## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00042

- CR No. 0 2

- 19

- 00043

- CR No

. 02

- 19

- 00 044

- CR No. 02

- 19

- 00045

- CR

___________________________

On Appeal from Criminal District Cou rt No. 3 Tarrant County, Texas Trial Court No s . 1511284D, 1511286D, 1511287D, 1511289D
Before Bassel, Womack, and Wallach, JJ. Memorandu m Opinion by Justice Walla ch 

### J OHNNIE 

### R AYE 

### S TRINGER 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 ME MORANDUM OPINION Appellant Johnnie Raye Stringer appeals from his conviction s for aggra vated robbery with a deadly weapon . In one p oint , Stringer argues that t he evidence is
insuff icient to support the jury ’ s verdict that h e used or exhibi ted a d eadly weapon because there was no evid ence he wielded a re al firearm

. We affirm

. Background
On August 21, 2017 , Juan Carlos Gonzalez and Irma Camacho , their son Jesus
Gonzalez , and J esus ’ s then

- girlfriend Jennifer Galvan

- Gonzalez drove from Da lla s to Ar lington to look at a 2006 For d Explorer that Juan Carlos had seen advertised for
sale on Craigslis t
. Unbeknownst to them, the Ex plo rer was not for sale; instead, the Craigslist ad was part of Stringer ’ s plan wi th Robert Horton to rob potent ial buyers

. When the group arrived at the apartment complex in Arlington , they met with
Horton. Juan Carlos and Jesus got out of their truck to look at the E xplorer

. The two took the truck for a test drive while I rma remained sitting in the front seat of
their car and Jennifer was l ying in the back seat. Whe n the men returned from the

te st drive, Juan Carlos asked to see the Explorer ’ s title. Horton testified at tr ial that because he did not ha ve the title, he claimed that he needed to call his wife

. He called Stringer, but Stringer did not answer. Less than a minute later , Stringer approached
the Gon zalez es ’ t r uck , opened the door , and told them to give him t he mone y. Jennifer told him that “ whatever he ’ s looking for [ she and Irma did n o t] have it. ” Irma then told her , “ he has a gun pointed at me

. ” Jennifer looked, saw the gun, and3 then opened the truck ’ s doo r slightly and yelled to Jes us for help

. Horton , Juan
Carlos , and J esus approached and saw that Stringer had a gun pointe d at Irma

. Stringer told them he would sho ot them if they called the police , but Jennifer c alled the police anyway . J enn ifer told the 9

- 1

- 1 dispatcher that they were being robbed by a man with a gun, and she described Stringer and Horton to the 9

- 1

- 1 dispatcher while Stringer and the Gonzalez family were “ yelling back and forth , ” wi th “ Stringer telling them to give [ him and Horton] the money , ” and th e Gonz alez family “ were all goi ng at i t, you know, trying to lik e tell them to stop

. ” During this scene, Stringer pointed the gun at J esus and Juan Carlos as well. Eventually, Irma gave him her purse and Jesus gave Stringer $5 2 0

. Jennifer test ified t hat after they turned over the money , “ Mr. St ringer pull [ed] back. And he ’ s still thoughtful. I guess he still wanted to get m ore out of us. He [raised] the gun. So at that point it was a shocker, it was, like, okay, here goes, like

someone ’ s abo ut to g et shot. ” However, instead of demanding more money or using his weapon, Stringer lowered the gun and “ then just ran out into

— i nto the complex, like just to get away at that point

. ” Horton had already left by then. Jen nifer a nd the
Gonzalez f amily drove away

. After Stringer and Horton left, the dispatcher asked Jennifer to describe the gun. She replied, “ the gun . . . what type of gun [i s ] it?” A male voice can be heard saying, “it was a revolve r.” Jennifer repeated to the dispatche r that the gun was a revolver, and she described it as “silver, with black

. ” As
the y were leaving the ap artment complex, the police arrived.4 Horton also testified at trial. Horton stated tha t a t the time of the robbery, he and Stringer were both r esidents of Mi ssi ssippi and that they had come to Texas to visit a friend and “ t o party, have fun. ” Ho rton stated that Stringer came up w ith the idea to list his vehicle 1 for sale on Craigslist and to rob people who responded to the ad. Horton tes tified that Stringer had a silver .357 revolver with a black handle

. Horton testified that he saw Stringer point the gun at I rma , that Stringer told them

“ to give him money or he would shoot them , ” and that he believed Stringer would
shoot them

. A sked if the gun was big or s mall, Horton descri bed it as b ig. Horton did not know when Stringer got the gun

. The State indic t ed Stringer on four counts of aggravated robbery with a deadly weapon, to wit: a fi rearm. The jury found him guilty o n all four counts and asse ssed
pu ni shme nt at forty years ’ confinement for each offense

. The tria l court senten ced him accordingly and ordered the sent ences to run concurrently

. Discussion Stringer argues under his sole point that t he evidence i s insufficient to show
that he ever wielded a rea l firearm. He contends that “ [ i] f [he] did wield a weapon, it was a BB gun, and the State failed to pres ent any e vidence that the BB gun was a

1 Horton testified that Stringer drove them to Texas in the Explorer , and the police found Stringer ’s drive r ’ s license and pay stubs in side , but the E xplorer was regi stered to Cathy Moore , not Stringer

. Horton stated that the Explorer ’ s ow ner was a relative of Stringer ’ s girlfriend.5 deadly weapon , ” and therefore “ no rational jury could have found the essential elements of aggravated robbe ry wi t h a deadly weapon beyond a reasonable doubt

. ”
In our evidentiary

- sufficiency review, we view all the e vidence in the light most favorable to the verdict to determine whether any rational factfinder could have found
the crime ’ s essential elements be yond a r easonable doubt. Jackson v. Virgin ia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979 ) ; Queeman v. State , 520 S.W.3d 616, 622 ( Tex. Crim. App. 2017). The factfinder alone judges the evidence ’ s weight and credibility.
See Tex. Code Crim. Proc. Ann. art. 38 .04; Queeman , 52 0 S.W.3 d at 622

. W e may no t

re

- evaluate the evidence ’ s weight and credibility and substitute our judgment for the factfinder ’ s. Queeman , 520 S.W.3d at 622. The Texas Penal Code defines “ deadly weapon ” as “ (A) a firearm or anything
manifes tly designed, made, o r adapted for the pu rpose of inflicting death or serious bodily injury; or (B) a nything that in the man ner of its use or intended use is capable of causing death or serious bodily injury. ” Tex. Pen al Code Ann. § 1.07 (a)(17). Thus, by definition, a “ firear m ” is a deadly weap on . Id. ; Wright v. State , 591 S.W.2d 458,
459 (Tex. Crim. App. 1979) ( “ A firearm is per se a deadly weapon. ” ). “ G un , ” on the other hand , is a broad term that include s both firearms and non lethal instruments
such a s BB guns

. Ar thur v. State , 11 S.W.3d 38 6, 389 ( Tex. App.

— Houston [14th Dist.] 2000, pet. ref ’ d) ; see also Lee v. State , No. 02

- 17

- 00379

- CR, 2019 WL 3491648, at *2 (Tex. App.

— Fort Worth Aug. 1, 2019, pet. ref ’ d) (mem. op., not designate d for publication). However, t es timony using the term “ gun ” or “ revolver ” is sufficient to6 authorize the jury to find that a deadly weapon was used when there is no evidence indicating the use of a toy gun or a non lethal instrument. Wright , 591 S.W.2d at 459 ; Leadon v. Sta te , 332 S.W.3d 600, 61 0 (Tex. App.

— Housto n [1st Dist.] 2010, no pet.) (citing Wri ght and holding that when there was tes timony that described the weapon

as a “ gun” and a “revolver,” and there was no evidence indicating that it could have been fake or a toy , the testimony wa s su fficient to satisfy the element that a deadly weapon was used ). Each of the Gonzalezes testified to seeing Stringer using a gun to threaten
them , as did Jennifer Galvan

- Gonzalez

. Jennifer described the instrument at trial as

“ an olde r gun . ” She “ b elieve [ d] it was a revolve r, one of those that you ha ve to turn. It was not that big, it was a small, like, handgun

. ” She did not remember the gun ’ s color but believed it was dark. In addition to her testimony, Jennifer ’ s call to 9

- 1

- 1 , i n which she sta ted that the man robbing them had a revolver that was “ silver with black, ” was played for the jury. Irma described the gun as being big and silver

. She believed that it was real and that S tringer was going to shoot her. Jua n Carlos and Je sus also testified to seeing the g un and being afraid for their lives. T he jury was free to believe this testimony. See Chambers v . State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) ( “ As factfinder , the jury is entitled to ju dge the credibility of witnes ses, and can choose to believe all, some, or none of the testimony presented by the parties. ” ) ; Wright , 591 S.W.2d at 459 ; Leadon , 3 32 S.W. 3d at 610

.7 Horton testified that Stringe r had a silver .357 revolver wi th a dark handle ; this testimony is consistent with both Irma ’s testimony that the weapon was silver and Jennifer ’s testimony that it was dark

. Stringer argue s that Horton “had gr eat mot ive
to lie ”; Horton acknow ledge d a t trial that he had also been charged for his parti cipation in the robbery and t hat he had accepted a plea deal of five years ’
confinement on a charge of non ag gravated robbery

. 2 H owever , Hor ton ’s testimony that Stringer had a firearm and exh ibited it during the robbery w as corroborated by testimony from four complainants , and thus th e jury had before it non accomplice evidence con necting Stringer to the offense

. Smith v. State , 33 2 S.W.3d 42 5, 442 (Tex. Crim. App. 2011) (stating that “ direct or circumstantial non [ ] accomp lice evidence is sufficient corrobora tion if it shows that r atio nal jurors could have found that it sufficiently tended to connect the accused to the offense ” ) ; Dela cruz v. Sta te , 278 S.W.3d 483, 487 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref ’ d) ( stati ng that
the statuto ry requirement for evidence corroborating acc omplice

- witness testimony is fulfilled “ [i] f the combined weight of the non [ ] accomplice evidence tends to connect the defendant to t h e offense ” )

.

2 T he court ’s charge included an accompli ce
- witness instruction

. See Tex. Code Crim. Pr o c . Ann. art. 38.14 (providing that “ [a] c onviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the de fendant with the offense committed; and the corroboration is not sufficient if it merely s h ows the commission of the offense ” ).8 The only suggesti on during the testimony at trial that the instrument used by Stringer might not be a fir earm came from Stringer ’ s attorney ’ s questions to Jennifer and Irma . The attorney asked Jennifer if she ha d ever s e en a toy gun before ( she had ) , if she saw the tip of the gun (she did), a nd if she thought she would know the difference between a real gun and a toy gun (s he answered that she believe d that she would know th e difference )

. Stringer ’ s attorney asked Irma if she had seen the tip of the gun, but she stated that she had no t
. Stringer ’ s attorney did not ask further questions about the possibility of the gun being a toy. No witness was asked if the gun looked like a BB gun. In sum, a lthough witnesses pr esented differ ing testimony about the size and
exact color of the weapon used by Stringer, the five witne sses all testified that he used
a weapon . See Lee , 2019 WL 3491648, at *4 (holding that based on testimony of
witnesses , a rationa l factfinder could have found beyond a reasonable dou bt that the appellant use d or exhibited a firearm during the robberies ). Three of the witnesses testified that Str inger ’ s exhibition of the gun put them in fear for their lives

. See id. ( describing testimony of several witnes ses that they could not tel l if the gun exhibited by t he robber was real but also stating the gun put them in fear for their safety )

. Jennifer testified that the weapon looked like a rev olver, and Horton confirmed that it
was a revolver. No testim ony supports a finding that the wea pon was a BB gun or a toy
. We hold that t h e evidence i s sufficient to support the jury ’s finding that Stringer9 used or exhibi ted a deadly weapon

. See id. Accordingly, we overrule Stringer ’s sole point.
C onclusion Having ove rruled Stri nger ’ s sole point , we affirm the trial cour t ’ s judgment s .

/s/ Mike Wallach Mike Wallach Justice
Do No t Publish Tex. R. App. P. 47.2(b) Delivered : F ebruary 27, 2020