Summary
noting offense was a second degree felony where jury found appellant released victim in safe place and concluding appellant's punishment was correctly enhanced to that for a first-degree felony under Penal Code § 12.42(b) based on the jury's finding that appellant had previously been convicted of a felony
Summary of this case from Bowen v. StateOpinion
Nos. 04-03-00742-CR, 04-03-00743-CR, 04-03-00744-CR
Delivered and Filed: April 13, 2005. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2002-CR-7138A, 2002-CR-7139A, 2003-CR-0097, Honorable Raymond Angelini, Judge Presiding.
Motion to Withdraw Granted; Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury found Robert Perez guilty of aggravated kidnapping with a deadly weapon, aggravated robbery with a deadly weapon, and burglary of a habitation, and that the enhancement allegations as to each charge were true. The trial court sentenced Perez in accordance with the jury's findings to prison terms of thirty-nine, thirty, and twenty years, respectively. Perez appealed. Perez's court-appointed appellate attorney filed a motion to withdraw and a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After being provided a copy of the brief and motion to withdraw and informed of his right to review the record, Perez has filed a pro se brief. 1. Perez first argues the trial court erred by failing to submit a charge on the lesser-included offense of kidnapping. We disagree. A defendant is entitled to a jury charge on a lesser-included offense only if "(1) the lesser-included offense [is] included within the proof necessary to establish the offense charged, and (2) some evidence . . . exist[s] in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense." Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). Perez was charged with aggravated kidnapping under section 20.04(b) of the Texas Penal Code, which provides:
A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.Tex. Pen. Code Ann. § 20.04(b) (Vernon 2003). Perez was entitled to a charge on the lesser-included offense of kidnapping only if there is some evidence that would permit a rational juror to find that Perez did not use or exhibit a deadly weapon during the commission of the offense. See and compare Tex. Pen. Code Ann. § 20.03 (kidnapping). The evidence is undisputed that Perez or his codefendant exhibited a shotgun during the entire episode. Perez was therefore not entitled to a charge on kidnapping. 2. Perez next argues the trial court erred in sentencing him for a first degree felony on the aggravated kidnapping charge because the victim was released in a safe place. We again disagree. Although the jury found Perez voluntarily released the victim in a safe place, thus making the aggravated kidnapping offense a second degree felony, see id. § 20.04(d), the jury also found that Perez previously had been convicted of a felony. Perez's punishment for the offense was therefore correctly enhanced to that for a first-degree felony. See id. § 12.42(b). 3. Perez next contends that the victim made two different police reports at two different times; that "[t]here was no mention of first [p]olice [r]eport during trial" and that the "[v]ictim may have been cohersed [sic] to change her story." The record reflects that soon after the kidnapping the victim gave an oral statement, which was incorporated in the investigating officer's report, and that she later signed a written statement. The defense attorneys effectively cross-examined the victim and the police officers about differences in the two documents. 4. Perez next complains that his attorney failed to make use of a statement made by Perez's codefendant, Victor Salazar, to police. However, Salazar did not testify, and Perez fails to explain how the statement could have been used at trial or how its use would probably have changed the result of the proceeding. See Strickland v. Washington, 466 U.S. 668 (1984); Holland v. State, 761 S.W.2d 307, 314 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1091 (1989). 5. In his next issue, Perez contends the testimony of the victim's boyfriend was not credible. However, "[t]he jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.), cert. denied, 528 U.S. 1026 (1999). 6. In connection with his aggravated robbery conviction, Perez contends that "[t]he motor vehicle was not taken by use of force or by use of a weapon," and the victim did not "feel that . . . her immediate safety and well-being [was] at jeopardy." We construe this issue as a challenge to the sufficiency of the evidence and overrule it. The victim testified without contradiction that she was seated in the driver's seat of her car when Victor Salazar first approached her; he pointed a shotgun at her and told her to "[m]ove over or I'll shoot you;" he immediately drove to the other side of the parking lot and picked up Perez; at all times until she was released, Perez or Salazar had control of and exhibited the shotgun; and she was afraid for her safety. 7. Finally, Perez challenges his conviction for burglary of a habitation on the grounds that "[he] was no where [sic] in the vicinity of the house of said crime," "[he] was charged with two other crimes that took place at the same time of this crime," and his "step-son [and codefendant] is a family friend" of the victim. We again construe this argument as a challenge to the sufficiency of the evidence and overrule it. The kidnapping victim testified that after Perez and Salazar kidnapped her and stole her car, they drove to a house and parked. Salazar left the car and Perez took the shotgun and moved to the driver's seat. Salazar returned after a few minutes with a television and put it in the back seat of the car, and Perez drove away from the house. The complaining witness on the burglary charge testified that he owns the house and the television, his television was stolen from the house, and neither Salazar nor Perez had permission to enter the house or take the television. This evidence was sufficient for the jury to find Perez guilty of burglary of a habitation as a party as it was charged. We have thoroughly reviewed the record, counsel's brief, and Perez's brief, and we agree with counsel that the appeal is frivolous and without merit. We therefore affirm the trial court's judgment and grant the motion to withdraw filed by Perez's counsel. See Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.)