Gomez v. State , 1985 Tex. Crim. App. LEXIS 1226 ( 1985 )

OPINION

McCORMICK, Judge.

Three interrelated causes are before us, appeals from two revocations of probation¹ and the direct appeal of appellant’s conviction for the revoking offense of aggravated robbery. A jury found appellant guilty of aggravated robbery and the trial court assessed punishment at twenty-five years. After considering the evidence offered by the State in support of the motions for revocation, the trial court revoked appellant’s probations and assessed punishment at three years in Cause No. 64,706 and five years in Cause No. 64,705.

Appellant advances three grounds of error in Cause No. 64,707, the aggravated robbery case. Each ground concerns the allegations in the indictment and the State’s subsequent proof. In ground of error number one, appellant contends that the evidence is insufficient to establish each and every allegation contained within the indictment. The remaining grounds of error concern proof of the use and exhibition of a firearm. Ground of error number two urges that the evidence is insufficient as a matter of law to prove such use and ground of error number three contends fatal variance between the firearm allegation and the proof.

Appellant’s grounds of error in both revocation eases are identical. Appellant advances that the evidence is insufficient to show by a preponderance of the evidence that appellant committed aggravated robbery and likewise insufficient to show aggravated robbery by using and exhibiting a deadly weapon, namely a firearm. We will first consider appellant’s contentions in the aggravated robbery case.

The record reflects that Sampson Chow, the owner of a grocery located at 803 Harbor in Houston, was robbed the afternoon of February 28, 1979. Approximately $1,800.00 and a pistol were taken by three men. Chow identified the appellant as one of the perpetrators. Chow testified that the trio entered the store prior to the robbery and purchased two beers and a Coke. Appellant stayed at the counter with the complainant while the other two men selected the merchandise. Shortly after leaving the store, the three men returned. Appellant again stationed himself at the counter next to Chow while one accomplice manned the door, and the other went to the back of the store, ostensibly to get a six pack of beer. When appellant’s accomplice returned to the front of the store, appellant pointed a gun at the complainant and said, “This is a holdup.” At this juncture, the other two men drew their guns. Chow testified he was in fear of his life or serious bodily injury. Appellant ordered Chow and his four customers to lie on the floor, then he cleaned out one cash register and helped open the other register. Afterward, the trio fled and Chow called the police.

On March 16, 1979, appellant was arrested inside Trahan’s Grocery Store in Houston. Without objection, the arresting officer testified that the police placed a “hold” on appellant because appellant was a suspect in the robbery of Chow. The next day, Chow viewed a lineup and readily identified appellant as one of the men who had robbed him on February 28.

In addition to pleading the necessary elements of aggravated robbery under V.T.C.A., Penal Code, Sections 29.03 ² and 29.02³ (1979), the indictment in the case at bar contains the averment that the deadly weapon was a firearm. Specifically, the indictment alleges that in Harris County, Texas, appellant:

“... on or about February 28, 1979, did then and there unlawfully while in the course of committing theft of property owned by Sampson Chow, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely a firearm.”

The State was not required to allege firearm in order to charge appellant with the offense of aggravated robbery. However, where the State alleges unnecessary matter which is descriptive of the essential elements of the crime, the State must prove the descriptive matter as alleged. Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976); Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973); Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Proof of the use and exhibition of a deadly weapon is an essential element of the offense of aggravated robbery. As a result, the State had to prove beyond a reasonable doubt that the weapon used was a firearm to sustain appellant’s conviction.

In this cause, no weapon was identified as being the same or like the one appellant used or exhibited. Chow referred to the weapon used by the appellant as a “gun” or “revolver.” On direct examination, Chow described the weapon as follows: Testimony regarding the use of a revolver is sufficient to support a finding of use and exhibition of a deadly weapon. Wright v. State, 591 S.W.2d 458 (Tex.Cr.App.1980). In addition, if a weapon is not recovered, corroboration of the complainant’s description of the weapon in the form of expert testimony is not required. Porter v. State, 601 S.W.2d 721 (Tex.Cr.App.1980).

“Q. During the course of this robbery, did you get a look at the gun that the Defendant used, the one that he pulled on you?

“A. I only see half. He covered the other half. It’s a black colored gun.

“Q. Do you know the difference between an automatic pistol and revolver?

“A. Yes.

“Q. Could you tell what kind it was? "A. It was a revolver.”

Appellant presents the novel contention that a revolver is not a firearm as a matter of law and therefore the evidence is insufficient to sustain appellant’s conviction. A revolver is defined in Ballantine’s Law Dictionary as “[a] firearm with short barrel, to be held in firing with one hand; a deadly weapon.” Ballantine’s Law Dictionary (3d Ed.1969). Therefore, we hold that a revolver is a firearm. Since a firearm is a deadly weapon per se under V.T.C.A., Penal Code, Section 1.07(a)(ll)(A), and a revolver is a firearm, the State sustained its burden of proof as to the firearm allegation and no fatal variance is present. Likewise, the evidence is sufficient to establish each and every allegation in the indictment. Grounds of error one, two and three in Cause No. 64,707 are overruled.

Since the evidence is sufficient to support a finding of guilt beyond a reasonable doubt for the offense of aggravated robbery, the same evidence is sufficient to support the finding of a probation violation by a preponderance of the evidence. Grounds of error one and two in Cause Nos. 64,705 and 64,706 are overruled.

The judgments are affirmed.

1 . In Cause No. 64,706, appellant was indicted under the name of Johnny Gonzales for the offense of theft committed on July 6, 1978. Appellant pled guilty and was granted adult probation for a term of three years on October 13, 1978. In Cause No. 64,705, appellant was indicted under the name Richard Gomez aka Beaver Gonzales for the offense of burglary of a habitation with intent to commit theft committed on October 2, 1978. Appellant pled guilty and was granted adult probation for a term of five years on December 1, 1978. Both motions to revoke probation alleged failure to report to his probation officer, failure to work faithfully at suitable employment, and nonpayment of supervision fees in addition to the revoking offense of aggravated robbery.

2 . The pertinent portions of Section 29.03, Aggravated Robbery, provide:

"(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he

“(2) uses or exhibits a deadly weapon.”

3 . Under the applicable portions of Section 29.-02, Robbery:

"(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property he:

"(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”