Derrick Areceneaux v. State

Opinion issued July 21, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00714-CR

DERRICK CHARLES ARCENEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180 District Court

Harris County, Texas

Trial Court Cause No. 974150

O P I N I O N

A jury convicted appellant, Derrick Charles Arceneaux, of aggravated robbery,

and the trial court assessed punishment at thirty-five years’ confinement. On appeal,

Arceneaux contends the evidence is legally and factually insufficient to support the

aggravating element of the robbery—that he used or exhibited a firearm. We hold

that sufficient evidence supports the conviction and therefore affirm.

Facts

On April 21, 2003, shortly after 5:00 a.m., Antonio Garcia stopped at a

doughnut shop to purchase doughnuts and coffee. Garcia planned to use a pay

telephone in the parking lot, so he parked his car near it. As Garcia looked through

his wallet for a telephone number, Arceneaux approached his car, reached in through

the window, and removed the keys from the ignition.

Arceneaux then opened the car door and told Garcia that he was a narcotics

police officer. He told Garcia that he had a gun, and ordered him to get out of the

car: “Get out from the car. I got gun. I got pistol. Don’t do nothing or I can use it

with you.” Garcia quickly realized that Arceneaux was not a police officer.

Arceneaux grabbed Garcia’s wallet, looked through it, and stuffed it into his own

pants. Arceneaux ordered Garcia to take off his socks and shoes to demonstrate that

he did not have money or drugs hidden in them. Arceneaux then started looking

through Garcia’s car and asked Garcia if he had additional money with him. After

Arceneaux finished his search of the car, he pushed Garcia to the ground and ordered

him to remain there. Arceneaux then fled the scene with another male in a white

Cadillac.

Throughout the robbery, Arceneaux only used one hand—he kept the other

hand concealed beneath his shirt. Garcia believed Arceneaux’s threat that he carried

a pistol, though Garcia never saw a gun. Garcia testified that during the robbery he

was scared for his life.

Garcia saw a portion of the Cadillac’s license plate as it drove away. A

customer in the doughnut shop obtained the entire license plate number. Later that

day, the police located a white Cadillac with a matching license plate number. As the

police towed the car, Arceneaux and another male appeared at the scene. Arceneaux

claimed ownership of the car. He also provided the police officers with several false

names. The police officer arrested Arceneaux, searched the car, and discovered

Garcia’s bankcard inside it. The police never found a firearm. Discussion

On appeal, Arceneaux contends the evidence is legally and factually

insufficient to support his conviction of aggravated robbery.

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict and then determining whether a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

Escamilla v. State , 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied , __

U.S. __, 125 S. Ct. 1697 (2005). In our review of the factual sufficiency of the

evidence, we view the evidence in a neutral light, and we set aside the verdict only

if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or

the contrary evidence is so strong that the standard of proof beyond a reasonable

doubt could not have been met. Id. (citing Zuniga v. State , 144 S.W.3d 477, 483

(Tex. Crim. App. 2004)). In conducting a factual sufficiency review, we must

“mention what the parties assert is the most important or most relevant evidence

supporting a claim that the evidence is factually insufficient.” Sims v. State , 99

S.W.3d 600, 601 (Tex. Crim. App. 2003).

Aggravated Robbery

Here, a jury found Arceneaux guilty of aggravated robbery with a firearm. A

person commits robbery if, in the course of theft, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death, with intent to

obtain or maintain control of the property. Tex. Pen. Code Ann . § 29.02(a)(2)

(Vernon 2003). A robbery becomes an aggravated robbery if the actor “uses or

exhibits a deadly weapon” during it. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon

2003). Arceneaux contends the evidence is neither factually nor legally sufficient to

support a finding that he used or exhibited a firearm during the robbery because

Garcia did not see a gun and the police did not recover one.

In relation to a deadly weapon, the term “use” means to employ, or to apply the

deadly weapon to achieve an intended result. Patterson v. State , 769 S.W.2d 938,

940 (Tex. Crim. App. 1989). A deadly weapon is exhibited when it is consciously

shown, displayed or presented for view. Id . “[O]ne can ‘use’ a deadly weapon

without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the

commission of a felony without using it.” Id .; see also McCain v. State , 22 S.W.3d

497, 502 (Tex. Crim. App. 2000) (concluding that same analysis is “indeed relevant

to interpreting the aggravated robbery section.”).

The Texas Court of Criminal Appeals has found that circumstantial evidence

may be sufficient to support a finding that a defendant used a pistol during a robbery,

even if the complainant never saw the pistol. See Moore v. State , 531 S.W.2d 140,

142 (Tex. Crim. App. 1976).

In Moore , the issue was whether the State proffered

sufficient evidence for the jury to find that the defendant used a pistol in robbing the

complainant. The complainant did not see a pistol during the robbery, but he heard

one of the defendants tell the other defendant to keep “his shit on him,” and this slang

was interpreted to refer to a pistol. Id . at 141. The complainant also heard what he

thought was a revolver being cocked and a cylinder of a pistol rolling. Id . The police

arrested the defendants, in the complainant’s car, about thirty minutes later, but never

found a gun. Id . The court held that the conversation between the two defendants

and the sound of a pistol “gave rise to a reasonable inference that the robbery was

committed with a pistol” and, although the evidence of a pistol being used was

circumstantial, it was “more than sufficient to support the conviction.” Id . at 142; see

also Woods v. State , 653 S.W.2d 1,4 (Tex. Crim. App. 1982) (holding circumstantial

evidence sufficient to show robbery committed using and exhibiting pistol when

complainant did not see gun but felt it poked into his side and defendant stated he had

gun).

As in Moore , in this case, Garcia never viewed a gun, but Arceneaux

continually kept one hand beneath his shirt and told Garcia that he “got pistol.”

Moreover, our Court upheld a deadly weapon finding under similar facts in Barehill

v. State , 740 S.W.2d 572 (Tex. App.—Houston [1st Dist.] 1987, no pet.). In Barehill ,

the defendant and another male entered the restaurant with their right hands covered

by brown bags. Id . at 573. The two men made several statements indicating that they

had guns. Id . The complainant testified that she did not see a gun, but feared that the

defendant would shoot her. Id . The defendant denied the robbery and testified that

he did not own a gun. Id . A rebuttal witness testified that she saw the defendant

three days later use a gun to commit an extraneous robbery. Id . We held that the

evidence was sufficient to convict the defendant of aggravated robbery. Id . at 574;

see also Webber v. State , 757 S.W.2d 51, 52 (Tex. App.—Houston [14th Dist.] 1988,

pet. ref’d) (holding evidence sufficient to support deadly weapon finding when co-defendant put hand on something inside shirt and threatened to kill victim if he did

not relinquish money from cash register).

Arceneaux contends that these cases are distinguishable because in each of

them “there is some evidence besides the robber’s claim to have a gun to establish the

actual existence of the firearm . . . [and] in the case at hand, no corroborating

elements are present.” He further contends that a defendant’s statement that he has

a gun is insufficient circumstantial evidence to support a finding that indeed he had

one. Here, however, additional evidence corroborates Arceneaux’s statement that he

carried a gun. Specifically, Arceneaux kept his hand under his shirt throughout the

robbery, as if to conceal a gun. This evidence, similar to a hand concealed in a paper

bag, is corroborating evidence that Arceneaux used a gun. Arceneaux’s statement

and actions caused Garcia to believe that he carried a firearm. Arceneaux used that

threat to force Garcia to get out of his car, surrender his wallet, take off his shoes and

socks, and lie on the ground. We hold that this evidence, although circumstantial, is

legally sufficient to support a finding that Arceneaux used a firearm during the

robbery.

Arceneaux claims that the evidence is factually insufficient because

circumstantial evidence indicates that he did not have a gun—Garcia did not see a

gun during the robbery and the police did not find one thereafter. Arceneaux’s own

statements and actions, however, clearly indicate that he had a gun during the

robbery. Moreover, Arceneaux had ample time to dispose of the gun after the robbery

and before being arrested. Viewing the evidence in a neutral light, we hold that the

evidence is not so weak that the verdict is clearly wrong and manifestly unjust and

that this circumstantial contrary evidence is not so strong that the standard of proof

beyond a reasonable doubt could not have been met.

Conclusion We hold the evidence is legally and factually sufficient to support the

conviction for aggravated robbery. We therefore affirm the judgment of the trial

court.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Publish. Tex. R. App. P . 47.2(b).