Matthew Buchanon Pruett v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-91-411-CR



MATTHEW BUCHANON PRUETT,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0911485, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

This appeal is from a judgment of conviction of the offense of aggravated robbery with a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (West 1989). After a jury found appellant guilty, the trial judge assessed punishment at confinement for 33 years, a $3,000 fine, and found that appellant used a knife, a deadly weapon, during the commission of the offense. Appellant asserts that the trial court erred in refusing appellant's request to instruct the jury on the lesser included offense of robbery, and in making an affirmative finding that appellant used a knife, a deadly weapon, during the commission of the offense. We will affirm the judgment.

Austin police officers Randall Milstead and Jessica Robledo, working undercover, were negotiating with appellant and Robert Williamson to purchase marihuana with jewelry and cash. The four met in a restaurant and talked for "some time." Appellant and Williamson inspected the jewelry in the restaurant, and agreed to deliver the marihuana to Milstead in the restaurant garage. Milstead drove his Suburban into the garage and parked it close to the car in which appellant and Williamson said they had the marihuana. Robledo stayed in the restaurant. When appellant started to open the car's trunk to get the marihuana, Williamson pulled a gun and held it close to Milstead's head. They told Milstead they were going to kill him, and took the jewelry and cash out of his pockets. When Milstead did not return, Robledo became concerned, signaled other officers working on the case and went toward the garage. She heard shouting and saw Williamson holding a cocked gun close to Milstead's head and saw appellant holding a knife close to Milstead's side. Robledo shouted, "Police. I have a gun. Don't shoot." Williamson ran from the garage. Milstead fired a shot at Williamson, but did not hit him. Other officers captured Williamson outside of the garage. Appellant got in his car and attempted to leave, but he was overpowered and taken into custody by Robledo, Milstead, and other officers. The State offered the testimony of a police officer, who qualified as an expert, that the knife used by appellant was a deadly weapon. The officer testified that the knife, which appellant held close to Milstead's side during the robbery, was a knife that "could kill" a person and it was "absolutely" a deadly weapon; it would cause death or serious bodily injury. Neither appellant nor Williamson testified and they offered no evidence in their defense.

Appellant and Williamson were jointly indicted in a two-count indictment. The first count charges they committed the robbery by using and exhibiting a firearm, a deadly weapon. The second count charges they committed the robbery by using and exhibiting a knife, a deadly weapon. The jury was instructed on only the first count of the indictment. The jury found the appellant guilty of the offense of aggravated robbery with a deadly weapon as alleged in the indictment. Since appellant did not elect to have the jury assess his punishment, punishment was assessed by the trial court. The trial court made a finding that, "a deadly weapon, to wit: a knife was used by this defendant in the commission of the offense."

The appellant first complains of the trial court's refusal to grant his request to instruct the jury on the lesser included offense of robbery. When timely requested, a jury instruction on a lesser included offense should be given if the offense for which the requested instruction is made is a lesser included offense of the offense charged and there is evidence from which the jury could reasonably conclude that, if guilty, the accused is guilty of only the lesser included offense. Ramos v. State, 865 S.W.2d 463 (Tex. Crim. App. 1993); Lincecum v. State, 736 S.W.2d 673 (Tex. Crim. App. 1987); Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981). Robbery may be a lesser included offense of aggravated robbery. Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981); Ex parte Walton, 626 S.W.2d 528, 530 (Tex. Crim. App. 1981); Russell v. State, 804 S.W.2d 287, 289 (Tex. App.--Fort Worth 1991, no pet.).

Appellant concedes there is sufficient evidence to support his conviction for aggravated robbery, but he argues that the evidence "is susceptible to the question of whether appellant knew that his codefendant would escalate this into aggravated robbery with a firearm." Appellant was charged with, and convicted as a party to, the offense of aggravated robbery by use of a firearm. The evidence is uncontroverted, and the jury so found, that Williamson used a firearm during the commission of the robbery, making him guilty of aggravated robbery.

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Penal Code Ann. § 7.02(b) (West 1974).

The Court of Criminal Appeals, applying § 7.02(b), has held a defendant guilty of an aggravated offense even though a codefendant committed the aggravating elements of the offense. Perez v. State, 608 S.W.2d 634 (Tex. Crim. App. 1980). When parties act together in pursuit of an unlawful act, it does not matter that the offense originally intended is a lesser offense which escalated into a greater offense. Each party becomes responsible for the escalated collateral crimes, even though these crimes may be unplanned or unintended, so long as they are foreseeable, ordinary, and probable consequences of the preparation or execution of the unlawful act itself. Ned v. State, 654 S.W.2d 732 (Tex. App.--Houston [14th Dist.] 1983, no pet.).

Appellant and Williamson were attempting to carry out a conspiracy to commit robbery, and Williamson committed aggravated robbery by using a firearm. Appellant would be guilty of the aggravated robbery although he did not intend to commit aggravated robbery if the aggravated robbery were committed in furtherance of the planned robbery, and aggravated robbery was an offense that should have been anticipated as a result of carrying out the conspiracy to commit robbery. There can be no question that the firearm was used in furtherance of the planned robbery. Since appellant, himself, was armed with a deadly weapon, there can be no doubt he knew or should have anticipated that Williamson was armed with and would use a deadly weapon.

Appellant cites and relies upon Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992), which said:

There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. First, there may be evidence which refutes or negates other evidence establishing the greater offense. For instance, if defendant is charged with aggravated robbery and evidence is presented which indicates the defendant may not have used a deadly weapon, then a charge on the lesser offense of robbery would be required. If, however, the defendant simply denies commission of the offense, see, e.g., McKinney v. State, 627 S.W.2d 731 (Tex. Crim. App. 1982); McCardell v. State, 557 S.W.2d 289 (Tex. Crim. App. 1977), or there is no evidence specifically raising an issue regarding use of the weapon, see, e.g., Denison v. State, 651 S.W.2d 754 (Tex. Crim. App. 1983), and Thomas v. State, 543 S.W.2d 645 (Tex. Crim. App. 1976), then the charge on the lesser offense would not be required.

Saunders, 840 S.W.2d at 391-92 (emphasis supplied). In this case, neither appellant nor Williamson testified or offered any evidence and there is no evidence from any other source which refutes or negates the evidence showing a firearm was used. Appellant is guilty of aggravated robbery as a party. Since the evidence fails to show that appellant is guilty only of the lesser offense of robbery, the trial court did not err in refusing to instruct the jury on the lesser included offense. Moreover, the evidence is uncontroverted that appellant used a knife, which was proved to be a deadly weapon, during the commission of the offense. The first point of error is overruled.

In his second point of error, appellant declares that the trial court erred in making an affirmative finding that the knife was a deadly weapon, because appellant did not have sufficient notice of the State's intent to seek such a finding against appellant. Both counts of the indictment charged appellant and Williamson as parties in committing aggravated robbery. One count alleges they used a firearm and the other count alleges they used a knife, a deadly weapon. Neither count specifies which defendant used which weapon. Specifically, appellant complains that, "[i]t is not clear whether it is alleged (1) that each defendant personally used or exhibited both a firearm and a knife or (2) that each defendant is guilty as a party to the use and exhibition of weapons." Appellant complains about the lack of notice for the first time on appeal, which is too late. Such complaints must be made before trial. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 1990).

This case is not like Lukin v. State, 780 S.W.2d 264 (Tex. Crim. App. 1989), where there was a complete lack of notice that a deadly weapon was used and that the State would seek an affirmative finding. In that case article 1.14(b) did not apply. When there is a complete lack of notice, a defendant is deprived of due course of law, Tex. Const. art. I, § 10, "that a particular finding of fact, having an incrementally greater impact on his liberty than a bare conviction, may even be made." Ex parte Patterson, 740 S.W.2d 766, 774 (Tex. Crim. App. 1987). In this case, appellant's complaint is not concerned with a complete lack of notice which could have deprived him of due course of law. Point of error two is overruled.

In his third point of error, appellant urges that the trial court erred in making an affirmative finding that the knife was a deadly weapon, because the State abandoned notice of intent to seek such a finding against appellant. The State abandoned count two which was the count that alleged the offense was committed by use of the knife. Although appellant attempts to distinguish the facts in this case from those in Grettenberg v. State, 790 S.W.2d 613 (Tex. Crim. App. 1990), we believe that decision controls. It holds that an abandoned count of an indictment gives sufficient notice for making an affirmative finding if the theories of prosecution contained in the counts are interrelated. Point of error three is overruled.

In his fourth point of error, appellant argues that since a knife is not a deadly weapon per se, it was incumbent upon the trial court to find and to include in its affirmative finding that the knife "in the manner of its use and intended use, was capable of causing death or serious bodily injury." Appellant cites no authority for this contention. The trial court in this case was the trier of facts at the punishment phase of the trial and had the authority to make an affirmative finding. Fann v. State, 702 S.W.2d 602, 605 (Tex. Crim. App. 1985). The court heard evidence that the knife was a deadly weapon and admitted the knife in evidence. The trial court found as reflected by the judgment that: "a deadly weapon, to wit: a knife was used by this defendant in the commission of the offense. "Deadly weapon" is defined by law. Tex. Penal Code Ann. § 1.07(11)(B) (West 1974). We hold that the trial court's finding is sufficient. Point of error four is overruled.

In his fifth point of error, appellant asserts there is insufficient evidence to support the finding that appellant used "a deadly weapon, namely, a knife." He argues that Milstead did not see the knife and that "although in the abstract there is evidence that the knife was capable of being a deadly weapon, there is no evidence that the knife in the actual manner of its use rendered it a deadly weapon." To establish the use of a deadly weapon in the commission of the offense, it is not necessary that the victim of the offense see the weapon. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.--Dallas 1992, no pet.). The State may rely on circumstantial evidence to establish the use of a deadly weapon. Webber v. State, 757 S.W.2d 51, 54 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). In this case there is direct evidence that appellant used a knife. Robledo testified she saw appellant holding a knife close to Milstead's side. This was while the jewelry and money were being removed from Milstead's pocket. It is not necessary to show that a victim of a robbery was actually stabbed or cut with a knife to show that the knife used was a deadly weapon. Expert testimony established the knife used was a deadly weapon. Point of error five is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Kidd, B. A. Smith and Dally^*

Affirmed

Filed: May 11, 1994

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).