### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00555- CR

Edw in Gus Schn eider, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 10- 960- K2 6, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Edwin Gus Schneider was char g ed by indictment with two counts of
ag g rava ted robbe ry , alleg ed to have been c ommitt ed on or about J une 5, 2010, and June 30, 2010. The trial c ourt included an instruction in the jury char g e on the lesser inc luded offe nse of r obbery , but the jury found Schneider g uilty of ag g rava ted robber y in both instances. I t al so found that he used or exhibi ted a deadly wea pon, a firea

rm, during the commission of eac h o ff en s e. The indictment contained three penalty enhanc ement para g raphs alleg ing prior felony offe nses, all three of which the jury found to be true. The jury assessed Schneider ’s punishment a t imprisonment for life in the I nstitut ional Division of the Texas Depar tment of Criminal J ustice on ea ch count. Conceding t h at t h e evidence is sufficie nt to find him g uilty of commi tting robbery

on both dates, Schneider does not challeng e his g uilt as to the two offe nses. Howeve r, he complains in two points of err or that the evidenc e with respe ct to both counts is leg ally insufficient to supporthis c onvictions f or ag g rava

ted robber

y beca use there is no proof that he used or exhibi ted a deadly

wea pon during the robber

y . He complains in two ad ditional points of err or that the evidenc e is, there fore , leg ally insufficient to support the deadly wea pon finding on eac h count. He asks that the judgme nts be re fo rm ed to find him g uilty only of two counts of robber y rathe r than ag g rava ted robber y and to omit the deadly wea pon fi n d i n g i n b oth instances. Ba sed on the modified convictions, he further seeks a rema nd for a new punishment hear ing. We will aff irm the judgme nts.

ELE MENTS OF THE OFF ENSE For eac h count, the S t at e wa s re quired to prove bey ond a rea sonable doubt that Schneider comm i t ted the offe nse of ag g rava ted robber y . As alleg ed here , a person commits the offe nse of ag g rava ted robber y if, while in the course of committing theft, and with intent to obta in

or maintain control over proper ty , the person intentionally or knowing ly threa tens or place s another in fea r of imminent bod i l y i n j u ry or death and uses or exhibi ts a deadly wea pon during the commission of the offe nse. T ex . P en al Code § 29.03(a) (2). A deadly wea pon includes any

thing manifestly desig ned, made, or adapted for the purpose of i nflicting death or serio u s bodily injury

. Id. § 1.07(17). A firea

rm is a device desig ned, made, or adapte d to expel a projec tile throug h a barr el by using the ener g y g ener ated by an explos ion or burning substance or any device rea dily conver tible to that use. Id. § 46.01(a) (3). A f irea rm is, by definition, a dea dly

wea pon. Id. § 1.07(17).

STANDARD OF REVIEW When revie wing the leg al sufficie ncy of the evidenc e, an appellate court must view the evidenc e in the light most favor able to the verdic t and deter mine whether any rational trier of fac t

2could h av e found eac h essential element of the offe nse bey ond a rea sonable doubt. Jack son

v. Virginia , 443 U.S. 307 , 320 (1979); Brooks v. State , 323 S.W .3d 898, 896 (Tex. Crim. App. 2010). The revie wing court must defe r to the jury ’s deter mination of weig ht and cre dibilit y ; the jury is the sole judge of the witnesses’ cre dibilit y and t h e weig ht to be g iven their testimony

. Brooks , 323 S.W .3d at 899. The fac t finder is entitled to judge the cre dibilit y of the witnesses and can believe all, some, or none of the testimony prese nted. Chambers v. State , 805 S.W .2d 459, 461 (Tex. Crim. App. 1991). The appellate court’s revie w includes all evidenc e in the rec ord, both direc t and circ umstantial, without reg ard to whether it was proper ly admitted. Conner v. State , 67 S.W .3d 192, 197 (Tex. Crim. App. 2001). Circumstantial evidenc e alone can be suff i ci en t t o establish g uilt. Hooper v. State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). When the rec ord ev i d en ce contains conflicting infere nces, the appellate court must presume that the jury resolved any conflicts in favor of its verdict. Jack

son , 443 U.S. at 326.

EVIDENCE Morg an Hunter t es t i fi ed t h at on J une 5, 2010, she was working as a bank teller at Reg ions Ba nk in Round Rock, Texas. At approximately 10:30 a.m., a man later identified as Schneider enter ed the bank and walked up to her teller s tat i o n . He wa s car ry ing two bag s, one in

eac h hand. One bag was a small black and orang e bag ; the other was a white, transluce nt shopping bag , “like a pla stic Wal-Mart bag .” Schneider handed Hunter the black ba g and plac ed the plastic bag on the counter

. He stated, “This is a f-- -king robber y . Put the money in the bag .” He repe ated, “This is a robber

y .” Schneider kept his h an d o n t h e plastic bag , which appea red to contain

3something heavy

. Although Hunter could not see inside the bag, based on the shape of the object

within she determined tha t it was “a g un or some kind of we apon.”

Hunter was frig htened but beg an comply ing wh en Schneider leane d forwa rd and
aga i n told her, “This is a robber y ; put the money in the bag .” She place d her teller money in t h e black bag , and Schneider wa rn ed her, “no bait money .” When she was finished, Hunter handed Schneider the black bag

. He g rabbe d the white shopping bag off the counter and left th e b an k

. Hunter could see that the object in the white bag was black. She testified to the jury that during the robber y she was scar ed that Schneider would hurt her if she did not do as he said. A few day s afte r the robb er y , a poli ce office r came t o the bank and showed Hunter a photo lineup, from which she positively identified Schneide r as the pe rson who robbe d the bank on June 5. Stephanie Velasque z was assistin g a customer at the drive throug h window when Schneider enter ed the bank. She hear d Hunter g ree t the customer, and then saw her step back with her hands up. She hear d the customer tell Hunter to “Come here ,” and rea liz ed a robber y was in
prog ress. Velasque z saw that Schneider had a white plastic bag with something blac k in it, which she assumed w as a w eapon.

Albert R o b les testified that on J une 30, 2010, he was working as a bank teller at a Ba nk of Americ a branc h location in Round Rock, Texas. A man later identified as Schneider
enter ed the bank and appea red to be nervous and swea ting. When Robles asked Schneider how he

was doing, Schneider did not respond. I nstead, he told Robles, “L isten here , this is a bank robber y . And as long as y ou do ever y thing I tell y ou to do, y ou won' t g et hurt. And I do have a g un.” Robles did not see a g un, bu t S chneider had his left hand in his waistband, and Robles thought that was

4wher e he had the g un. Schneider handed Robles a bag and told him to g ive him all the money in the

teller draw er. Robles took the money out of his draw er, put it in the bag , and handed Schneider the bag

. Schneider left the bank. Robles locked the front door of the bank and trig g ere d the alar m. When police arr ived, they showed Robles a photo lineup and he positively identified Schneider as the per son who robbed the bank. The jury was shown footag e from the surve illance e quipment of Schneider robbing the bank. Robles was in shoc k immediately afte r the robber y . His g irlfriend had to drive him home. Although he repor ted for work the next day , he kept looking at the front door nervously , fea rful of a nother robbe ry . He wa s sent home af ter wor king only a half day

. Evette Gar cia testified that she saw Schneider on J une 9, 2010. Although she did not expla in wher e she saw him , Gar cia stated that she saw him “in pos session of what appea red to be

a fi re arm in a transluce nt white g roce ry -ty pe bag .” The jury also was shown an exhib i t o f a photogr aph of Schne ider a s she saw him that day , walking throug h a building lobby holding a g un in his hand with a transluce nt bag around it. Schn ei der’ s fing er appea rs to be on the trig g er of the g un.

DISCUSSIO N

Schneider asser

ts that neither Hunter nor Velasque z saw a fi re ar m o n J une 5. He

rec og nizes that it is not nece s s ar y t hat the victim see the wea pon in order to prove its exis tence

. Neve rtheless, he contends that beca use Hunter could not see inside the plasti c s h opping bag he

car ried, the rec ord contains no evidenc e t h at h e used any wea pon during the J une 5 offe nse. Howeve r, Schneider place d what appea red to be a handg un on Hunter’ s counter and order ed her to

5g ive him money . Hunter testified that the object inside the bag was something heavy and that, based

upon the shape of the object, she deter mined that it was a g un or s o m e t y p e o f weapon. She was afr aid that Schneider would hurt her if she did not do as he order ed. Schneider left with the money Hunter g ave him. Schneider arg ues that the jury had to infer from the testimony of Hunt er and Ve l asquez that he had a g un, and then the jury had to infer on top of that fac t that t h e gu n wa s a fire arm. When he confr onted Robles in the bank on J une 30, Schneider told Robles that he had

a g un. Whil e Schneider admits that the jury could rea sonably infer from his statement that Schneider possessed a g un, he arg ues that Robles did not see the wea pon and, there fore , the rec ord contains no evidenc e that he used a deadly wea pon. Schneider told Robles that he would not hurt Robles so long

as Robles did ever

y thing Schneider told him to do. Schneider held his left hand at his waistband and kept it there in such a manner as to g ive Robles the fea r and belief that Schneider had a wea pon there as he claimed. Robles g ave Schneider the money , and Schneide r fled w ith the money Robles ga

ve him. Schneider arg ues that the jury had to stack an infere nce upon an infere nce in order to rea ch its verdic t. That is, from the evidenc e the jury had to infer that Schneider had a g un, and it further had to infer that the g un was a firea rm. For the same rea sons asser ted in points of err or one and two, Schneider contends in points three and four that the evidenc e is leg ally insufficient to prove bey ond a rea sonable doubt that he used or exhibi ted a firea rm during the commission of the offe nses. We disag ree with Schneider ’s contentions. The jury was proper ly instructed that a “dea dly wea pon” means “a firea

rm or any thing manifestly desig ned, made, or adapte d for the purpose of inflicting d ea t h or serious bodily

6injury

/any thing that in the m anner

of its use or intended use is capa ble of c ausing death or serious bodily injury .” Fr om the evidenc e that he was seen in possession of a g un on the day of the first robber y , and his statement that he possessed a g un during the second robber y , the jury could

rea sonably

infer tha t he used a

deadly wea pon during both robberie s. Viewing all the evidenc e in the light most fa vorable to the verdic t, w e hold tha t the

rec ord conta ins leg ally

sufficie nt evidence , including c ircumstantial evidenc e with r espec t to each offe nse, from which a rational jury could rea ch the verdic t that it did in finding Schneid er gu i lty bey ond a rea sonable doubt of ag g rava ted robber y . We further hold that the rec ord contains leg ally sufficie nt evidenc e fr o m wh i ch t h e jury could find bey ond a rea sonable doubt that he used or exhibi ted a f

irea rm during the commission of eac h offe nse.

CONCLUSION For the rea sons stated, we overr ule all four of Schneider ’s points of err or. We aff irm the judg ments of conviction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Marily n Aboussie, J ustice Be fore Chief J ustice Jones, J ustices Fie ld and Aboussie* Affir med Filed: Nove mber 21, 2013 *Be fore Maril y

n Aboussie, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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