No. 14-07-00243-CR
Opinion filed November 4, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 1106351.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE, Justice.
A jury found appellant, Shefren Dewayne Dixon, guilty of aggravated robbery. After finding two enhancement paragraphs were true, the jury assessed punishment of fifty years' confinement. In two issues, appellant contends the evidence is legally and factually insufficient to support the jury's finding that the robbery was "aggravated." Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. BACKGROUND
The complainant, Christopher Moskal, testified that he and some friends went to a bar on September 30, 2006. Appellant, whom Moskal had never met, socialized with the group. At one point, while Moskal briefly left the table, appellant took Moskal's cellular phone, which he had placed on the table. When Moskal confronted appellant, he first denied taking the phone. However, appellant then claimed the phone was with another patron, who had left the bar, and appellant would help retrieve it. Appellant and Moskal followed this patron to another bar, less than a block away. Moskal allowed appellant to drive Moskal's car because they had earlier discussed the possibility of appellant's purchasing the vehicle. While at the second bar, appellant retrieved the phone. Appellant then insisted on again driving Moskal's car. The car was backed into a parking space. Appellant entered the driver's side. As Moskal walked to the passenger's side, appellant said that Moskal did not need to get in the car. Moskal heard appellant place the car "in gear," so Moskal walked back to the driver's side. Moskal tried to persuade appellant to exit the car. At this point, the driver's door was open. Moskal reached into the driver's side, attempting to grab the keys, because he thought appellant was stealing the vehicle. Appellant then accelerated. Moskal was struck by a portion of the vehicle behind the driver's door area and knocked to the ground. During the incident, Moskal sustained a laceration, about three-centimeters long, on the left side of his abdomen. Approximately thirty minutes later, the police found appellant in possession of Moskal's vehicle a few blocks from the scene of the incident. II. STANDARD OF REVIEW
In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury is sole judge of the credibility of witnesses and is free to believe or disbelieve all or part of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). We ensure only that the jury reached a rational decision and do not reevaluate the weight and credibility of the evidence. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict seems clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Although we are permitted to substitute our judgment for the jury's when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury's determinations. See Marshall, 210 S.W.3d at 625. III. ANALYSIS
A person commits robbery "if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . 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). In his brief, appellant specifically states he does not challenge sufficiency of the evidence to establish that he committed robbery. Instead, appellant contends the evidence is legally and factually insufficient to prove he committed aggravated robbery. A person commits aggravated robbery "if he commits robbery as defined in Section 29.02, and he . . . uses or exhibits a deadly weapon." Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). The jury was instructed to determine whether appellant committed aggravated robbery by one of two alternative methods, which differed relative to the deadly weapon allegedly used or exhibited: a knife or an unknown sharp object. Because the jury returned a general verdict finding appellant guilty, we may uphold the verdict if the evidence is sufficient to support a finding that appellant committed aggravated robbery by either alternative method. See Brooks v. State, 990 S.W.2d 278, 283 (Tex.Crim.App. 1999); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Appellant contends the evidence is insufficient to support the finding that he used or exhibited a deadly weapon during the robbery. In particular, appellant claims the evidence is insufficient to establish that he inflicted Moskal's laceration using a knife or unknown sharp object. However, the State presented circumstantial evidence that appellant used a deadly weapon during the robbery by inflicting Moskal's laceration with a box cutter. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999) (recognizing circumstantial evidence may be sufficient to support a conviction). Moskal described the laceration as a "slice," as opposed to a "stab" — "not so long, but very sharp." As appellant asserts, Moskal did not observe appellant inflict the laceration, specifically remember getting "cut," or see the object that caused this wound. Further, the State did not present testimony from any witness who saw appellant inflict the laceration. Instead, Moskal testified that, when he rose from the ground after the incident, he saw blood and realized he had been wounded. However, Moskal testified he had not sustained the laceration before he reached into his vehicle, trying to prevent appellant from stealing it. Moreover, Houston Police Officer Thomas Teel testified that, approximately thirty minutes after the incident, the police found Moskal's vehicle a few blocks from the scene. Appellant was inside the vehicle and appeared to be "stripping" the interior. Officer Teel observed a box cutter on the ground next to the vehicle and a knife in the pocket of some clothing on the roof of the vehicle. The box cutter and knife were admitted into evidence at trial. Moskal testified he had a knife in his car at the time of the incident but had never seen the box cutter. Further, Dr. Blaine Bachim treated Moskal after the incident. Dr. Bachim testified that a wound from the box cutter admitted at trial would be consistent with Moskal's laceration because the wound was shallow, penetrating only superficial muscle layers but not violating the peritoneum. Dr. Bachim also testified the box cutter was a deadly weapon. Dr. Bachim opined that the knife admitted at trial would not have caused the type of injury sustained by Moskal. In sum, the State presented the following evidence: appellant forcibly took possession of Moskal's vehicle; during the incident, Moskal sustained a laceration that was consistent with a wound inflicted by a box cutter; about thirty minutes later, a box cutter was found next to Moskal's vehicle; and Moskal had never previously seen this box cutter. Therefore, the jury could have reasonably concluded that appellant inflicted Moskal's laceration with a box cutter. The jury could also have rationally inferred that Moskal did not see or feel appellant inflict the laceration because the incident occurred quickly while Moskal struggled to prevent appellant from stealing his car. Nonetheless, appellant cites evidence allegedly undermining the jury's verdict. Appellant suggests the following evidence showed that some object on the ground could have inflicted the laceration when Moskal fell: on cross-examination, Moskal agreed there was a "good possibility" he was cut by a sharp object on the ground such as a piece of glass; on cross-examination, Dr. Bachim could not definitely state the laceration was caused by a box cutter and agreed it was possible Moskal was cut by a sharp object while being dragged on the ground; Moskal sustained abrasions to his shoulder and abdominal region when he fell to the ground; and photographs admitted at trial show that one abrasion covered, and extended in the same direction as, the laceration. However, on re-direct examination, Moskal clarified that he "highly doubt[ed]" he was cut by broken glass on the ground because there was no glass. Rather, Moskal believed that appellant "cut" him as appellant accelerated to drive away in the vehicle. In addition, Moskal testified that, immediately after the incident, he entered the bar saying "I got car jacked" and "I got stabbed." Officer Teel testified that, when he arrived at the scene "minutes" after the incident, Moskal stated that a man had "stabbed" him and stolen his car. According to records admitted at trial and Dr. Bachim's testimony, Moskal complained to fire department personnel and the doctor that he had been "stabbed." The jury could have reasonably relied on Moskal's perception of the manner in which he sustained the laceration when implicitly determining it was inflicted by a box cutter — not an object on the ground. Further, the jury could have rationally concluded that it was coincidental one abrasion and the laceration were in the same location and extended in the same direction. We find no reason to intrude on the jury's decision regarding the weight to assign the evidence concerning the location and direction of these wounds. Appellant also asserts that Moskal provided conflicting testimony regarding the direction he faced as he reached into the vehicle attempting to retrieve his keys. When questioned by the State, Moskal testified he faced the back of the car; thus, the left side of his body was exposed toward appellant. On cross-examination, Moskal testified that his right side was exposed toward appellant as Moskal reached into the vehicle. According to appellant, this conflicting testimony forced the jury to "theorize" or "guess" regarding the manner in which Moskal received the laceration. However, on re-direct examination, Moskal clarified that he could not exactly remember which portion of his body was turned toward appellant when Moskal reached into the vehicle. Moskal explained it was possible his body turned back and forth as he tried to prevent appellant from stealing his vehicle. Regardless, Moskal testified he was "close" to appellant during this time and appellant had a "very good opportunity" to cut Moskal on his side. Again, we find no reason to intrude on the jury's resolution of any conflicts in Moskal's testimony when it implicitly decided that appellant inflicted the wound. Finally, appellant refers to the following: his pen packets reflect he is a large man and has previously served prison sentences; and he had the strength to work at one time in a brake-repair shop and to "strip" Moskal's car after the incident at issue. According to appellant, someone of his size, strength, and prison experience would not have merely nicked another person when stabbing him. However, appellant's pen packets were not admitted during the guilt-innocence phase of the trial. Further, appellant does not cite any evidence admitted during the guilt-innocence phase regarding his work history. Nevertheless, to the extent the jury observed appellant's size during trial or considered that he had the strength to "strip" a vehicle, the jury was free to determine the weight to assign these factors when deciding whether appellant inflicted Moskal's wound. In sum, after reviewing all evidence in the light most favorable to the finding, we conclude a rational jury could have found the essential elements of aggravated robbery beyond a reasonable doubt. Moreover, after viewing all evidence in a neutral light, the evidence is not so weak that the finding seems clearly wrong or manifestly unjust, and the finding is not against the great weight and preponderance of the evidence. Accordingly, we overrule appellant's two issues. We affirm the judgment of the trial court.