1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-01-0137 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E JUNE 17, 2003

______________________________ IN THE M ATTER OF J.A .W

.

______________________________ FROM THE COUNT Y COURT AT LAW NO. 3 OF BRAZ ORIA COUNT Y; NO. 7995B; HON. JAMES BLACKSTOCK, PRESIDING

_____________________________

Opinion

______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 Appellant, J.A.W., a minor, appeals an order com mitting h i m to the Texas Youth Com mission (TYC) for an indeterm inate period no t toexcee d his21s t bir thd ay. Viasix issues, appellant complains that 1) the evidence was legally and factually insuffici ent; 2) the trial court erred by adm itting the victim’s out-of-court w ritten statem ent into evidence; 3) he received ineffective assistance of couns el; 4) fundame ntal error occurred w hen the victim’s out-of-cour t statement was adm itted i nto evidence for all purposes; and 5) the trial court erred by “adm itting, as w ell as con side ring ,” in adm iss ible e vide ncecon cer ning his2

probation in Matagorda County. W e reverse and re nder judgment dismissing the cause with prej udice. Backgr ound Because appellant has challenged the sufficiency of the evidence, we will set forth the rele van t fa ctsadd uce d at tria l. Th e S tate file d a petiti on in which it alleged that appellan t had co mm itted robbery and aggravated robbery on t wo separatedates. The victimnam ed was A rre Daniel Thomas (Thom as). At trial, Tho m as t est if ied that on Septem ber25, 2000, he w as asleep in his home w hich is located behind his place o f business, H.K. Grocery . Thom as wasawakened by appellant who had e ntered his abode and began striking him, dem anding money. Eventually appellant left and Thomas noticed money he believed to be on a table was gone. However, he did not see appellant take the money and he wa s not sure that the money had been left on the table. On the following day, Septem ber 26, 2000, Thomas was w orking at the front of the grocery store w hen he saw appellant with a knife and he wa s “striking” the concrete w ith it. Thom as becam e afraid and went to the back of the store. Appellant followed him and deman ded his money . According to Thom as , appellant also threatened him by s aying: “I will beat you worse than I did yesterda y. ” In a statem ent given to the police, Thom as advised that appellant pulled a yellow-handl ed knife on him. H owever, at trial, Thomas insisted that he did not see and appellant did not pull a knife during t he inc ident at the back of the store. Next, Thom as tes tified that he ran to a serv ice stati on wherein he encountered Kenneth Davis (Davis), an em ployee. Davis called the police for Thomasand advised that3

he had been robbed and that t he robber had pulled a knife. Upon ar rival , Detective W orsham (W or sh am) was adv ised that appellant pulled a knife on Thomas and dem anded money. The two d rove around to see if Thom as could point appellant out to the detective. Later, appellant was found and a rrested. Thom as gave Worsham a w ritten statem ent which w as introduced at trial. In his defense, appellant called thr ee w itne sse s. The firs t pe rso n, J ohn nie L ew is (Lew is), testified that Thom as advised him that Thom as had identified the wrong person. The nex t w itness, Lacey G oodrum(Lacey ), testified that she had been w ith appellant the morning of the 26 th ar ou nd 9: 00 a. m. t o 1 1: 00 a. m. She further testified that she never saw appellant with a knife. Thereafter, the trial court read its charge to the j ury. It asked th e jury to determ ine the truthfulness of tw

o accusations. The first involved the purporte d robbery that occurred
on Septem ber 25, 2000. The second involved the allegation that appellan t co m m it ted aggravated robbery

upon Th omas on S eptem ber 26, 2 000. Theaggrava ted robb ery described to the j ury consisted of app ellant robb ing Thomas w hile using or exhibiting a dea dly w eap on. Thej ury

fou nd t he f

ir st a ccusation “not true” and the se cond “true.” Afterwards, a disposition hearing was held by the j udge. A pre-disposition report was prepar ed wherein inform ation regarding appellant’s Matagorda probation, am ong oth e r offenses, was introduced. The trial court comm itted appellant to the TYC for an indeterminate period no t to exceed his 21st bi rthday. A m otion for new t rial was filed and
a hearing was he ld. The tria l cou rt d enie d th e m otio n, a nd a ppe llant tim ely n oticed h is appeal.4 Issues One and Two - Legal and Factual I nsufficiency In his first two issues, appellant contends that the evidence is both legally and fac tua llyinsufficient. That is, atta ckis made upon the elem ent of the offense concerning the use or exh ibition of a deadly weapon during the comm ission of the offense. According to appellant, the State failed to prove that he did so. W e sustain the contention. Standard of Revi

ew In reviewing a l egal suffi ci enc y point, the appellate court “m ust consider only the evidence and inferences tending to support the findings of the j uvenile cou rt.” In r e Ga r za , 984 S.W.2d 344, 346 (Tex. A pp.--Am arillo 1998, no pet.). Under this test, evidence and inferences tending to con tradict tho se findings are disregarded. Id. Howe ver, in assessing whether the evidence is fact uall y sufficient, the court’s f ocus is not so restricted. The question that it m ust answer in a juvenile case is w he ther the re cord, consid ered as a whole, showsthat the Statesustained its bur den to p rov e be yon d a r eas ona ble doubt that the accused engaged in delinquent conduct. Id . Th us, w e m ust con side r all the evidence in making our determ ination. Id. Furthermore, for

one to be guilty of aggravated robbery, one m ust, in the course of
com mitting theft and with the intent to obtain or maintain control of property, kn owingly or inte ntio nally

threaten or place another in fear of imm inent bodily injury or death. T EX . P EN . C ODE A NN . §29.02 (Vernon 1994). In addition, the State m ust also prove an aggravating element. That relied upon at bar and subm itted to the j ury was that involving the use or exhibition of a deadly wea pon dur ing the c ourse of the robbery. T EX . P EN . C ODE A NN . §29.03 (Vernon 1994). With this said, we now turn to the issues at hand.5

Appli cati on of S tandard From t he recita tion of the ev i de nc e me nt i on ed ab ov e, we c on cl ud e t ha t s ome evidence appears of record illustrating that a robbery occurred and that appellant “pulled”
a knife on Thom as whi le commi tt in g t he ro bb er y. Howe ve r, we are troubled by the lack of anyevidence regarding the size, shape, and sharpnes s of the knife. No one presented anyevidencetouching upon th ose issu es. R ather, t he evidence sim ply desc ri bes the weapon use d to prove the aggravating elem ent of the charge as a “knife.” Ithas long been the law of Texastha t a k nifeis not a deadly we apon per se . Bla in
v. State , 647 S.W.2d 293, 294 (Tex. Crim . App. 1983) (reversing and rendering a judgm ent
o f acquittal in absence of any evidence illustrating the knife to be a deadl y weapon) ; Hatchett v. State , 930 S .W.2d 844, 848 (Te x. A pp.--Ho uston [ 14th Dis t.] 199 6, pet. ref’d). Thus, it is i ncumbent upon the State to pr ove that the knife constituted a deadly weapon by showing its size, shape and sha rpness, the m anner of its use or intended use, and its capacityto p rod ucedea th o r se riou s bo dily injury. Blain v. State , 647 S.W.2d at 294

. And, while the i nstrument m ay have been brandished and m ay haveplaced th e victimin fear, that alone is not enough to establish it as a deadly weapon. Id. Here, the record befor e us simply evinces tha t the knife was brandish ed and Thomaswas s cared. Again, nothing describes the weapon’s shape, size, s harpness, or capacityto produce death or serious bod ily in j ury . Fu rth erm ore , th e po lice did not find the weapon alleged ly used by appel lant; so, i t was not admitted into evide nce. Nor was a facsim ile tendered. Also absent was any description of how appellant used theknife, other than thesta tem ent

tha t he“pu lled” it. Sim il arly, n othing was said of theproxim ity of6

appellant to Thom as when the knife was pulled, other than that they w ere behind the store. W hatever

the distance, however, it was f ar enough to allow appellantto run awa yunhurt. And, that ap pellant verb ally threate ned Thom as is of little impo rtsince the threat consisted of the representation that he w ould “beat” Thomas as opposed to cut or stab him . Under these circ um sta nce s, w e ho ld tha t no evidence supports the jury’sdeterm ination that appell ant used or exhibi ted a deadl y weapon in the robber y. Final ly, because no one sought and the trial court did not subm it an instruction on the lesser-included offense of robber y viz th e Se pt embe r 2 6t h i nc id en t, we cannot m odify the judgm ent to find ap pell ant culpabl e of that lesser offense

. See C olli er v. State , 999 S.W.2d 779 (Tex. C rim. Ap p. 1999) (in which a plurality of th e court, j oined with a concurring judge, concluded that a court of appeals could not rende r a judgm ent upon a lesser-included offense in the absence of a jury instruct ion on that offense). Accordi ngly,
we reverse the j udgme nt of the j uv enil e court and rend er judgment dismissing the case with prejudice. T EX . F AM . C ODE A NN . §54.03(g) (Vernon 2002) (requir ing the case to be dismissed with prej udice if the trial court or jur y found tha t th e m inor did n ot e nga ge in delinquent conduct); T EX . R. A PP . P

. 43.3 (requiring an appellate court to enter the judgm entwhich the trial court should have entered) . Our holding obviates the need to address any other issue raised by app ellant.
Brian Quinn Justice