No. 05-03-00713-CR
Opinion Issued July 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74505-HT. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MOSELEY, Justice.
The trial court convicted Fredreco Cobos Sanchez of aggravated robbery with a deadly weapon. The trial court assessed punishment at twenty years' confinement. Sanchez appeals and brings three points of error contending that the evidence is legally and factually insufficient to support the judgment, and that the trial court improperly sentenced him based on a first degree felony rather than a second degree felony. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment.
Legal and Factual Sufficiency
In his first and second points of error, Sanchez contends the evidence is legally and factually insufficient to support the aggravated robbery conviction. 1. Standards of Review
When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether record evidence could reasonably support a finding of guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). The fact finder is in the best position to determine the credibility of witnesses and the weight to give their testimony. We may not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witnesses' testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Furthermore, although there may be some conflicting testimony, reconciling those conflicts is within the exclusive province of the fact finder. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). In determining the factual sufficiency of the evidence, we must determine whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilty beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 11, 2004 WL 840227, at *7 (Tex.Crim.App. April 21, 2004). There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand Id. 2. Applicable Law
A person commits the offense of robbery if, in the course of committing theft, and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03(a)(2). In order to prove the offense of robbery, the accused must have made actual or threatened overtures of violence, placing the victim in fear. Green v. State, 567 S.W.2d 211, 213 (Tex.Crim.App. [Panel Op.] 1971). The fear must be such that a reasonable person would likely part with property against his or her will. Devine v. Smith, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989). 3. Application of Law and Facts
The record indicates Robert Powers was using a duffel bag to transport deposits from a Blockbuster store to a corresponding bank. His car was struck by a Suburban, causing him to stop. The passenger in the Suburban then pointed a gun in his face and demanded the duffel bag. Powers refused to turn over the duffel bag, and when a Dallas Police Officer drove up to the scene, the Suburban departed. Powers gave the police officer a description of the car and the man. Police later arrested Sanchez. Sanchez argues that the State failed to prove that Powers was in "fear of imminent bodily injury or death," and that there was United States currency in the duffel bag. There is evidence in the record that Sanchez demanded Powers's duffel bag while pointing a gun in his face. Powers testified he was afraid. The State asked Powers if there was anything beside money in the duffel bag and he responded that there were checks. The State contends from this evidence the trial court could have inferred that the intent was to steal money, that the money in the duffel bag qualified as United States currency, and that Powers was afraid. See Ellis v. State, 99 S.W.3d 783, 790 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (affirming sufficiency of evidence in aggravated robbery case where victim testified that the defendant pointed a gun at her, demanded her jewelry, and that she was afraid). After considering the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Sanchez committed aggravated robbery. See Jackson, 443 U.S. at 319. Sanchez's factual sufficiency claims are not adequately briefed, but even so, reviewing all the evidence in a neutral light, we conclude the fact finder was rationally justified in finding Sanchez guilty beyond a reasonable doubt. Zuniga, slip op. at 11, 2004 WL 840227, at *7. We cannot say that the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. We need not further detail the relevant evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Accordingly, we conclude the evidence is legally and factually sufficient. We overrule Sanchez's first two points of error. Proper Sentencing
A person commits the crime of attempted robbery if he or she does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Pen. Code Ann. § 15.01. In his third point of error, Sanchez contends the trial court failed to consider the attempt element of the alleged crime. He claims the evidence showed the theft was not completed, and thus proved at most only attempted robbery. As a result, Sanchez argues the trial court improperly sentenced him based on a first degree felony-aggravated robbery-rather than a second degree felony-attempted aggravated robbery. Sanchez also argues under the law of parties that he should not have been prosecuted as a primary actor. Sanchez failed to adequately brief this issue. However, even if Sanchez had not waived any error, his point is without merit. The record indicates Sanchez did more than prepare to rob Powers. He pointed a gun at Powers and demanded the duffel bag. A completed theft is not required to establish a robbery. See Tex. Pen. Code Ann. § 29.01(1) (conduct occurring during attempt to commit theft satisfies "in the course of committing theft" element of robbery); Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996), citing Demouchette v. State, 731 S.W.2d 75, 78 (Tex.Crim.App. 1986). Also, it is unclear how the law of parties applies to this case because the trial court found Sanchez guilty as a principal. Thus, the trial court did not err in sentencing Sanchez on a first degree felony. We overrule Sanchez's third point. Having overruled each of Sanchez's three points of error, we affirm the trial court's judgment.