Opinion
No. 01-05-00293-CR
Opinion issued May 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 1000008.
Panel consists of Justices NUCHIA, KEYES, and HANKS.
MEMORANDUM OPINION
A jury convicted appellant, Ernest Rollins, of aggravated robbery of a person aged 65 years or older. See TEX. PEN. CODE ANN. § 29.03(a)(3)(A) (Vernon 2003). After appellant pleaded true to two enhancement paragraphs, the trial court assessed his punishment at 45 years' confinement. In two points of error, appellant contends that the evidence was legally and factually insufficient to sustain his conviction. We affirm.
BACKGROUND
On September 7, 2004, appellant robbed Gloria Valdez as Valdez attempted to exit her vehicle in the parking lot of Rosita's Restaurant. Valdez, who was 76 years old at the time of the robbery, testified that appellant pressed a gun to the right side of her body and demanded money. When she refused his demands, appellant variously "punched" and "pushed" the gun against Valdez's body with increasing force. Valdez testified that she was in pain as a result of appellant's actions, that she experienced bruising where appellant had pressed the gun against her, and that she remained in bed for three days after the incident. With appellant continuing to press the gun against her while demanding money, Valdez turned and reached for the appellant's throat in an effort to defend herself. Moments later, she observed a police car driving past and screamed that she was being robbed. The police car was driven by Harris County Sheriff's Deputy Vines, who was en route to an unrelated incident. Hearing Valdez's cry for help, Vines pulled into Rosita's parking lot, where he observed appellant pinning Valdez against her vehicle. Appellant then discarded what appeared to be a white towel and began to walk away from Valdez. Valdez yelled to Vines, who had exited his vehicle, that appellant had just robbed her. Vines then drew his weapon and ordered appellant to stop. Appellant initially obeyed Vines's commands, but when Vines ordered him to the ground, appellant ran off and eluded Vines by climbing over an iron gate. Vines called for backup and returned to the parking lot, where he recovered the white towel discarded by appellant. The towel contained a BB gun that resembled a .45 caliber handgun. Harris County Sheriff's Deputy Demilia responded to Vines's call for assistance. After a brief search, Demilia and Vines found appellant hiding in a freestanding structure located in the backyard of a home near Rosita's. The deputies arrested appellant and drove him back to Rosita's, where Valdez positively identified appellant as the man who had robbed her. Demilia testified that Valdez then recounted the details of the robbery to him, specifically noting that she experienced pain when appellant pressed the BB gun into her body.DISCUSSION
Legal Sufficiency In his first point of error, appellant contends that the evidence is legally insufficient to sustain his conviction for aggravated robbery. Specifically, appellant argues that the evidence failed to show that he intentionally and knowingly caused bodily injury to Valdez, as alleged in the indictment. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. A person commits robbery when, "in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." See TEX. PEN. CODE ANN. § 29.02. A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a). A conviction for aggravated robbery requires the State to prove that the defendant (1) committed a robbery and (2) either caused serious bodily injury to another, used or exhibited a deadly weapon, or "cause[d] bodily injury to another person or threaten[ed] or place[d] another person in fear of imminent bodily injury or death, if the person is: . . . 65 years of age or older; or . . . a disabled person." See id. § 29.03. In the case at bar, the indictment alleged aggravated robbery. The jury was authorized to convict if it found that appellant,While in the course of committing theft or property owned by Gloria Valdez and with intent to obtain and maintain control of the property, intentionally and knowingly cause[d] bodily injury to Gloria Valdez a person at least sixty-five years of age by sticking a BB gun into the ribs of Gloria Valdez.Appellant argues that the evidence is legally insufficient to show that he intentionally and knowingly caused bodily injury to Valdez. Appellant's contention rests on his assertion that Valdez did not suffer bodily injury during the robbery. The Texas Penal Code defines "bodily injury" to mean "physical pain, illness, or any impairment of physical condition." See TEX. PEN. CODE ANN. § 1.07(8). The Court of Criminal Appeals has interpreted this definition broadly, holding that it encompasses "even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim. App 1989). When considering whether there is sufficient evidence to establish that a victim suffered bodily injury, juries are free to apply common knowledge, observation, and experience gained in ordinary affairs of life, while giving effect to inferences that may reasonably be drawn from the evidence. See Wawrykow v. State, 866 S.W.2d 96, 99 (Tex.App.-Beaumont 1993, pet. ref'd). Significantly, the bodily injury element of a robbery or aggravated robbery charge is satisfied "so long as violence is clearly perpetrated against another for the purpose of . . . preventing or overcoming resistance to theft." See Lane, 763 S.W.2d at 787. Here, Valdez testified that in an effort to overcome her resistance to theft, appellant "punched" and "pressed" a BB gun into the side of her body. Valdez further testified that appellant's actions caused her physical pain and resulted in bruising. Appellant contends that the State's failure to offer any physical evidence to support Valdez's testimony regarding her injury prohibits the jury from concluding that a bodily injury occurred. Interpreting Valdez's testimony through the prism of their own experience, however, rational jurors could have inferred that appellant inflicted bodily injury on Valdez by jabbing a weapon into her body. Drawing such a conclusion seems particularly rational when one considers Valdez's advanced age; and Valdez's testimony suffices, even in the absence of corroborating physical evidence, to satisfy the bodily injury requirement necessary to convict appellant. See Allen v. State, 533 S.W.2d 352, 354 (Tex.Crim.App. 1976) (holding that police officer's testimony that he experienced pain from kick in nose was sufficient to establish bodily injury absent corroborating physical evidence); Arzaga v. State, 86 S.W.3d 767, 778 (Tex.App.-El Paso 2002, no pet.) (holding that lack of observable physical injury does not bar inference that physical contact caused pain); Bryant v. State, 47 S.W.3d 80, 82-83 (Tex.App.-Waco 2001, pet. ref'd) (holding that police officer's testimony that he experienced pain when his fingers were bent back was sufficient to establish bodily injury absent corroborating physical evidence). Finally, we note that the evidence was sufficient for a rational juror to conclude that appellant caused Valdez's injuries intentionally and knowingly. A person acts intentionally when it is his conscious objective or desire to cause a result. See TEX. PEN. CODE ANN. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Proof of a culpable state of mind is nearly always provided by circumstantial evidence and may be inferred from the acts, words, or conduct of the accused. See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982); Warren v. State, 797 S.W.2d 161, 164 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Based on Valdez's testimony regarding appellant's threatening words and actions, we conclude there is sufficient evidence for the jury infer that appellant was aware that his conduct was reasonably certain to cause the result that it did. Viewed in the light most favorable to the verdict, we conclude the evidence was sufficient to show that appellant intentionally and knowingly caused bodily injury to Valdez. We overrule appellant's first point of error. Factual Sufficiency In his second point of error, appellant argues that the evidence is factually insufficient to sustain his conviction for aggravated robbery. Again, appellant contends that the evidence failed to show that he intentionally and knowingly caused bodily injury to Valdez as alleged in the indictment. We begin a factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App. 2004)). Our evaluation may not intrude upon the fact finder's role as the sole judge of the weight and credibility to be accorded any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407-09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82. Here, appellant contends the evidence is not sufficient to prove beyond a reasonable doubt that Valdez suffered bodily injury. We disagree. As noted, Valdez testified that appellant caused her pain by pressing a BB gun against her body in the course of committing theft. Testimony by a complainant alone, when believed by a jury, is sufficient to establish that bodily injury occurred. See Lane, 763 S.W.2d at 787 (holding that testimony by a complainant that she suffered bodily injury was sufficient when defendant grabbed wallet out of complainant's hands). Given the verdict, we conclude that the jury believed Valdez's testimony. As jury members may use their own experiences to infer whether a witness experienced pain, and the jury is the sole judge of a witness's credibility, we conclude that Valdez's testimony was sufficient to prove beyond a reasonable doubt that appellant caused her bodily injury. We conclude that the evidence was factually sufficient to support the jury's conclusion that appellant inflicted bodily injury upon Valdez. We overrule appellant's second point of error.