38.1(h)(brief must contain appropriate citations to authorities).

We find the evidence legally and factually sufficient to prove that a deadly weapon was used and overrule appellant=s first three issues. 

Appellant=s fourth issue challenges the factual and legal sufficiency of the evidence in reference to the proof of the identity of appellant as the perpetrator of the crime.  Given the numerous identifying factors in this case cited by both victims and the presence of the stolen money in appellant=s car within a few hours of the crime, we find the evidence both legally and factually sufficient on this point and overrule it.

Conclusion

Having overruled all of appellant=s issues, we affirm the judgment of conviction of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 29th day of August, 2002.                    

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^[1] Zambrano v. State, No. 13-00-290-CR, 2001 Tex. App. LEXIS 5473 (Tex. App.BCorpus Christi 2001)(not designated for publication),vacated, No. 2096-01 (Tex. Crim. App. May 8, 2002)(not designated for publication).

^[2] Upon remand, we sent notice to the parties inviting them to file supplemental briefs.  Both have done so.

^[3] Appellant filed a brief on remand which asserted four Aadditional issues on remand.@  The first three Aadditional issues@ essentially repeat the first three issues raised on original submission. The fourth Aadditional issue@ is entirely new.  Appellant explains that in filing his supplemental brief on remand, he is not waiving prior issues raised but Awished to suggest to the Court additional reasons@ for reversal of his conviction. Appellant=s new complaint in his supplemental brief is that there is a fatal variance between the pleading and the proof with regard to the alleged use of a deadly weapon.  We decline to address this new issue, find that it was waived by not being included in the original brief to this court, and address only the issues raised on original submission.  See Lopez v. State, 57 S.W.3d 625, 629 (Tex. App.BCorpus Christi 2001, pet. ref=d)(on remand we will only consider issues which are raised as a result of the opinion by the court of criminal appeals, its application on remand, and subsequent authorities on issues previously presented, citing Sanders v. State, 963 S.W.2d 184, 186 (Tex. App.B Corpus Christi 1998, pet. ref=d).  Generally, issues raised for the first time in a supplemental brief are not considered properly presented for appellate review.  See Monreal v. State, 947 S.W.2d 559, 563 n.5 (Tex. Crim. App. 1997)(court of appeals may, acting within its sound discretion, decline to address issues raised for the first time in a supplemental brief on remand).  The Aadditional issue@ is one which could easily have been raised in the original brief and  was not raised or supported by the holding of the court of criminal appeals in Adame v. State,  69 S.W.3d 581 (Tex. Crim. App. 2002), which was the basis for the remand in this case. Moreover, even if we chose to address the new issue, we would find that it was waived as appellant presented no authorities in support of his contention.  Tex. R. App. P. 38.1(h)(brief must contain appropriate citations to authorities).  Even considering such issue as a mere Aadditional reason@ in support of the previously raised issues, as we do later in this opinion, the argument is waived by inadequate briefing.

^[4]The section states in pertinent part:

AFirearm@ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.

Tex. Pen. Code Ann. '46.01(3)(Vernon Supp. 2002).

^[5]The section states:

AHandgun@ means any firearm that is designed, made, or adapted to be fired with one hand. 

Tex. Pen. Code Ann. '46.01(5)(Vernon Supp. 2002).

^[6] There was undisputed evidence at trial that the pistol was capable of causing serious bodily injury if fired at close range into an eye or could cause serious bodily injury or death if used to Apistol-whip@ a person.

^[7] That section reads, AA person commits an offense if he commits robbery as defined in [Texas Penal Code] Section 29.02 and he: . . . uses or exhibits a deadly weapon.@ Tex. Pen. Code Ann. '29.03(a)(2)(Vernon 1994).

^[8] Appellant appears to presume that claims of factual sufficiency and fatal variance are reviewed under the same standard. This is incorrect.  An argument that there is a material variance between the proof adduced at trial and the indictment first requires an examination of whether there is a variance, Gollihar v. State,  46 S.W.3d 243, 246 (Tex. Crim. App. 2001), and then, if there is a variance,  an examination of the materiality of the variance.  Id. at 257-58.  Some courts have viewed a variance claim as a notice issue and others as a sufficiency issue, although the court of criminal appeals has more consistently reviewed the issue as one of sufficiency.  Id. at 247.  However, even when viewed as a sufficiency question, a variance claim is subject to an additional materiality analysis which is not required under a traditional sufficiency of the evidence review.   Id. at 247 n.7.  Only a material variance will render the evidence insufficient.  Id. at 257. 

In the present case, appellant argues that there is nothing in the record to support a finding that the handgun was a firearm.  This is not a variance between the indictment and proof.  The indictment alleged a handgun, not a firearm.  There was evidence of a handgun.  Appellant also argues that the indictment alleged a deadly weapon by design and the only proof presented was of a deadly weapon by use.  As noted previously, nothing in the indictment required the jury to find Aa deadly weapon by design@ and thus the fact that the jury (presumably) found a Adeadly weapon by use@ is not a variance between the indictment and the proof at trial.