Charles Christopher Page v. State

Opinion issued April 5, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00447-CR ——————————— Charles Christopher Page, Appellant V. The State of Texas, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1275719 MEMORANDUM OPINION Appellant, Charles Christopher Page, was charged by indictment with aggravated robbery.[1] Appellant pleaded not guilty. The jury found him guilty, found two enhancement paragraphs were true, and assessed punishment at 70 years in prison. In three issues, appellant argues (1) the evidence at trial was insufficient to support the determination that a firearm was used; (2) the trial court erred by failing to include sua sponte a definition of “firearm” in the jury charge; and (3) he received ineffective assistance of counsel due to his counsel’s failure to object to the lack of a definition of “firearm” in the jury charge. We affirm. Background On June 22, 2010, Olga Prado was working at a Family Dollar store located in Houston, Texas. It was near closing time when she heard someone enter the store. She looked up to greet the person and saw a Hispanic male wearing a bandana, pointing a gun at her, and approaching her. She also saw an African-American male standing at the entryway, keeping the door open, and looking around outside. The Hispanic male told her to open the cash register she was standing in front of and to give him the money in it. Scared and disoriented, Prado struggled to figure out how to open the register. She called out to Veronica Espinoza, the assistant manager working that night, for assistance. Espinoza saw the Hispanic male enter and saw the gun. Upon seeing the gun, she fled to the back of the store. Eventually, Prado was able to open the register. She put all the money in the register, $80, into a bag provided by the Hispanic male. The two men left, fleeing the scene. A video recording from the surveillance cameras that night was later turned over to the police. Officer C. Nelson supervised the investigation of the crime. Officer Nelson received some information from Crime Stoppers indicating that appellant and Jesse Trevino were involved in the crime. Officer Nelson presented Prado with a photograph lineup, including a picture of Trevino, but Prado did not identify him. Subsequently, Officer Nelson presented Prado with a live lineup including Trevino, and Prado identified him. Following a police interrogation of Trevino, Officer Nelson obtained a warrant for appellant’s arrest. During his police interrogation, appellant confessed, admitting to receiving $25 for his involvement in the offense. During the interrogation, appellant asserted that the weapon Trevino used was a toy, CO2-propelled gun. Jury Charge In his second issue, appellant argues that the trial court erred by failing to include sua sponte a definition of “firearm” in the jury charge. A. Standard of Review When reviewing jury-charge error, we first determine if error actually exists in the jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). If we find error, we then determine whether it harmed the appellant. Ngo, 175 S.W.3d at 743. The degree of harm requiring reversal depends upon whether an objection was raised to the error at trial. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If appellant did not make a proper objection at trial, appellant “will obtain a reversal only if the error is so egregious and created such harm that he has not had a fair and impartial trial.” See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Under an egregious harm analysis, a reviewing court examines “the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). “Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.” Id. at 461–62. B. Analysis Appellant was charged with aggravated robbery. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (Vernon 2011), § 31.03(a) (Vernon Supp. 2011). As it applies to this case, a person commits aggravated robbery when he commits the offense of robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2). The portion of appellant’s indictment concerning the deadly weapon stated that he “did then and there use and exhibit a deadly weapon, namely, A FIREARM.” Appellant argues that the trial court erred by failing to include a definition of firearm in the charge. “Firearm” is defined in Chapter 46 of the Texas Penal Code. See id. § 46.01(3) (Vernon Supp. 2011). That definition, however, is limited to statutes “[i]n this chapter.” Id. § 46.01. As the State points out, the Court of Criminal Appeals has held that it is improper to include the definition of a term defined in Chapter 46 of the Texas Penal Code in a jury charge on aggravated robbery. Garrison v. State, 726 S.W.2d 134, 138 (Tex. Crim. App. 1987); see also Lee v. State, 866 S.W.2d 298, 301 (Tex. App.—Fort Worth 1993, pet. ref’d). Otherwise, when a term is not statutorily defined, it is given its usual meaning, and no specific instruction is required. Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009). In his reply brief, appellant points out that Garrison concerned an instance when a term defined in Chapter 46 had been included in the charge. Garrison, 726 S.W.2d at 138. In its analysis, the court recognized it was “difficult to characterize the definition as ‘error’ because it is not that the definition does not fit the weapon used by appellant, but simply that the specific definition is set out for use with Chapter 46 offenses.” Id. at 138–39. While we agree with this summary of the case, the issue presented for us is whether the trial court was required sua sponte to include the Chapter 46 definition in the charge. The court held in Garrison that “the trial court should not have included such [a] definition in the aggravated robbery charge.” Id. at 138. It went on to hold that, regardless of the court’s hesitancy to characterize the inclusion of the instruction as “error,” it was, nevertheless, a “mistake.” Id. at 139. In this case, the trial court cannot be required to include sua sponte a definition that the Court of Criminal Appeals has held should not be included in the charge. We hold that the trial court did not err by failing to include a definition of firearm in the jury charge. We overrule appellant’s second issue. Ineffective Assistance of Counsel In his third issue, appellant argues that he received ineffective assistance of counsel due to his counsel’s failure to object to the lack of a definition of “firearm” in the jury charge. This complaint, however, is premised on a determination that a definition of “firearm” would have been properly included in the charge. We have already held that such a definition would not have been proper. Accordingly, appellant has not received ineffective assistance of counsel due to his counsel’s failure to object to the lack of the definition in the jury charge. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (holding counsel is not required to engage in filing of futile motions). We overrule appellant’s third issue. Sufficiency of the Evidence In his first issue, appellant argues the evidence at trial was insufficient to support the determination that a firearm was used. A. Standard of Review This Court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant presents the challenge as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). See id. at 54. Pursuant to this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). B. Analysis As appellant acknowledges, Prado and Espinoza testified that the weapon used in the offense was real and not a toy gun. In contrast, appellant stated in his police interrogation, a video recording of which was admitted into trial, that the weapon was a toy, CO2-propelled gun. Appellant asserts that “the two women’s belief that the ‘gun’ was real is not evidence of whether . . . it was a ‘firearm.’” Appellant relies on Wright v. State, 591 S.W.2d 458 (Tex. Crim. App. 1979). In Wright, the testimony at trial established that the weapon used was described as a “gun,” “revolver,” and “pistol.” Id. at 459. The defendant argued that, in order for the evidence to be legally sufficient to establish the use of a deadly weapon, a witness must use the term “firearm” or otherwise prove the use of a deadly weapon under one of the alternative statutory definitions. Id. The court disagreed, holding “[t]estimony using any of the terms ‘gun,’ ‘pistol,’ or ‘revolver’” was sufficient. Id. Appellant appears to believe that the court, in its holding, rejected the argument that the terms “gun,” “revolver,” and “pistol” met the definition of “firearm.” We disagree. The only question before the court was whether these terms fit the statutory definition of “deadly weapon.” It was not necessary for the court to determine if these terms also fit the definition of “firearm,” which is defined as being a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2011) (defining “deadly weapon”). Prado and Espinoza described the weapon used in the offense as a “gun.” We hold that this is sufficient to establish that a firearm was used or exhibited in the commission of the offense. Appellant also argues that a toy, CO2-propelled gun does not meet the definition of “firearm” under Chapter 46 of the Texas Penal Code. We have already held that the definition of “firearm” under Chapter 46 does not directly apply to a charge of aggravated robbery. Even if we used the definition of “firearm” under Chapter 46 as a definition of its usual meaning, appellant’s argument still fails. See Smith, 297 S.W.3d at 275 (holding words not statutorily defined are given their usual meaning); Lee, 866 S.W.2d at 300 (using Chapter 46 definitions as aid to determine usual meanings); Brown v. State, 212 S.W.3d 851, 860 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (using Chapter 46 definition of “firearm” in analysis for aggravated robbery). The only evidence in the record that the weapon was a toy gun was from appellant’s police interrogation. In contrast, Prado and Espinoza testified that the gun was real. An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Appellant argues in his reply brief that to allow the jury to disbelieve appellant’s assertion that the gun was a toy gun “shifts the burden from the [S]tate to prove the gun was a firearm to the defendant to prove that it was not.” We disagree. The State bore the burden of proving beyond a reasonable doubt that the weapon used was a firearm. See Brown, 212 S.W.3d at 860 (holding State bears burden of proving beyond reasonable doubt descriptive matters alleged in indictment). The testimony from two eye-witnesses that the weapon used was a real gun was sufficient to meet this burden. See Wright, 591 S.W.2d at 459. Appellant’s assertion that the weapon was a toy, CO2-propelled gun does not, by itself, overcome the other evidence to prevent a determination of guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. We hold that the evidence was sufficient to establish that a firearm was used in the commission of the offense. We overrule appellant’s first issue. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (Vernon 2011), § 31.03(a) (Vernon Supp. 2011).