EMMITT v. STATE

No. 06-16-00069-CR.

JEREMY ROLAND EMMITT, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Sixth District, Texarkana.

Decided February 10, 2017.


Attorney(s) appearing for the Case

James H. Kreimeyer , for Jeremy Roland Emmit, Appellant.

Charles Karakashian, Jr. , Dustin H. Boyd , Scott K. Stevens , for State of Texas.

Before Morriss, C.J., Moseley and Burgess, JJ.


MEMORANDUM OPINION

Memorandum Opinion by Justice RALPH K. BURGESS.

Jeremy Roland Emmitt appeals his conviction for aggravated robbery.1 In two points of error, Emmitt argues that the evidence was insufficient to prove either (1) that he used or exhibited a firearm in the course of the robbery or (2) that he used or exhibited a deadly weapon. We find his points of error without merit and affirm the trial court's judgment.2

I. The Robbery

On September 25, 2014, Emmitt, with the assistance of Estelle Winkfield Palacio,3 Kevin Gilkey, and Markqual Palacio, robbed the Texas Partners Federal Credit Union, where Emmitt banked.4 The robbery began when Estelle traveled to Emmitt's house and applied makeup to Emmitt's face to help "make [Emmitt]" look like a woman. Emmitt then put on a wig, baseball cap, and sweatshirt and, carrying a purse, went to the credit union.

While Emmitt waited outside the credit union, Gilkey, Markqual, and Estelle drove around town. During that time, Markqual made two telephone calls—either to a local school or the police —claiming that there was a bomb at one of the local schools in order to distract law enforcement officers. After Markqual made the bomb threats, Gilkey5 texted Emmitt to inform him that the calls had been made. On receipt of that information, Emmitt entered the credit union.

Emmitt handed a note to the teller, Svenja Jefferson. In the note, Emmitt demanded cash, threatened to shoot Jefferson and her co-workers, and claimed to know where Jefferson lived. Jefferson testified that she found Emmitt's appearance unusual. She also testified that, when he gave her the note, Emmitt opened the purse he was carrying and revealed the handle of what Jefferson thought was a pistol, testifying, "It appeared like [a real gun]. I didn't see the whole gun. I just [saw] the handle of it. It was a solid black metal, but I can't positively say if it was real or not, but it looked like a real gun."

Another credit union employee, Ashley Ball, saw Emmitt enter and took note of his strange appearance. According to Ball, when Emmitt placed his purse on the counter at Jefferson's teller window, "[I]t clunked." Ball "thought it was a gun in the bag because [she] ha[d] a concealed carry license," and when she had her gun in her purse, "it [made] a clunking noise like that" whenever she would set it down.

Both Jefferson and Ball testified that they feared for their lives during the course of the robbery. Their fear was amplified by the statement in Emmitt's note that he knew where they lived. Ball lived across the street from the credit union, and Jefferson lived only a short distance away.

II. Sufficiency of the Evidence to Establish that Emmitt Used or Exhibited a Firearm During Commission of the Robbery

Emmitt argues on appeal that the evidence is insufficient to prove that he used or exhibited a firearm during the course of his crime because (1) Jefferson only saw part of the gun and (2) there was evidence that Emmitt had been in possession of a BB gun on other occasions. We disagree.

A. Standard of Review

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

"[A] conviction can be supported solely by circumstantial evidence." Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). As the Court of Criminal Appeals has stated,

[E]vidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant. Moreover, the evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.

Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990).

The indictment alleged the elements of aggravated robbery6 and specified that the deadly weapon used or exhibited was a firearm. Because the State increased its burden of proof by specifying a firearm rather than just alleging use or exhibition of a deadly weapon, the State was bound to prove that a firearm was used or exhibited during the robbery. See Curry v. State, 30 S.W.3d 394, 405 (Tex. Crim. App. 2000); Arthur v. State, 11 S.W.3d 386, 388 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). A firearm is "any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use." TEX. PENAL CODE ANN. § 46.01(3) (West Supp. 2016). BB guns and air pistols do not meet this definition and are not firearms. See Moseley v. State, 545 S.W.2d 144, 145-46 (Tex. Crim. App. 1976); Colon v. State, 680 S.W.2d 28, 29-31 (Tex. App.-Austin 1984, no pet.).

B. Analysis

In an effort to establish that the evidence was insufficient to prove that he used or exhibited a firearm during commission of the robbery, Emmitt relies on the testimony of his co-defendants that he was in possession of a BB gun.

1. Witness Testimony

Markqual testified that, before the robbery, when Emmitt was attempting to disguise his appearance by dressing as a woman, Markqual saw what he was told was a BB gun. Markqual said that the BB gun resembled a metal revolver. Gilkey testified that, after the robbery, the three men stopped at a gas station and that Emmitt threw his wig, purse, clothes, and gun in a dumpster at that location. According to Gilkey, the gun Emmitt threw in the dumpster was "a fake gun, [l]ike a BB gun" which looked like "[a] revolver." And Markqual testified that the BB gun he saw before the robbery was the same gun that Emmitt threw in the dumpster at the gas station following the robbery.

In addition, Emmitt notes that, during a search incident to his arrest, law enforcement officers found a BB pistol between the mattress and box springs of Emmitt's bed.7 However, Gilkey testified that the gun found during that search did not look like the one thrown in the dumpster immediately after the robbery. According to Gilkey, the gun found under Emmitt's mattress incident to his arrest was not a revolver and was not "[b]lack with a brown handle." Finally, Jefferson testified that the gun Emmitt was carrying in his purse and that he displayed to her during the course of the robbery did not look like a revolver:

[Defense Counsel]: Could you tell whether or not this item that you saw was a revolver? [Witness]: It did not look like a revolver. . . . . [Witness]: It looked, like, I guess, what you would call an automatic handgun.

She further described the gun as "black metal."

2. Legal Authority

The sufficiency of the evidence to prove that a firearm was used in an aggravated robbery has been litigated before. In Price v. State, 227 S.W.3d 264 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd, untimely filed), Price claimed that the evidence was insufficient to prove the State's allegation that he used or exhibited a firearm during commission of a robbery. At trial, the robbery victims testified that Price had threatened them with a gun. Both victims also testified that they feared Price would hurt or kill them. One victim told the jury that Price had put a gun in her face; the other testified that Price had pointed the gun at him from arm's length. Id. at 265. Security footage of the robbery showed one of the suspects wielding a gun. Id. at 267. Although the First Court of Appeals "recognize[d] that the term `gun' may be broader than `firearm' when taken out of context and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns," the court went on to state that, "[a]bsent any specific indication to the contrary at trial," it was reasonable for the jury to infer or deduce that the gun used in the charged crime was a firearm. Id. at 266.

Likewise, in Rodgers v. State, 795 S.W.2d 300 (Tex. App.-Houston [1st Dist.] 1990, pet. ref'd), the defendant claimed that he had only used a toy or piece of tubing, not a firearm, during commission of the robbery of which he was convicted. The victim testified that Rodgers had threatened him with a gun. When asked if the gun Rodgers used to threaten him could have been a toy, the victim simply stated, "They do make them to look real." Id. at 303. When shown a photograph of a pistol at trial, both the victim and another eyewitness testified the pistol used during commission of the robbery "was the same or similar" to the one displayed in the photograph they had been shown. Id. On appeal, the First Court of Appeals held that under those circumstances, a reasonable jury could have found that Rodgers used or exhibited a firearm in the robbery.

Finally, although the case did not involve a firearm, in Herring v. State, 202 S.W.3d 764 (Tex. Crim. App. 2006), the Court of Criminal Appeals held that the evidence was sufficient to prove that the defendant had used or exhibited a knife when he committed aggravated robbery. The evidence in that case showed that the defendant broke into the victim's home and, after a struggle, tied up the occupant. The victim testified at trial, "He said he had a knife and I never [saw] the knife but I was pretty sure he had one." The victim continued, "He said he was going to kill me if I didn't give him my money." Id. at 765. The Court of Criminal Appeals found the defendant's statement that he had a knife was an admission8 and, thus, "admissible as substantive evidence." Id. at 766. Consequently, the defendant's statements that he had a knife and would kill the victim supported a finding that Herring used or exhibited a deadly weapon during commission of a robbery. Id.

3. Application of the Law to the Facts

In the present case, evidence that (1) Emmitt went to the credit union to rob it, (2) that he handed a note to the teller saying that he had a gun and knew where she lived, (3) that his purse made a noise when he placed his purse on the counter that Ball said sounded like he had a gun in the purse, and (4) that he opened the purse and showed Jefferson a portion of a gun was enough for a rational jury to find, beyond a reasonable doubt, that Emmitt used or exhibited a firearm during commission of the robbery.9 We overrule Emmitt's first point of error.

III. Sufficiency of the Evidence to Establish that Emmitt Used or Exhibited a Deadly Weapon During Commission of the Robbery

In his second point of error, Emmitt claims that the evidence was insufficient to prove that he used or exhibited a deadly weapon during commission of the robbery. A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2016); Ex parte Franklin, 757 S.W.2d 778, 783 (Tex. Crim. App. 1988). Therefore, our resolution of Emmitt's first point of error defeats his second point of error, which is overruled.

We affirm the trial court's judgment.

FootNotes


1. Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
2. Emmitt was sentenced to thirty years' confinement.
3. Estelle is married to Mario Palacio, who is the brother of Emmitt's co-defendant, Markqual Palacio.
4. In his brief on appeal, Emmitt states, "There is ample evidence to prove Appellant committed the offense of robbery."
5. Gilkey's testimony suggested that this was to divert law enforcement during the robbery.
6. See TEX. PENAL CODE ANN. § 29.03 (West 2011).
7. Detective Krystal Baker was present at the arrest. Baker described the pistol as "look[ing] like a black gang gun." However, she also confirmed that the pistol was actually nothing more than a BB gun. She testified that the pistol found during the search was not a real gun and that she believed it was constructed of some sort of plastic material.
8. See TEX. R. EVID. 801(2).
9. Although Emmitt points to Markqual's and Gilkey's testimony as circumstantial evidence that he only used a BB gun during the robbery, that testimony does not negate the State's circumstantial evidence that Emmitt used a firearm during the robbery. Rather, it merely constitutes competing circumstantial evidence to support an alternative finding. The jury was free to completely reject all of the evidence pointed to by Emmitt in support of his claim that only a BB gun was used, and "[w]e assume that the jury considered all of the evidence and any potential inferences and decided that appellant's theory was not reasonable." Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992). By itself, the State's evidence that the displayed pistol looked like a real firearm and that it made a noise that sounded like a firearm when it clunked down on a hard surface was sufficient evidence that Emmitt had exhibited a firearm while conducting the robbery. Therefore, notwithstanding the testimony cited by Emmitt, the State's evidence was sufficient to sustain his conviction for aggravated robbery.

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