Deon Lewis Peterson v. State

Citation: Not availableDocket: 01-03-00406-CR

Court: Court of Appeals of Texas; July 22, 2004; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Deon Lewis Peterson was charged with aggravated robbery, with an enhancement for a prior felony conviction for possession of a controlled substance. He pleaded not guilty to the robbery but admitted to the enhancement. A jury found him guilty and sentenced him to 22 years of confinement. Peterson challenged the sufficiency of the evidence for his conviction and claimed that a biased juror served on the jury.

The incident occurred on June 12, 2002, at the Lucky Game Room in Houston, owned by Giang Pham. Peterson was the first patron to enter the arcade, acting suspiciously by talking on his cell phone, looking around, and inspecting items in the room. Pham, feeling uneasy, called the police after observing Peterson's behavior. When informed that the police were coming, Peterson revealed a concealed firearm in his back pocket and threatened Pham, stating he would get in trouble if the police arrived. Although Peterson did not fully display the gun, Pham saw part of it and was certain it was a firearm. Peterson demanded money, leading Pham to give him $5, but he insisted on more, prompting Pham to explain that he was not the owner and had no additional money.

Pham informed Peterson that he had money in his car and offered to retrieve it, but as he attempted to leave, Peterson, who had a hand on a firearm in his back pocket, blocked his exit. Pham pleaded to leave, promising to return with the money. Peterson allowed him to go but followed him to the parking lot, where he groped Pham's pockets and asked about their contents. When Pham refused to retrieve the money, Peterson insisted they return to the Lucky Game Room, leading to Pham running to seek help from a nearby business. Peterson fled but was later apprehended by police hiding in an apartment. Pham testified that Peterson had not explicitly threatened him until after Pham made a phone call and acknowledged that Peterson had not removed the firearm. The police did not recover the alleged firearm or Peterson's cell phone. 

Peterson challenged the sufficiency of the evidence supporting his conviction, asserting that there was no proof he possessed a firearm or threatened bodily harm during the theft. He argued that Pham's perception of threat was unreasonable, highlighted jury deliberations over whether the object was a firearm or a cell phone, and noted that phone records indicated he was on a call for most of his time in the game room. The evaluation of legal sufficiency requires viewing evidence favorably for the prosecution, while factual sufficiency entails a neutral review to assess whether the jury's findings were justified. According to Texas law, a robbery occurs when a person, intending to obtain property, threatens or instills fear of imminent injury or death during theft.

A person commits theft by unlawfully appropriating property with the intent to deprive the owner. Aggravated robbery involves using or exhibiting a deadly weapon during a robbery. A deadly weapon includes firearms or items capable of causing serious bodily injury. The court determined that sufficient evidence existed for a rational juror to find Peterson guilty of aggravated robbery. Evidence presented included Peterson taking $5.00 from Pham, demanding more money, and threatening Pham by displaying part of a firearm while detaining him in a game room. Peterson's actions instilled fear of imminent bodily harm in Pham. Testimony indicated that Pham clearly identified a firearm, contradicting Peterson's claim that it might have been a cell phone. Peterson's mother suggested he typically carried a cell phone, but Pham's detailed account of the firearm's presence and handling was deemed credible. The jury's conclusion of guilt was justified based on the evidence presented.

The jury was able to assess Pham's demeanor and credibility, which influenced their evaluation of the evidence. Peterson argued that a jury question about whether aggravated robbery could occur if he used a cell phone to imitate a gun indicated a conclusion by the jury. However, the trial court's instructions required the jury to find that Peterson displayed a firearm. The court reaffirmed its previous guidance in response to the jury's inquiry, and it is presumed that the jury adhered to these instructions.

Peterson also raised concerns about communication issues due to his slang and Pham's limited English proficiency, suggesting this could lead to misunderstandings regarding whether he was begging or demanding money. He noted that he was on the phone for most of his time in the Lucky Game Room and questioned Pham's credibility. Nonetheless, Pham, who communicated in English and interacted with a diverse clientele, was deemed credible by the jury, which supported the conclusion that the evidence was factually sufficient to uphold the verdict.

Regarding claims of a biased juror, Peterson argued that the trial court erred by allowing Prospective Juror Number 40 to serve, as the juror expressed a misunderstanding of the law. During voir dire, defense counsel explained the burden of proof, to which the juror responded with a statement indicating bias. However, Peterson's trial counsel did not challenge this juror for cause, opting instead to use peremptory challenges on others. This failure to assert a challenge for cause resulted in a waiver of any error for review. For a challenge for cause to be preserved, specific criteria must be met, which Peterson did not fulfill.

The court affirms Peterson's aggravated robbery conviction, determining that the evidence supports the verdict both legally and factually. Peterson waived any challenge to Prospective Juror Number 40 by failing to assert a challenge for cause during voir dire, which is necessary to preserve error for appeal. Although the defense counsel explained the burden of proof to the jury panel, Prospective Juror Number 40 expressed a belief that the defendant would need to rebut any evidence presented. The defense did not challenge this juror for cause and exhausted all peremptory challenges on other jurors. Consequently, the court concluded that Peterson did not preserve the issue for review, leading to the affirmation of the trial court's judgment. The panel included Chief Justice Radack and Justices Bland and Oakley, with participation by Judge Bruce D. Oakley by assignment. The document is designated for non-publication under TEX. R. APP. P. 47.2(b).