Jermain Gaither v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00204-CR
JERMAIN GAITHER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2013-400,719, Honorable Jim Bob Darnell, Presiding
December 7, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Jermain Gaither appeals his conviction for aggravated robbery. Through his sole
issue, he contends that the evidence was insufficient to prove, beyond reasonable
doubt, that the objects he and his accomplice exhibited during their robbery of a
convenience store were firearms or deadly weapons. We overrule the issue.
The applicable standard of review is described in Murray v. State, 457 S.W.3d
446 (Tex. Crim. App. 2015). Under it, we decide “‘whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” Id. at 448, quoting,
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
(emphasis in original). The standard burdens “the factfinder with resolving conflicts in
the testimony, weighing the evidence, and drawing reasonable inferences from basic
facts.” Id. And, the reviewing court must decide if “‘the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.’” Id.
Appellant does not dispute that he and an accomplice robbed the convenience
store. Nor does he deny that he carried an object that the store clerk characterized as a
“pistol.” Instead, he simply alleges that the clerk’s testimony about seeing only a barrel
protruding from his jacket sleeve was insufficient to establish that the object was an
actual firearm.
Appellant correctly suggests that the clerk testified to seeing only a four or five
inch black barrel protruding from the jacket sleeve. So too did he testify that 1) two men
entered the store brandishing “guns,” 2) they were “pistols,” 3) the weapons each robber
carried looked similar, 4) the item pointed at him did not look like the toy guns with
which his child played, and 5) he was sure they were “real.” To that we add the
following bit of evidence. The clerk was asked: “At one point when they were yelling at
you about a safe, did the man in the dark colored jacket [i.e. appellant] point that gun at
you and say anything to you?” His answer was: “He pointed the gun at me, said, ‘This
is real. If you don't open this safe, I'm going to shoot you in the leg.’" (Emphasis
added). So, contrary to appellant’s contention, the record contains more than merely
the clerk’s description of what appellant and his accomplice allegedly held. It contains
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appellant’s own representation or admission that what he wanted the clerk to believe
was a firearm was “real” and was going to be used to “shoot [the clerk] in the leg.” From
that amalgam of evidence, the jury could have rationally inferred, beyond reasonable
doubt, that what appellant used and exhibited “a deadly weapon, to-wit: a firearm”
during the robbery as alleged in the indictment. So too could it have disregarded
appellant’s later contradictory statement to the arresting officer that the firearm was
merely a toy, a truism that appellant acknowledged in his brief.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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