No. 05-04-00618-CR
Opinion issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-52782-ST. Affirmed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
Opinion By Justice BRIDGES.
A jury convicted Rafael Cisneros of aggravated robbery, found one enhancement paragraph true, and assessed punishment at seventy-five years' confinement. The jury also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during commission of the offense. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Around midnight on June 21, 2003, Jaime Salazar was robbed at gunpoint. Salazar testified that he and his younger brother had been to a movie with Salazar's girlfriend and her younger brother. Salazar took his girlfriend and her brother home. After Salazar walked his girlfriend to her door, he returned to his car, held the door for his brother to get into the car, then walked around to the driver's side. A man with a gun jumped out from behind some bushes and pointed the gun at Salazar's head. Salazar identified appellant as the man who held a gun to his head. Salazar testified that appellant was wearing a red shirt and dark-colored pants, had a tattoo on his neck, and was holding a .380-caliber handgun. Appellant made Salazar walk to the back of the car, then demanded that Salazar give him all his property. Appellant threatened to shoot Salazar if Salazar did not comply. Appellant forced Salazar to lie face-down on the ground, took Salazar's wallet, and then hit Salazar in the head with the gun. Salazar testified he was able to see appellant for about ten seconds because Salazar kept looking up from the ground. After appellant fled the scene, Salazar called the police. Salazar testified that his wallet was returned to him by the police about four hours later. Salazar went to the police station and viewed a photographic lineup. Salazar identified a photograph of appellant as the man who had robbed him. Dallas police officers Nathan Chapman and Ruben Felan testified that as they patrolled an apartment complex, they saw a car with its driver's side door open near a dumpster. Appellant was walking away from the car and towards four women who had just gotten out of a vehicle near the gate. Appellant was wearing a red shirt and black or bluejean shorts. When the women walked through the gate, appellant followed them. The officers drove near the gate and saw the women running and appellant "jogging" behind them. Felan parked the patrol car. Chapman got out, went through the gate, and followed appellant. Chapman testified that when appellant looked over his shoulder and noticed Chapman following him, appellant threw a gun to the ground and walked away. Chapman grabbed appellant and arrested him, then Chapman retrieved a .380-caliber pistol from the ground near appellant. Chapman testified the gun had one round in the chamber and five rounds in the magazine. Chapman searched appellant and found a wallet with Salazar's identification inside, as well as other property that did not belong to appellant, in appellant's pockets. Felan testified he called dispatch and learned that Salazar had reported being robbed a few hours earlier. Detective Rudy Contreras testified that he photographs most of the people who come into the police station, whether they are a victim or an accused. When appellant was brought into the police station, Contreras took appellant's photograph and included it in a photographic lineup shown to Salazar by him. Salazar identified appellant's photograph as showing the person who had robbed him. Contreras testified that appellant was the only person in the lineup that had a tattoo across his neck and a scar on his chin. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment 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 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened or placed Jaime Salazar in fear of imminent bodily injury or death while in the course of committing theft, and appellant used or exhibited a deadly weapon, a firearm, during commission of the offense. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). A firearm is a "deadly weapon." See id. § 1.07(a)(17). Discussion
Appellant argues the evidence is legally and factually insufficient because Salazar's identification of the robber was unreliable. Appellant argues that Salazar only saw the robber for ten seconds, it was dark at the time of the robbery, and Salazar was in shock. Appellant contends that Salazar did not identify a scar on appellant's face or appellant's distinctive haircut, and that appellant's picture in the photographic lineup was the only one that showed a person with a tattoo. The State responds the evidence is legally and factually sufficient because the complainant positively identified appellant as the person who robbed him at gunpoint. We agree with the State. Salazar positively identified appellant from a photographic lineup and at trial as the man who robbed him at gunpoint. Salazar testified appellant was wearing a red shirt and dark-colored pants at the time of the robbery. Chapman testified appellant was wearing a red shirt and black or bluejean shorts at the time he was arrested, a few hours after the robbery. And, appellant had Salazar's wallet on his person at the time he was arrested. Appellant essentially asks this Court to find that Salazar's testimony was not credible. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We resolve appellant's issues against him. We affirm the trial court's judgment.