No. 01-05-00959-CR
Opinion issued October 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 1005426.
Panel consists of Justices NUCHIA, HIGLEY, and WILSON.
The Honorable Davie L. Wilson, retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
SAM NUCHIA, Justice.
Appellant, Carlos Roman, was charged by indictment with aggravated robbery. A jury found appellant guilty as charged and assessed punishment at confinement for 27 years. In three points of error, appellant complains that the trial court erred in denying his request for a charge on the lesser-included offense of robbery and challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.
BACKGROUND
Complainant, Raphael Marenco, testified to the following: On October 28, 2004, Marenco left his job at a Taco Cabana at about 11:00 p.m. and headed home. He was unfamiliar with the area because it was his first day working there, and he became lost. He pulled into a gas station and asked a young man, Juan Loera, for directions to highway FM 1960. Loera told Marenco that he knew how to get there and then asked Marenco to give him a ride. When Marenco agreed, Loera told his friend, appellant, to get into the truck. The two men directed Marenco to a poorly lit, uninhabited area. Realizing that this was not the right way, Marenco turned around and went back to the gas station. Appellant put five dollars' worth of gas into Marenco's truck, and the three continued on their way. This time, appellant and Loera told Marenco to drive into the parking lot of an apartment complex. After Marenco parked the truck, appellant got out of the vehicle, came around to the driver's side, and pulled a gun from his waistband. Marenco testified that the gun was not visible until appellant removed it from his waistband because it was hidden by appellant's jacket. Marenco described the gun as a bit smaller and lighter in color than a gun admitted into evidence for demonstrative purposes only, and he demonstrated how appellant pointed the gun at Marenco's chest. Appellant demanded that Marenco get out of the truck and give him his money, wallet, and watch. During this time, Loera remained inside the truck, searching through Marenco's things. They took Marenco's bags, bank correspondence, and papers. During this time, Marenco was in fear for his life and asked them not to kill him because he had a family. Appellant told Marenco to start walking. While Marenco was walking away, he heard the truck start, and saw the two men driving away in the truck. When they were gone, Marenco went to the street and saw a police officer near some other apartments. He told the officer what had happened, and she called for backup. The officers found appellant's truck and the two men and recovered Marenco's watch, wallet, money, and papers. However, they did not find a gun in the truck or in the possession of the men. DISCUSSION
Lesser-Included Offense In his first point of error, appellant contends that the trial court committed reversible error in denying his request for an instruction to the jury on the lesser-included offense of robbery. A defendant is entitled to a jury instruction on a lesser-included offense if (1) the lesser-included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury to find that, if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). A lesser-included offense may be raised if evidence either affirmatively refutes or negates an element establishing the greater offense or the evidence on the issue is subject to two different interpretations and one of the interpretations negates or rebuts an element of the greater offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996). Appellant argues that, because the police did not recover a gun, the evidence was subject to the interpretation that no firearm was used or exhibited during the alleged offense, and, therefore, he was entitled to an instruction on the lesser-included offense. There was no evidence that appellant did not use a gun in the commission of this robbery. "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense . . . before an instruction on a lesser included offense is warranted." Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). Appellant offered no evidence at the guilt-innocence phase of the trial. Thus, Marenco's testimony was uncontroverted, there was no evidence germane to the lesser offense, and appellant was not entitled to a jury instruction on a lesser-included offense. We overrule appellant's first point of error. Sufficiency of the Evidence
In his second and third points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction for aggravated robbery. Appellant argues that the State did not prove that a firearm was used or exhibited during the commission of the offense. In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the verdict to 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); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). When reviewing the factual sufficiency, the court must view all the evidence in a neutral light and may set aside the verdict 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 "beyond a reasonable doubt" standard of proof could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950, 125 S. Ct. 1697 (2005). We must consider the most important evidence relied on by appellant. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex App.-Houston [1st Dist.] 2003, pet. ref'd). The jury may believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Marenco's testimony that appellant pulled a gun from his waistband and pointed it at him during the robbery, and Marenco's description of the gun by comparing it to a firearm that was admitted for demonstrative purposes, was legally sufficient to support appellant's conviction for aggravated robbery. Appellant offered no controverting evidence to prove that he did not use or exhibit a firearm. Rather, he relies on the fact that no gun was recovered from appellant's truck. The State was not required to produce the firearm to prove that it was used during the robbery. Victor v. State, 874 S.W.2d 748, 751 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); see also Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982) (concluding that, although knife was not produced, testimony established that knife was deadly weapon); Rogers v. State, 795 S.W.2d 300, 303 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (holding that, although gun was not in evidence, testimony supported finding that appellant carried gun at time of robbery). Marenco's uncontroverted testimony regarding the use and exhibition of the gun was factually sufficient to support appellant's conviction for aggravated robbery. We overrule appellant's second and third points of error. CONCLUSION
We affirm the judgment.