AFFIRM: Opinion issued January 11, 2013.
In The
otnurt of Appeals
ltiftlf ilistrirl uf IDexas at IDallas
No. 05-11-01501-CR
No. 05-11-01502-CR
KEVEN C. CALDWELL, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-25227-W & F09-72926-W
OPINION
Before Justices FitzGerald, Fillmore, and Richter'
Opinion By Justice Fillmore
Keven C. Caldwell was indicted for two aggravated robbery offenses, one enhanced by two
prior convictions and the other enhanced by one prior conviction. A jury convicted Caldwell of both
aggravated robbery offenses. The trial court found the alleged enhancements true and assessed
punishment of forty-five years' imprisonment on each offense. Caldwell asserts (l) the trial court
erred by overruling Caldwell's objection that questions in the juror questionnaire allowed the State
to strike jurors in violation of Batson v. KentuckY and by allowing the State to present evidence of
1 The Honorable Martin E. Riehle!". Retired Justice. Coun of Appeals. Fifth District of Texas at Dallas, siuing by assignmenL
)
- 476 U.S. 79 ( 1986).
an extraneous offense of which Caldwell did not have sufficient notice, and (2) the evidence is
insufficient to support a tinding that Caldwell used or exhibited a deadly weapon in Lhe commission
of Lhe offenses. We affirm the trial court's judgment.
Background
On October 9, 2009, Lauren Smilh was working as a loan officer for Lhe Cash Store located
at Skillman and Abrams in Dallas, Texas. Caldwell entered the store and pointed a silver automatic
handgun with a black handle at Smith and her coworker. Smith was afraid that Caldwell was going
to shoot her and her coworker. Smith was pregnant at the time and was afraid she would lose the
baby if Caldwell shot her. Caldwell demanded that Smith's coworker put the money from the cash
drawers in a bank bag. Caldwell then left with the money and Smith's cellphone.
Because she was afraid of being robbed again at the Cash Store located at Skillman and
Abrams, Smith accepted a demotion and began working at the Cash Store located off Broadway in
Garland, Texas. On October 27, 2009, Caldwell carne into the Cash Store in Garland, put a bank
bag on the counter, and .. pulled out" the same gun he had used in the previous robbery. A video of
the robbery shows Caldwell with a gun in his hand. Smith thought that Caldwell recognized her
from the previous robbery and was afraid he was going to shoot her or her coworker. Caldwell
demanded that Smith's coworker put the money from the cash drawers into the bank bag. Caldwell
Lhen left with the money.
On November 7, 2009, Caldwell was arrested in Forney, Texas. When he was arrested,
Caldwell had a silver 9-millimeter automatic handgun with a black pistol grip in his possession. The
gun seized from Caldwell was admitted into evidence at trial.
Officer Bo Davenport of the Mesquite police department interviewed Caldwell on March 29,
20 l 0. During the interview, Caldwell admitted he committed the robberies at the Cash Store
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locations in Dallas and Garland. He also admitted using during the robberies the 9-millimeter
handgun that was in his possession when he was arrested in Forney.
Juror Questionnaire
In his first point of error, Caldwell argues the trial court erred by allowing the juror
questionnaire to include certain questions that allowed the State to strike potential jurors in violation
of Batson. Prior to voir dire, Caldwell objected to a number of the questions included in the
questionnaire on the ground the questions "had a higher impact on members of the African-American
community'' and had the "effect of skewing the jury selection process and taking off African-
American jurors in violation of Batson." The trial court overruled Caldwell's objections. We can
overturn a trial court's ruling on a Batson challenge only if the ruling was clearly erroneous. Watkins
v. State, 245 S.W.3d 444,447-48 (Tex. Crim. App. 2008).
The record contains the venire seating chart and juror information sheets providing basic
information about the venire members, including race. The venire consisted of seventeen African-
Americans, ten Hispanics, forty-one Caucasians, three Asians, and one "Other." As to those
members of the venire within the strike zone, the parties agreed to excuse four African-Americans,
five Hispanics, thirteen Caucasians, and two Asians from the panel. The completed juror
questionnaires containing the responses of the members of the venire to the objected-to questions
are not in the record. A total of eighteen individuals were struck by the State, Caldwell, or both. The
record does not reflect which party struck any individual member of the venire, and Caldwell did not
object that any of the State's strikes violated Batson. The jury consisted of one African-American,
ten Caucasians, and one "Other."
Under Batson, "[i]t is unconstitutional to strike a person from a jury because of race."
Hassan v. State, 369 S.W.3d 872, 875 (Tex. Crim. App. 2012). Resolution of a Batson challenge
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raised by a defendant is a three-step process:
( 1) the party opposing the strike must establish a prima facie case of purposeful
discrimination, (2) if that occurs, the party making the strike must offer a race-neutral
explanation for the strike, and (3) the trial court must then detennine whether the
party opposing the strike has established purposeful discrimination.
!d. (italics in original). To establish a prima facie case under Batson, a defendant must show ( l) the
State exercised its strikes to exclude members of a cognizable minority group from the venire; and
(2) this fact, along with any other relevant facts and circumstances, raise an inference that the State
struck the members of the venire because of their race. See Batson, 476 U.S. at 96; Hassan, 369
S.W.3d at 875 (citing Batson, 476 U.S. at 96 and Miller-El v. Dretke, 545 U.S. 231,239 (2005));
see also Powers v. Ohio, 499 U.S. 400, 405~6. 416 (1991).
Caldwell asserts that he "is not objecting to the State's actual use of their peremptory strikes,
but to the method as to how the State gathers evidence by which to make their peremptory strikes."
Even if a Batson challenge could be properly asserted against the method the State uses to gather
evidence to assist it in exercising its peremptory strikes, the record does not reflect what evidence
the State might have gathered. The record does not contain any potential juror's answers to the
objected-to questions and does not reflect the State exercised a peremptory strike against any venire
member on the basis of race or because the venire member answered any one of the questions in any
specific manner.
Caldwell failed to make a prima facie case that the State peremptorily excluded a member
of the venire on the basis of race. We, therefore, resolve his first point of error against him.
Sufficiency of the Evidence
In his second point of error, Caldwell contends the evidence is insufficient to support a
finding he used or exhibited a deadly weapon in the commission of the two robberies. We review
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the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307
( 1979). Adames v. State, 353 S. W.3d 854, 859 (Tex. Crim. App. 2011 ), cert. denied, 132 S. Ct. 1763
(20 12). We examine all the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; ~dwnes, 353 S. W.3d at 860. This standard recognizes
"the responsibility of the trier of fact fairly to resolve contlicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S.
at 319; see also Adwnes, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the
credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented
by the parties. Chambers v. Stare, 805 S.W.2d 459,461 (Tex. Crim. App. 1991). We defer to the
jury's determinations of credibility, and may not substitute our judgment for that of the fact finder.
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29
S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court
"may not re-weigh the evidence and substitute our judgment for that of the jury").
A person commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of the property, he intentionally, knowingly, or recklessly threatens or places
another in fear of imminent bodily injury of death. TEX. PENAL CODE ANN. § 29.02(a)(2) (West
2011 ). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course
of committing a robbery. !d. § 29.03(a)(2). A firearm is a deadly weapon per se. £y; parte Huskins,
176 S.W.3d 818, 820 (Tex. Crim. App. 2005); see also TEX. PENAL CODE ANN. § 1.07(a)( 17)(A)
(West Supp. 2012).
Caldwell argues the evidence is insufficient to support the jury's finding a deadly weapon
was used during the robberies. However, Smith testified Caldwell used the same "gun" in both
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robberies. She described the gun as a silver automatic handgun with a black handle. The videotape
of the second robbery shows Caldwell with a gun in his hand. When Caldwell was arrested in
Forney, he had a silver 9-millimeter automatic handgun with a black grip. Caldwell told Davenport
that he used the 9-millimeter gun during the two robberies. Testimony using the term "gun"
ordinarily 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. [Panel Op.) 1979). "Absent any specific indication to the
contrary at trial, the jury should be able to make the reasonable inference, from the victim's -
testimony[,] that the 'gun' [that) was used in the commission of a crime, was, in fact, a firearm."
Cmz v. State, 238 S.W.3d 381,388 (Tex. App.-Houston [lst Dist.) 2006, pet. refd).
Caldwell complains that Smith did not identify the gun admitted into evidence as the one
used in the robberies. We first note there can be sufficient evidence to support a finding a deadly
weapon was used even if the weapon is not introduced into evidence. Romero v. State, 331 S.W.3d
82, 84 (Tex. App.-Houston [14th Dist.) 2010, pet. ref d); see also Morales v. State, 633 S.W.2d
866, 868 (Tex. Crim. App. LPanel Op.) 1982)). In this case, however, a gun was introduced into
evidence. Although Smith was not asked to identify the gun admitted into evidence as the gun used
during the robberies, it was established that the gun was taken from Caldwell when he was arrested
in Forney. Caldwell told Davenport that he used that specific gun in the two robberies. Accordingly,
the evidence was sufficient to establish the gun admitted into evidence was the gun used in the
robberies.
We conclude the evidence is sufficient for a reasonable juror to find Caldwell used or
exhibited a deadly weapon during the commission of the two robberies. We resolve Caldwell's
second point of error against him.
--· ·-:----··-~~--- --
l<:xtraneous Offense
In his third point off error, Caldwell argues the trial court erred by allowing the State to
present evidence of an extraneous offense because the State failed to provide proper notice of its
intent to introduce the evidence. We review the trial court's decision to admit evidence for an abuse
of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will not
reverse a decision of the trial court that is within the zone of reasonable disagreement. /d. at 343~.
During the guilt phase of the trial, the State called Officer Michael Hopkins to testify about
the gun and other items seized from Caldwell when he was arrested in Forney. Caldwell objected
that the evidence pertained to the extraneous offense of unlawful carrying of a weapon and was not
admissible under rule of evidence 404(b). Although Caldwell asserted he had not challenged his
identification as the robber, the State argued the seized items tended to prove identity. Caldwell did
not argue he had failed to receive notice of the State's intent to use the evidence.
The objection made at trial must comport with the error raised on appeal. Clark v. State, 365
S. W.3d 333, 339 (Tex. Crim. App. 20 12); Camacho v. State, 864 S. W .2d 524, 533 (Tex. Crim. App.
1993). Caldwell did not raise with the trial court the issue he now argues on appeal. Accordingly,
Caldwell has failed to preserve his complaint for our review. TEX. R. APP. P. 33.l(a)(l)(A); Lovill
v. State, 319 S.W.3d 687,691-92 (Tex. Crim. App. 2009). We resolve Caldwell's third point of
error against him.
We affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
lll501F.U05
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otourt of Appeals
1F.iftl1 1llistrid of IDexas at ilallas
JUDGMENT
KEVEN C. CALDWELL, Appellant Appeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-01501-CR V. F09-25227- W).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices FitzGerald and Richter
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered January 11,2013.
ROBERT M. FILLMORE
JUSTICE
otnurt nf 1\ppeals ·
llfifth 11listrid nf IDexas at 11lallas
)
.JUDGMENT
KEVEN C. CALDWELL, Appellant Appeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-01502-CR V. F09-72926- W).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices FitzGerald and Richter
participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered January 11, 2013.
ROBERT M. FILLMORE
JUSTICE