Johnson, Brandon Lekeith v. State ( 2004 )

Opinion issued January 15, 2004

In The  

Court of Appeals

For The  

First District of Texas

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  NO. 01-02-00858-CR

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BRANDON LEKEITH JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 885737

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MEMORANDUM OPINION

          A jury found appellant, Brandon Lekeith Johnson, guilty of aggravated robbery and assessed punishment at 40 years’ confinement. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In four points of error, we determine whether (1) the evidence was legally and factually sufficient to support the finding that appellant used or exhibited a deadly weapon and (2) the evidence was legally and factually sufficient to support the finding that appellant intended to commit robbery. We affirm. FACTS

          On May 13, 2001, the complainant, Fred Cramm, went to a topless bar (“the club”), met an exotic dancer named “Jayla,” and exchanged cell phone numbers with her. On June 13, 2001, one month later, he received a call from Jayla (“Culver”) and agreed to meet her for dinner and drinks at Pappasito’s restaurant at 6:00 p.m. When Cramm arrived at the restaurant, he could not find Culver, but she called shortly thereafter. She told Cramm that the restaurant was too crowded and that she could not find a parking spot. Cramm testified that, even though there were many parking spots, he agreed to meet Culver at a strip center. When he arrived, Cramm waited for about five minutes before Culver arrived in a car. She parked on the far side of the parking lot, immediately went over to Cramm’s car, and got in the passenger’s seat. The two eventually decided to go to the Mariner restaurant. They were at the restaurant for approximately three and one-half hours. Twice during their dinner together, Culver got up from the table and used Cramm’s cell phone to place telephone calls. At the end of the meal, they left the restaurant, and, while walking out to his car, Cramm noticed a man, whom he identified as appellant, sitting near the car. At this point, the stories begin to diverge.

          Cramm testified that appellant approached him with a knife in each hand. Cramm testified that the knives “had a grip on each one, and [each] had a blade. I would say about six to eight inches long.” Cramm stated that the appellant said something that he did not understand and then stabbed him in the abdomen. Cramm testified that Culver was standing near appellant and smiling, which made Cramm conclude that he had been “set up.”

          Cramm testified that appellant told him to put his watch, wallet, and cell phone on the ground. Appellant then told him to open the trunk and “get in the car or get in the trunk.” Cramm tried to unlock the trunk, but because of the pain from the knife wound, he could not open it. Instead, he put his keys on the ground, stood up, and ran back into the restaurant. He never recovered the items taken from him.

          Cramm testified that the knife wound perforated his small intestine and required surgery, during which 32 staples were used to repair the wound. As a result of the surgery, Cramm “went through a lot of pain” and was hospitalized for six days, two of which he spent in intensive care.

          Detective Tom Keen, a 29-year veteran of the Harris County Sheriff’s Department, testified as an expert witness regarding deadly weapons. Detective Keen testified that, based on his experience, the knives that Cramm described could “easily” have been deadly weapons.

          Appellant’s version of the story differed from that of Cramm. Appellant testified that Culver, his girlfriend, told him that she had been sexually assaulted by Cramm while working at the club and that she had asked appellant to “jump” Cramm. Appellant admitted that he was present when Culver called Cramm to arrange the date. Appellant testified that he went to the parking lot to get an explanation regarding the alleged sexual assault at the club. He said that he approached Cramm and said, “I know what you did. I know who you are. I know what you did at the club.” Appellant said that Cramm then made a sudden move toward him, but he did not see Cramm try to punch or to strike him. In response to this sudden move, appellant said that he pulled out a knife and stabbed Cramm. Appellant said that he never intended to stab Cramm, but that he just reacted. Appellant testified that he had only one pocket knife and that it was not more than four inches long. He said that, after the stabbing, Cramm backed away, looked at him and Culver, and then began taking off his watch. Appellant testified that Cramm said, “You can have anything you want. Just please don’t hurt me. Please don’t kill me.” Appellant said that he refused to take the watch, wallet, cell phone, and car keys and that it was, in fact, Culver who took the cell phone and wallet. Appellant was unsure about what happened to the watch.

          Culver, testifying on appellant’s behalf at the punishment hearing only, said that she had met Cramm at a strip club and that, after she performed a private dance for him, Cramm raped her. Culver told appellant about the incident, and she then decided to set up Cramm by having appellant scare him.

          Culver told the jury that she saw appellant stab Cramm, but did not remember appellant’s demanding Cramm’s property. She admitted taking Cramm’s cell phone. Culver testified that, when Cramm ran away, she tried to chase him, but appellant held her back. The knife used to stab Cramm was not recovered.

SUFFICIENCY OF THE EVIDENCE

          In four points of error, appellant contends that the evidence presented at trial was legally and factually insufficient to show that (1) the knife used was a deadly weapon and (2) appellant intended to rob Cramm. We follow the usual standards of review. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency).

A. Deadly Weapon Finding

          In points of error one and two, appellant contends that there is legally and factually insufficient evidence to show that the knife that he used was a deadly weapon. A person commits the felony offense of robbery if, in the course of committing a theft, and with intent to obtain or to maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). A robbery is aggravated if a robbery is committed and the offender (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon. Tex Pen. Code Ann. § 29.03(a). In turn, a deadly weapon is defined as (1) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or (2) 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)(A)-(B)(Vernon 2003). A knife is not a deadly weapon per se. Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.—Houston[1st Dist.] 1999, no pet.). However, if a knife is used in a manner capable of causing death or serious bodily injury, it can be considered a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(A)-(B). In determining whether a knife is a deadly weapon, a jury may consider (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony of the knife’s life-threatening capabilities. Garcia, 17 S.W.3d at 4. The jury may also consider the nature and type of the wounds inflicted by the knife when determining whether it is a deadly weapon. Id. at 4-5.

          1. Legal Sufficiency

          Looking at the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support the deadly weapon finding. Cramm testified that appellant displayed two six-to-eight-inch knives, and that appellant used one of the knives to stab him. As a result, Cramm was in the hospital for six days, two of which were spent in the intensive care unit. He suffered a “through–and–through small bowel injury,” as well as an injury to his duodenum, both of which required surgery and the insertion of 32 staples to close. Based on this evidence, we conclude that a rational jury could find that the knives in question were deadly weapons. See id.; see also Williams v. State, 477 S.W.2d 24, 25 (Tex. Crim. App. 1972) (holding that pocketknife was deadly weapon when used to cut victim multiple times, leaving wounds that required 48 stitches to repair). Accordingly, we hold that the evidence was legally sufficient to show that the knife was a deadly weapon. We overrule point of error one.

          2. Factual Sufficiency

          After reviewing all of the evidence neutrally, we conclude that the evidence is not so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zulianai v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003). Appellant testified that he stabbed Cramm with a pocket knife that was under four inches in length. In contrast, Cramm claimed that appellant had two, six- to eight-inch knives. To declare the evidence factually insufficient, we would have to determine whose story was correct and which witnesses were more believable. We will not replace the jury’s credibility determinations with our own. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Accordingly, we hold that the evidence is factually sufficient to support the deadly weapon finding. We overrule point of error two.

B. Intent to Commit Robbery

          To prove an aggravated robbery, the State must first show that the defendant stabbed the complainant in the course of committing a theft. See Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003). “In the course of committing a theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. See Tex. Pen. Code Ann. § 29.01(1) (Vernon 2003). The State need not prove actual theft; it need prove only that the defendant had the requisite intent to deprive the owner of the property at the time of the offense. Roseland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988). In points of error three and four, appellant contends that the evidence is legally and factually insufficient to show that he intended to rob Cramm. We disagree.

          1. Legal Sufficiency

          Looking at the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to show that appellant intended to rob Cramm. Cramm testified that, after he had told appellant to “take whatever you want,” appellant instructed him to put his wallet, cell phone, and watch on the ground. In addition, the State introduced extraneous offense evidence of a similar crime that appellant had committed with his co-defendant, Culver, to show that appellant possessed the requisite intent to deprive Cramm of his property. See Tex. R. Evid. 404(b) (providing that other crimes, wrongs, or acts are admissible to show intent). Accordingly, we hold that the evidence is legally sufficient to show that appellant intended to rob Cramm. We overrule point of error three.

          2. Factual Sufficiency

          In support of his claim that the evidence is factually insufficient to show intent to commit robbery, appellant points to his own testimony, in which he denied that he had ever demanded Cramm’s property. In contrast, Cramm testified that appellant told him to put his watch, cell phone, and wallet on the ground. Additionally, the admission of the nearly identical extraneous offense, during which another man was robbed in a similar manner, is evidence that appellant intended to commit robbery. After reviewing all of the evidence neutrally, we conclude that the evidence is not so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Again, for us to overturn the verdict, we would have to decide who was more believable—Cramm’s and Al Haoui’s testimony indicating that appellant and Culver had set them up so that they could be robbed, or appellant’s testimony that he wanted to confront Cramm about the alleged sexual assault of Culver. This we refuse to do. See Moreno, 755 S.W.2d at 867 (holding that issues of credibility should be left to the fact finder). Accordingly, we hold that the evidence is factually sufficient to show that appellant intended to rob Cramm. We overrule point of error four.

CONCLUSION

          We affirm the judgment.

                                                   Sherry Radack

                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Do not publish. See Tex. R. App. P. 47.2(b).