Opinion
NO. 14-06-00395-CR
Memorandum Opinion filed June 14, 2007. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause No. 1053809 .
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Maximiliano Canastu, appeals his conviction in a bench trial for the felony offense of endangering a child. After finding him guilty, the trial court assessed appellant's punishment at confinement in the Texas Department of Criminal Justice, State Jail Division for a term of six months. In two points of error appellant contends (1) the evidence is legally and factually insufficient to prove he was the person who committed the offense, and (2) the evidence was legally insufficient to prove a child was in imminent danger of death or bodily injury. We affirm. Rafael Lopez was driving down the street when a car driven by appellant, pulled out of a parking lot, hitting his car on the passenger's side. The car in question kept moving, turned 180 degrees, and fled the scene of the accident. Lopez gave chase. Teresa Garcia, riding in the front passenger's seat, was able to get a license plate number from the fleeing car. The car ran a red light, and Lopez momentarily lost sight of the vehicle. Garcia called 911 while Lopez headed in the direction the car was going. They caught up with the car, which, according to Garcia, appeared to lose control and almost hit the large windows of a car dealership before returning to the road and almost hitting them again. With the windows down in both vehicles, Garcia heard a young child crying and screaming and observed an eight-year old boy in the backseat. Lopez continued to follow the car. The car ran another red light, and then turned into the parking lot of an apartment complex and hit a parked car. Appellant jumped out of the car, ran off, and Lopez chased him. Garcia went over to the boy. He was crying so hard he could not speak. Houston Police Officer Tyrus Fontenot, who was at the apartment complex on an unrelated matter, observed the collision. He quickly learned the details of the incident from Garcia, and questioned the frightened boy, who told him appellant was a friend of the family named "Maximiliano." The boy then gave Fontenot the address where he believed appellant lived. Fontenot went to the apartment, but was refused consent to search. A resident told Fontenot he had seen appellant go out the patio doors. Fontenot saw the patio door was open and radioed other officers the direction appellant ran. Another resident told the officers she had seen appellant go into another apartment. The officers went to the apartment and, based on a description, arrested appellant. They brought appellant back to where Fontenot, Garcia, and the boy waited. All three identified appellant as the driver of the car. A person commits the offense of child endangerment if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment. TEX. PENAL CODE ANN. § 22.041(c) (Vernon Supp. 2006). In his first point of error, appellant argues he is not the person who endangered the complainant and, therefore, the facts are legally and factually insufficient to support his identification as that person. In assessing the legal sufficiency of the evidence, the reviewing court considers all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Threadgill v. State, 146 S.W.3d 654, 663 (Tex.Crim.App. 2004). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Garcia's car was hit on the passenger's side, directly where she was sitting. She had approximately 15 seconds to focus on appellant's face. Garcia copied the license plate number from the car as it drove away, and followed the car to the apartment parking lot. Fontenot observed appellant hit a parked car, and again saw appellant from the side and back as he exited the car. The boy who was riding in the car told Fontenot appellant's name was "Maximiliano," and he was a friend of the family who had borrowed their car. He also gave Fontenot "Maximiliano's" address, where appellant was seen leaving through the back patio door. After appellant's arrest, Garcia, Fontenot, and the boy all identified appellant as the driver of the car. Garcia and Fontenot also identified appellant at trial from his presence, as well as a photograph taken after his arrest. Both Garcia and Fontenot testified the photograph represented what appellant looked like the day of the incident, and it appeared he had cut his hair since that time. Viewing the evidence in the light most favorable to the verdict, we find the evidence is legally sufficient beyond a reasonable doubt to support the identification of the appellant as the person who endangered the complainant. In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the verdict "`seems clearly wrong or manifestly unjust'" or "`against the great weight and preponderance of the evidence.'" Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (quoting Watson v. State, 204 S.W.3d 404, 414B15 (Tex.Crim.App. 2006). Such a review requires us to consider all of the evidence, both direct and circumstantial. Id.; King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). While we must give due deference to the findings of the fact-finder, we may substitute our judgment for the jury's credibility and weight determinations to a very limited degree. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (holding factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Watson, 204 S.W.3d at 417. Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. Id.; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W .3d at 11; Clewis, 922 S.W.2d at 129. Our analysis must consider the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Here, appellant's most important claims appear to be a defense witness's alibi testimony, his own testimony, and Garcia's credibility. During trial, appellant called Clemente DeLeon as an alibi witness. DeLeon testified he was in the apartment when police arrested appellant. He stated police told him appellant had been in a car accident. He further testified he did not understand how, because appellant had been with him in the apartment watching television and, furthermore, appellant did not own a car, and did not know how to drive. DeLeon stated appellant was unemployed at the time of the incident. DeLeon said he was employed as a busboy from eight to five, but because the day was slow, he left early and was with appellant from noon until the time of the arrest. Appellant testified he has never driven a car, he either walks or rides a bicycle. He further said he sat at his apartment all day watching television. While the serious impeachment of a witness's credibility may bear upon the weight of his testimony when considering whether the verdict was against the great weight and preponderance of the evidence, we do not judge the credibility of a witness's testimony. The trier of fact is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Thus, "we cannot re-weigh the evidence and supplant the role of the jury to resolve conflicts in testimony and evaluate witness credibility" even when considering the issue of factual sufficiency. Whitmire v. State, 183 S.W.3d 522, 527 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Here, appellant contends Garcia's credibility was impeached by evidence that (1) she had little or no opportunity to view the perpetrator, (2) she identified the perpetrator's vehicle as a light blue or green color when it was, in fact, gray, (3) she was not wearing her glasses, and (4) the pretrial identification procedure was unduly suggestive. Garcia testified she thought the car involved in the accident was a light blue or light green four-door Ford, when in fact it was a light gray, four-door Nissan. Contradictions in a witness's testimony do not render the evidence insufficient, but affect its weight and credibility. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). Appellant argues Garcia had little time to see him, and was busy dialing 911 during the chase. Garcia admitted she wore glasses at one time, had received no corrective surgery, and did not have glasses on the day of the incident. Appellant also points to the fact that Garcia did not realize a child was in the car until after the car almost hit the dealership windows and her car again, as indicative of a questionable identification. However, the license plate number Garcia gave the 911 operator during the chase matched the car appellant exited. Garcia testified she was positive she had the correct car because the car was wrecked in front and "smoke was coming out." Moreover, Garcia consistently identified appellant as the driver. Appellant also contends Fontenot did not see his face, just his side and his back. However, Fontenot gave a complete description of appellant that enabled other police officers to arrest appellant without Fontenot being present. Additionally, the boy told Fontenot "Maximiliano" was driving the car, gave appellant's address to Fontenot, and said he knew appellant because he was a friend of the family. After his arrest, all three witnesses identified appellant as the driver of the car. Because Garcia testified she got a good look at appellant for approximately 15 seconds, she saw his face at a very short distance, she correctly recorded appellant's license plate, and she positively identified appellant a short time after the accident, we do not find her credibility to have been so heavily impeached to significantly lessen the weight of her identification. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). A decision is not manifestly unjust merely because the trier of fact resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Viewing the evidence in a neutral light, we find the verdict is not clearly wrong or manifestly unjust, nor is it against the great weight and preponderance of the evidence. Thus, having found the evidence legally and factually sufficient to uphold the verdict, we overrule appellant's first point of error. In his second point of error, appellant argues the evidence was legally insufficient to prove a child was in imminent danger of death or bodily injury. Imminent means "[n]ear at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." In re A.C., 48 S.W.3d 899, 904 (Tex.App.CFort Worth 2001, pet. denied) (quoting BLACK'S LAW DICTIONARY 750 (6th ed. 1990)). Thus, in gauging imminence, we must look to the proximity of the threatened harm to the condition. Cook v. State, 940 S.W.2d 344, 348 (Tex.App.CAmarillo 1997, pet. ref'd). As discussed above, with the child in the car, appellant ran two red lights, collided in two wrecks, fled the scene of an accident, and drove the car recklessly and fast enough to almost drive through a car dealership's windows and almost have a third wreck. Furthermore, after the second wreck, appellant fled the scene without taking the child to a designated emergency infant care provider, as charged in the indictment. See TEX. PENAL CODE ANN. § 22.041(h) (providing an exception to the application of Section 22.041(c) if the actor voluntarily delivers the child to a designated emergency infant care provider under Section 262.302 of the Texas Family Code). Viewing the evidence in a light most favorable to the verdict as above, we find the evidence to be legally sufficient to prove beyond a reasonable doubt the child was in imminent danger while riding in the car with appellant and, thus, we overrule appellant's second point of error. Having overruled appellant's two points of error, we affirm the judgment of the trial court.
Appellant challenges this pretrial identification as a subpart of his first point of error. However, trial counsel did not object to this procedure and, thus, it is not preserved for appeal. TEX. R. APP. P. 33.1(a). Moreover, "`sufficiency' relates to whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible." Hanks v. State, 137 S.W.3d 668, 671 (Tex.Crim.App. 2004) (quoting Caddell v. State, 123 S.W.3d 722, 726 (Tex.App.-Houston [14th Dist] 2003, pet. ref'd)).