BENJAMIN CONTRERAS AGUIRRE v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant appeals his conviction for aggravated robbery.   After the trial court found appellant guilty, it assessed punishment at fifteen years' imprisonment.   In two issues, appellant contends (1) the evidence is insufficient to support his conviction, and (2) the trial court abused its discretion in admitting extraneous offense evidence.   For the following reasons, we affirm the trial court's judgment.

The complainant, Adrian Gonzalez, was the general manager of Club Sting, a Dallas night club.   Gonzalez testified that on April 26, 2009, after the club closed and the staff was cleaning up, appellant, a former employee, entered Gonzalez's office, shut the door, and pulled out a knife.   Appellant also told Gonzalez he had a bomb and pulled something out of his backpack that looked like a bomb.   Appellant told Gonzalez he had two other bombs, one in his car in the parking lot and the other in the bathroom.   Appellant told Gonzalez he could kill him and asked him if he wanted to live or die.   Appellant demanded Gonzalez to empty the safe.   Gonzalez did as appellant demanded.

Meanwhile, employees became concerned because Gonzalez and appellant had been in the office for so long.   Employees called to Gonzalez asking if everything was okay and, on appellant's demand, Gonzalez responded that he was fine.   Eventually, Club Sting's security guard, off-duty police officer Frank Carcone, entered the office to check on Gonzalez.   Although Gonzalez pretended like everything was okay, Carcone could tell it was not.   Carcone saw a bulge underneath appellant's shirt and asked him to lift it.   Appellant had a “big knife” under the shirt.   The officer drew his gun and handcuffed appellant.   As soon as appellant was restrained, Gonzalez immediately started “puking” and telling the officer there was a bomb in the bag.   The officer looked in the bag and saw something that looked like explosives with wires coming out, connected to a phone.   He then called the bomb squad.   The bomb squad discovered appellant's bag contained clay pieces, wires, and batteries that resembled explosives, but no actual explosives.

Appellant testified at trial.   He claimed that he went to the club to talk to Gonzalez that night about getting his old job back.   Appellant admitted having a knife with him.   Appellant said his father had given him the knife and he always carried it with him as his “lucky charm.”   He admitted “showing” Gonzalez the knife, but denied making any threats.   He also admitting having in his backpack “an additional smaller knife” that he used for bartending to cut limes.   He denied asking for money or telling Gonzalez he had a bomb.

In his first issue, appellant contends the evidence is legally insufficient to support his conviction for aggravated robbery because the State failed to prove he used a deadly weapon in the commission of the offense.   We resolve a challenge to the sufficiency of the evidence by determining whether, considering all of the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010).   We defer to the factfinder's determinations of the witnesses' credibility and the weight to be given their testimony.  Brooks, 323 S.W.3d at 899.

The question presented is whether there is sufficient evidence to support a finding that the knife appellant used was, in the manner of its use or intended use, capable of causing death or serious bodily injury.   See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.2011);  Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.—Waco 2002, pet ref'd).   In determining whether a knife is a deadly weapon, we can consider:  (1) the size, shape, and sharpness of the knife;  (2) the manner in which the appellant used the weapon;  (3) the nature or existence of inflicted wounds;  (4) testimony of the knife's life-threatening capabilities;  (5) the physical proximity between the victim and the knife;  and (6) the words spoken by the appellant.   See Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App.1991);  Lowe v. State, 211 S.W.3d 821, 828 (Tex.App.—Texarkana 2006, pet. ref'd);  Nickerson, 69 S.W.3d at 670.

Viewing the evidence in the light most favorable to the verdict, the evidence showed appellant trapped Gonzalez in a room, displayed a knife, and then put it in his waistband, where it remained easily accessible.   Appellant also threatened Gonzalez with a chain and claimed he had a bomb.   Appellant demanded money and asked Gonzalez if he wanted to live.   A photograph of the knife was introduced into evidence.   The photograph shows the knife had a blade that tapered to a very pointy end.   Although the State failed to present direct evidence on the length of the blade, Officer Carcone testified the knife was “big.”   Gonzalez testified he feared for his life and that the knife seemed to be something that was capable of causing serious bodily injury or death.   Finally, appellant testified that, in addition to the knife he showed Gonzalez, he also had a “smaller” knife in his backpack that he used for cutting limes.   Thus, there was evidence the knife was larger than a knife that could cut limes.   Given the threats that were made, the circumstances of the offense, and the photograph and testimony about the knife, we conclude a rational trier of fact could find the knife was a deadly weapon.   We resolve the first issue against appellant.

In his second issue, appellant contends the trial court erred in admitting evidence of an extraneous offense.   At trial, evidence was presented that appellant had made a bomb threat at another nightclub on the same night as the offense.   Specifically, Christina Yielding testified she was working at a nightclub, Carson's Live, that was near the club where the offense occurred.   Appellant had also worked at that club briefly in the past.   That night appellant called the general manager of Carson's Live and implied there were “bombs” in the ladies and men's restrooms.   The club was evacuated, but no bombs were found.

Appellant complains the trial court erred in admitting the extraneous offense evidence because it was offered only to show character conformity.   Evidence of other crimes or bad acts that a defendant may have committed cannot be introduced at the guilt-innocence phase to show the defendant acted in conformity with his criminal nature and therefore committed the crime for which he is on trial.  Tex.R. Evid. 404(b);  De La Paz, 279 S.W.3d 336, 342–43 (Tex.Crim.App.2009).   However, extraneous offenses may be admitted for other purposes, such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Tex.R.Crim. Evid. 404(b).  We generally will not overturn a trial court's ruling admitting extraneous offense evidence if the record shows (1) the extraneous act is relevant to a material, non-propensity issue, and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.  De La Paz, 279 S.W.3d at 344.

In the charged offense, appellant told Gonzalez that he had a bomb in the room with him and showed him something that looked like it could be a bomb.   The bomb squad discovered appellant's bag contained clay pieces, wires, and batteries that resembled explosives, but no actual explosives.   Appellant, however, denied he had anything that appeared to be a bomb with him.   He did admit he had various items in his back pack including bottle openers, a knife, an old cell phone, and “putty.”   The complained-of evidence consists of evidence that on the same night as the charged offense, appellant called the general manager of another nightclub where he worked in the past and falsely claimed there were bombs in the restrooms.   We conclude the extraneous offense was relevant to show appellant had the intent to communicate a threat with the items in his bag.   We resolve the second issue against appellant.

We affirm the trial court's judgment.

100951F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

BENJAMIN CONTRERAS AGUIRRE, Appellant

No. 05–10–00951–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 265th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F–0954165–R).

Opinion delivered by Justice O'Neill, Justices Bridges and Fillmore participating.

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

Judgment entered March 29, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

MICHAEL J. O'NEILL JUSTICE