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Johnson v. State

Court of Criminal Appeals of Texas

February 15, 2017

DEAIRION JOHNSON a/k/a KEVIN KIMP, Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

          OPINION

          Hervey, J.

         The issue in this case is whether there is sufficient evidence to affirm the jury's deadly-weapon finding elevating robbery to aggravated robbery. Because we conclude that there is and that the court of appeals erred to hold otherwise, we will reverse its judgment and remand this cause for the lower court to address Appellant's remaining points of error.

         BACKGROUND

          Procedural History

         Kevin Kimp, [1] Appellant, was charged by indictment with aggravated robbery after he robbed two cashiers working at a RaceTrac convenience store using a butter knife. The indictment alleged that Kimp intentionally or knowingly threatened Amelia Martinez[2](Amelia) or placed her in fear of imminent bodily injury or death while in the course of committing robbery. It further alleged that Kimp used or exhibited a deadly weapon, to-wit: a knife that in the manner of its use or intended use was capable of causing death or serious bodily injury. Both aggravated robbery and the lesser-included offense of robbery were submitted to the jury, and the jury found Kimp guilty of aggravated robbery. In accordance with the jury's verdict, the judge entered a deadly-weapon finding. Kimp was sentenced to 18 years' confinement and fined $10, 000. Kimp appealed his conviction, and the court of appeals reversed, holding that there was insufficient evidence to sustain the deadly-weapon finding. We subsequently granted the petition for discretionary review filed by the State Prosecuting Attorney asking whether,

the evidence [is] sufficient to support a jury's finding that a butter knife is a deadly weapon when it can rationally be determined that it was capable of causing death or serious bodily injury because it was brandished aggressively during a convenience store robbery?

         Facts

         The night of the robbery, two employees were working at the RaceTrac: Amelia who was the cashier and Aaron Martinez (Aaron), the night manager, who was also working as a cashier. Between about 11:00 p.m. and midnight, Kimp entered the store and walked towards the back to get a fountain drink at the soda machine. From there, he looked around the store, killing time before approaching Aaron's cash register, presumably to pay for his drink. But Kimp just stared at Aaron and then walked behind the counter towards Amelia, Aaron, and the cash registers. As he approached Amelia, he pulled a knife out of his pants and waved it at her and Aaron in a threatening manner and told them to "[b]ack the fuck up." They both moved to the corner of the back-counter area, as far away from Kimp as possible. Aaron only saw a silver object protruding from Kimp's hand, but Amelia saw the knife. Kimp swung the knife at her as she moved to let him take the money from the register. Amelia testified that she did not know how long the blade was, but the tip of it was rounded and looked like a butter knife. She also testified that she felt threatened and was scared even though Kimp had a butter knife "[b]ecause, like, even though it is a butter knife, that it still can do some damage, you know. I never got robbed like that in my life." After Kimp took the cash from Amelia's register, he went to the other register. Security camera footage showed that, as Kimp approached the register, he briefly confronted Amelia and Aaron, but during that portion of the video, Kimp's back is to the camera and Amelia and Aaron are just outside of the camera's view. Aaron explained what happened during that confrontation: Kimp approached them, "kind of stuck his chest out, " and told them to get in the corner and keep their faces down. When Aaron did not comply quickly enough, Kimp advanced on him even faster with the knife. Aaron felt "[a] little threatened, " although he was not too scared to act because he knew he had to take charge of the situation. Amelia said that when Kimp approached them, he made aggressive movements towards them to "frighten us." On his way out of the store, Kimp told Amelia and Aaron to "[h]ave a nice fucking day." Once Kimp was gone, Aaron immediately closed and locked the register drawers, called 9-1-1, removed the remaining customers from the store, and locked the doors until police arrived.

         STANDARD OF REVIEW

         When reviewing the record for legal sufficiency, we consider the combined and cumulative force of all admitted evidence and reasonable inferences therefrom in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

         DEADLY-WEAPON FINDINGS

         The only element of aggravated robbery at issue here is whether Kimp "use[d] or exhibit[ed] a deadly weapon."[3] Tex. Pen. Code § 29.03(a)(2). To meet its burden, the State was required to prove that the knife Kimp had was a deadly weapon as defined by statute and that, if it was, he also used or exhibited the knife while committing robbery. Id. A deadly weapon is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" or "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code § 1.07(a)(17); McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000). "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code § 1.07(a)(46). Because not all knives are manifestly designed, made, or adapted for the purpose of inflicting serious bodily injury or death, [4] the evidence is sufficient to support the finding in this case only if the jury could have rationally found that Kimp used the knife in such a way, or intended to use the knife in such a way, that it was capable of causing serious bodily injury or death. Id. § 1.07(a)(17).

         In determining whether a weapon is deadly in its manner of use or intended manner of use, the defendant need not have actually inflicted harm on the victim. See Brown, 716 S.W.2d at 946. Instead, we consider words and other threatening actions by the defendant, including the defendant's proximity to the victim; the weapon's ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the manner in which the defendant used the weapon. See Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (op. on reh'g) (physical proximity); Blain, 647 S.W.2d at 294 (size, shape, and sharpness of the weapon; ability of the weapon to inflict death or serious injury; and the manner in which the defendant used the ...


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