Ricky L Johnson v. the State of Texas

AFFIRMED and Opinion Filed July 21, 2022

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00363-CR

RICKY L. JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-83409-2020

MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Schenck
Appellant Ricky L. Johnson appeals his conviction for aggravated robbery. In

three issues, appellant challenges the sufficiency of the evidence to support the jury’s

finding on the aggravated element of the charged offense, the jury’s rejection of his

affirmative defense of duress, and the sentence imposed against him. We affirm the

trial court’s judgment. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.
 BACKGROUND

Appellant was charged by indictment with aggravated robbery, a first-degree

felony. TEX. PENAL CODE ANN. § 29.03. The indictment included enhancement

provisions for appellant’s prior convictions of unlawful possession with intent to

deliver a controlled substance and aggravated assault with a deadly weapon. The

charged offense was alleged to have occurred on October 12, 2019, at approximately

noon at a family-owned pharmacy with appellant using or exhibiting a screwdriver

and intentionally and knowingly threatening or placing the pharmacist in fear of

imminent bodily injury or death. Appellant pleaded not guilty to the charged offense

and “not true” to the enhancement paragraphs.

The State’s witnesses during the guilt–innocence phase of trial were the

complainant pharmacist and the apprehending officer, Officer Moses. Appellant

testified on his own behalf and called the arresting officer, Officer Hogan, to

establish he surrendered to the officers in a peaceful manner and that the officers did

not investigate his claim he was compelled by threats to commit the offense.

The pharmacist testified at trial that she thought October 12, 2019, would be

the day she was going to die. She recalled that on that day appellant entered the

pharmacy where she works, feigned he was there to pick up a prescription, reached

over and unlocked the swinging door that separates the pharmacy counter from the

remainder of the store, and entered the area where she and a young female pharmacy

technician were located. The pharmacist testified appellant then grabbed her by the

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hair, held a screwdriver to her neck, and threatened several times to kill her if she

did not hand over all the codeine in the store. The pharmacist indicated that she was

extremely frightened, so she tried to grab the screwdriver appellant was holding with

both of her hands and pull it away from her neck in order to feel a little safer.

Meanwhile, the pharmacy technician collected the drugs and put them in bags as

directed by appellant. The pharmacist indicated appellant took the bags and did not

let go of her hair until he was about to leave. At that time, he demanded the money

from the cash register. She gave him the money, and he left. The pharmacist

testified she and the pharmacy technician then locked the front door and called the

police and the pharmacy’s owner.

The State introduced surveillance video it obtained from the pharmacy

showing the aggravated robbery. The video showed appellant entering the store,

opening the swinging door that separates the area where the pharmacist is located

and the entrance to the store, grabbing the pharmacist by her hair and forcefully

pulling her to the back of the pharmacy. The video also shows appellant holding the

pharmacist hostage with the screwdriver, while the pharmacy technician put the

drugs in a bag. The video further shows the pharmacist using both of her hands to

push the screwdriver away from her neck and that appellant did not let go of the

pharmacist’s hair and did not put the screwdriver back into his pocket until he was

about to leave.

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 The evidence at trial establishes police responding to reports of the incident

quickly spotted and apprehended appellant. Officer Moses approached appellant

and told him to stop, but appellant kept walking. After the officer made further

commands to stop, appellant dropped the bags containing the drugs and continued

walking. Eventually, appellant stopped and put his hands up, surrendering to the

officers.

Appellant testified that a man he knows only as “Big Homie” made him

commit the robbery. He claimed “Big Homie” drove him to the pharmacy, put a gun

to his side, and threatened to kill him if he did not commit the robbery. Appellant

further claimed “Big Homie” was the man seen on video to be speaking with the

pharmacist and the pharmacy technician minutes before the robbery occurred.

According to appellant, “Big Homie” “cased” the pharmacy before ordering him to

commit the robbery.

Appellant testified “Big Homie” gave him the screwdriver to be used to force

open any locks he might encounter. Appellant acknowledged that he entered the

pharmacy and demanded the drugs, held the pharmacist by the hair and at some

point, took the screwdriver out of his pocket. According to appellant, he did not

threaten to kill the pharmacist and he did not intend to hold the screwdriver at her

neck. He claimed he explained to the pharmacists that he was not there to hurt

anyone, he just wanted the promethazine and codeine. Appellant testified that after

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he left the pharmacy with the drugs and cash from the register, he did not see “Big

Homie” so he began walking down the street.

Officer Hogan testified that he was the arresting officer, and that appellant

changed his story several times as to what had transpired, including telling him he

did not go into the pharmacy and that someone met him outside and gave him the

drugs.

The jury found appellant guilty of aggravated robbery. Appellant elected to

have the trial court assess punishment. During the punishment phase, the State

presented evidence of appellant’s criminal history, including two prior felony

convictions, specifically unlawful possession with intent to deliver a controlled

substance and aggravated assault of his ex-girlfriend with a deadly weapon (a

knife).1 These prior felony convictions would enhance the punishment range for the

charged offense to 25 to 99 years or life in prison. PENAL § 12.42(d). At the

conclusion of the punishment phase, the trial court noted that appellant’s criminal

history started at the age of 21 and continued to the age of 46, that he was a drug

addict, that he had not taken ownership of his actions, and blamed others for his poor

decisions. The trial court found the enhancement paragraphs to be true and

1
The State also established appellant assaulted his ex-girlfriend while he was on probation for
misdemeanor assault family violence against her—by forcing her against a couch and striking her with a
shower curtain rod. In addition, the State established appellant was revoked from probation and convicted
of forgery in 2007. And in 2017, appellant was convicted of possession of cocaine.
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sentenced appellant to 40 years’ confinement in the Texas Department of Criminal

Justice. This appeal followed.

DISCUSSION

I. Aggravated Robbery

In his first issue, appellant urges the evidence is legally insufficient to support

his conviction for aggravated robbery. More particularly, appellant claims the State

did not show that his use of the screwdriver rendered it a deadly weapon.

A. Standard of Review

We review the sufficiency of the evidence under the standard set out

in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662,

667 (Tex. Crim. App. 2013). 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; Matlock, 392 S.W.3d at 667. We defer to the trier of fact’s determinations of

credibility and may not substitute our own 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). We resolve any

inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d

394, 406 (Tex. Crim. App. 2000).

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 B. Applicable Law

A person commits robbery if, in the course of committing theft, as defined in

Chapter 31 of the penal code, and with the intent to obtain or maintain control of the

property, he (1) intentionally, knowingly, or recklessly causes bodily injury to

another; or (2) intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death. PENAL § 29.02(a). A person commits aggravated

robbery if he uses or exhibits a deadly weapon during the offense. PENAL § 29.03(a)

(2). A deadly weapon is defined as “(A) a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury; or (B)

anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury.” PENAL § 1.07(17)(A).

If the evidence does not show the weapon caused death or serious bodily

injury, the State must produce evidence that shows the weapon (1) was capable of

causing serious bodily injury and (2) was displayed or used in a manner that

establishes the intent to use the weapon to cause serious bodily injury. Hester v.

State, 909 S.W.2d 174, 179 (Tex. App.—Dallas 1995, no writ). Because a

screwdriver is not manifestly designed to inflict serious bodily injury or death, the

State was required to prove the screwdriver, in the manner of its use or intended use,

was capable of causing death or serious bodily injury. See id. at 178–79.

We examine each case on its own facts to determine whether a rational trier

of fact could have concluded from the surrounding circumstances that an instrument

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was used as a deadly weapon. Id. at 179. We consider the defendant’s verbal threats,

the distance between the defendant and the victim, and the witnesses’ descriptions

of the weapon in determining whether a defendant intended to use the instrument as

a deadly weapon. Id. If the weapon is introduced into evidence, the factfinder can

also examine the weapon to determine if it has physical characteristics that reveal its

deadly nature. Robertson v. State, 163 S.W.3d 730, 734 (Tex. Crim. App. 2005). In

addition, when a tool is not a deadly weapon per se, it is sufficient if it is capable of

causing death or serious bodily injury or is displayed in a manner conveying an

express or implied threat that serious bodily injury or death will result if the

aggressor is not satisfied. See Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim.

App. 1980) (defendant holding suture scissors to victim’s neck accompanied by

threat to kill and slashing motions with scissors constituted deadly weapon); see also

Jones v. State, 843 S.W.2d 92, 96–97 (Tex. App.—Dallas 1992, pet. ref’d).

C. Analysis

Appellant claims he brought the screwdriver inside the pharmacy to use as a

tool to open locks should the need arise and contends that the screwdriver remained

in his pocket throughout most of the encounter. But the evidence, including the

video surveillance depicting the robbery and the testimony of the pharmacist,

established otherwise. More particularly, the video showed appellant grabbed the

pharmacist by the hair, forced her body around, and held the screwdriver against her

neck before she was able to pull it away. Appellant was in close proximity to the

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pharmacist for the majority of the encounter and she could not physically get away

from him. The video further showed appellant’s size, being average in height and

weight, relative to that of the pharmacist, who is petite and thin. The pharmacist

testified appellant made multiple threats to kill her if she failed to comply with his

demands, she was in fear for her life, and thought she was going to die. Her fear

was exhibited by her action of gripping the screwdriver with both hands, while

appellant held same, in an attempt to keep it away from her neck. Officer Moses

testified that he had 15 years’ experience in law enforcement, including experience

in SWAT, tactics, and weapons, and that in his experience a screwdriver can be used

as a deadly weapon.

In addition to actually viewing how the robbery occurred and hearing the

testimony of the pharmacist, the jury was able to view the screwdriver itself and

heard Officer Moses’ testimony concerning the use of same as a deadly weapon.

Moreover, appellant’s own testimony concerning why he did not pry the

pharmacist’s grip from the screwdriver further demonstrates its deadly nature.

Appellant testified that “if [he] would have let go of her hair, [he] could have got it

out of her hand, but [he] didn’t want to take the chance of her getting ahold [of] the

screwdriver and sticking [him] with it.” Thus, appellant acknowledged the

instrument was capable of penetrating the human body—though his concern was

limited to its use against himself.

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 Having examined all of the evidence in the light most favorable to the jury’s

deadly weapon finding, we conclude any rational trier of fact could have found the

screwdriver appellant displayed, and the manner in which he did so, during the

robbery was capable of causing serious bodily injury or death, such as piercing the

pharmacist’s throat or eye. See, e.g., Henderson v. State, 971 S.W.2d 755, 757 (Tex.

App.—Houston [14th Dist.] 1998, no pet.) (screwdriver as used was deadly weapon

where defendant displayed same and thereafter victim followed every order).

Accordingly, we overrule appellant’s first issue.

II. Duress

In his second issue, appellant urges there is legally and factually insufficient

evidence to support the jury’s rejection of his affirmative defense of duress.

A. Standard of Review

We review affirmative defenses for both legal and factual sufficiency.

Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). In reviewing the legal

sufficiency of the evidence to support a jury’s rejection of an affirmative defense in

which the defendant has the burden of proof, we first look for evidence favorable to

the jury’s negative finding. Matlock v. State, 392 S.W.3d 662, 670 (Tex. Crim. App.

2013). When we review the record for favorable evidence, we disregard all contrary

evidence unless a reasonable factfinder could not. Id. Only if the affirmative

defense was conclusively proven may we conclude that the evidence is legally

insufficient to support the jury’s rejection of the affirmative defense. Id.

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 In reviewing the factual sufficiency of the evidence to support a jury’s

rejection of an affirmative defense in which the defendant has the burden of proof,

we review the evidence in a neutral light and determine whether the finding is so

against the great weight and preponderance of the evidence so as to be manifestly

unjust. Id. at 671. When conducting a review for legal or factual sufficiency, we

defer to the factfinder’s determination of the weight and credibility to give the

testimony and the evidence presented at trial. Id. at 669–70.

B. Applicable Law

Duress is an affirmative defense to prosecution that excuses the conduct of

the accused that would otherwise expose him to criminal responsibility. PENAL

§ 2.04(d), 8.05. To establish this affirmative defense, appellant was required to

prove by a preponderance of the evidence that he committed the offense because he

was compelled to do so by threat of imminent death or serious bodily injury to

himself or another. Id. § 8.05(a). A threat is imminent when (1) the person making

the threat intends and is prepared to carry out the threat immediately, and (2) the

threat is predicated on the threatened person’s failure to commit the charged offense

immediately. Bryant v. State, No. 05-16-01448-CR, 2018 WL 2382104, at *4 (Tex.

App.—Dallas May 25, 2018, no pet.) (mem. op., not designated for publication)

(citing Cormier v. State, 540 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.]

2017, pet. ref’d)).

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 C. Analysis

Appellant himself admitted that he did not tell the pharmacist or the pharmacy

technician that he was being threatened or coerced, did not ask them for a phone to

seek help, did not ask them if there was a back door to the pharmacy through which

he could leave without being detected, did not see “Big Homie” when he exited the

pharmacy laden with purloined controlled substances, and did not try to make any

effort to return the drugs and cash when it was apparent the man he claimed

threatened him was not there and any alleged imminent harm, if it once existed, was

no longer present. Consequently, the record does not conclusively prove appellant’s

affirmative defense and the evidence is legally sufficient to support the jury’s

negative finding on the issue of duress.

The only evidence of appellant’s claim he acted under duress was his own

testimony, which the jury was free to disbelieve. See Brooks, 323 S.W.3d at 899.

During appellant’s testimony, the State impeached appellant’s credibility with his

prior convictions for aggravated assault with a deadly weapon and assault family

violence. The State also impeached appellant’s credibility with the testimony of

Officer Hogan. Officer Hogan testified appellant lied to him stating he did not even

go into the pharmacy and further indicated appellant changed his story several times.

Although appellant testified that the man seen in one of the video’s was “Big

Homie,” the jury was free to reject appellant’s assertion “Big Homie” actually

existed and threatened appellant. The video does not show appellant interacting with

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the man he claimed to be “Big Homie.” The fact that appellant did not tell the

pharmacist or the pharmacy technician that he was in danger or otherwise seek

protection from the alleged threats of “Big Homie” when he had the opportunity to

do so also undermines appellant’s claim he acted under duress. We conclude the

jury’s rejection of appellant’s claim of duress was not manifestly unjust and there is

factually sufficient evidence to support the jury’s finding against him in this regard.

We overrule appellant’s second issue.

III. Sentence Imposed

In his final issue, appellant urges the sentence imposed against him is

constitutionally excessive given the nature and circumstances of the offense. The

State responds that appellant failed to preserve this challenge for appellate review

and alternatively, the sentence is not unconstitutionally excessive.

A. Preservation of Complaint

Before a party may present a complaint for appellate review, the record must

normally show that the complaint was made to the trial court. TEX. R. APP. P. 33.1.

Constitutional rights, including the right to be free from cruel and unusual

punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

App. 1996). Appellant did not object when he was sentenced, nor did he file motions

for new trial addressing this complaint. Accordingly, he has not preserved the issue

for appellate review. See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App.

1995); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.).

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 B. Applicable Law

Moreover, appellant’s claim of disproportionate punishment would fail even

if it had been preserved below. To be sure, the basic concept of proportionality is

embodied within the Eighth Amendment’s proscription on cruel and unusual

punishment. U.S. CONST. amend. VIII; State v. Simpson, 488 S.W.3d 318, 322 (Tex.

Crim. App. 2016). This is a “narrow principle,” however, that does not compel any

arithmetic proportionality between the crime and the sentence imposed. Simpson,

488 S.W.3d at 322 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring)). Rather, it forbids only those extreme sentences that are

so “grossly disproportionate” to the crime as to amount to cruel and unusual

punishment. Id. A sentence is grossly disproportionate to the crime “only in the

exceedingly rare or extreme case.” Id. at 322–23.

Generally, a punishment within the statutory limits will not be excessive,

cruel, or unusual in any given case. Id. at 323. To determine whether a particular

sentence is “grossly disproportionate,” we first consider the severity of the sentence

in light of the harm caused or threatened to the victim or victims, the culpability of

the offender, and the offender’s prior misconduct. Id. In the rare case in which this

threshold comparison leads to an inference of gross disproportionality, we would

then compare the defendant’s sentence with the sentences of other, similarly situated

offenders in Texas and with the sentences imposed for the same or analogous crime

in other jurisdictions. Id. If this comparative analysis validates an initial judgment

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that the sentence is grossly disproportionate, the sentence is indeed cruel and

unusual. Id.

C. Analysis

Appellant claims because no one was harmed during the commission of the

offense, and given appellant feared for his life and peacefully surrendered to law

enforcement officers, the extent of his sentence far exceeds the crime committed.

As an initial matter, we note that appellant’s 40-year sentence is within the

statutory punishment range for the offense of aggravated robbery enhanced by two

prior felony convictions. PENAL § 12.42(d). The Court of Criminal Appeals has

traditionally held that punishment assessed within the statutory limits, including

punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel,

or unusual. Simpson, 488 S.W.3d at 323. Thus, the sentence imposed against

appellant was not unconstitutionally excessive. See Castaneda, 135 S.W.3d at 725

(holding Castaneda’s Eighth Amendment complaint failed because punishment was

within statutory range, and he failed to show his sentence was disproportionate to

others’).

While appellant contends his sentence is grossly disproportionate because no

one was harmed during the commission of the crime, he committed the crime only

under duress, and he quickly and peacefully surrendered when confronted by law

enforcement, he fails to acknowledge his prior misconduct spanning more than

twenty years, the violent nature of his conduct, the trauma and the risk of serious

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physical harm or death he inflicted on the pharmacist and his failure to take

responsibility for his decisions and actions, all of which are factors the trial court

appropriately took into consideration in imposing appellant’s sentence. After careful

scrutiny of the record, we do not find appellant’s sentence to support an inference of

gross disproportionality.

We overrule appellant’s third issue.

CONCLUSION

We affirm the trial court’s judgment.

/David J. Schenck/
DAVID J. SCHENCK
JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47

210363F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

RICKY L JOHNSON, Appellant On Appeal from the 199th Judicial
District Court, Collin County, Texas
No. 05-21-00363-CR V. Trial Court Cause No. 199-83409-
2020.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Schenck. Justices Osborne and Smith
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 21st day of July, 2022.

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