Chester Joseph McClelland v. State

Opinion issued December 1, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-11-00085-CR

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Chester Joseph McClelland , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case No. 1232804

MEMORANDUM OPINION

A jury convicted Chester Joseph

McClelland of aggravated robbery and , after finding true

two enhancement paragraphs, assessed his punishment at life in prison. See Tex. Penal

Code Ann. § 29.03 (West 2011).

In his sole issue on appeal, McClelland contends that the evidence is legally

insufficient for a jury to find him guilty of aggravated robbery because the

evidence does not support a finding that the hammer used by McClelland during

the robbery was a deadly weapon. We hold

that the evidence is sufficient for a rational jury to find beyond a reasonable

doubt that the hammer was a deadly weapon.

We therefore affirm the judgment of the trial court.

Background

On

September 14, 2009, Juan Tellez and Dora Garza, employees of EZ Pawn, arrived

at the store to prepare for its morning opening. While performing their duties, Tellez and

Garza noticed McClelland trying to open the locked front doors. Although unsuccessful the first time, McClelland

returned to the store and again tried to open its doors. Uneasy about McClelland, Garza asked Tellez

to step outside to place the larger display merchandise in front of the store

even though it was normally Garza’s job to do so. When Tellez walked outside, he noticed McClelland

waiting on the curb near the store. Tellez,

recognizing McClelland from a prior shoplifting incident at the store, told McClelland

to leave the premises. McClelland stood

up and pointed a brown paper bag, which appeared to contain a gun, at Tellez’s

head. McClelland taunted Tellez by

saying that he bet that Tellez “did not feel so big anymore.” Continuing to hold the bag near Tellez’s head,

McClelland forced Tellez back into the store.

Once inside, McClelland

told Garza and Tellez to lie on the floor.

McClelland tied Tellez’s hands behind his back with an extension cord

but did not tie up Garza. While Tellez

and Garza lay on the floor, McClelland put the paper bag down on the counter

and began to walk around the store.

McClelland picked up a hammer from a counter and used it to hit television

equipment located at the rear of the store.

When McClelland turned away, Tellez looked inside of the brown bag and

noticed that it contained only a wire that was shaped like a gun barrel. Tellez told Garza to run, and she fled. When McClelland noticed Garza’s attempt to

escape, he ran at Tellez and Garza with the hammer raised. When McClelland got close to Tellez,

McClelland lifted his arms to swing the hammer at Tellez. Tellez, unable to completely free himself

from the cord, was restrained near the door but wrestled with McClelland and

grabbed the hammer. During the ensuing

struggle, Tellez hit McClelland multiple times with the hammer. After the police arrived and arrested McClelland,

he was treated by EMTs and was later sent to the hospital for treatment.

Sufficiency

of the Evidence

A.

Standard

of Review

“[E] vidence is insufficient to support a conviction if, considering all

record evidence in the light most favorable to the verdict, a factfinder could

not have rationally found that each essential element of the charged offense

was proven beyond a reasonable doubt.” Gonzalez

v. State , 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Under this standard there are four

circumstances in which the evidence is insufficient: “(1) the record contains

no evidence probative of an element of the offense, (2) the record contains a

mere “modicum” of evidence probative of an element of the offense, (3) the

evidence conclusively establishes a reasonable doubt, and (4) the acts alleged

do not constitute the criminal offense charged.” Id. at

479 . An appellate court presumes that

the fact finder resolved any conflicting inferences in favor of the verdict and

defers to that resolution. See Jackson v. Virginia , 443 U.S. 307, 326 , 99 S. Ct. 2781, 2793 (1979); Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). An appellate

court may not re-evaluate the weight and credibility of the record evidence and

thereby substitute its own judgment for that of the fact finder. See Williams

v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B.

Applicable

Law

The Texas Penal Code

provides, in pertinent part, that a person commits robbery if the person, “in

the course of committing theft . . . and with intent to obtain or maintain

control of the property, . . . intentionally, knowingly, or recklessly causes

bodily injury to another . . . .” Tex. Penal Code Ann. § 29.02 (a)(1) (West

2011). The offense is elevated to

aggravated robbery when the person uses or exhibits a deadly weapon. See Tex. Penal Code Ann . § 29.03(a)(2)

(West 2011). A

deadly weapon is defined as “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” Tex.

Penal Code Ann . § 1.07(a)(17)(B) (West 2011).

Like

a knife or fist, a hammer is not a deadly weapon per se . However, depending

on the circumstances, a jury may determine it to be a deadly weapon under the

statute. See Bethel v. State , 842 S.W.2d 804 , 807–08 (Tex. App.—Houston [1st

Dist.] 1992, no writ.) (hammer used in commission of assault found to be deadly

weapon); see Bui v. State , 964 S.W.2d

335 , 342–43 (Tex. App.—Texarkana 1998, pet. ref’d.) (evidence sufficient to

find Duraflame log was deadly weapon). Some

of the factors that a jury may consider in determining whether an object is a

deadly weapon under this definition include: the size and shape of the weapon,

testimony by the victim that he feared death or serious bodily injury, the severity

of any wounds inflicted, the manner in which the assailant allegedly used the weapon,

physical proximity of the parties, and testimony as to the weapon’s potential

for causing death or serious bodily injury.

See Denham v. State , 574 S.W.2d 129, 130 (Tex. Crim. App. 1978) (en

banc); Romero v. State , 331 S.W.3d

82, 83 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Jackson v. State , 668 S.W.2d 723, 725 (Tex. App.—Houston [14th

Dist.] 1983, pet. ref’d) (evidence sufficient to find ax handle deadly weapon where

victim testified he was afraid and officer testified the ax handle could be a deadly

weapon). “No one factor is determinative

and an appellate court must examine each case on its own facts to determine

whether the fact finder could have concluded from the surrounding circumstances

that the object used was a deadly weapon.”

In re S.B ., 117 S.W.3d 443 ,

447 (Tex. App.—Fort Worth 2003, no pet.) (citing Brown v. State , 716 S.W.2d 939, 947 (Tex. Crim. App. 1986)). The plain language of the Texas Penal Code

does not require that the actor actually intend death or serious bodily injury,

only that the actor intend to use the object in a manner that renders it

capable of causing death or serious bodily injury. McCain

v. State , 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Thus, the State must show only that the “use

or intended use is capable of causing

death or serious bodily injury.” Tucker v. State , 274 S.W.3d 688, 691

(Tex. Crim. App. 2008) (quoting McCain ,

22 S.W.3d at 503 ).

C.

Analysis

On appeal,

McClelland asserts that the evidence is insufficient to show that the hammer

used during the robbery was a deadly weapon.

McClelland points to the testimony of Officer E. Arjona who testified

that the hammer in this case was small. McClelland

notes that while Arjona testified that a

hammer could be a deadly weapon, he didn’t testify that this hammer could be. McClelland

also asserts that because Tellez did not suffer any injuries, and McClelland

did not make any verbal threats, the evidence is legally insufficient for the

jury to find the hammer was a deadly weapon.

At trial,

the State presented a surveillance video showing McClelland making his way

towards Tellez and Garza, with the hammer in his hand. The State also put on testimony from Tellez

and Garza that McClelland had charged at Tellez and tried to hit Tellez with

the hammer. Tellez testified that when

McClelland got close to Tellez, McClelland lifted his arms to swing the hammer

at Tellez, but the two wrestled and Tellez managed take the hammer away. Garza testified that she saw McClelland

holding the hammer up at Tellez, and that McClelland had tried to hit Tellez

with the hammer. Garza also testified

that she was afraid and thought that she was going to die. From this testimony and from the video that

showed the manner in which McClelland held the hammer as he walked towards

Tellez and the proximity of the two men during the struggle, a jury rationally could

have concluded that McClelland “ intend[ed] a use of the

object in which it would be capable of causing death or serious bodily injury.” McCain ,

22 S.W.3d at 503 .

Although the presence and severity

of wounds is not required to find deadliness, it is another factor the jury

could have considered. See Denham , 574 , S.W.3d at 130. Here, Tellez managed to gain control of the

hammer before McClelland used it against him.

The wounds that McClelland sustained from the hammer were severe enough

that, even after McClelland was treated on-site by EMTs, he was taken to a

hospital for further treatment. The jury

was also able to consider the size and shape of the hammer, as it was offered

into evidence at trial. See Robertson v. State , 163 S.W.3d 730,

734 (Tex. Crim. App. 2005) (when switchblade was introduced into evidence fact finder

could examine it and ascertain for itself whether it had physical

characteristics that revealed a deadly nature).

McClelland relies on Lewis v. State , 638 S.W.2d 148 (Tex.

App. —El Paso, 1982, pet. ref’d) to support

his contention that the evidence was insufficient for a jury to find that the

hammer was a deadly weapon. In Lewis ,

the El Paso Court of Appeals found that the evidence was insufficient to

support a conclusion that the hammer was a deadly weapon. Lewis ,

638 S.W.2d at 151 – 52. This case

is distinguishable because, in Lewis ,

the hammer was not introduced into evidence, and there was no evidence of the

dimensions or weight of the hammer. Id. at 151 . Nor was there evidence of the proximity of

the combatants or the hammer swing to the victim. Id. We find the evidence in Lewis significantly different from the

evidence adduced in this case.

Based on the evidence presented at

trial, we conclude that a rational jury could have found beyond a reasonable

doubt that the hammer, in its manner of use, was “capable of

causing death or serious bodily injury.”

See Bethel , 842

S.W.2d at 807 –08 (hammer used in commission

of assault was a deadly weapon); Charleston v. State , 33 S.W.3d 96 , 99–100 (Tex. App.—Texarkana

2000, pet. ref’d) (finding legally sufficient evidence of deadly weapon when

appellant told complainant he was robbing her, held wrench over her head, and

complainant testified wrench could have killed her with one hit); see Granger v. State 722 S.W.3d 175 , 177

(Tex. App.—Beaumont 1986, pet. ref’d) (evidence appellant, using both hands, swung

club at victim multiple times, breaking club and causing injuries to victim’s head,

was sufficient to find weapon deadly).

Accordingly, we overrule McClelland’s

sole issue.

Conclusion

We affirm the judgment of the trial court.

Rebeca

Huddle

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).