Opinion
Nos. 05-04-01583-CR, 05-04-01663-CR
Opinion issued July 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd District Court, Dallas County, Texas, Trial Court Cause Nos. F04-50067-Hp; F04-50066-HP. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
Nicholas Joshua Lee appeals his aggravated robbery convictions. A jury convicted appellant and sentenced him to thirty years' confinement in each case. In two issues, appellant argues the evidence is factually insufficient to support his convictions, and the trial court erred in charging the jury on the law of parties when such a theory was not alleged in the indictments. We affirm the trial court's judgments. On March 15, 2004, Pedro Reyes and his wife, Lucia Martinez-Ocampo, heard a knock at their door around midnight. Lucia had a baby the week before, and Pedro thought someone was coming to check on her. Pedro opened the door to see who was outside, and appellant and a Spanish-speaking man with a gun forced their way into the apartment. The Spanish-speaking man started hitting Pedro in the head with the gun, and appellant put his knee in Pedro's back and hit him in the ribs. Appellant and the other man searched the apartment and "asked where the money was." Lucia was scared and crying and told the men the money was in the bedroom. The men found a strong box in the bedroom closet and forced Pedro to open it. The Spanish-speaking man found Pedro's gun in the strong box, took it out, and gave his gun to appellant. The Spanish-speaking man held his gun on Pedro and forced him to carry his television to a truck while appellant remained behind with a gun on Lucia. Pedro was thinking that appellant would shoot Lucia and the baby, but there was nothing he could do. When Pedro returned, the men put him back in the bedroom where appellant stood at the door while he pointed a gun at them. Appellant and the other man then took money, a tool box, and jewelry from the apartment. The Spanish-speaking man told Pedro and Lucia that, if they called the police, he would come back and kill them. After the men left, Pedro called the police and gave a description of the pickup truck the men were driving. Two hours later, the police took appellant and the other man into custody and brought Pedro to the scene to identify them. Pedro identified appellant as one of the men who had robbed him and held a gun on him. Appellant was subsequently convicted of aggravated robbery of Pedro and Lucia, and these appeals followed. In his first issue, appellant argues the evidence is factually insufficient to support his aggravated robbery convictions. Specifically, appellant challenges the sufficiency of the evidence to show he threatened Pedro and Lucia or placed them in fear of imminent bodily injury or death because appellant does not speak Spanish and Pedro and Lucia do not speak English. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A). The record here shows appellant held a gun on Pedro and Lucia while he and another man took money, a tool box, and jewelry from their apartment. Appellant clearly threatened Pedro and Lucia with a deadly weapon, and Pedro testified he was afraid the men would ultimately shoot them, and Lucia testified she was afraid and thought "the worst" once appellant and the other man each had a gun. Thus, whether or not Pedro and Lucia spoke English, they were clearly threatened with a gun by appellant during the course of the robbery, and they each feared for their lives. We conclude this evidence is factually sufficient to support appellant's aggravated robbery convictions. See Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003); Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in charging the jury on the law of parties when the indictments do not allege appellant acted as a party. The evidence showed that, before the Spanish-speaking man took Pedro's gun and gave appellant a gun, appellant participated in robbing Pedro and Lucia while the Spanish-speaking man pointed a gun at them. If the evidence supports a charge based on criminal responsibility for the actions of another, the court may submit such a charge even though there is no such allegation in the indictment. Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App. 1978); Hanson v. State, 55 S.W.3d 681, 692 (Tex.App.-Austin 2001, pet. ref'd). Appellant concedes that Texas law permits such an instruction but asks this Court to reexamine the issue and conclude such an instruction is error. We decline to do so. Accordingly, we conclude the trial court did not err in instructing the jury on the law of parties even though the indictments did not allege appellant acted as a party. See Pitts, 569 S.W.2d at 900; Hanson, 55 S.W.3d at 692. We overrule appellant's second issue. We affirm the trial court's judgments.