Opinion issued April 24, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1079161.
Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
A jury found appellant, Everado Zuniga, guilty of aggravated robbery, and the trial court assessed punishment at 30 years in prison. In five issues, appellant contends that (1) the evidence is legally and factually insufficient to sustain the conviction, (2) there was a fatal variance between the trial testimony and the indictment, (3) trial counsel was ineffective for failing to investigate his sanity and competency, (4) there was improper jury argument, and (5) the trial court erred by denying his motion for new trial. We affirm.
BackgroundOn June 2, 2006, Guadalupe Garcia was standing by his truck, smoking a cigarette and listening to the truck radio outside a medical clinic where his infant daughter was being treated. Appellant approached Garcia, put a knife to his stomach, and asked for the keys to the truck. Garcia handed over the keys and his rings, watch, and wallet, and appellant drove away in the truck. Garcia described appellant's unique tattoos to the police — a star on his head and the number "45" and Jesus' face were tattooed on his arm. The next day, the police found the truck, which had been completely stripped. Appellant was developed as a suspect, and Garcia identified him in a photo spread.
Screwdriver vs. KnifeIn issue one, appellant argues that the evidence is legally and factually insufficient to establish that appellant used a knife in the commission of the offense. In a related issue, appellant contends that there is a "fatal variance between the trial testimony that appellant robbed [Garcia] by exhibiting a screwdriver, and the indictment which alleged a knife."
SufficiencyIn evaluating the legal sufficiency of the evidence, we view it in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). The same standard applies to both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We do not weigh any evidence or evaluate the credibility of any witnesses, as this was the function of the fact finder. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Instead, we must determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In making this determination, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). In conducting a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). Our factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We may not conclude that the evidence is factually insufficient simply because we disagree with the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). The fact finder alone determines the credibility of the witnesses and may choose to believe all, some, or none of their testimony. Cain v. State, 958 S.W.2d 404, 407 n. 5 (Tex.Crim.App. 1997). A person is guilty of aggravated robbery if he uses or exhibits a deadly weapon in the course of committing robbery. TEX. PEN. CODE ANN. § 29.03(a) (2) (Vernon 2003). Appellant contends that the evidence is legally and factually insufficient to support the finding that appellant used or exhibited a deadly weapon. When discussing the events surrounding the aggravated robbery, the State asked Garcia the following questions:
A.The one that robbed me.
Q.What happened next?
A.He put that thing to my stomach.
Q.Before he put the thing to your stomach did anything happen?
Q.So did he say anything before he put the knife to your stomach?
Q.What did he say, if anything, when he put the knife to your stomach?
Appellant:Objection, your Honor. Assumes facts not in evidence.
Q.When he pulled his knife did he say anything?
A.Yes. To give him the keys.
Q.What did you say?
A. No. Well then I gave them to him and everything else.
Q.What did the knife look like?
A.Like a screw driver.
. . .
Q. Where was the knife?
A. In his pocket.
. . .
Q. And where did he put the knife to you?
A. My stomach.
. . .
Q.And the person you gave all that stuff to when you — was the knife out the whole time while you were giving it to him?
. . .
Q.And I'm not sure if I asked you this or not Mr. Garcia when he put the knife to your stomach were you scared?
A. Yes.Appellant argues that, because the State's weapons expert did not testify that a screwdriver could be a deadly weapon, the State has failed to prove an essential element of its case. We disagree. Garcia testified that the knife looked like a screwdriver. He did not testify that appellant was wielding a screwdriver. Furthermore, Garcia was asked if appellant said anything when he put the knife to Garcia's stomach or when he pulled the knife. Garcia answered both questions and many more without qualifying that appellant had a screwdriver and not a knife. We hold that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the evidence. Accordingly, we overrule issue one.
VarianceIn issue two, appellant contends that there is a "fatal variance between the trial testimony that appellant robbed [Garcia] by exhibiting a screwdriver, and the indictment which alleged a knife." As a general rule, a variance between the indictment and evidence at trial is fatal to a conviction. Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995); Reyes v. State, 3 S.W.3d 623, 625 (Tex.App.-Houston [1st Dist.] 1999, no pet.). This rule, however, applies only to a material variance, or one that misleads the defendant to his prejudice. Id. Having held that the evidence was legally and factually sufficient to support the conviction, we overrule issue two.
Prosecutorial MisconductIn issue four, appellant asserts that the prosecutor erred when she injected her personal opinion of the witness's credibility and injected facts outside the evidence. Appellant complains of two instances where the State engaged in prosecutorial misconduct. The first instance occurred during voir dire when the State attempted to explain why the first officer on the scene would not be testifying. The State commented as follows:
The evidence will show you that you will not hear from that police officer though. He has pancreatic cancer and is literally on his death bed, cannot come to court but the complainant, Mr. Guadalupe Garcia, will testify that's what he told that officer.Appellant did not object. The second instance occurred during closing argument when the State commented as follows:
So, . . . this victim, who, my opinion doesn't look like he would be in here lying . . to me. . . . [L]ook at the credibility of Mr. Garcia up there on the stand. I know I could tell and I hope you could through his demeanor that he was scared of [appellant].Appellant did not object to either of these closing argument statements. "To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury argument." Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007). The essential requirement is a timely, specific request that the trial court refuses. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). When a defendant receives the relief requested but has not requested a mistrial, the error, if any, is waived. Gleffe v. State, 509 S.W.2d 323, 325 (Tex.Crim.App. 1974). Even if the error was such that it could not be cured by an instruction, the defendant must object and request a mistrial to preserve the error. Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002). The same preservation rule applies to comments made during voir dire. See Fuentes v. State, 991 S.W.2d 267, 276 (Tex.Crim.App. 1999); Blackwell v. State, 193 S.W.3d 1, 20 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Here, the record shows that appellant did not object, and thus did not obtain an adverse ruling from the trial court on this issue. Because appellant did not obtain an adverse ruling from the trial court, he has failed to preserve error, if any, on this issue. We overrule issue four.