NO. 07-09-0141-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 23, 2010

MARLIN JIM CROSS IV, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 47 TH DISTRICT COURT OF RANDALL COUNTY; NO. 19,919-A; HONORABL E HAL MINER, JUDGE

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

MEMORANDUM OPINION Appellant, Marlin Jim Cross IV, was conv icted by a jury of aggravated robbery and burglary of a habitation 1 and sentenced to two concurrent sentences of fifteen and five years, respectively. By four issues , Appellant seeks to overturn the aggravated

1 See Tex. Penal Code Ann. §§ 29.03, 30.02 (Vernon 2003).2 robbery conviction by asserti ng the State failed to prove the use or exhibition of a deadly weapon. We affirm.
Background
On August 20, 2008, the Randall County Grand Jury returned a two count indictment against Appellant. Court One alleged that, on or about May 9, 2008, Appellant, while in the course of committing theft of property and with intent to obtain and maintain control of said property, did in tentionally and knowingly threaten and place Benton Cambern in fear of imminent bodily injury and death, and did intentionally and knowingly use and exhibit a deadly weapon, nam ely: a golf club, that in the manner of its use and intended use was capable of caus ing death and serious bodily injury. Count two alleged that, on or about May 9, 2008, A ppellant did intenti onally and knowingly enter a habitation without the effective cons ent of Benton Cambern, the owner thereof, and therein attempted to commit and committed theft.
At trial, Cambern, a co llege student living in Amarillo, Texas, testified that, on May 9, 2008, he was packing his car in anticipati on of driving to Pampa, Texas, to start a summer job as an electrician. During t he process, he entered and exited his house through a door adjoining his garage. His garage door was open and his car was parked in the driveway.
While he was in the house, he heard a ji ngling sound in the gar age and ran to the garage door where he observed Appel lant running away carrying two sets of golf clubs. Cambern pursued Appellant to a car parked in the alley behind a fence next to his driveway. As Appellant attemp ted to place the golf bags in the car, Cambern ran to the3 front of the car and placed his hands on it s hood. He could see three persons through the windshield--Appellant, a driver (later identified as Nathan St. Clair), and a female passenger in the backseat. He yelled at them to stop but the car began to back up. Fearing Appellant was going to escape, Cambern ran to the driver's side of the car, struck the driver in the face and took t he keys out of the ignition. He then began backing up the alley away from the front of the car while dialing 911.
As he was dialing, t he driver exited and approac hed Cambern asking that he return the keys. As Camber n continued to back up, he obse rved Appellant yanking an eight iron from one of the golf bags. Although his first thought was to get a gun he had packed in his car, he did feel "very th reatened" and "scared," and he believed he had better get out of the way or he was "going to get the tar beat out of [him]."
Cambern bolted toward his vehicle, runni ng past Appellant. As he did, Appellant raised the golf club "like he [was] going to hit me with it like you would a baseball bat . . . like you are going to slug som eone." At that time, Appellant was approximately four feet away and Cambern expected to "get swung at or hit, so [he] arched his back and hurried as quick[ly] as [he] could to the car to get [his] gun." After Cambern retrieved the gun from his car, Appellant and his cohorts ran away, leaving the golf clubs beside the car in the alley.
Cambern testified Appellant was "holding [the golf cl ub] like he was going to swing, and that's when I took off, four feet away, when he was going to hit [me]." "[Appellant] pulled [the golf club] out and put it in a threateni ng manner. . . ." Cambern4 also testified that "[o]ne of those [golf clubs] hurt to get hit with . . . I've been hit with them before on accident" and "had some pr etty severe bumps from them."
St. Clair, the driver of the vehicle, te stified that he, Appel lant, and Appellant's girlfriend were driving through the neighb orhood when they observed Cambern's open garage door. Appellant told St. Clair to stop when he observed the golf clubs in the garage. Appellant then ran fr om the car, grabbed the clubs , and brought them back to the car. As Appellant was running to the car, he noticed Camber n coming out of the garage. St. Clair testified, in a signed statement to police, that after Cambern struck him in the face and retrieved the car keys , "[Appellant] picked up the iron and told Cambern to give the keys back or he would knock the f--- out" of him. He also wrote, in his signed statement, that Appellant handed him a club and told him to hit Cambern. 2
Appellant was convicted of aggravated robbery and burglary of a habitation and sentenced to two concurrent sentences of fifteen and five years confinement, respectively. He seeks to overturn t he aggravated robbery conviction by attacking the legal and factual sufficiency of two findin gs: (1) whether the golf club used was a

2 St. Clair's rendition of the events t hat day was inconsistent and contradictory. He also maintained that, while he was making the statement, he was "coming off drugs," the officers were coercing him, and hinting at what he needed to say. In conducting a sufficiency of the evidence review, we consider the evidence in a light most favorable to the jury's verdict; Brooks v. State , No. PD-0210-09, 2010 Tex.Crim.App. LEXIS 1240, at 14 (Tex.Crim.App. Oct. 6, 2010), while giving due deference to the jury's credibility and weight determinations . Id. at *25-26. See Marshal v. State , 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The jury is the “exclusive judge of the credibility of witnesses,” and the reconciliation of conflicts in the test imony is also within the “exclusive province of the jury.” Tex. Code Crim. Proc. Ann. arts. 36.13 & 38.04 (Vernon 1979 & 2007); Jones v. State , 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied , 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). Accordingly, the jury was free to believe or disbelieve St. Clair' s claims of his drug-induced state or alleged police misconduct. See Chambers v. State , 805 S.W.2d 459, 461 (Tex.Crim.App. 1991).5 "deadly weapon" and (2) whether Appellant "exhibited or us ed" the golf club in the course of committing theft.
I. Legal and Factual Sufficiency
Heretofore appellate courts have struggl ed with the distincti on between legal and factual sufficiency of the evidence challeng es. The Texas Court of Criminal Appeals has recently held that the only standard t hat a reviewing cour t should apply in determining whether t he evidence is sufficient to sup port each element of a criminal offense that the State is r equired to prove beyond a reason able doubt is the standard set forth in Jackson v. Virginia. 3 See Brooks v. State, No. PD-0210-09, 2010 WL 3894613 (Tex.Crim.App. Oct. 6, 2010) (plurality op.) 4 Under that standard, in assessing the sufficiency of the evidence to support a crim inal conviction, this Court considers all the evidence in the light mo st favorable to the verdic t and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the ess ential elements of the crime be yond a reasonable doubt. Id. (citing Jackson, 443 U.S. at 319).

3 Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4 While we are not bound by a plurality decision, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opi nions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary suffi ciency standard of review distinct from legal sufficiency.6 II. Aggravated Robbery--Deadly Weapon
A person is guilty of aggravat ed robbery if he or she us es or exhibits a deadly weapon in the course of committing a robber y. Tex. Penal Co de Ann. § 20.03(a)(2) (Vernon 2003). 5 See Gomez v. State , 685 S.W.2d 333, 336 (Tex.Crim.App. 1985) (proof of the use or exhibition of a dea dly weapon is an essent ial element of the offense). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inf licting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing deat h or serious bodily injury. § 1.07(a)(17)(A),(B).
Because a golf club is made for a purpose other than to inflict death or cause serious bodily injury, the eight iron at issu e will not qualify as a deadly weapon unless actually used in such a way as to be capable of causing death or serious bodily injury. Thomas v. State , 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). See § 1.07(a)(17)(B). Thus, the eight iron can qua lify as a deadly weapon "by showing, among other things, the manner of the [object's] us e or intended use, its size and shape, and its capacity to produce death or serious bodily injury." Billey v. State , 895 S.W.2d 417, 421 (Tex.App. --Amarillo 1995, pet. ref'd). See Denham v. State , 574 S.W.2d 129, 130 (Tex.Crim.App. 1983).

Each case is examined on its own fact s to determine whether the fact finder could have concluded from the surrounding ci rcumstances that an object is capable of

5 Citation to provisions of the Texas Penal Code thro ughout the remainder of this opinion will be simply as "section ____" or "§ ____."7 causing death or seri ous bodily injury. See Billey , 895 S.W.2d at 421 (citing Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App. 1986)). The Court of Criminal Appeals has utilized several factors to assist in such a determination:
(1) the physical proximity bet ween the victim and the object ; Tisdale v. State, 686 S.W.2d 110, 115 (Tex.Crim.Ap p. 1984); (2) the threats or words used by the assailant; Williams v. State , 575 S.W.2d 30 (Tex.Crim.App. [Panel Op .] 1979); (3) the size and shape of the weapon; Blain v. State , 647 S.W.2d 293, 294 (Tex.Crim.App. 1983); (4) the weapon's ability to inflic t death or serious injury; id. and (5) the manner in which the defendant used the weapon. Id.
Charleston v. State , 33 S.W.3d 96, 100 (Tex.App.--T exarkana 2000, pet. ref'd).
The State is not required to establis h that the object is a deadly weapon through expert testimony; Denham , 574 S.W.2d at 131, though expert or lay testimony may be sufficient to support a finding; English v. State , 647 S.W.2d 667, 668-69 (Tex.Crim.App. 1983), and introducing the object in evidence assists the jury in its determination. Charleston , 33 S.W.3d at 100 (citing English , 647 S.W.2d at 669). The presence or severity of wounds may also be considered, but wounds are not a prerequisite to a finding that the object is a deadly weapon. Hammons v. State , 856 S.W.2d 797, 800-01 (Tex.App.--Fort Worth 1993, no pet.) (citing Denham , 574 S.W.2d at 130)).
Here, interpreting the evidence in a light most favorable to the verdict, Appellant and Cambern were only four fe et apart when Appellant yanked the eight iron from the golf bag and told Cambern to give him the ca r keys or he would "knock the f--- out" of him. Cambern felt "very threatened" and "scared" and he believed Appellant was going to beat him with the club. Cambern also test ified that getting hit with a golf club "hurt" and could cause "some pretty severe bumps." In addition, the jury had an opportunity8 to visualize the eight iron and judge for th emselves whether the club was, under the circumstances, capable of causing death or serious bodily harm.
We find that, from all the circumstances, a rational trier of fact could have found Appellant intended to use the eight iron in a manner capable of causing serious bodily injury. See generally Adame v. State , 69 S.W.3d 581, 585 (Tex.Crim.App. 2002) (BB pistol pointed at robbery victim); McCain v. State , 22 S.W.3d 497, 503 (Tex.Crim.App. 2000) (butcher knife partially visible in robber's back pocket by robbery victim); Charleston, 33 S.W.3d at 99-100 (wrench held over the head of the robbery victim); Hammons , 856 S.W.2d at 800-01 (robbery victim struck by baseball bat); Enriquez v. State , 826 S.W.2d 191, 192-93 (Tex.App.--El Paso 1992, no pet.) (robbery victim struck by 16-ounce soft drink bottl e with Styrofoam sleeve); Jackson v. State , 668 S.W.2d 723, 725 (Tex.App.--Houston [14th Dist.] 1983, pet. re f'd) (robbery victim struck by ax handle).
Appellant points to the absence of ce rtain evidence as supporting his assertion that the State failed to meet its burden of proof. He also a sserts the golf club was not a deadly weapon because Cambern was not struck. We are unpersuaded. A deadly weapon finding may be found where the robbery victim was threatened , as here, but not struck by the weapon. See McCain , 22 S.W.3d at 497; Charleston, 33 S.W.3d at 99- 100; Billey, 895 S.W.2d at 422-23. Further, "it is su fficient if the weapon is capable of causing death or serious bodily injury or is displayed in a manner conveying an express or implied threat that serious bodily injury will result if t he aggressor is not satisfied." Hammons , 856 S.W.2d at 801 (citing Jackson v. State , 668 S.W.2d 723, 725 (Tex.App.9 --Houston [14th Dist.] 1983, pet. ref'd)). A ppellant's first and second issues are overruled.
III. In the Course of Committing Theft
Appellant also asserts that he did not possess the eight iron in the course of committing a theft because he had abandoned t he theft when he brandished the eight iron and only sought return of the car keys.
"'In the course of committing a theft,' m eans conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the atte mpt or commission of theft." § 29.01(1). See Garza v. State , 937 S.W.2d 569, 570- 71 (Tex.App.--San Antonio 1996, pet. ref'd). The actual commi ssion of theft is not a prerequisite of the offense of robbery ; id. (citing Autry v. State , 626 S.W.2d 758, 762 (Tex.Crim.App. 1982), cert. denied , 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982)), and the attempt or commission of theft may be inferred from circumstances, actions, and conduct. Johnson v. State , 541 S.W.2d 185, 187 (T ex.Crim.App. 1976).
The record indicates Appellant brandish ed the eight iron to obtain the car keys retrieved by Cambern and escape with, or withou t, the golf clubs. In either instance, he used the eight iron "in t he course of committing a theft." § 29.01(1). See Chamberlin v. State , 704 S.W.2d 801, 802-03 (Tex.App.--Dallas, no pet.). Moreover, even if he intended to abandon the golf clubs when he threatened Cambern, his proscribed conduct would still constitute robbery. Id. at 803. Appellant's third and fourth issues are overruled.10 Conclusion
The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

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