No. 14-10-00368-CR
Opinion issued June 16, 2011. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1233834.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
CHARLES W. SEYMORE, Justice.
A jury convicted appellant, Heriberto Acosta, of aggravated robbery and assessed punishment at twenty-seven years' confinement. In his sole issue, appellant contends the evidence is factually insufficient to support the jury's verdict. We affirm.
I. BACKGROUND
On September 20, 2009, Robert Downs visited the home of his friend Pete Sanchez. Later that evening, Downs drove his truck to a store to purchase beer and returned to Sanchez's house. While driving, Downs noticed someone in a Jeep following him. When Downs arrived at Sanchez's house, the driver of the Jeep passed Downs's truck then returned and stopped in front of the house. There were three men inside the Jeep. According to Downs, the passenger sitting in the back seat of the Jeep, identified at trial as appellant, called to Downs by name. Downs testified that he approached the Jeep but did not recognize appellant or the other men. Sanchez also testified he did not recognize the men. Appellant exited the Jeep and began urinating on the street. The front passenger of the Jeep also exited the vehicle. Appellant and the front passenger drew guns which were black in color and ordered everyone to lie on the ground. Sanchez testified that appellant was holding a Glock 9 millimeter. The front passenger demanded the keys to Downs's truck. After Downs gave him the keys, the front passenger left in Downs's truck. According to Downs, appellant then left the scene in the Jeep. However, Sanchez testified appellant left in Downs's truck. It is undisputed that Downs and Sanchez both consumed two or three beers that evening. A few hours after the above described events, police officers located Downs's truck on a service road. After officers stopped the truck, several occupants, including appellant, fled. Shortly thereafter, officers discovered appellant hiding in a bush. The officers also found a book-bag containing a black Glock 9 millimeter handgun in the bush. II. SUFFICIENCY OF THE EVIDENCE
In his sole issue, appellant contends the evidence is factually insufficient to support his conviction. A. Applicable Law and Standard of Review
In a prosecution for aggravated robbery, the State must prove, beyond a reasonable doubt, that the defendant, in the course of committing theft and with the intent to obtain or maintain control of property, intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death and used or exhibited a deadly weapon. See Tex. Penal Code. Ann. §§ 29.02(a), 29.03(a)(2) (West 2011). While this appeal was pending, five judges on the Texas Court of Criminal Appeals held that only one standard should be employed to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J., concurring). Accordingly, we review appellant's challenge to factual sufficiency of the evidence under the legal-sufficiency standard. See Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (applying a single standard of review required by Brooks); see also Caddell v. State, 123 S.W.3d 722, 726-27 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (explaining that this court is bound to follow its own precedent). When reviewing sufficiency of evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899 (plurality op.). We may not sit as a thirteenth juror and substitute our judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 899, 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (expressing that jury may choose to believe or disbelieve any portion of the testimony). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). B. Analysis
Viewing all evidence in the light most favorable to the verdict, we conclude the evidence is factually sufficient to support appellant's conviction of aggravated assault. Downs and Sanchez testified that appellant and an accomplice exhibited handguns in the course of stealing Downs's truck. Sanchez testified that appellant left the scene in Downs's truck, and police later observed appellant exiting the truck. Moreover, when officers found appellant hiding in a bush, they also discovered a black handgun next to appellant. These facts establish the elements of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a)(2). Nevertheless, appellant contends the evidence is factually insufficient because Downs and Sanchez were not credible for the following reasons: (1) Downs and Sanchez consumed alcohol prior to the incident; (2) Downs and Sanchez were convicted felons; (3) Downs testified that appellant left the scene in the Jeep, but Sanchez testified appellant was driving Downs's truck; and (4) Downs and Sanchez were untruthful when they testified they were not previously acquainted with appellant because appellant referred to Downs by name. After reviewing all the evidence, we conclude that a rational jury could have found Downs and Sanchez were credible. First, the evidence supports a rational conclusion that alcohol consumption by Downs and Sanchez did not impair their ability to perceive and remember the incident: they each consumed only two or three beers before the robbery, and both testified they were cognizant of the events that evening. Second, it was within the jury's province to determine whether prior criminal conduct by Downs and Sanchez affected their credibility, and we must defer to this determination. Third, we must also defer to the jury's implicit conclusion that inconsistent testimony from Downs and Sanchez regarding the vehicle in which appellant fled did not render other portions of their testimony incredible. Fourth, appellant's apparent recognition of Downs when the robbery occurred did not necessarily indicate Downs was untruthful when he testified that he did not recognize appellant; appellant may have discovered Downs's name from a variety of sources (e.g., Downs testified appellant might have been a previous customer at Downs's tire shop). Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.