NO. 07-11-0255-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL B JANUARY 26, 2012

ANTHONY CHARLES FOSTER, JR., Appellant

v. THE STATE OF TEXAS, Appellee

__________________ ___________ FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; NO. 18,072-A; HONORABLE HAL MINER, PRESIDING

Memorandum Opinion

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ. Anthony Charles Foster, Jr., challenges t he sufficiency of the ev idence to support the trial court’s finding that he used or exhibited a d eadly weapon while committing aggravated robbery. 1 He now asks us to determine whether the affirmative finding had sufficient evidentiary support. We affirm.

1 Appellant had pled guilty to robbery but not to the use of a deadly weapon. The latter issue was tried to the court.2 Before pleading guilty to r obbery, appellant judicially c onfessed, via writing, “to committing the offense of Aggravated Robbery exactly as charged in the indictment or information.” (Emphasis added). The charge in the indictment stat ed that Foster, the defendant, “did then and t here, while in the course of committing theft of property and with intent to obtain and maintain control of said property, intent ionally and knowingly threaten[ed] and plac[ed] Daniel Bramblett in fear of imminent bodily injury and death, and the defendant did t hen and there intent ionally and knowingly use and exhibit a deadly weapon , namely, a firearm. ” (Emphasis added). Nex t, in deciding whether to accept appellant’s plea to robbery, the trial judge asked appel lant, “did you take a BB pistol in there and hold it up and take m oney from Daniel Bramblett in that same Hollywood Video?” To that question, appel lant answered: “Yes, Your Honor.” Additionally, the store cler k victimized by appellant test ified that appel lant pointed the BB gun “towards” his (the clerk’ s) legs and directed him to “get in the office” and “get down and nobody will be hurt.” The employee was also informed by appellant that he “was there to rob the store and not hurt anybody.” According to a police officer, the BB guns “look[ed] exactly like a handgun.” He further testified that they could cause seri ous bodily injury if pointed at someone and fired and that “in the manner of their intended use, which is to project a BB out of the weapon, it is capable of causing . . . serious bodily injury.” The foregoing recitation discloses the pr esence of some evidence upon which a rational factfinder could reasonably infer beyond reasonable doubt that BB guns were used by appellant and another during the robbery and that th ey were deadly weapons. See T EX

. P ENAL C ODE A NN

. §1.07(a)(17)(A) & (B) (West S upp. 2011) (def ining a deadly3 weapon as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of doing the same). Contrary to appellant’s argument, the State need not have proved that a projectile could have been di scharged from the weapon at the time of the crime. Adame v. State , 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (stating that whether the BB gun was loaded or unloaded at the time is not significant). Testimony that such a weapon is “capable of causing serious bodily injury” is enough for a jury to “make a deadly weapon finding,” acco rding to the Court of Criminal Appeals, and we have that here. Id. Nor is it of import that appel lant said he was there to r ob the store, but not to hurt people. As stated by the C ourt of Criminal Appeals in McCain v. State , 22 S.W.3d 497 (Tex. Crim. App. 2000), “objects used to threaten deadly force are in fact deadly weapons.” Id. at 503. Indeed, by placing the word "capable" in the def inition of deadly weapon, the legislature intend ed the provision “to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force .” Id. So, it may well be that the appellant here never intend ed to hurt anyone; that alone does not bar the BB gun from being a d eadly weapon. It was enough if his conduct could be reasonably interpreted as thr eatening the use of a deadly weapon, and that inference could be made from the evidence here. Ev idence revealed that the BB guns used by appellant looked like actual firearms. Furthermore, those weapons were pointed “towards” the store clerk at the same time appellant admonished t he victim to cooperate to avoid injury. From an assailant displa ying what appears to be an actual firearm, directing it towards others, and ordering them to comply with his demands to avoid4 being hurt, a rational factfinder can legitimately infer that he was threatening the use of deadly force. In sum, and even if appell ant had not signed a judicial confession admitting that he committed robbery with a deadly weapon, t he evidence is more than ample to support the deadly weapon finding m ade here. Accordingly, we affirm the trial court’s judgment.

Brian Quinn Chief Justice Do not publish.