IN THE
TENTH COURT OF APPEALS
No. 10-09-00308-CR
BRODERICK KEITH LEWIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 23,958
MEMORANDUM OPINION
Broderick Keith Lewis was convicted of the offense of aggravated robbery after a
trial before the court. See TEX. PENAL CODE ANN. § 29.03 (West 2003). His punishment
was assessed at 40 years in prison. Lewis complains that there was a fatal variance
between the indictment and the proof at trial which rendered the evidence legally
insufficient, that exhibits admitted into evidence have been irretrievably lost due to no
fault of Lewis, and that he received ineffective assistance of counsel. We affirm the
judgment of the trial court.
State’s Brief
The State’s brief was due on September 6, 2010. On September 13, 2010, after not
receiving a brief, this Court sent a letter instructing the State to file a brief or a request
for extension within 14 days or to notify the Court that no brief will be filed. However,
no brief has been filed, and the State has not requested additional time to file a brief.
There is no rule specifically addressing the State’s failure to file a brief in
response to an appellant’s brief. In Siverand v. State, 89 S.W.3d 216 (Tex. App.—Corpus
Christi 2002, no pet.), the court discussed the available options when the State does not
file a brief. The first option would be to accept an appellant’s argument and reverse the
conviction. Siverand v. State, 89 S.W.3d at 219. However, the trial judge would be at a
disadvantage with no one to defend his ruling. Id. The second option would be to
abandon our roles as impartial jurists, become advocates for the State, and advance
arguments on behalf of the State to affirm the trial court’s judgment. Id. Such a position
would run afoul of the Code of Judicial Conduct requiring impartiality and also the
rules of appellate procedure requiring parties to advance their own arguments. TEX. R.
APP. P. 38.1(h) and 38.2(a)(1); Siverand v. State, 89 S.W.3d at 219. We are unable to
advance arguments on behalf of either party. Lawton v. State, 913 S.W.2d 542, 554 (Tex.
Crim. App. 1995); Siverand v. State, 89 S.W.3d at 219.
As stated in Siverand, we believe the better option is to treat the State’s failure to
file a brief as a confession of error. Siverand v. State, 89 S.W.3d at 220; see also Hawkins v.
State, 278 S.W.3d 396, 399 (Tex. App.—Eastland 2008, no pet.). The confession of error
by the State is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App.
Lewis v. State Page 2
2002); Siverand v. State, 89 S.W.3d at 220. We must make an independent examination of
the merits of the issues presented for review. Siverand v. State, 89 S.W.3d at 220. We are
limited in that examination to the arguments advanced by the State in the trial court so
that we do not advance new arguments on behalf of the State. Saldano v. State, 70
S.W.3d at 884; Hawkins v. State, 278 S.W.3d at 399; Siverand v. State, 89 S.W.3d at 220.
Lost Record
Lewis complains in his third issue that his conviction must be reversed because
exhibits necessary to the resolution of this appeal were lost. Upon the filing of the
reporter’s record, it was determined that many of the exhibits were not included and
that others had been replaced by consulting with the State and not the defense. We
abated the appeal for a hearing before the trial court as required by Rule of Appellate
Procedure 34.6. TEX. R. APP. P. 34.6(e)(2) & (f). At that hearing, the majority of the lost
exhibits were ultimately located and included in a supplemental record. Those that
were not located were determined by the trial court to not be necessary to the appeal’s
resolution. TEX. R. APP. P. 34.6(f)(3). Lewis did not object to those exhibits before the
trial court and has not filed any additional briefing after the abatement complaining
that the exhibits are inaccurate or that the exhibits still missing are necessary to the
resolution of this appeal. Therefore, we overrule issue three.
Variance
In his first issue on appeal, Lewis argues that the trial court erred in finding him
guilty of aggravated robbery because there was a fatal variance between the indictment
and the evidence at trial, which rendered the evidence legally insufficient. The
Lewis v. State Page 3
indictment alleged that Lewis committed the offense of aggravated robbery and that he
used or exhibited a deadly weapon, to wit: a firearm. Lewis contends that because there
was evidence that a BB gun rather than a firearm was used in the robbery and there was
no evidence of the BB gun’s character as a deadly weapon, the evidence was legally
insufficient.
Facts
Troy Joseph testified at trial that he was working the night shift at Sonic. He and
some other employees, Kimberly Clifton and Don Huey, went in his pickup to the bank
to make the nightly deposit. Joseph pulled up to the deposit box, and he saw two
individuals that suddenly appeared from around a corner wearing ski masks approach
his pickup and one of them was holding a “gun,” which was pointed at him. Joseph
attempted to flee, accelerated and lost control of his pickup. The pickup flipped and
rolled down an embankment. Joseph and the other occupants were able to get out of
the pickup, ran away, and called 911.
Joseph described the gun he saw as a “handgun, maybe like a 9 millimeter.
Something like a Glock or a Ruger. Not a large gun but definitely wasn’t a revolver or
anything like that, something with a clip. It was a dark-handled gun. I’m not sure if it
was metallic or black metallic, something like that.” Joseph acknowledged that there
are BB guns that look similar to a 9 millimeter Glock; however, the BB guns generally
have markings in orange that demonstrate that they are not real firearms. Joseph
testified that he is familiar with guns from prior employment and personal ownership
of them and that there was nothing about the gun he saw to indicate it was a BB gun.
Lewis v. State Page 4
Kimberly Clifton was sitting in the front seat of Joseph’s pickup on the night of
the offense. She testified that she saw two men wearing face masks with the eyes cut
out of them approach the pickup and that both men had a gun. One of them was
pointed at Joseph’s chest. Joseph attempted to drive away, but lost control of the
pickup and it rolled over down a hill. After the truck rolled over, she ran away and was
chased by a person in a black hoodie who had a gun in his hand. She escaped by
getting into a car that a co-worker was driving that had been right behind Joseph’s
truck for safety purposes at the bank. She was in fear for her life during the incident.
Clifton described the guns as black and shiny, metal, and automatic rather than a
revolver. Clifton said she is familiar with BB guns that look similar to real guns.
Detective Kenneth Foulch investigated the robbery. Detective Foulch reviewed
the surveillance video from the bank. In the video, two people are present. Detective
Foulch testified that one of the persons in the video appears to have a “handgun” and
that the gun looks like a firearm. Lewis came to the police station voluntarily for
questioning and initially told Foulch that he was not involved but that Joshua Wallace
had come to his residence and told him that he had committed a robbery later that night
and showed him a black gun. Lewis consented to a search of his residence during
which a white ski mask with eye holes cut out and a black hoodie were located in a
bedroom. Lewis then stated that those items belonged to Wallace who he then
contended actually lived at his residence.
The video of the robbery from the bank indicates that two hooded individuals
approached a white pickup. Both individuals appeared to have some type of gun in
Lewis v. State Page 5
their hands and both individuals pointed them at the white pickup driven by Joseph.
After the truck attempted to flee, both of them took off running after the truck.
During his investigation, Detective Foulch spoke with a person claiming to have
knowledge of the robbery. Based upon that conversation, Detective Foulch went to a
location to recover a handgun. At that location, Detective Foulch found a gun
underneath a metal building. Detective Foulch testified that the gun he found looked
like a “9 millimeter sigasauer.” The State introduced the gun into evidence. Detective
Foulch testified that the gun he found was actually a BB gun although it appears to be a
real gun. Detective Foulch was never able to determine if the BB gun he found was the
gun used in the robbery or if it was connected to Lewis.
Some months after his arrest, Lewis was back at the police station to undergo a
polygraph examination. As the examiner was preparing Lewis by asking him the
questions he would formally ask during the examination, Lewis admitted to
participating in the robbery, stating “I didn’t do it but I was part of it.”
Joseph was recalled to the stand and shown the BB gun admitted into evidence
by the State. Joseph testified that the BB gun could have been the gun used in the
robbery. While in jail, Lewis separately told two jail employees that the gun used by
Wallace in the robbery was a BB gun. Lewis told the first jail employee that he was in
the car with Wallace and that the masks and guns were already in the car when he got
into it. Further, Lewis told that employee that the robbery was committed by Wallace
and Don Huey. Lewis told the second jail employee that he was there but did not take
Lewis v. State Page 6
part in the robbery, although Wallace gave him $500 of the money that was stolen in the
robbery.
Applicable Law
A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a
crime, but has proven its commission in a manner that varies from the allegations in the
charging instrument. Id. We treat variance claims as a problem with the sufficiency of
the evidence. Id. A variance that is not prejudicial to a defendant’s substantial rights is
immaterial. Gollihar v. State, 46 S.W.3d at 248. In determining whether a defendant’s
substantial rights have been prejudiced we consider whether (1) the indictment, as
written, informed the defendant of the charge against him sufficiently to allow him to
prepare an adequate defense at trial, and (2) whether prosecution under the indictment
as drafted would subject the defendant to the risk of being prosecuted later for the same
crime. Id.
Sufficiency of the Evidence
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
Lewis v. State Page 7
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, *43-
44, 2011 WL 4347044, *16 (Tex. Crim. App. Sept. 14, 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, 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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Analysis
Lewis argues that there is a variance between the indictment and evidence
offered because the State did not prove the use of a firearm, but only a BB gun. Because
the State did not file a brief, we are limited to the arguments the State presented to the
Lewis v. State Page 8
trial court. The State argued at trial that the BB gun looked like a real gun. The trial
court asked whether a finding that the gun used in this case was a BB gun would be a
problem because the indictment alleged use of a firearm. The State responded:
No, sir, because I believe that the indictment is based on what the victim’s
perspective was. My argument about the BB gun is in response to what
she’s saying; but I believe that the case is based on the victim’s perspective
and that they believed that it was a firearm; and we’re not offering that as
the gun used in this case. So I don’t think it matters at all. They believed
it was a firearm. We don’t have any way to know, because we don’t know
whether we’ve ever recovered the real weapon or not; and I think it is
sufficient for them to testify that they believed that he had a gun; and that
makes it sufficient to meet the elements of the indictment.
A “firearm” is a deadly weapon, per se. See Boyett v. State, 692 S.W.2d 512, 517
(Tex. Crim. App. 1985); Arthur v. State, 11 S.W.3d 386, 398 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d). A “gun,” however, is a much broader term than “firearm” and
may include such non-lethal instruments as BB guns, blow guns, pop guns, and grease
guns. See Benavides v. State, 763 S.W.2d 587, 588 (Tex. App.—Corpus Christi 1988, pet.
ref’d); Arthur v. State, 11 S.W.3d at 398. When the State alleges in the indictment for
aggravated robbery that the deadly weapon used by the defendant was a firearm it is
required to prove, beyond a reasonable doubt, that the deadly weapon used was, in
fact, a firearm. See Gomez v. State, 685 S.W.2d 333, 335-36 (Tex. Crim. App. 1985); Arthur
v. State, 11 S.W.3d at 398.
‚Testimony using any of terms ‘gun,’ ‘pistol’ or ‘revolver’ is sufficient to
authorize the jury to find that a deadly weapon was used.‛ Wright v. State, 591 S.W.2d
458, 459 (Tex. Crim. App. 1979); see also Price v. State, 227 S.W.3d 264, 266-67 (Tex.
Lewis v. State Page 9
App.—Houston *1st Dist.+ 2007, pet. dism’d, untimely filed) (holding, based on
testimony by one victim that the appellant put a gun in her face and second victim that
the appellant pointed a gun at him, the jury could have found beyond a reasonable
doubt that the gun the appellant used and exhibited during the robbery, which was
never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860-61 (Tex. App.—
Houston *1st Dist.+ 2006, pet. ref’d) (op. on reh’g) (holding evidence was legally
sufficient to support finding that the gun used was a firearm based on witness
testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d
277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding evidence was legally sufficient
to allow the jury to conclude that the appellant used a firearm where the victim testified
that appellant pointed a gun at her and she was afraid she was going to die that night,
even though she was not asked to identify the type of weapon and the record contained
no other relevant evidence on that point).
Additionally, where the accused threatens the victim with a gun, the act itself
suggests that the gun is a firearm rather than merely a gun of the non-lethal variety.
Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.—Houston *14th Dist.+ 1999), pet. dism’d,
improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002); Toy v. State, 855 S.W.2d
153, 159 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Benavides v. State, 763 S.W.2d
587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d).
Lewis v. State Page 10
Lastly, we note that the trial court as factfinder is free to draw reasonable
inferences and make reasonable deductions from the evidence as presented within the
context of the crime. Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.]
2006, pet. ref'd); Toy, 855 S.W.2d at 159; Benavides, 763 S.W.2d at 588-89. As such, the
factfinder may draw the reasonable inference or make the reasonable deduction the gun
used in the commission of the crime was a firearm. Cruz, 238 S.W.3d at 388; Davis, 180
S.W.3d at 286; Benavides, 763 S.W.2d at 589.
At trial, the State argued that it was only required to show that the victim
believed at the time of the offense that the item used during the commission of the
robbery was a firearm. The evidence showed that both Joseph and Clifton had
familiarity with guns and believed the weapons used in the offense were guns,
although a BB gun can look like a real gun. The video of the robbery shows what
appear to be firearms being pointed at the victims. There was no evidence other than
statements made by Lewis himself that the weapons used were actually BB guns. The
trial court could have determined that anything Lewis had told others was not credible,
having given differing accounts of his involvement in the robbery and having accused
Huey as being the second robber, which was impossible because Huey was a passenger
in Joseph’s pickup during the robbery. The trial court could have determined that the
BB gun admitted into evidence had no connection at all to the robbery other than
appearing to be similar looking in size and color to the guns actually used. Viewing the
evidence in the light most favorable to the verdict, there was not a variance between the
Lewis v. State Page 11
indictment and the evidence presented at trial. The evidence was legally sufficient for
the trial court to have found that the robbery was committed with a firearm. See Wyatt
v. State, No. 14-10-00872-CR, 2011 Tex. App. LEXIS 3914 at *12 (Tex. App.—Houston
[14th Dist.] May 24, 2011, no pet.) (mem. op.) (not designated for publication) (evidence
legally insufficient to determine gun was a firearm although a BB gun was recovered
from the defendant’s residence because the evidence did not show that the gun was
connected to the robbery). We overrule issue one.
Factual Sufficiency
Lewis complains in his second issue that the evidence was factually insufficient
for the trial court to have determined that a deadly weapon was used in the offense
because of the lack of evidence of a firearm. After Lewis filed his brief, the Court of
Criminal Appeals has determined that factual sufficiency no longer applies in criminal
cases. See, e.g., Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.);
Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010). Lewis does not argue that the
evidence of a deadly weapon was legally insufficient, and based on our holding in issue
one that the evidence was legally sufficient for the trial court to have determined that a
firearm was used in the commission of a robbery, it is unnecessary to conduct a
sufficiency analysis pursuant to Jackson v. Virginia. We overrule issue two.
Ineffective Assistance of Counsel
Lewis complains that he received ineffective assistance of counsel because his
trial counsel failed to subpoena Huey to testify on his behalf. To prevail on an
ineffective assistance claim, Lewis must establish that (1) his trial counsel’s performance
Lewis v. State Page 12
was deficient by falling below an objective standard of reasonableness and (2) his trial
counsel’s deficiency caused him prejudice, which means that there is a probability
sufficient to undermine confidence in the outcome that but for his trial counsel’s errors,
the result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Perez v. State, 310 S.W.3d
890, 892-93 (Tex. Crim. App. 2010).
Lewis is required to satisfy both prongs by a preponderance of the evidence;
failure to demonstrate either deficient performance or prejudice will defeat a claim of
ineffectiveness. Perez, 310 S.W.3d at 893. It is not necessary to conduct the Strickland
analysis in any particular order; if an appellant cannot demonstrate sufficient prejudice,
a court may dispose of the claim on that ground. Strickland, 466 U.S. at 697. When
making this determination, any constitutionally deficient acts or omissions will be
considered in light of the totality of the evidence before the jury. Ex parte Ellis, 233
S.W.3d 324, 31 (Tex. Crim. App. 2007).
Lewis’s trial counsel filed a motion for new trial based on Huey’s non-attendance
at trial but did not allege ineffective assistance for failing to call Huey. The motion was
denied. However, a hearing to determine his trial counsel’s strategy would not be
necessary when determining whether Lewis established the prejudice ground of
Strickland because counsel’s trial strategy is not relevant to whether the result of the
proceeding would have been different. Lewis contended in his motion for new trial
Lewis v. State Page 13
that he was ‚denied a fair trial as a material defense witnesses (sic), Don Huey, was
kept from the trial for fear of arrest. Mr. Huey would have testified he, as a
witness/victim of this robbery, saw the weapons used and thought they were BB guns.‛
Lewis contends that this ‚would have further bolstered the evidence that no deadly
weapon was shown or used during the robbery.‛ During the trial, Lewis’s trial counsel
stated that Huey would not voluntarily come to the trial because he had outstanding
warrants pending against him. Additionally, Huey had been implicated as an
accomplice in the robbery and there is no evidence in the record to establish that Huey
would indeed have so testified. We do not find that Lewis has met his burden to
establish that but for this single alleged error during his trial that the result would have
been different. We overrule issue four.
Conclusion
Finding no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 4, 2012
Do not publish
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