No. 14-08-00009-CR
Opinion filed December 11, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 1082603.
Panel consists of Justices ANDERSON, FROST, and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
JOHN S. ANDERSON, Justice.
A jury found appellant, Gerardo Rios Cabrera, guilty of aggravated robbery and assessed punishment at thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). In three issues, appellant argues (1) the evidence is legally insufficient to find appellant used or exhibited a deadly weapon during the offense, (2) the evidence is factually insufficient to support his conviction, and (3) the trial court erred when it denied his motion to suppress an allegedly suggestive pretrial photograph identification of appellant in violation of his due process rights. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On August 29, 2006, Gabriel Villareal, the complainant, was robbed at gunpoint. While waiting at a construction site, an older model blue Dodge Ram Charger sport utility vehicle (S.U.V.) drove up to Mr. Villareal's vehicle and blocked him in. The driver of the S.U.V. began a conversation with Mr. Villareal. Subsequently, the passenger, later identified as appellant, exited the S.U.V. and approached Mr. Villareal's vehicle with a firearm in his hand, and tried to open the door to Mr. Villareal's vehicle. Upon appellant ordering Mr. Villareal to open the door, Mr. Villareal rolled his window down slightly and threw out an envelope containing over one thousand dollars in cash. Appellant took the envelope containing the money and demanded Mr. Villareal give him his cellular phone and keys to his vehicle. Mr. Villareal complied, handing appellant two cellular phones and his keys. Thereafter, appellant and the driver left rapidly in the S.U.V. Mr. Villareal observed the license plate number of the S.U.V. while it drove away. The firearm was never recovered. Officer Christopher Garza located the S.U.V. several hours after the offense using a global positioning satellite available through Mr. Villareal's cellular phone provider. The police tried to conduct a traffic stop on the S.U.V., upon which the vehicle fled at a high rate of speed. During the pursuit, the driver exited the vehicle and was taken into custody. When the driver exited, appellant slid into the driver's seat and continued to flee. Appellant soon lost control of the vehicle and was apprehended by police. The following day, Mr. Villareal identified appellant from a photo array as the person who robbed him at gunpoint the prior day. Mr. Villareal also identified the driver of the S.U.V. in a line-up as the person driving during the offense. Before trial, appellant filed a "Motion for Identification Hearing" and a "Motion to Suppress Illegal Identification." The trial court conducted a pretrial identification hearing outside the presence of the jury in which Mr. Villareal and Officer Garza testified. Officer Garza testified he prepared the photo array and Mr. Villareal testified he picked appellant out of the photo array. Finding the photo array not improperly suggestive in nature and not improperly influencing Mr. Villareal with regard to the identification, the trial court overruled appellant's motion to suppress. During trial, Mr. Villareal testified regarding the pretrial photo identification and also identified appellant in open court as the man who robbed him at gunpoint. The jury found appellant guilty of aggravated robbery and assessed his punishment at thirty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. DISCUSSION
A. Is the evidence legally and factually sufficient? In his second and third issues, appellant contends the evidence is legally insufficient to find he used or exhibited a deadly weapon during the offense and the evidence is factually insufficient to support his conviction. We disagree. 1. Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness' testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 2. Analysis A person commits the offense of robbery if, in the course of committing theft, and with intent to obtain or maintain control of the property, the person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). Robbery becomes aggravated when a person commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2). The direct evidence supporting the jury's finding that appellant used a deadly weapon is demonstrated through the complainant's testimony. Mr. Villareal testified appellant approached his vehicle with a firearm in his hand, and held the firearm in his right hand when he tried to open Mr. Villareal's door. Mr. Villareal also testified he feared being shot by appellant and thus gave appellant his money and the property appellant demanded, specifically his cellular phones and vehicle's keys. Appellant argues the inability of the police to recover the weapon used in the offense makes the evidence legally insufficient to prove appellant used or exhibited a firearm. The failure of the police to find the weapon does not indicate appellant did not use or exhibit the firearm during the offense. Many hours passed from the time of the offense and the apprehension of appellant. Appellant had ample time to discard the weapon. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). The jury is entitled to conclude from the testimony at trial that appellant used or exhibited a firearm during the offense. Appellant contends the lack of corroboration of the complainant's identification of appellant makes the conviction factually insufficient. He argues the inability to recover the complainant's cellular phones, the cash, and the keys demonstrates the insufficiency of the evidence proving the identification. This conclusion is misplaced. A conviction may be supported by the testimony of only one witness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971). Mr. Villareal identified appellant as the perpetrator in a photo array, as well as in open court during trial, and the jury is entitled to believe his testimony'. See Jones, 984 S.W.2d at 258 (holding a jury may believe or disbelieve all or part of any witness' testimony and decide the weight and credibility to attribute to the witness' testimony). Further circumstantial evidence to support appellant's conviction was presented through Officer Garza's testimony. Officer Garza testified appellant fled in the vehicle matching the description the complainant gave to police. Appellant cites to King for the proposition that flight from the scene of a crime is alone not enough to establish guilt. See King v. State, 638 S.W.2d 903, 904 (Tex.Crim.App. 1982). However, appellant's flight was not the only evidence supporting his conviction. The complainant's identification alone is enough to support appellant's conviction, and appellant's flight from the scene of the crime serves as additional circumstantial evidence of his guilt. See Fentis v. State, 582 S.W.2d 779, 781 (Tex.Crim.App. 1976) (holding evidence of flight connected with the offense is relevant as a circumstance bearing upon guilt). Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support appellant's conviction for aggravated robbery because any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Salinas, 163 S.W.3d at 737. Viewing the evidence in a neutral light, we hold the evidence supporting the verdict is neither so weak the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong the beyond-a-reasonable-doubt standard could not have been met. See Prible, 175 S.W.3d at 730-31. Thus, the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second and third issues. B. Did the trial court err by denying appellant's motion to suppress an allegedly suggestive pretrial photograph identification?
In his first issue, appellant contends the trial court committed reversible error by denying his motion to suppress an allegedly suggestive pretrial photograph identification which tainted the in-court identification of appellant in violation of his due process rights as guaranteed by the United States and Texas constitutions. Appellant filed a pretrial motion to suppress evidence of an allegedly suggestive photographic identification. After a hearing, the trial court denied appellant's motion to suppress. At trial, Mr. Villareal identified appellant in open court and testified regarding the pretrial photo identification. Appellant objected to the references to the pretrial photo identification, but failed to object to the in-court identification of appellant by Mr. Villareal. Texas courts stringently apply the contemporaneous objection rule in the context of improper identification. Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App. 1986), citing, Stokes v. Procunier, 744 S.W.2d 475, 481 (5th Cir. 1984). Though in his pretrial objection appellant challenged the propriety of the out-of-court identification, he did not argue that Mr. Villareal should be prohibited from making an in-court identification. These are distinct arguments requiring separate objections. See Wallace v. State, 75 S.W.3d 576, 584 (Tex.App.-Texarkana 2002), aff'd on other grounds, 106 S.W.3d 103 (Tex.Crim.App. 2003) (holding an objection to an out-of-court photo array does not preserve for appellate review any complaint regarding the in-court identification). Failure to object at trial to the in-court identification of appellant waives the complaint on appeal. See Tex. R. App. P. 33.1(a); Perry v. State, 703 S.W.2d at 670-71; Newsome v. State, 703 S.W.2d 750, 753-54 (Tex.App.-Houston [14th Dist.] 1985, no pet.) Here, appellant did not object to Mr. Villareal's in-court identification of appellant; thus, no error is preserved. Accordingly, we overrule appellant's first issue. CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgment.