Patrick Lamont Dean v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Patrick Lamont Dean

Appellant

Vs.       Nos. 11-01-00326-CR, 11-01-00327-CR, & 11-01-00328-CR - Appeals from Dallas County

State of Texas

Appellee

This proceeding involves appeals from one conviction for aggravated robbery^[1] and two convictions for robbery.^[2]   Appellant=s court-appointed counsel has filed a brief on the merits with respect to the conviction for aggravated robbery and has filed Anders^[3] briefs in Cause Nos. 11-01-00327-CR and 11-01-00328-CR.  We affirm.

                                                                Procedural History

The indictment in Cause No. 11-01-00328-CR alleged that appellant committed a robbery on or about April 15, 2000.  The indictment additionally contained an enhancement paragraph which alleged a prior felony conviction.  Appellant entered an open plea of guilty to the charge on September 7, 2000.  The trial court accepted appellant=s guilty plea and entered an order on October 12, 2000, placing him on deferred adjudication for a term of 10 years. 

Appellant committed the aggravated robbery which is the subject of Cause No. 11-01-00326-CR on or about March 21, 2001.  He committed the robbery which is the subject of Cause No. 11-01-00327-CR on or about March 11, 2001.  The two 2001 robberies were committed during the term of appellant=s deferred adjudication in Cause No. 11-01-00328-CR.  The State subsequently filed a motion to adjudicate guilt in Cause No. 11-01-00328-CR, alleging that appellant had violated the conditions of his community supervision. 

Appellant entered open guilty pleas in Cause Nos. 11-01-00326-CR and 11-01-00327-CR on June 27, 2001.  Appellant also entered a plea of Atrue@ on this date to the motion to adjudicate guilt filed in Cause No. 11-01-00328-CR.  The trial court accepted appellant=s pleas and continued the cases until a later date for a determination of punishment in all three cases.   The punishment hearing commenced on August 9, 2001.  Appellant testified on his own behalf during the punishment hearing.  In an effort to seek mercy from the trial court, appellant testified that he did not mean to harm any of his victims and that he only used a BB gun during the robberies alleged in Cause Nos. 11-01-00326-CR and 11-01-00327-CR.  The indictments in each of these two causes charged appellant with aggravated robbery based upon his use and exhibition of a deadly weapon, a firearm.  In light of the conflict between appellant=s testimony and the language of the indictments, the State presented an oral motion for continuance in order to present additional testimony regarding the weapon which appellant used in the robberies. 

The proceedings reconvened on August 20, 2001.  Appellant made a request at the  hearing to withdraw his guilty pleas in Cause Nos. 11-01-00326-CR and 11-01-00327-CR.  The State did not oppose this request.  The trial court thereupon proceeded with sentencing in Cause No. 11-01-00328-CR by sentencing appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 40 years.  Further proceedings in Cause Nos. 11-01-00326-CR and 11-01-00327-CR were deferred until September 7, 2001.  Appellant waived his right to a jury trial with respect to the determination of his guilt in these two causes.  He also executed stipulations of evidence wherein he admitted to all of the facts alleged in the indictments  returned in Cause Nos. 11-01-00326-CR and  11-01-00327-CR except the allegation that he used or exhibited a deadly weapon, a firearm, in the two robberies.  The trial court received testimony regarding the type of weapon appellant used during the robberies.  The trial court found appellant guilty of aggravated robbery in Cause No. 11-01-00326-CR.  The trial court assessed appellant=s punishment in Cause No. 11-01-00326-CR at confinement for life. With respect to Cause No. 11-01-00327-CR, the trial court found appellant guilty of the lesser included offense of robbery and assessed his punishment at confinement for a term of 20 years and imposed a fine of $1,000. 

                                                        Cause No. 11-01-00326-CR

In his sole point of error, appellant attacks the legal and factual sufficiency of the evidence supporting the finding that he used or exhibited a deadly weapon, a firearm, in the aggravated robbery alleged in Cause No. 11-01-00326-CR. 

                                                                 Legal Sufficiency

Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  The State offered the testimony of the two cashiers whom appellant robbed on March 21, 2001.^[4]  The female cashier testified that she had some knowledge of handguns because her stepfather owned four handguns.  She testified that she got a good look at the gun which appellant used.  She described the gun as being Abig, black, and the hole was big...it looked like a nine millimeter.@  She also admitted that she had no firearms training and that she had never fired a firearm.  She also did not know the difference between an automatic and a revolver.  The male cashier had previously worked in a sheriff=s office.  Appellant pointed the gun at the male cashier=s stomach during the robbery.  The male cashier testified that he had knowledge of handguns and that the weapon which appellant used was a nine millimeter.  He stated that the barrel of the weapon used by appellant had a larger diameter barrel than a BB gun. 

The facts of this case are similar to those in Edwards v. State, 10 S.W.3d 699 (Tex.App. B Houston [14th Dist.] 1999), pet=n dism=d, improvidently granted, 67 S.W.3d 228 (Tex.Cr.App.2002). The defendant in Edwards asserted that he only used a BB gun to commit a robbery while the State asserted that he used a handgun.  As noted above, both victims of the robbery in question testified that the weapon which appellant threatened them with resembled a handgun.  They also provided testimony showing their familiarity with handguns.  As noted in Edwards, the fact that appellant threatened the victims with the weapon is evidence suggesting that the gun was a firearm. Edwards v. State, supra at 702. Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found beyond a reasonable doubt that the weapon used in the robbery was a firearm.

                                                                Factual Sufficiency

Evidence is factually sufficient unless, when viewed without "the prism of most favorable to the prosecution," it is so contrary to the great weight of the evidence as to be manifestly unjust.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996).   Appellant testified that he used a BB gun during the robbery in question.  He stated that the gun resembled a .45 caliber handgun because it had an Aillusional@ barrel.  Appellant also offered the testimony of the victim of another robbery which he committed a few weeks prior to the robbery in question.  She testified that appellant fired the weapon during the robbery. She described the sound of the shot as being consistent with the sound of a pellet gun powered by a CO2 cartridge. Appellant=s brother testified that appellant had previously shown him a BB gun which resembled an automatic firearm.

The evidence regarding the type of weapon used by appellant is conflicting.   The fact finder resolves any conflicts in the evidence, evaluates the credibility of the witnesses, and determines the weight to be given to any particular evidence.  See Edwards v. State, supra at 702.  A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App.1997). Viewing all of the evidence, we cannot say that the trial court=s finding is so contrary to the overwhelming weight of the evidence as to be unjust.  Appellant=s sole point of error is overruled.

                                      Cause Nos. 11-01-00327-CR & 11-01-00328-CR

Appellant’s court-appointed counsel has filed a brief wherein she concludes that the appeals in Cause Nos. 11-01-00327-CR and 11-01-00328-CR are wholly frivolous and without merit based upon her conscientious examination of the record. The brief meets the minimum requirements of Anders v. California, supra, by presenting a professional evaluation of the record and stating why there are no arguable grounds of error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex.Cr.App.1969).  Counsel certifies that the brief was delivered to appellant and that appellant was advised he had a right to review the record and file a pro se brief.  A pro se brief has not been filed.

Following the procedures outlined in Anders, we have independently reviewed the record and counsel=s briefs.  We agree that the appeals are without merit. 

                                                             This Court=s Judgment

The judgments of the trial court are affirmed.

PER CURIAM

August 29, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]Cause No. 11-01-00326-CR.

     ^[2]Cause Nos. 11-01-00327-CR & 11-01-00328-CR.

     ^[3]Anders v. California, 386 U.S. 738 (1967).

     ^[4]The weapon which appellant used during the robbery was never recovered.