Date issued October 17, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00845-CR
____________
ANDRE DEWAYNE DORSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 865543
O P I N I O NA jury found appellant, Andre Dewayne Dorsey, guilty of aggravated robbery (1) and assessed punishment at 18 years' confinement. In four points of error, appellant argues that the evidence was legally and factually insufficient to sustain his conviction. We affirm.
Facts
Harris County Sheriff's Deputy William Christian testified that, on July 21, 2000, between approximately 3:30 and 4:00 a.m., he was on patrol and saw several people running from a gas station parking lot at the intersection of Gulfbank and Sweetwater in Houston. One of the people running yelled, "He's got a gun, he's got a gun," and Christian then drove into the parking lot. Christian saw several people lying on the ground and a black male, wearing a white tank-top t-shirt and holding a gun, standing over them. The man holding the gun appeared to be taking the wallets of those lying on the ground. Christian later identified appellant as the gunman.
Christian testified that appellant got in the passenger side of a waiting car, driven by Deverrick Jerome Goodin, and fled the scene. Christian followed the car, and during the chase, appellant leaned out of the passenger side window and fired two shots at him. Christian shone a spotlight on the car and saw the men switch seats while driving. Appellant then stopped the car. Goodin got out of the car and appellant drove away. Appellant was later arrested when he drove down a dead-end street.
Roger Palma testified that he and his fellow co-workers were in the gas station parking lot after they finished their night shift. Palma and his co-worker, Scott Saltsman, testified that Goodin and appellant drove into the parking lot and offered to sell them drugs. When they refused appellant's offer, Goodin and appellant drove away and then returned to the gas station parking lot. Appellant exited the car, fired the gun in the air, yelled at those in the parking lot to get on the ground, and demanded their wallets. Appellant pointed the gun at Palma, took his wallet, and fled when Christian arrived. Palma's co-workers, Arthur Moser, Thorin Moore, Erik Price, Scott Saltsman, Brian Tovar, and Raul Trejo, all testified that appellant had a gun. Moore and Trejo testified that appellant demanded their wallets. Moore further testified that appellant took a briefcase from one of the men's trucks.
Appellant testified that he went to the gas station to meet Erik Price and to buy two pounds of marijuana from him. Appellant testified that he had met Price and begun the purchase when Christian arrived. Appellant testified that no robbery was committed and that he did not have a gun.
Sufficiency of the Evidence
Use of a Firearm
In his first and second points of error, appellant argues that the evidence was legally and factually insufficient to sustain his conviction for aggravated robbery because the evidence that appellant exhibited or used a firearm was not credible.
In reviewing legal sufficiency, we view the evidence in a light most favorable to the verdict and ask whether a rational trier-of-fact could find the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd).
A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 1994); Harper v. State, 930 S.W.2d 625, 630 (Tex. App.--Houston [1st Dist.] 1996, no pet.). To sustain a conviction for aggravated robbery, it must be shown that appellant used or exhibited a deadly weapon in the course of committing or attempting a theft. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 1994); McCain v. State, 22 S.W.3d 497, 501-02 (Tex. Crim. App. 2000).
Appellant argues that the State's evidence that appellant exhibited a firearm was not credible. The State presented five witnesses, including Christian, Palma, and Saltsman, who testified that appellant used a gun during the commission of a robbery. We conclude that, viewing the evidence in a light most favorable to the verdict, the evidence was legally sufficient to show that appellant used or exhibited a firearm during the course of the robbery. See Valencia, 51 S.W.3d at 423.
We overrule appellant's first point of error.
In reviewing factual sufficiency, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King, 29 S.W.3d at 563; Valencia, 51 S.W.3d at 423. While conducting our analysis, if there is probative evidence supporting the jury's verdict, we must avoid substituting our judgment for that of the jury, even when we disagree with the jury's determination. King, 29 S.W.3d at 563.
Appellant contends that, despite the significant testimonial evidence that he used a gun, the evidence was factually insufficient because there was no physical evidence that showed he used a gun. Appellant's argument is based on the fact that police did not recover a gun from the car driven by appellant and no gun powder residue was found on his hands.
A jury could have reasonably believed that, even though the gun was not recovered by police, appellant used a gun and discarded it and Palma's wallet when he fled from Christian. (2) Eric Sappenfield, a chemist employed by the Harris County Medical Examiner's Office, testified that, although no gun powder residue was found on appellant's hands, his activity during his flight was almost certain to eliminate all traces of such residue. Given Sappenfield's testimony that it would have been "almost impossible" to find residue on appellant's hands if appellant had fired a gun due to the activity of appellant during flight and Palma's and his co-worker's testimony that appellant exhibited and used a gun, the jury was free to conclude that appellant did use a gun during the robbery. We conclude the evidence was factually sufficient to sustain appellant's conviction for aggravated robbery. See King, 29 S.W.3d at 563.
We overrule appellant's second point of error.
Intent to Commit Theft
In his third and fourth points of error, appellant argues that the evidence was legally and factually insufficient to show that he intended to commit theft during the course of the alleged offense. Appellant's fourth point of error is a factual sufficiency challenge. His brief, however, presents no discernible argument in addition to his third point of error which addresses legal sufficiency. Since the factual sufficiency challenge was improperly briefed, we hold that it was waived. See Tex. R. App. P. 38.1. Therefore, we consider his argument to be a legal sufficiency challenge.
Appellant argues that, because Palma's wallet was not recovered by police, the State failed to prove that appellant intended to obtain and maintain control over Palma's property. Appellant is correct in claiming that police did not recover Palma's wallet from appellant's car. Police did, however, retrieve Palma's wallet from a woman who found it on her front lawn. Palma testified that his wallet was missing $60.00. This evidence, plus Palma's testimony that appellant had a gun, that he demanded Palma's wallet, and that Palma gave appellant his wallet, was legally sufficient to establish that appellant intended to obtain and maintain control over Palma's property. We conclude that the evidence was legally sufficient to sustain his conviction. See Valencia, 51 S.W.3d 418, 423.
We overrule appellant's third and fourth points of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Hedges, Keyes, and Evans. (3)
Do not publish. Tex. R. App. P. 47.
1.
1 See Tex. Pen. Code Ann. § 29.03 (Vernon 1994).2.
Palma's wallet was turned into police by a woman who found the wallet on her front lawn.3.
The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.