Opinion issued February 8, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 240th District Court, Fort Bend County, Texas, Trial Court Cause No. 40,132.
Panel consists of Justices TAFT, ALCALA, and HANKS.
MEMORANDUM OPINION Appellant, Yesy Bladimir Juarez, pled guilty to the charge of aggravated robbery without a recommendation from the State. After a punishment hearing, the trial court sentenced appellant to 55 years in prison. In two points of error, appellant argues that the trial court erred in denying (1) his right to develop the issue of mental retardation and (2) his motion to quash/motion in arrest of judgment based on a systematic discrimination in the grand jury selection. We affirm.
BackgroundAround midnight on April 25, 2004, appellant, Robert Doya, and Doya's girlfriend drove to a convenience store to get some beer. Appellant testified that his two companions convinced him to rob the store, and Doya gave him a gun. Justin Lamb, the cashier from the convenience store, testified that he refused to sell the two men beer because they did not have proper identification. The men left and then returned. Appellant came around the counter, pointed the gun at Lamb, and demanded that he open the cash register. Appellant "pistol whipped" Lamb and kicked him until he opened the register. Doya told Lamb to give him the video surveillance tape. The men took the cash register and left. Lamb ran out the door after the two men left, and, as Lamb was attempting to flee, appellant shot him in the lower back. Appellant pled guilty to aggravated robbery.
Mental RetardationIn point of error one, appellant contends that the trial court erred in denying his "right to fully develop his good faith claim of mental retardation." Javier, appellant's 22-year-old brother, testified that doctors told his family early on that appellant was slow. Appellant was in special education classes since grade school. Javier explained that, about a year and one-half before the robbery, appellant started drinking too much and associating with the "wrong crowd." He testified that appellant was led easily by these friends, and they took advantage of him. Appellant's father, Ignacio, testified that appellant has always been slow and has always had trouble in school. The trial court noted after the punishment hearing that: Mr. Lamb had clearly separated himself from [appellant] and was out of harms [sic] way, [appellant] elected to shoot him, shoot him in the back, a cowardly act if there ever was one. The explanation is, I'm drinking and I'm on drugs and I'm not responsible and I'm not smart. All too often I hear that excuse and it is an excuse. It may be an explanation also, but it is an excuse. . . . . [Appellant] clearly knew the consequences for the use of illegal narcotics. The only telling argument that would reduce the maximum sentence in this case was the mental status of the defendant, but the testing by professionals shows that he does not fall into the mental retardation range. While he was not successful in school and was placed in special education, under the criteria set by the Supreme Court and the courts of this state, he is not mentally retarded. Appellant was allowed to introduce evidence regarding his alleged mental retardation. His family members testified, and two experts evaluated him. Both experts found him to be competent, one found that he was not mentally retarded, and one found that, "if he was mentally retarded he would be mildly retarded." We hold that the trial court did not prevent appellant from presenting evidence of mental retardation during the punishment hearing. Accordingly, we overrule point of error one.
Motion to Quash/Motion in Arrest of Judgment
Motion in arrest of judgment means a defendant's oral or written suggestion that, for reasons stated in the motion, the judgment rendered against the defendant was contrary to law. Tex. R. App. P. 22.1. An order denying a motion in arrest of judgment will be considered an order denying a motion for new trial. Tex. R. App. P. 22.5. Motion in arrest of judgment is essentially a post-trial motion to quash the indictment. Tex. R. App. P. 22.1; Crittendon v. State , 923 S.W.2d 632, 634 (Tex.App.-Houston [1st Dist.] 1995, no pet.).