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Court of Appeals of Texas, Dallas.


No. 05–10–01515–CR

Decided: December 20, 2011

Before Justices FitzGerald, Francis, and Lang–Miers


Opinion By Justice FitzGerald

Cameron Jamaal Hogg appeals from his conviction for aggravated robbery with a deadly weapon.   In a single point of error, appellant contends the evidence is legally insufficient to sustain the deadly weapon finding.   We affirm the trial court's judgment.   The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a firearm.   See Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (West 2011).   During the plea hearing, appellant testified he was freely and voluntarily pleading guilty to the charges in the indictment.   Appellant's signed judicial confession and stipulation of evidence was admitted into evidence without objection.   The trial court passed the case for a presentence investigation report.   During the sentencing hearing, the trial court heard testimony from appellant and his mother.   Appellant testified he and three accomplices robbed a fast food restaurant during business hours while other customers were inside.   Appellant testified he used a “fake gun” that was “a frame of a duce five, a .25 [that] didn't have no clip or no trigger on it.”   Appellant put the gun to an employee's head and ordered her to go to the safe.   After getting $900 from the restaurant's safe, appellant and the accomplices fled.   Later, appellant turned himself in to the police and gave a written statement.   After hearing closing arguments from both parties, the trial court found appellant guilty and assessed punishment at fifteen years' imprisonment and a $2,000 fine.

In his sole point of error, appellant contends the evidence is insufficient to sustain the deadly weapon finding because he denied using a real firearm, he used only a fake gun during the robbery, and he only pleaded guilty so he could get probation.   Appellant asserts the gun he used does not fit the definition of a deadly weapon because it was not capable of firing.   The State responds that the evidence is sufficient to support the deadly weapon finding.

Article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure permits the entry of a deadly weapon finding when it is shown that a defendant used or exhibited a deadly weapon.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West 2005).   In the context of a deadly weapon finding, the term “use” means any employment of a deadly weapon, even simple possession, if that possession facilitates the associated felony.   See Coleman v. State, 145 S.W.3d 649, 652 (Tex.Crim.App.2004);  Smith v. State, 176 S.W.3d 907, 919 (Tex.App.—Dallas 2005, pet. ref'd).   A deadly weapon means a firearm or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.  Tex. Penal Code Ann. § 1.07(a)(17) (West 2011).

The State is not required to prove a firearm is operable.   See Walker v. State, 543 S.W.2d 634, 637 (Tex.Crim.App.1976);  Hutchings v. State, 333 S.W.3d 917, 922 (Tex.App.—Texarkana 2011, no pet.).   Here, the indictment alleged appellant used or exhibited a deadly weapon, a firearm, during commission of the robbery.   Appellant pleaded guilty and judicially confessed to the offense as alleged in the indictment.   The record contains appellant's judicial confession and stipulation of evidence that tracks the language in the indictment, including the use and exhibition of a deadly weapon, a firearm.   Appellant's judicial confession sufficiently supports the deadly weapon finding contained in the written judgment.   See Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App.1996) (it is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea);  see also Alexander v. State, 868 S.W.2d 356, 360 (Tex.App.—Dallas 1993, no pet.).

We conclude the evidence presented is sufficient to support the affirmative deadly weapon finding.   We overrule appellant's sole point of error.

We affirm the trial court's judgment.


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