Sanders, Ernest v. State

Affirmed and Opinion Filed March 13, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01709-CR
ERNEST SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-80960-2011
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Evans
Opinion by Justice Bridges
Appellant Ernest Sanders appeals from his conviction of aggravated robbery with a
deadly weapon, along with his accompanying sentence of 25 years’ imprisonment and court
costs of $332.60. In two issues, appellant contends the evidence is legally and factually
insufficient to support: (1) a finding that appellant used or exhibited a deadly weapon and (2) a
judgment of court costs. We affirm.
Background
Ricoberto Calvo testified that, on January 17, 2011, he drove to an apartment complex to
meet a friend after work. When Calvo realized his friend was not home, he returned to his
vehicle. While standing outside his vehicle, he took a call from his employer and appellant, a
stranger to Calvo, approached and asked if Calvo wanted to buy marijuana. Calvo explained
appellant showed him the marijuana in a baggie. When Calvo told appellant he was not
interested, appellant walked away.
After Calvo ended the call, appellant returned and held a knife to Calvo’s face,
demanding that he give appellant everything in his pockets. Calvo testified he was afraid of
what appellant might do with the knife so he turned over the contents of his front pockets: a cell
phone, a red lighter with the word “Quix” printed on it, a twenty-dollar bill, and a one-dollar bill.
After taking Calvo’s property, appellant cut Calvo’s face with the knife, leaving a one to two-
inch cut on his cheek. Appellant then walked away.
Calvo testified he began following appellant from a distance in hopes of observing which
apartment complex he might enter so that Calvo could direct the police to that location. Calvo
indicated he saw appellant throw something, but he could not identify what had been thrown. As
Calvo was following appellant, he located an on-duty Dallas1 police officer and flagged him
down for assistance.
Officer Horace Webb of the Dallas Police Department quickly detained appellant. At the
scene, Calvo positively identified appellant to Webb as the person who robbed him. Webb then
searched appellant and found each of the items Calvo had reported stolen. Furthermore, Webb
testified that one of the officers present called the phone number Calvo had provided as his own,
and Webb observed the stolen cell phone ring. Webb testified the officers located the knife used
by appellant in the parking lot and the marijuana he had tried to sell Calvo.
Prior to jury selection, the State filed its notice of intent to sentence appellant under the
habitual offender provision of section 12.42(d) of the penal code.2 The jury found appellant
1
Officer Horace Webb testified the location where he stopped and pulled over was in the City of Dallas, Collin County.
2
Appellant’s prior convictions include: (1) theft of property of the value of $20,000 or more (1994); (2) burglary of a vehicle (1994); (3)
unlawful possession of a controlled substance, to wit: cocaine (2000); and (4) unlawful possession of a controlled substance, to wit: cocaine
(2004).
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guilty of aggravated robbery with a deadly weapon. The court assessed appellant’s punishment,
as enhanced, at 25 years’ imprisonment and a fine of $332.60.
Analysis
In both issues raised before this Court, appellant challenges the legal and factual
sufficiency of the evidence. However, there is no longer a distinction between legal sufficiency
review and factual sufficiency review. See Brooks v. State, 323 S.W.3d 898, 902 (Tex. Crim.
App. 2010) (plurality op.). Brooks established the only relevant standard when reviewing the
sufficiency of the evidence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979).
See Brooks, 323 S.W.3d at 902. In determining the sufficiency of the evidence, an appellate
court is to consider all evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson, 443 U.S. at 319. We defer to the factfinder’s determinations of the
witnesses’ credibility and the weight to be given their testimony, because the factfinder is the
sole judge of those matters. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899-900.
1. Deadly Weapon Finding
In his first issue, appellant contends the evidence is insufficient to support a finding that
appellant used or exhibited a deadly weapon. 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(a). In order to obtain a conviction for aggravated robbery, the State was
required to show appellant committed robbery while using or exhibiting a deadly weapon. See
TEX. PENAL CODE ANN. §29.03(a)(2). A “deadly weapon” is anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” Id. at §1.07(a)(17)(B).
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Here, appellant contends the evidence is insufficient to support that he used or intended
to use a knife in a manner capable of causing serious bodily injury and, therefore, he did not use
or exhibit a deadly weapon as required to uphold his conviction. We disagree.
In Patterson v. State, the court of criminal appeals discussed the difference between the
meaning of “exhibit” and the meaning of “use” in article 42.12 of the Texas code of criminal
procedure. See 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). The Court explained that while
the word “use” typically means that a deadly weapon must be “utilized, employed, or applied in
order to achieve its intended result: ‘the commission of a felony offense or during immediate
flight therefrom.’” Id. “Use” extends to “any employment of a deadly weapon, even its simple
possession, if such possession facilitates the associated felony.” Id. The word “exhibit,”
however, requires a weapon to be “consciously shown, displayed, or presented to be viewed
during ‘the commission of a felony offense or during immediate flight therefrom.” Id. Thus, as
the Patterson Court explained, one can “use” a weapon without exhibiting it, but not vice versa.
Id.
The definition of deadly weapon does not require that the actor actually intend death or
serious bodily injury. See §1.07(a)(17)(B). Rather, 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.
Bailey v. State, 38 S.W.3d 157, 158-59 (Tex. Crim. App. 2001).
The record before us includes testimony that when appellant approached Calvo the
second time, he returned with a knife and held it to Calvo’s face. With the knife against Calvo’s
face, appellant demanded that he give appellant everything in his pockets. Calvo testified he was
afraid of what appellant might do with the knife so he turned over the contents of his front
pockets. After taking Calvo’s property, appellant cut Calvo’s face with the knife, leaving a one
to two-inch cut on his cheek.
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Viewing the evidence in the light most favorable to the verdict, we conclude it was
rational for the jury to make the deadly weapon finding. See Jackson, 443 U.S. at 319;
Patterson, 769 S.W.2d at 941; see also Revell v. State, 885 S.W.2d 206, 210 (Tex. App.−Dallas
1994, pet. ref’d) (appellant’s use of physical force in placing the knife against victim’s throat
shows assertive conduct sufficient to support the deadly weapon finding). We overrule
appellant’s first issue.
2. Court Costs
Appellant next argues the evidence was insufficient to support the assessment of court
costs against him in the amount of $332.60, contending the record in this case does not contain a
proper written bill of costs.
The record before us contains the bill of costs. These complaints have been previously
addressed and rejected. See Johnson v. State, No. PD-0193-13, 2014 WL 714736, at *4-8 (Tex.
Crim. App. Feb. 26, 2014); Coronel v. State, 416 S.W.3d 550, 555-56 (Tex. App.−Dallas 2013,
pet. ref’d). We overrule appellant’s second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the judgment of the trial court.
Do Not Publish
TEX. R. APP. P. 47
111709F.U05 /David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ERNEST SANDERS, Appellant On Appeal from the 366th Judicial District
Court, Collin County, Texas
No. 05-11-01709-CR V. Trial Court Cause No. 366-80960-2011.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Moseley and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 13, 2014
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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