NO. 07-01-0142 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D MAY 9, 2002

______________________________ PETER VALDEZ KE RCADO, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 337 TH DISTRICT COURT OF HARRIS COUNTY; NO. 833144; HON ORABLE SAM ROBER TSON, JUD GE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Upon a plea of not guilty, appellant P eter Valdez Ke rcado w as conv icted by a ju ry of aggravated robbery and punishm ent was assessed at eight years confinement

. Presenting four issues, appellant contends the evidence i s 1) le gally and 2) f

act ually insufficient to sup port us e or exhibition of a deadly wea pon, and also contends that the2

evidence is 3) le gall y a nd 4 ) factu ally insufficient to sup port his a ggravated robbe ry co nv i ct i on . B as ed up on th e r at i on al e e xp re ss ed he re i n we affi rm.

The victim testified that hereturned hom e fromwor k on Ja nuary 6, 2000, and w hile he was looking for a parking space, he obser ved a m ale attempt ing to gain entry to a veh icle in the parking lot of the a partme nt com plex. He also saw a second m ale, a com panion to the first, sitting in the d river’s sea t of a re d ve hiclepar ked im m edia tely adjacent. The two m en took notice of him , then apparently departed together in the red veh ic le. Un der

theim pre ssi on t he t w o m en w

ere bur glar izing veh icles , th e vic ti m proceeded to park his ow n in a well-lit area and gather any valuables as a preca utionary meas ure. W hile still in his vehicle, he was approached by these sam e two m en, one of whomwas later

iden tif ied as appel lant. Appel lant i dentifi ed himself to the vi ctim as a poli ce officer, exhibited a “star-like” bad ge, and app roa che d th e dr iver -sid e w indow , w hile his accom plice remained at the rear of the vehicle. When th e vic timindicate d dis belie f in appellant’s ruse, he wa s pulled from the vehicle and robbed at gun point. There was confl icting testimony about whether appel lant or onl y his accomplice ex hibited a fire arm. A w itness, who placed an emergenc y-response call, observed the incident from his nearby apartm entwindow and testified that both m en had firearms

. The victimtestifi ed that only ap pell ant’s accomplice pointed the gun at him and ordered him to3

leave the area immediately after appell ant fini shed ransacki ng his vehi cle. Emergency res ponse was r apid, and the responding officers obtained a license plate from a red veh icle departing the com plex as they arrived. The veh icle was registered to app ella nt’s wife, and led to hi s positi ve identification by the victim. A ppellant was arrested and indicted for aggravated robbery and w as tried and found guilty bya jury. His accomplice was never identified. Byhis first two issues, appellant asserts th e evi den ce is lega lly a nd f

act ually insufficient to prove use or exhibition of a deadly wea pon. We di sagree. When both the legal and factual sufficiency of the evidence are challenged, we m ust first determ ine whether theevid enc e is lega lly s uff icien t tosup por

t th e ve rdic

t. Cle wis v. State, 922 S.W.2d 126, 13 3 (Tex .Cr.A pp. 1996 ). It is afundam ental ru le of criminal law that one cannotbe convicted of a crim e unless it is shown beyon d a rea sonable doubt that the defendant

commi tt ed ea ch el emen t o f th e a ll eg ed of fe ns e. U.S . Co ns t. amen d. XIV ; T ex. Co de Crim. Proc. Ann. art . 38.03 (Verno n Supp. 2 002); Tex. Pen. Cod e An n. § 2.0 1 (Vernon 1994). In conducting a legal sufficiency review, wemu st determ ine whether, after viewing the evidence in t he lig ht m ost favora ble to the prosecuti on, any rati onal tri er of fact cou ld have found the essential elem ents of the crime beyond a reasonable doubt. Jack son v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.A pp. 1991), overruled on other grounds , Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000 ). As an appellate court, w e m ay n ot s it4

as a thirteenth jur

or, but m ust uphold the j ury's verdict unless it is irrational or unsupported bymo re than a m ere mo dicum of evidence. Moreno v. State, 755 S.W.2d 8 66, 867 (Tex. Cr.Ap p. 1988)

. After conducting a legal sufficie ncy review under Jackson , we m ay proceed w ith a factual sufficiency review. Cle wis , 922 S.W.2d at 133. The Court of Crim inal Appeals has directed us to ask w hether a neutral review

of all the evidence, both for and against the finding , de mons trates that the proof of guilt is so obviously weak as to unde rmine confidence in t he f

act find ersdeterm inat ion, or t he p roo f of guilt , alt hou gh a deq uat e if taken alone, is greatly outweighed by cont rary proof. Johnson v. State, 23 S .W .3d 1, 11 (Tex.Cr.A pp. 2000) (adopting com plete civil factual sufficiency formulation); see also King v. State, 29 S.W .3d 556, 563 (T ex.Cr .App. 2000 ). Accordingl y, we w ill reverse the fact finder’s determination on ly if a manifest injustice has occ urred. Johnson , 23 S.W.3d at 12. In conducting this analysis, we may disag ree w ith t he j ury ’s determ inat ion, eve n if probati ve evidence supports the ver dict , bu t m ust

avo id substituting our judgm ent for that of the fact finder. See Sante llan v. State, 93 9 S.W.2d 155, 1 64 (Tex .Cr.A pp. 1997 ). A person com mits robbery if, in the course of com mitting theft and with the intent to obtain or

ma intain control of property, he know ingly orintentionally threatens or places another in fear of imm inent bodily injury or death. T EX . P EN . C ODE A NN . § 29.02 (Vernon 1994). A

person com mits aggravated robbery if he uses or ex hibits a dea dly w

eap on in the course of a robbery. T EX . P EN . C ODE A NN . § 29 .03 (Vernon 1994) . A firearm is a5

dea dly weapon per s e under section 1.07(a)(11)(A) of the Texas P enal Code. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Cr.A pp.1985). The indictment alleged appellant used and exhibited a deadly weapon, nam ely a firearm, during the robbery. The State, th er ef or e, ha d t o p ro ve ap pe l l an t u se d o r e xh i bi te d a fi re ar m. Appellant contends the evidence w as insufficient because the State neither entered into evid enc e no r linked a ny f irea rm to h im directly. He contendsthe State presented no demonstrative evidence to aid the fact finder in identifying the particular firearm used, and thatno testim ony wasgiven to prove that the firearm used was in fact capable of inflicting ser iousbod ilyinjury or death. Appellant further argues there is no evidence to s how he wasa wa re of an uni dentifi ed accomplice’s use or exhib itio n of a firear m. The evidence presented to the jury regarding the firearmused in this robbery consisted of the following testimony

of the victim on direct exam ination: Q. W hen you got

out of t he car, did you d o w hat he told you , to put you r hands on the car? A. Yes. Q. W hy did you do that if you did not think he w as the police? A. Because the oth er individual had a gun. Q. The one w ho was sta nding by t he rear o f your car? A. The one that was over here. * * * Q. W as it theone w ho was sta nding by t he rear o f your car? A. The one that had the gun.6 Q. Is that

the onewhowas

at the rear of t he car? A. Yes, he w

as the one that had t he gun.

* * * Q. He held his gun in his hand? A. Yes, sir. He took it out and he did like this to me. Q. When yo u sa y, h e did like this , w hat do you m ean , hedid l ike t his to you? A. Yes. He pointed at me so that I w ould not put up any resistance. Q. W hat part of your body did he point the g un to? A. Towards the he ad. Q. How c lose did the gun get to your head? A. About tw

o m eter and-a-half, two m eters and-a-half. Th e wi tn es s wh o o bs er ve d t he i nc i de nt te st i fi ed ab ou t o bs er vi ng a f i re ar m: Q. You parked your car there so you could keep an eye on your car? A. Right. Q. Oka y. Yo u sa id yo u saw a gu n. What

typ e of a gu n did it look like to you? A. W ell, to me it w

as like a revolver, a .38 or som ething, .380, som ething. Introducing the weapo n in evidence assists the j ury, but the j ury m aydeterm ine the weapon wascapable of causing death or serious bodily injury even if it is not in evidence. Charleston v. S tat e, 3 3 S .W.3d 9 6, 1 00 ( Tex .A pp. –Te xa rka na 2 000 , pe t. r ef’ d). While demonstrative evidence might have been useful in assisti ng the fact finder, appellant cites7

no authorityindicating that it w as r equ ired . O n th e co ntr

ary , th e Co urt

of C rim inal A ppe als has held that testim ony us ing any of the term s "gun, pistol or revolver" is sufficient to au thorize the jury to find that a deadly weapon was us ed. Wr ight v. State, 591 S .W .2d 458, 459 (Tex.Cr.A pp. 1979). Som e courts, noting that in the case s w hich equ ate"pis tol" with "deadly weapon," the"pistol" used or exhibited com ports to the Texas Penal Cod e dea dly weapon def

inition, have declined to extend the Wright holding. See Pena Cortez v. State, 732 S .W .2d 713, 715 (Tex .App.–Corpus C hristi 1987, no pet.). However, Pena Cortez is d isti ngu isha ble b eca usein that case the “pi stol” refe rred to at tri al proved in fact to be a toy gun. He re, witness tes timony w as positive and direct with respect to the firearm. I n addition, wo rds sp oken by the accus ed during the com mission of the offense m ay be considered in determini ng whether a weapon is a deadly one. See English v. State, 647 S.W.2d 667, 669 (Tex.C r.App. 1983). The victimtestified that appellant ’s accomplice pointed the firearm at him and threatened to kill h im if h e did not leave imm ediately after the robbery. The charge included an instruction on the law of parties. T EX . P EN . C ODE A NN . § 7.01 (Vernon 199 4 ); Ransom v. State, 92 0 S.W.2d 288, 302 (Tex.Cr.App. 1994), cert. denied , 519 U.S. 1030, 117 S.Ct . 587, 1 36 L.E d.2d 516(1996). Thus, the State was no t required to prov e that appe llant act ually use d or ex hibited t he g un. The evid enc e is sufficient where, ashere, it showsthata firearm w as used or ex hibited by a party to the8

crime. A fter viewing the evidence in the light m ost favorable to t he prose cution, t he j ury cou ld have found beyond a reasonable doubt a firearm w

as used or ex hibited during the com mission of this robbe ry. Further, in li ght of the evid ence as a whole, the fi nding of use or exhibition of a firearm w as not so contrary to the overw helming weight of the evidence as to be clearly wrong and unj ust. Thu s th e ev iden ce is bot h leg ally and fac

tua llysufficient to support use or ex hibition of a deadly weapon. Issuesone and two are overruled. Byhis thir d and fourth i ssues, appellant asserts that because the ev idence does not support use or exh ibitio n of

a de adly

w eap on, theevid enc e is alsolega lly a nd f act ually insufficient to support his conviction for the offens e of agg ravated ro bbery. However, be ca us e we hav e fo und theevid enc e is lega llyand factually sufficient to support use or exhibition of a deadly weapon, t he aggravated robbery conviction is likewise supported. Issues three and four are overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.