In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-15-00204-CR 

JERMAIN GAITHER, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 140th District Court 

Lubbock County, Texas 

Trial Court No. 2013-400,719, Honorable Jim Bob Darnell, Presiding 

 

December 7, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Jermain Gaither appeals his conviction for aggravated robbery. Through his sole 

issue, he contends that the evidence was insufficient to prove, beyond reasonable 

doubt, that the objects he and his accomplice exhibited during their robbery of a 

convenience store were firearms or deadly weapons. We overrule the issue.

The applicable standard of review is described in Murray v. State, 457 S.W.3d 

446 (Tex. Crim. App. 2015). Under it, we decide “‘whether, after viewing the evidence 

in the light most favorable to the prosecution, any rational trier of fact could have found 
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the essential elements of the crime beyond a reasonable doubt.’” Id. at 448, quoting, 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) 

(emphasis in original). The standard burdens “the factfinder with resolving conflicts in 

the testimony, weighing the evidence, and drawing reasonable inferences from basic 

facts.” Id. And, the reviewing court must decide if “‘the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence when 

viewed in the light most favorable to the verdict.’” Id.

Appellant does not dispute that he and an accomplice robbed the convenience 

store. Nor does he deny that he carried an object that the store clerk characterized as a 

“pistol.” Instead, he simply alleges that the clerk’s testimony about seeing only a barrel 

protruding from his jacket sleeve was insufficient to establish that the object was an 

actual firearm. 

Appellant correctly suggests that the clerk testified to seeing only a four or five 

inch black barrel protruding from the jacket sleeve. So too did he testify that 1) two men 

entered the store brandishing “guns,” 2) they were “pistols,” 3) the weapons each robber 

carried looked similar, 4) the item pointed at him did not look like the toy guns with 

which his child played, and 5) he was sure they were “real.” To that we add the 

following bit of evidence. The clerk was asked: “At one point when they were yelling at 

you about a safe, did the man in the dark colored jacket [i.e. appellant] point that gun at 

you and say anything to you?” His answer was: “He pointed the gun at me, said, ‘This 

is real. If you don't open this safe, I'm going to shoot you in the leg.’" (Emphasis 

added). So, contrary to appellant’s contention, the record contains more than merely 

the clerk’s description of what appellant and his accomplice allegedly held. It contains 
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appellant’s own representation or admission that what he wanted the clerk to believe 

was a firearm was “real” and was going to be used to “shoot [the clerk] in the leg.” From 

that amalgam of evidence, the jury could have rationally inferred, beyond reasonable 

doubt, that what appellant used and exhibited “a deadly weapon, to-wit: a firearm”

during the robbery as alleged in the indictment. So too could it have disregarded 

appellant’s later contradictory statement to the arresting officer that the firearm was 

merely a toy, a truism that appellant acknowledged in his brief.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Chief Justice

Do not publish.