Opinion
Nos. 05-02-00596-CR, 05-02-00597-CR.
Opinion Issued February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-57082-LJW F01-57083-LTW. AFFIRMED.
Before Justices WHITTINGTON, MOSELEY, and FRANCIS.
OPINION
Dameion Jackson appeals his convictions for aggravated robbery. After the jury found appellant was guilty and had used or exhibited a deadly weapon during the commission of each offense, the trial judge assessed punishment at twenty years' confinement and an $800 fine in each case. In three points of error, appellant claims the trial judge erred in denying his motion to sever and the evidence is factually insufficient to support his convictions. We affirm the trial court's judgments. Randy Reyes and Martin Munoz testified they were leaving a Dallas nightclub at 2:00 a.m. on September 22, 2001 when appellant and Kevin Johnson approached them and demanded money. When Reyes and Munoz said they had none, the other two men attacked and threatened them with a knife. An undercover officer across the street witnessed the events. Appellant and Johnson were arrested, charged with two counts of aggravated robbery, and tried together. In his first point, appellant claims the trial judge abused her discretion in denying his motion to sever his trial from that of his codefendant. Under this point, he claims he was entitled to severance under article 36.09 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981). Although appellant filed a motion to sever before trial, his motion requested severance of his two offenses under section 3.04 of the Texas Penal Code. See Tex. Pen. Code Ann. § 3.04 (Vernon Supp. 2003). Because appellant did not seek to sever his trial from that of his codefendant, he has waived this complaint. See Watson v. State, 900 S.W.2d 60, 63 (Tex.Crim. App. 1995) (by failing to file motion for severance with trial court, appellant waived error); Williams v. State, 974 S.W.2d 324, 332 (Tex.App.-San Antonio 1998, pet. ref'd) (party fails to preserve error if he fails to first allow trial judge opportunity to make ruling); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim App. 2001) (because appellant's trial objection did not comport with issue raised on appeal, he did not preserve error), cert. denied, 534 U.S. 1154 (2002). To the extent appellant argues the motion for severance was "re-urged" during trial, we disagree. During a hearing outside the presence of the jury, Johnson requested the trial judge sever his trial from that of appellant; appellant, however, did not join in the motion nor did he individually move for severance from Johnson. A defendant who does not voice his own personal objection and fails to adopt that of his codefendant may not rely on his codefendant's objection to preserve error. See Lerma v. State, 679 S.W.2d 488, 498 (Tex.Crim.App. 1982); Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.-Dallas 1992, writ ref'd). We overrule appellant's first point. In his second and third points of error, appellant contends the evidence is factually insufficient to support his convictions. After reviewing the record, we cannot agree. We review challenges to the factual sufficiency of the evidence under well established standards: we ask whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.) (appellate court does not decide existence or nonexistence of vital fact or the truth or falsity of proffered evidence, nor does it judge credibility of witnesses). A person commits the offense of aggravated robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he (i) knowingly or intentionally threatens or places another in fear of imminent bodily injury or death, and (ii) uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 1994). To convict a defendant as a party to an offense, the State must (i) prove that the defendant, acting with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid another person to commit the offense, and (ii) show that, at the time of the offense, the parties were acting together, each contributing to their common purpose. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1974); Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). The fact finder may examine events that occurred before, during, and after commission of the offense, rely on the actions of the defendant that show an understanding and common design to commit the offense, and infer the necessary intent from the acts, words, and conduct of the accused. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986); Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App. [Panel Op.] 1980). In this case, the evidence shows Reyes and Munoz visited Dallas on Friday, September 22, 2001. Around 2:00 a.m., they left the nightclub where they had spent time with friends. Appellant and Johnson approached them and asked for money. Reyes and Munoz said they did not have any, and the two men "disappeared." Reyes and Munoz continued walking toward Munoz's car. As they neared the car, appellant and Johnson pulled up in their car and parked behind Munoz's car, blocking any exit route. Appellant and Johnson again approached and demanded money. One of the two pushed Reyes to the ground and threatened him with a knife. The other jumped Munoz and took his wallet, containing $150. Reyes heard one of the men shout, "I got it. I got it. Let's go." Reyes testified he feared for his life. Munoz was afraid appellant would punch him or hurt him and testified that during the attack, he was in "fear of imminent bodily injury or death." As appellant and Johnson began to leave, a Ford Explorer pulled up. The occupant of the Ford Explorer was an undercover police officer who had witnessed the event. Officer Eichel testified he was part of an undercover deployment unit patrolling high crime areas. On the night in question, he was positioned across the street from the parking lot where Munoz's car was parked. He saw appellant and Johnson drive into the parking lot in a Honda Civic automobile. The two "rush[ed] up on the complainants" and chased them through the parking lot. He alerted Officer Hopkins, another undercover officer on patrol in the vicinity. When the officers arrived in the parking lot, they found appellant standing over Munoz with a knife. Appellant jumped in the passenger side of the car. Johnson got in the driver's side and began to drive in reverse until the car stopped against a wall. He then jumped out and ran. Appellant got out of the Honda, tossed a knife under the car, and surrendered. Johnson was caught a few blocks away from the parking lot. Munoz's wallet was in the car. From these facts, we conclude a rational jury could infer that appellant, acting alone or as a party, knowingly or intentionally threatened or placed another in fear of imminent bodily injury or death, and used or exhibited a deadly weapon in the course of committing theft and with the intent to obtain or maintain control of property. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott, 934 S.W.2d at 398-99. Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 11; Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's convictions. We overrule appellant's second and third points. We affirm the trial court's judgments.