Charles Christopher Page v. State

Opinion issued April 5, 2012

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-00447-CR

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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, CO 2 -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, CO 2 -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, CO 2 -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, CO 2 -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).