Andre Norris v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00116-CR
________________________
ANDRE NORRIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2013-437,508; Honorable Brad Underwood, Presiding
October 21, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Andre Norris, was convicted by a jury of aggravated robbery,
enhanced, and assessed a sentence of thirty-five years confinement and a fine of
$2,500.1 In two points of error, Appellant asserts the trial court erred by (1) giving an
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). An offense under this section is a felony
of the first degree. As enhanced, the offense was punishable by imprisonment for life, or for any term of
not more than 99 years or less than 15 years, and a fine not to exceed $10,000. See TEX. PENAL CODE
ANN. §§ 12.42 (c)(1) and 29.03(b) (West Supp. 2014 and West 2011).
incomplete or erroneous instruction on the use of a deadly weapon and (2) failing to
give an instruction on the lesser-included offense of robbery. We affirm.
BACKGROUND
In February 2013, an indictment issued alleging that Appellant, on or about
October 6, 2011, while in the course of committing theft of property and with intent to
obtain or maintain control of said property, intentionally or knowingly threatened or
placed Michael Lusk in fear of imminent bodily injury or death, and in the course thereof
used or exhibited a deadly weapon, to-wit: a firearm. Count two of the indictment
alleged that, on the same date, Appellant intentionally and knowingly entered a
habitation, without the effective consent of Lusk, the owner thereof, and committed the
felony offense of aggravated assault.2
The evidence at trial established that on October 6, 2011, Lusk returned to his
residence from work to find a light on in his master bedroom. When he reached the
bedroom, a young man appeared in the doorway and pointed a shotgun at him. The
man was working the bolt action on the gun and told Lusk to be still or be killed. Lusk
believed the man was going to shoot him and ducked behind a wall—afraid for his
safety. He then realized the shotgun being wielded by the intruder was one he kept in
his bedroom closet. Normally, the gun was unloaded; however, Lusk realized that it
was kept within three feet of its ammunition. When the man walked past him in the
hallway, Lusk grabbed the barrel of the gun and wrestled with the man. Ultimately, the
intruder was able to flee the residence. Lusk attempted to follow the man into his
2
Simultaneous with the entry of judgment as to count one, the trial court granted the State’s
motion to dismiss count two of the indictment.
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backyard but lost him in the alleyway. Lusk then called 911 and Lubbock County Police
officers arrived to secure the crime scene and commence a search for the intruder.
During the investigation, broken glass was discovered on both sides of Lusk’s backdoor
and the intruder’s ball cap was located. The bedroom was in disarray and jewelry worth
$5,000 was missing. Lusk was unable to identify the man who broke into his house,
explaining that during the encounter he was more concerned with securing the shotgun
than looking at the intruder.
As part of their investigation, officers photographed the damage to Lusk’s house
and interior disarray. They also collected the ball cap for DNA analysis and lifted
fingerprints off broken glass shards originating in and around Lusk’s backdoor. At trial,
testimony established that fingerprints lifted from the broken glass were identified as
belonging to Norris, and Daniel Lindley, a DPS forensic scientist, testified that DNA from
the ball cap was a “match” for Norris.3 After the State rested, Appellant rested without
putting on any evidence.
During the charge conference, Norris requested a limiting instruction concerning
the fingerprint evidence produced by the State. That request was denied. Norris also
requested an instruction on the lesser-included offense of robbery and then modified
that request to include the lesser-included offense of criminal trespass. That request
was also denied.
As presented to the jury, the abstract portion of the jury charge stated a “person
commits the offense of robbery if, in the course of committing theft . . . and with intent to
3
Lindley testified that the odds of finding someone at random having the same DNA result would
be one in fifty million.
3
obtain or maintain control of property of another, he intentionally or knowingly threatens
or places another in fear of imminent bodily injury.” The jury charge went on to state
that “[t]he offense is aggravated robbery if the person committing robbery uses or
exhibits a deadly weapon” and “[a] firearm is a deadly weapon.”
The application portion of the charge stated, in pertinent part, as follows:
Now bearing in mind the foregoing instructions, if you find from the
evidence beyond a reasonable doubt that on or about October 6, 2011, in
Lubbock County, Texas, as alleged in the indictment, the defendant,
Andre Norris, did then and there, while in the course of committing theft of
property and with intent to obtain or maintain control of said property,
intentionally or knowingly threaten or place Michael Lusk in fear of
imminent bodily injury or death and the defendant did then and there use
or exhibit a deadly weapon, to-wit: a firearm, then you will find the
defendant guilty of the offense of aggravated robbery and so say you by
your verdict. If you have a reasonable doubt as to whether the defendant
is guilty, then you should acquit the defendant and say by your verdict
“Not guilty.”
Upon submission, the jury found Norris guilty of aggravated robbery. Following
the punishment phase of the trial, the jury found the punishment enhancement
allegation to be true and sentenced him to thirty-five years confinement and a fine of
$2,500. This appeal followed.
STANDARD OF REVIEW
In analyzing a jury-charge issue, we first determine if error occurred, and, if so,
we then conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex. 2005). The
degree of harm required for reversal depends on whether the appellant has preserved
error by objection. Id. A jury-charge error requires reversal when, after proper
objection, the appellant suffers Asome harm@ to his rights. Id.; Almanza v. State, 686
S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh=g), reaffirmed by, Middleton v.
4
State, 1215 S.W.3d 450, 453 (Tex. Crim. App. 2003). If an appellant fails to object at
trial and offers no objections to the charge, charge error does not require reversal
unless appellant shows Aegregious harm.@ Almanza, 686 S.W.2d at 174.
POINT OF ERROR ONE: DEADLY W EAPON INSTRUCTION
Because there was evidence at trial that Lusk’s shotgun may have been
unloaded, Appellant asserts on appeal the trial court should have included an instruction
in its charge that a “deadly weapon” means a firearm if “you [the jury] find that in the
manner of its use or intended use it was capable of causing death or serious bodily
injury.” At trial, Appellant did not object to the trial court’s “deadly weapon” instruction,
nor did he request this additional instruction.
The trial court submitted its deadly weapon instruction under Section
1.07(a)(17)(A) of the Texas Penal Code. See TEX. PEN. CODE ANN. § 1.07(a)(17)(A)
(West Supp. 2014) (“‘Deadly Weapon’ means a firearm or anything manifestly designed,
made, or adapted for the purpose of inflicting death or serious bodily injury.”). Lusk
testified that, during the robbery, Appellant was carrying a shotgun, pointed it at him,
worked the gun’s bolt action, and threatened to kill him, and he was afraid for his safety.
Because Appellant did not object to the trial court’s “deadly weapon” instruction and did
not request any additional instructions in that regard, error, if any, does not require
reversal unless he is able to show Aegregious harm.@ See Almanza, 686 S.W.2d at 171.
Since the adoption of the Penal Code in 1974, the issue of whether an object is a
deadly weapon is entirely controlled by legislation, Thomas v. State, 821 S.W.2d 616,
619 (Tex. Crim. App. 1991), and trial judges are not at liberty to omit the statutory
5
definition of “deadly weapon” from their jury instructions under any circumstances where
it is the law applicable to the case. Id. Under section 1.07(a)(17)(A) of the Penal Code,
an object meets the statutory definition of a deadly weapon if it is a firearm. TEX. PEN.
CODE ANN. § 1.07(a)(17)(A) (West Supp. 2014). Accordingly, if the State proves at trial
that an object is in fact a firearm, the State need not “show that the object [is] really
capable of causing death, either in the manner of its actual use or in the manner of its
intended use.” Thomas, 821 S.W.2d at 620. See Hammons v. State, 856 S.W.2d 797,
800 (Tex. App.—Fort Worth 1993, pet. ref’d) (“Once such a showing is made, the State
need not verify that the object was actually capable of causing death.”).
Here, the State introduced testimony corroborated by photographs illustrating
that Appellant carried and threatened Lusk with a shotgun during the robbery. See
Gregg v. State, 820 S.W.2d 191, 193 (Tex. App.—Fort Worth 1991, no pet.) (shotgun is
a deadly weapon per se); Rodriguez v. State, 644 S.W.2d 200, 203 (Tex. App.—San
Antonio 1982, no pet.) (a sawed-off shotgun is a firearm and by definition a deadly
weapon). Hence, there was no need for the jury to find, as suggested by Appellant, that
the shotgun was really capable of causing death or serious bodily injury, either in the
manner of its actual use or in the manner of its intended use, see Thomas, 821 S.W.2d
at 620; Hammons, 856 S.W.2d at 800, in order for the jury to find the shotgun was in
fact a “deadly weapon.”
Indeed, the issue for the jury here was whether the shotgun was “used”
(employed or utilized in order to achieve its purpose) or “exhibited” (consciously
displayed) during the commission of the robbery. See Boston v. State, 373 S.W.3d 832,
837 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013) (“the mere
6
carrying of a weapon during a robbery can be legally sufficient evidence for a jury to
conclude that the intended use of the weapon was that it be capable of causing death or
serious bodily injury”). See also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App.
1985) (“If the trier of fact finds that a pistol has been used in the commission of the
offense . . . then it has found that a deadly weapon has been used since a pistol is a
deadly weapon per se.”). Accordingly, we find the trial court did not err in its “deadly
weapon” instruction and overrule Appellant’s first point of error.
POINT OF ERROR TWO: LESSER-INCLUDED OFFENSE INSTRUCTION
Appellant next asserts the trial court erred by not giving a lesser-included offense
instruction for robbery4 because there were material issues whether Appellant used or
exhibited a deadly weapon in light of testimony that the shotgun might be unloaded.
This issue is simply a rehash of Appellant’s first point of error.
Robbery is a lesser-included offense of aggravated robbery. See Penaloza v.
State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). See also
Alonzo v. State, No. 07-12-00244-CR, 2014 Tex. App. LEXIS 3703, at *13 (Tex. App.—
Amarillo Apr. 7, 2014, pet. ref’d) (mem. op., not designated for publication). With the
first prong of our test satisfied, we must next determine whether there is some evidence
presented from which a jury could rationally find that Appellant is guilty of robbery but
not guilty of aggravated robbery. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.
Crim. App. 2000) (en banc).
4
A person commits robbery if, in the course of committing theft and with the intent to obtain or
maintain control over the property, he intentionally, knowingly, or recklessly causes bodily injury to
another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or
death. TEX. PENAL CODE ANN. § 29.02(a)(1), (2) (West 2011). A person commits aggravated robbery if he
commits robbery and uses or exhibits a deadly weapon. See id. § 29.03(a)(2) (emphasis added).
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Having considered all the evidence at trial, we find there is no evidence
contradicting Lusk’s testimony that a shotgun was carried by Appellant during the
robbery and that he was threatened with the weapon and feared for his safety. As such,
there is not a scintilla of evidence indicating a deadly weapon was not used or exhibited
during the robbery. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)
(“[T]here must be some evidence directly germane to the lesser-included offense for the
finder of fact to consider before an instruction on a lesser-included offense is
warranted.”).
Accordingly, the trial court did not err in refusing to submit Appellant’s requested
lesser-included offense instruction because Appellant has not established that some
evidence in the record supports a finding that, if he was guilty, he was guilty solely of
the lesser-included offense of robbery. See Young v. State, 428 S.W.3d 172, 178 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied). Appellant’s second point of error is
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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