Opinion
No. 08-04-00132-CR
December 1, 2005. DO NOT PUBLISH.
Appeal from the 243rd District Court of El Paso County, Texas, (Tc# 20030D06197).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
Humberto Chavira appeals his conviction for robbery. A jury found him guilty as charged in the indictment. The trial court assessed punishment at 10 years' imprisonment, probated to 10 years' of community supervision, and imposed a fine of $500. In his sole issue, Appellant challenges the factual sufficiency of the evidence to support his conviction. We affirm. On October 10, 2003, around 1 p.m., Melissa Esparza walked to American Cash Express near Alameda and Croom to cash her paycheck and then went grocery shopping nearby at the Family Dollar in the Hidden Valley Shopping Center. She purchased a bottle of water from another store and then began walking home. Ms. Esparza had the cash in her black purse and was carrying three or four shopping bags. As she was walking, she felt someone pulling her purse and when she turned around she saw a man wearing a cap tugging on her purse. He was straddling a black lowrider bicycle. The man rode past her, but stopped when she held onto her purse. Then he dropped the bicycle and grabbed Ms. Esparza's by the hair. Then he grabbed Ms. Esparza and threw her to the ground. The attacker hit her head against the ground three times. Ms. Esparza gave up and let go of her purse. Ms. Esparza noticed tattoos on the man's arms and saw his face. Ms. Esparza was still laying on the ground when the man ran away with her purse and carrying his bicycle. Ms. Esparza positively identified Appellant in the courtroom as the man who had attacked her and had taken her purse. The same day, Jesse Macias was working at Auto Planet on Alameda. About 1:30 p.m., he saw a man running from the back of the business' lot toward the exit. The man was running alongside his bicycle and was carrying a small black purse. Mr. Macias described the individual as a dark-complected Hispanic male, five feet six inches tall, with tattoos on his forearms. The man was wearing a black baseball cap but Mr. Macias was not able to distinguish the man's face. Five minutes later, a police officer came by and Mr. Macias reported what he had just seen. After the attack, Ms. Esparza went to a nearby house and called the police. At 1:45 p.m., Officer Sergio Diaz was dispatched in reference to a robbery. Officer Diaz arrived within three minutes of the call and observed that Ms. Esparza was hysterical and crying. Officer Diaz obtained information and put out a spot broadcast to locate the suspect. About ten officers and a helicopter unit canvassed the area for about thirty minutes, but did not locate the suspect. Ms. Esparza gave a statement to Officer Ricardo Elias on October 16. In her statement, Ms. Esparza told the officer that her assailant was a dark-complected Hispanic male about five feet three inches to four inches in height. Based on witness interviews, Officer Elias put together a composite description of the suspect. Eight or nine days later, he was notified by another officer of two suspects arrested in another case and he constructed a six-person photo lineup. Officer Elias contacted Ms. Esparza and sent an officer to her house to show her the photo lineup on November 4. Ms. Esparza looked at the photo lineup and immediately identified the photo of Appellant as being her assailant. Richard Zamora testified on behalf of Appellant's defense. He has known Appellant since he was five years' old and considers him a good friend. On October 10, 2003, Mr. Zamora was living on Bowen Road in El Paso, Texas with his parents. That day, he slept in late and woke up at noon to get ready for work. His shift started at 3 p.m. and he left for work around 2:30 p.m. As he was leaving, Mr. Zamora saw Appellant working in the yard, which was a routine job that Appellant did for Mr. Zamora's parents. Mr. Zamora remembered the day because the following day was his twenty-first birthday and Appellant was doing yard work in preparation for a planned birthday party. According to Mr. Zamora, his house on Bowen is about three miles from the intersection of Alameda and Croom. Mr. Zamora stated that Appellant was not riding a bicycle back in October and has not ridden one for three years. He agreed that it was possible that someone riding a bicycle could reach his house within fifteen to thirty minutes from the Hidden Valley Shopping Center on Alameda. Officer Elias had earlier testified that Bowen is a quarter of a mile or half a mile away from the Hidden Valley Shopping Center on Alameda. According to Officer Elias, someone could easily walk the distance and if traveling by bicycle, it would take someone six or seven minutes to ride from the Family Dollar vicinity to Bowen Street. Sylvia Zamora, Richard Zamora's mother, testified that Appellant routinely cut the grass at her house on Bowen in 2003. She has known Appellant since he was three years' old. Appellant was scheduled to do yard work on October 10, 2003 because her son's birthday was the next day. Mrs. Zamora wanted Appellant to fix up the front, back, and side yard because some of her son's friends would be coming over to visit. Appellant arrived at her house around 11:30 a.m. She was at home the entire time Appellant worked in the yard. Appellant worked for about two to two and a half hours, which included the hour between 1 and 2 p.m. Mrs. Zamora used to work at the Family Dollar in the Hidden Valley Shopping Center. According to Mrs. Zamora, it takes thirty to forty-five minutes to drive to the Family Dollar from her house. Mrs. Zamora agreed that Appellant has a tattoo on his left forearm. She has never known Appellant to ride a bicycle. In his sole issue, Appellant contends that the evidence is factually insufficient to support his conviction. Specifically, Appellant complains that Ms. Esparza's confident eyewitness identification, a form of evidence which is generally unreliable, provided the only eyewitness testimony identifying Appellant as the perpetrator of the offense. Appellant also asserts that Ms. Esparza's confident identification was significantly undermined by the inconsistencies within her testimony and due to the stressful nature of her brief encounter with the attacker.