Kyle Edward Whatley v. State ( 2008 )

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Opinion issued June 12, 2008

  In The

Court of Appeals

For The

First District of Texas

  NO. 01-07-00422-CR

  __________

KYLE EDWARD WHATLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 06CR2239

MEMORANDUM OPINION

           A jury found appellant, Kyle Edward Whatley, guilty of aggravated robbery, and he was sentenced to life in prison. In two points of error, appellant argues that (1) the evidence was insufficient to support the “deadly weapon” finding and (2) he was denied effective assistance of counsel. We affirm.

Background

          Around 3 a.m. on July 27, 2006, appellant entered a Kroger grocery store and walked around for about 20 minutes. Appellant hid an electric toothbrush under his shirt, walked toward the exit, and told the cashier, Christopher Green, to have a good night. The sensor in the toothbrush triggered the store’s alarm, and Green asked appellant to stop. Appellant refused to stop, and Green followed him into the parking lot demanding that he stop. Appellant began to run, and Green followed until appellant stopped, turned around, and pointed a pistol at Green. Appellant told Green to get on the ground, but Green ran into the store to tell his manager that he thought appellant was going to shoot and kill him.

          Green told the police that appellant was wielding a black semi-automatic pistol. Appellant was found later that morning, and a search of his car revealed a .177 caliber Daisy CO2 powered BB pistol under the driver’s seat. A box of .177 caliber pellets and a box of CO2 cartridges, with one cartridge missing, were found in the trunk.

          Detective Robles of the Texas City Police Department’s Criminal Investigation Division testified that he took appellant’s statement, and appellant admitted to the crime and to pointing the BB gun at Green. He agreed that Green thought the gun was real and was scared, and that he had intended to scare Green. Appellant admitted that the BB gun looked real.

          Officer Todd of the Texas City Police Department’s Criminal Investigation Division performed multiple tests on the BB gun. He determined that appellant’s BB gun meets the definition of a deadly weapon set forth in the Texas Penal Code. He explained that appellant’s BB gun is CO2 powered, is more than powerful enough to put out a person’s eye, and he would not consider the gun a toy. Officer Todd acknowledged that the gun was not functioning properly when he first got it because it did not load BBs from the magazine. However, after loading the gun in an alternative way, he was able to test fire it and shoot.

          Detective Flores, a peace officer for 19 years, Sergeant Spottedbear, a peace officer for 22 years and the tactical supervisor for Texas City Police Department’s SWAT team, and Detective Robles, a peace officer for 10 years, all testified that they consider BB guns to be deadly weapons, and, if one was pointed at them, they would respond with deadly force.

          After hearing the evidence, the jury found that appellant used or exhibited a deadly weapon in committing the robbery, and thus was guilty of aggravated robbery. After his conviction and sentencing, appellant timely appealed.

Deadly Weapon

          In point of error one, appellant argues that the evidence was insufficient to sustain a conviction for aggravated robbery. Specifically, appellant contends that the State failed to prove that his BB gun was loaded and functioning.

Standard of Review

          In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, i.e., that the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford “due deference” to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Analysis

          A person commits robbery if:

In the course of committing theft . . . and with the intent to obtain or 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. Penal Code Ann. § 29.02 (Vernon 2003). A person commits aggravated robbery if he commits robbery as defined in Section 29.02, and he uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03 (a) (2) (Vernon 2003). Appellant’s indictment read that he, “in the course of committing theft of property and with intent to obtain or maintain control of said property, [did] intentionally or knowingly threaten or place Christopher Green in fear of imminent bodily injury or death, and [appellant] did then and there use or exhibit a deadly weapon, to-wit: a BB pistol.”

          Relying on Holder v. State, 837 S.W.2d 802 (Tex. App.—Austin 1992, pet. ref’d), appellant argues that there was insufficient evidence to prove that the BB pistol was, “in the manner of its use or intended use . . . capable of causing death or serious bodily injury.” Id. at 807. He further contends that, “because the State failed to prove that the pistol was loaded or even functioning it failed to prove that the pistol was capable of causing serious bodily injury in the manner of its use.”

          The evidence that appellant displayed the BB gun to the convenience store clerk and that the gun was capable of causing serious bodily injury if pointed and fired at someone is sufficient to support the jury’s deadly weapon finding. See Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002). Whether appellant’s BB gun was loaded or unloaded is not significant in this analysis. Id. What is significant is that appellant’s BB gun was capable of causing serious bodily injury. See id.; McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (“an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury”); Campbell v. State, 577 S.W.2d 493, 495–96 (Tex. Crim. App. 1979) (although State apparently did not put on any evidence that air pistol was loaded, court upheld finding air pistol was deadly weapon because it was designed to fire a projectile that could kill a person and because defendant pointed it at complainant, demanded money, and threatened to kill complainant if he tried to run).

          Officer Todd conducted extensive tests on the BB gun. He placed an aluminum can three feet away with cardboard behind it with a concrete wall behind the cardboard. The BBs from the gun went through the can and the cardboard and were stopped by the concrete. He testified that both sides of the aluminum can would be of greater thickness and density than human skin. Officer Todd performed another test where he put five millimeter thick plywood against cardboard. He shot the BBs from point blank range, 10 inches, and 12 inches. Each time, the BBs penetrated the plywood and the cardboard and were, once again, stopped by the concrete wall. Lastly, Officer Todd shot a thin phone book from point blank, 6 inches, and 12 inches. All BBs penetrated the book.

          Officers Todd and Reyes, Detectives Robles and Flores, and Sergeant Spottedbear all testified that, based on their training and experience, they would consider appellant’s BB gun to be a deadly weapon. They also testified that, if the BB gun was pointed at them, they would respond with deadly force. Accordingly, we hold that there was factually sufficient evidence to support the finding that appellant’s BB gun was a deadly weapon.

          Appellant also argues that the State was required to prove that the weapon was functioning properly at the time of the offense. We disagree.

          Here, the BB gun was a deadly weapon by design. See Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2007) (deadly weapon is “anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury”) . If the State alleges and proves that a weapon falls within this category, “it is not necessary to verify that the object was really capable of causing death.” Adame, 69 S.W.3d at 583 (Meyers, J., concurring) (citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991)); see also Wright v. State, 582 S.W.2d 845, 847 (Tex. Crim. App. 1979).

          Here, the charge defined “deadly weapon” as “a firearm or anything manifestly designed, made, or adapted for the purpose of causing death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Officer Todd testified that the BB gun’s website noted, “Warning. Not a toy . . . . Misuse or careless use may cause serious injury or death.” Officer Todd further explained that, initially, the BB gun was not functioning properly because it did not load BBs from the magazine. He was able to load a single pellet down the barrel of the weapon and use a small wire to push the pellet down so that it could be fired. At first, he had trouble loading BBs into the weapon’s magazine, but was able to load one BB at a time down the barrel of the gun to fire it. After he did this a few times, he was able to load BBs into the magazine. Accordingly, we conclude that the weapon was capable of causing serious bodily injury.

           We overrule point of error one.

Ineffective Assistance of Counsel

          In point of error two, appellant asserts that he was denied effective assistance of counsel because his “trial counsel failed to object to the jury charge as given to the jury, and failed to request a jury charge on the lesser included offense of robbery as was clearly warranted by the evidence given at trial of Appellant’s case.”

Standard of Review

          To prove ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2), but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Chambers v. State, 903 S.W.2d 21, 33 n.16 (Tex. Crim. App. 1995) (applying Strickland standard to claim of ineffective assistance arising from error in voir dire). “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

          Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

          We consider the totality of the representation and consider its adequacy as viewed at the time of trial, not through hindsight. Robertson, 187 S.W.3d at 483. Isolated instances of errors of commission or omission will not render counsel’s performance ineffective. Id.

Analysis

          Appellant contends that “the first [Strickland] prong is met when defense failed to identify a lesser included offense and at the formation of the jury charge he failed to request a jury instruction on robbery.” The jury charge in appellant’s case in fact actually includes a lesser-included offense. The verdict form of the charge includes options for aggravated robbery, robbery, and acquittal. Having failed to show that counsel’s performance fell below an objective standard of reasonableness, we overrule point of error two.

Conclusion

          We affirm the trial court’s judgment.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.

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