Following a jury trial, Rito Medina, Jr. was convicted of two counts of aggravated robbery and sentenced to fifteen years confinement on each count, sentences to run concurrently. In his sole issue on appeal, Medina argues that the evidence was insufficient to establish that he used or exhibited a deadly weapon during the commission of the offense. We affirm the judgment of the trial court.
The evidence established that on February 6, 2010, Rito Medina went into La Palma Taqueria in Cleveland, Texas, purchased a soda, then pulled out a machete and demanded money. Medina’s accomplice, who stood outside La Palma during the robbery, was apprehended immediately following the incident. One of the responding officers recognized Medina from a police video obtained by another officer at the scene who had pursued the suspects. Medina was also identified by two La Palma employees as the man who threatened them with a machete during the robbery.
On appeal, Medina argues that the evidence is legally and factually insufficient to establish that he used or exhibited a deadly weapon during the commission of the offense. In Brooks, the Court of Criminal Appeals concluded that there is no meaningful distinction between legal sufficiency review and factual sufficiency review. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The Court held that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Id. at 912. Therefore, to determine the sufficiency of the evidence, we must review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Medina was charged with two counts of aggravated robbery. Specifically, Medina was charged with intentionally or knowingly threatening or placing E.A. and M.R., two La Palma employees, in fear of imminent bodily injury or death by the use or exhibit [of] a deadly weapon, to-wit: a machete, in the course of committing a theft and with intent to obtain or maintain control of the subject property. See Tex. Penal Code Ann. § 29.03 (West 2011). The penal code defines [d]eadly weapon 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. Id. § 1.07(17) (West Supp. 2011).
At trial, M.R. testified that she was working as a cook on the date of the robbery at La Palma. She explained that when she attempted to ring up Medina at the cash register for the purchase of a soda, he threw the soda at her. M.R. stated that Medina said [y]ou’re going to give me your money and raised a machete. From the testimony, it appears that M.R. demonstrated for the jury how Medina swung the machete at her. M.R. explained to the jury, he kept doing like this with his hand at me[,] and he was going like this with his machete[.] She also testified that he swung the machete at her and she turned over a table trying to get away from him. M.R. testified that she was very afraid and thought that Medina might kill her.
E.A., La Palma’s owner, also testified that she was at La Palma on the night of the robbery. E.A. testified that Medina swung the machete at her and M.R.. E.A. told the jury that she heard M.R. yell for help and saw her knock over a table to protect herself from Medina. E.A. stated that M.R. had to physically dodge the machete strikes[.] E.A. explained that Medina swung the machete at her when she came out of the kitchen and said he wanted money. E.A. testified that she feared for her life. E.A. attempted to open the cash register for Medina but the register stuck. From the testimony, it appears that like M.R., E.A. demonstrated for the jury how Medina held the machete during the robbery stating, he had the machete overhead like this.
Medina concedes on appeal that generally, a machete is a large knife. A knife is not a deadly weapon per se. Thomas v. State, 821 S.W.2d 616, 619-620 (Tex. Crim. App. 1991). However, a knife can be found to be a deadly weapon based on the nature of its use or intended use. Id.; see also Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d). To determine whether a particular knife is a deadly weapon, courts have considered (1) the size, shape, and sharpness of the knife, (2) the manner of its use or intended use, (3) the nature or existence of inflicted wounds, and (4) evidence of the knife’s life-threatening capabilities. Garcia, 17 S.W.3d at 4. Evidence is sufficient to show a knife is used in a manner that constitutes a deadly weapon when the knife is displayed in a manner conveying an express or implied threat that serious bodily injury or death will be inflicted if the desire of the person displaying the knife is not satisfied. Billey v. State, 895 S.W.2d 417, 422 (Tex. App.–Amarillo 1995, pet. ref’d). We conclude that raising, swinging, or aggressively brandishing a knife at someone while demanding money is sufficient to achieve the desired effect of placing them in fear of death or serious bodily injury. Courts have upheld deadly weapon findings on evidence of much more passive use or display of a knife. See id. (partially pulling knife out of sheath in pants while demanding money from victim was sufficient to support deadly weapon finding); see also McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (carrying partially exposed butcher knife in back pocket during the commission of violent attack sufficient to support deadly weapon finding).
The machete used in the robbery was not introduced into evidence at trial. The only description of the machete came from E.A. who described it as a large Mexican type machete. Medina testified in his defense at trial. Medina testified that he had no recollection of February 6, 2010, because he was on drugs. Therefore, he did not remember whether or not he committed the charged offense. During cross-examination, Medina admitted that a machete is capable of killing someone and constitutes a deadly weapon. Additionally, testimony characterizing the machete as a deadly weapon came from M.R. and E.A. M.R. and E.A. both testified that Medina swung the machete at them while demanding money, and both asserted that they were afraid for their lives.
The evidence established that Medina displayed the machete in a manner that conveyed to M.R. and E.A. an express or implied threat that Medina would inflict serious bodily injury or death on them if his demands were not met. Based on this evidence, the jury could have reasonably concluded that Medina’s use of the machete, or intended use, was such that it was capable of causing serious bodily injury or death. See Tex. Penal Code Ann. § 1.07(17); see also Billey, 895 S.W.2d at 422.We find the evidence sufficient to support the jury’s conviction on both counts of aggravated robbery. We overrule Medina’s appellate issue and affirm the judgment of the trial court.
Submitted on April 23, 2012Opinion Delivered July 25, 2012Do not publishBefore McKeithen, C.J., Kreger and Horton, JJ.
Posted at: Wednesday 25. July 2012
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