No. 14-07-01070-CR
Opinion Filed October 30, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 1095285.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
WILLIAM J. BOYCE, Justice.
Appellant, Jahlaisse Williams, challenges his conviction following a bench trial for aggravated robbery. The trial court assessed punishment at confinement for 10 years. Appellant contends the evidence was legally and factually insufficient to support the trial court's findings that appellant (1) used and exhibited a firearm during commission of the offense; and (2) attempted to obtain and maintain control of complainant's property. We affirm.
Background
At about 9:00 p.m. on December 3, 2006, complainant left his first-floor apartment to go visit his cousin in a second-floor apartment in an adjacent apartment building. To reach his cousin's apartment, complainant had to go up one flight of stairs to a small landing about six feet above the ground, then up a second flight of stairs to the landing and hallway in front of his cousin's front door. While walking, complainant noticed appellant following him along with two other men whom he had never seen before. As complainant arrived at the front door of his cousin's apartment, the three men approached him from behind. Complainant testified that appellant placed a gun against his back. Complainant opened the door to his cousin's apartment while reaching behind and feeling the gun with his free hand. Complainant testified that he and appellant then began struggling for control of the gun, which fired once into the apartment. Complainant testified that he took the gun away from appellant and ordered him to leave. When appellant did not leave, complainant fired a warning shot off to the side. Appellant continued coming toward complainant, who fired a third shot that hit appellant in the chest. Complainant testified that appellant fell to the ground after being shot, then attempted to flee. Complainant and his cousin kept appellant from fleeing and held him on the ground until police arrived. Houston Police Officer Allen Holub responded to the scene shortly thereafter. Upon arrival, Officer Holub saw appellant on the ground bleeding with people on top of him. Once paramedics removed appellant, Officer Holub found a revolver on the ground underneath appellant. Complainant identified the revolver as the gun appellant had pointed at him. Complainant knew very little English, but told Houston Police Officer Miraida Martinez that he recognized the word "money" being said by one of the men as they came up behind him on his way up the stairs. At trial, complainant testified that appellant tried to remove complainant's wallet from his back pocket while holding a gun on complainant, but was unable to take it because complainant's jeans were so tight. Complainant's cousin testified that he was in his bedroom when he heard a loud noise and then went into his living room, where he saw complainant and appellant struggling over a revolver. Houston Police Officer Richard Rodriguez testified that complainant told him during a telephone interview a few days after the incident that appellant attempted to reach into complainant's pocket. Neither Officer Holub's police report nor Officer Rodriguez's supplemental report mentioned appellant or any of his accomplices using the word "money" or reaching into complainant's pocket. Analysis
Appellant challenges both the legal and factual sufficiency of the evidence to support the trial court's finding that he used or exhibited a firearm during commission of the alleged offense. Appellant also challenges the legal and factual sufficiency of the evidence to support the trial court's finding that he attempted to obtain and maintain control of complainant's property. I. Legal and Factual Sufficiency of Evidence Supporting Finding That Appellant Used or Exhibited a Firearm During Commission of the Offense
In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not reevaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Reconciliation of conflicts in the evidence is within the fact finder's exclusive province. See Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). The appellate court's duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume _ even if not obvious from the record _ that the finder of fact resolved any such conflicts in favor of the State and must defer to that resolution. Jackson, 443 U.S. at 326. Testimony by a lay witness that a defendant used a firearm during the commission of an offense is sufficient to support a finding of use and exhibition of a deadly weapon. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985) (en banc); see also Porter v. State, 601 S.W.2d 721, 723 (Tex.Crim.App. 1980). Complainant testified that appellant and two accomplices approached him from behind, and that appellant placed a gun against his back. Complainant also testified that he felt the gun with his free hand and then struggled with appellant to gain possession of the gun. Complainant's cousin testified that he saw complainant and appellant struggling over a revolver. Officer Holub testified that he found a revolver on the ground underneath appellant once the paramedics removed appellant, and that complainant identified the revolver as the gun appellant had pointed at him. The revolver and four shell casings that Officer Holub found were offered by the State and admitted into evidence without objection. Based on this evidence, a rational fact finder could have found beyond a reasonable doubt that appellant used or exhibited a firearm during commission of the offense. See Carter v. State, 946 S.W.2d 507, 511 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd) (complainants' testimony that appellant used "a gun" similar to one shown to them at trial and threatened to shoot them was legally sufficient to support finding of use of a firearm). When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is "so weak" that the fact finder's verdict seems "clearly wrong and manifestly unjust," and (2) whether, considering conflicting evidence, the fact finder's verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). An appellate court should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). Due deference still must be given to the fact finder's determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004) (citing Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003)). In cases based upon circumstantial evidence, it is not required that all facts point to a defendant's guilt; it is sufficient if the combined and cumulative force of all of the incriminating circumstances warrants the conclusion of guilt. See Courson v. State, 160 S.W.3d 125, 128 (Tex.App.-Fort Worth 2005, no pet.) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993) (en banc)). Appellant highlights the following evidence in support of his contention that he did not use or exhibit a firearm during commission of the alleged offense: (1) the asserted inconsistency between complainant's testimony that he put the gun to the side when the police arrived and Officer Holub's testimony that he found the gun underneath appellant; and (2) the asserted inconsistency between complainant's testimony that the incident occurred at the top of the stairs in front of his cousin's apartment and Officer Holub's testimony that he found appellant and his cousin restraining complainant on a "platform" when he arrived. Appellant argues that the term "platform" referred to the landing at the top of the first flight of stairs leading toward the apartment, not the landing and hallway in front of the apartment at the top of the second flight of stairs. Officer Holub never specifies in his testimony to which "platform" he was referring: "It's a two-level staircase. So, you go up a flight of stairs and there's a platform that takes you up to the second. On that platform , I observed [appellant] laying on the ground and several people on top of him at that point." (emphasis added). In his brief, appellant does not explain how these asserted inconsistencies support a finding that he did not use or exhibit a firearm. At most, these asserted inconsistencies could call the credibility of the State's witnesses into question, but credibility determinations fall within the fact finder's exclusive province. See Martinez, 129 S.W.3d at 106. Furthermore, the record also contains ample evidence to support a finding that appellant used or exhibited a firearm during commission of the alleged offense: (1) complainant's testimony that appellant and two accomplices approached him from behind and that appellant placed a gun against his back; (2) complainant's testimony that he felt the gun with his free hand and struggled with appellant for control of the gun; (3) complainant's testimony that he eventually wrestled the gun away from appellant; (4) complainant's cousin's testimony corroborating that complainant and appellant struggled over control of the gun, and that complainant ultimately obtained the gun; and (5) Officer Holub's testimony that he found a revolver underneath appellant, and that complainant identified it as the one appellant had pointed at him. The evidence in this case is factually sufficient to justify the trial court's finding that appellant used or exhibited a firearm during commission of the offense. The trial court's finding is neither "clearly wrong and manifestly unjust" nor against the great weight and preponderance of the evidence. We overrule appellant's issue regarding legal and factual sufficiency of the evidence to support a finding that appellant used or exhibited a firearm during commission of the alleged offense. II. Legal and Factual Sufficiency of Evidence Supporting Finding That Appellant Attempted to Obtain and Maintain Control of Complainant's Property
The same standards for review of legal and factual sufficiency outlined above also apply to our analysis of the trial court's finding that appellant attempted to obtain and maintain control of complainant's property. A verbal demand is not required to support a finding of an intent to obtain and maintain control of another's property; this intent may be inferred from actions or conduct. Drew v. State, 743 S.W.2d 207, 216 (Tex.Crim.App. 1987) (en banc); Wiggins v. State, No. 14-99-00065-CR, 2000 WL 1125544, at *2 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (not designated for publication). Regarding legal sufficiency of the evidence, complainant testified that appellant and two accomplices approached him from behind and that appellant placed a gun against his back. Officer Martinez testified that complainant heard one of the men say the word "money" as they followed him up the stairs to his cousin's apartment. Complainant also testified that appellant reached into complainant's pocket but was unable to take his wallet because complainant's jeans were so tight. Officer Rodriguez testified that complainant told him during his follow-up investigation days after the incident that appellant attempted to reach into complainant's pocket. Based on this evidence, a rational fact finder could have found beyond a reasonable doubt that appellant attempted to obtain and maintain control of complainant's property. See Chastain v. State, 667 S.W.2d 791, 795 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd) (evidence that appellant pointed gun at complainant and demanded "the key" from complainant was legally sufficient to support finding of intent to obtain and maintain control of complainant's property). Regarding factual sufficiency of the evidence, appellant highlights the following evidence in support of his contention that he did not attempt to obtain and maintain control of complainant's property: (1) Officer Holub's police report and Officer Rodriguez's supplemental report both failed to mention complainant's claim that appellant attempted to reach into complainant's pocket; (2) Officer Martinez's testimony that complainant did not tell her that appellant had reached into his pocket; and (3) complainant's inability to understand what appellant and his accomplices may have been saying to complainant. Appellant also asserts in his brief that the investigation of this incident was flawed because no trace metal tests were performed on the gun; no fingerprints were taken; no bystanders at the scene were interviewed; no crime scene unit was called to the scene; and no testifying officer had entered complainant's cousin's apartment. Again, appellant provides no explanation as to how these alleged flaws support a finding that appellant did not attempt to obtain and maintain control of complainant's property in light of the evidence offered at trial. These alleged flaws at most could call the credibility of the State's witnesses into question, which falls within the exclusive province of the fact finder. See Martinez, 129 S.W.3d at 106. Furthermore, the record also contains ample evidence to support a finding that appellant attempted to obtain and maintain control of complainant's property: (1) complainant's testimony that appellant and two accomplices approached him from behind and that appellant placed a gun against his back; (2) Officer Martinez's testimony that complainant heard one of the men say "money" as the men approached complainant from behind on his way up the stairs; (3) complainant's testimony that appellant attempted to remove complainant's wallet from complainant's back pocket while continuing to hold the gun on complainant; and (4) Officer Rodriguez's testimony that complainant told him a few days after the incident that appellant tried to reach into complainant's pocket. The evidence in this case is factually sufficient to justify the trial court's finding that appellant attempted to obtain and maintain control of complainant's property. The trial court's finding on this issue is not "clearly wrong and manifestly unjust" and does not go against the great weight and preponderance of the evidence. We overrule appellant's issue regarding legal and factual sufficiency of the evidence to support a finding that appellant attempted to obtain and maintain control of complainant's property. Conclusion
The trial court's judgment is affirmed.