Is Eyewitness Testimony Enough to Prove There Was a Gun?

July 6th, 2020 by Tad Nelson in Criminal Defense

The presence of a weapon during the commission of a crime can make a significant difference in how prosecutors charge a suspect. For example, Texas law defines “robbery” as theft that involves “intentionally or knowingly” putting the victim “in fear of imminent bodily injury or death.” This does not have to involve a deadly weapon of any sort. But if it does, then prosecutors may charge the suspect with the higher offense of “aggravated robbery.”

Houston Court Upholds Aggravated Robbery Conviction

Something else to note: A jury may convict a defendant of aggravated robbery even if the deadly weapon is never recovered by the police or introduced into evidence by the prosecution. Witness testimony alone can establish the defendant used or exhibited a deadly weapon.

The Texas 14th District Court of Appeals here in Houston recently affirmed such a conviction. In this case, Bahena v. State, a jury found the defendant guilty of aggravated robbery based largely on the testimony of the victim. The appeals court rejected the defendant’s challenge to the sufficiency of the victim’s testimony, as well as his argument that the trial judge should have allowed the jury to consider the lesser charge of robbery against him.

At trial, the victim testified that she was sitting in a park one night hanging out with some friends. A man approached the group, initially looking to bum a cigarette. A few minutes later, the victim said the same man returned “wielding a gun” and took her backpack. The next day, the victim identified the defendant from a police photo array as the man who had robbed her.

On the same day as the robbery, local police answered a disturbance call near the same park. The officers arrested another man–who turned out to be the defendant’s brother–who had the victim’s debit card on his person. The victim’s backpack and other items of her personal property were later recovered nearby. However, the police never found the gun described by the victim.

Nevertheless, the 14th District said there was sufficient evidence to find the defendant guilty of aggravated robbery “beyond a reasonable doubt.” As the appeals court noted, despite the police’s failure to actually find the gun, the victim testified that “she believed the gun was real, that it could cause death or serious injury, and that [the defendant’s] wielding of the gun caused her to be scared.” This testimony was enough to convict the defendant, the appeals court said, without requiring any instruction on the lesser-included offense of robbery.

The 14th District also rejected the defendant’s challenge to the sufficiency of the victim’s ID of him as the man who robbed her. The defendant argued the victim confused him with his brother–who, after all, was actually found with the victim’s debit card. Again, the appeals court found the victim’s testimony sufficient proof of identity, noting the police showed her photos of both men, and she “affirmatively and unequivocally” picked the defendant.

Speak with a Houston Criminal Defense Attorney Today

As you can see, witness testimony alone can send a person to jail on felony charges. That is why if you are charged with a serious crime, it is critical to work with an experienced criminal defense lawyer. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston, and League City today if you need representation in connection with any criminal matter. Call 281-280-0100


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