Nos. 05-03-00458-CR, 05-03-00459-CR, 05-03-00460-CR.
Opinion issued February 4, 2004. DO NOT PUBLISH, Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause Nos. F02-01705-QI, F02-49133-HI, F02-49134-HI. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
JOSEPH B. MORRIS, Justice.
In a single trial, Victor Ernesto Caballero was convicted of two aggravated assault offenses and aggravated kidnapping. Appellant now contends in six issues that the evidence against him is legally and factually insufficient to support the guilty verdicts. We affirm the trial court's judgments.
Factual Background
Appellant's former wife Martha Caballero testified that appellant entered her home and put a gun to her head in front of her sister, her friend, and her boyfriend Juan Zamarippa, who were all sitting on the living room sofa. Caballero was afraid appellant was going to kill her. When Zamarippa tried to assist her, he and appellant began to struggle. They moved into Caballero's daughter's room, and appellant shot Zamarippa in the stomach and in the face while Caballero hid behind a door. Appellant then fled, and Zamarippa was taken in an ambulance to a hospital. Two days later, appellant called Caballero's cell phone while she was shopping at a Wal-Mart store with her sister, son, and daughter. He told her he knew she was there and was going to kill her. Concerned for her safety, Caballero called the police. Officers arrived at the store and told Caballero to go home, but she instead went back into the store, telling her sister to call the police again if she saw appellant get near her. In the store, appellant confronted Caballero. At that time, Caballero's sister and daughter ran to get the police. Meanwhile, appellant showed Caballero he had a gun in his jacket and forced her to buy bullets for him in the sporting goods section of the store because he did not have identification to buy the bullets himself. As appellant was guiding Caballero to an exit while holding his young son's hand, police officers confronted him. According to the arresting officer, appellant was "pulling on [Caballero's] arm and trying to walk backwards with her." He gave the officer a look "like oh, I'm caught," then he tried to run. Eventually, the officer arrested appellant. When the officer searched appellant's jacket pockets, he found a twenty-five caliber pistol with one round in it and a box of twenty-five caliber bullets with two bullets missing. Appellant testified in his defense. He claimed Zamarippa was a dangerous man who had threatened to kill him and had shot at him just three weeks before the shooting at Caballero's home. According to appellant, he shot Zamarippa in self-defense. Appellant explained that he had gone to Caballero's home merely to pick up some CDs he had left in his daughter's room. He claimed that when he went to his daughter's room to get the CDs, Zamarippa jumped out of the daughter's closet and started punching him. Appellant claimed he shot in a panic because he feared Zamarippa would kill him. Appellant also asserted that he never put a gun to Caballero's head. Afterward, according to appellant, he was lured to the Wal-Mart by Caballero, who called him on the phone to warn him that Zamarippa's relatives intended to kill him. Appellant carried a gun into the store because he was concerned that Zamarippa's relatives were going to hurt him. He claimed that both his son and daughter were glad to see him at the store. He also claimed that his wife voluntarily bought him bullets for his gun. According to appellant, he did not force Caballero to do anything in the Wal-Mart. He admitted he had previously pleaded no contest to assaulting Caballero in 1995. Caballero testified that Zamarippa did not have the reputation of being a violent man. Caballero's sister was in Mexico at the time of appellant's trial. Caballero was unsure where Zamarippa was, but the last time she had heard from him he was in jail in Tennessee. Discussion
Appellant's six issues on appeal all challenge the legal and factual sufficiency of the evidence. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the verdict or, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). In his first two issues, appellant complains the evidence against him is legally and factually insufficient to prove he abducted or restrained Caballero in the aggravated kidnapping case. He next complains in issues three through six that the evidence against him is legally and factually insufficient to prove he committed aggravated assault against Caballero or Zamarippa. All of appellant's complaints rely heavily on his version of the facts. Caballero testified that she did what appellant requested in Wal-Mart because she knew appellant had a gun and she feared he would shoot her. An officer saw appellant pulling on Caballero's arm. Moreover, Caballero testified that appellant put a gun to her head and shot Zamarippa. She testified that Zamarippa was not a violent man, and she asserted that Zamarippa had not jumped out of a closet and attacked appellant before appellant shot him. It is true that Caballero did not leave the Wal-Mart when she was instructed to do so by police, and that neither Zamarippa nor Caballero's sister testified at appellant's trial. Nevertheless, deferring to the fact finder's role as the judge of witness credibility, we conclude the evidence in these cases is legally and factually sufficient to support appellant's convictions for aggravated kidnapping and aggravated assault. We affirm the trial court's judgments.