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Davila v. State

Court of Appeals of Texas, Fifth District, Dallas
May 27, 2004
Nos. 05-03-00689-CR, 05-03-00690-CR (Tex. App. May. 27, 2004)

Opinion

Nos. 05-03-00689-CR, 05-03-00690-CR

Opinion Filed May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50421-WT, F02-50422-Wt Affirmed.

Before Chief Justice THOMAS and Justices, JAMES and BRIDGES


OPINION


Carlos Martin Davila, Jr. appeals his convictions for aggravated robbery. After the jury found appellant guilty, it assessed punishment at ten years' and eleven years' confinement. In seven issues, appellant generally complains the evidence is legally and factually insufficient to support his convictions and the trial court erred by admitting certain evidence. We overrule appellant's issues and affirm the trial court's judgments.

Background

Ignacio Ramirez testified that about 1:00 a.m. he was parked at a car wash using the telephone when he saw a black Harley-Davidson pick-up truck drive up and down the street. The pick-up truck stopped across the street from Ramirez. A few minutes later, a man wearing a bandana over his face and a Texas Ranger's jersey approached Ramirez, pointed a sawed-off shotgun at him, and told Ramirez to get the "F" out of his truck or "I'll kill you." As soon as Ramirez got out of his truck, the man told Ramirez, "Give me your chain, give me your money." Ramirez gave him a necklace with a large medallion. When the man noticed Ramirez's truck had a standard transmission, he told Ramirez to get back into the truck. Ramirez turned and ran across the street. As he did so, the robber reached into Ramirez's truck and took the Alpine stereo. In the meantime, the driver of the black pick-up truck moved his truck near Ramirez's truck. After the robber grabbed Ramirez's stereo, he got into the black pick-up truck and the two men drove away. Ramirez called the police and gave them a description of the truck and the two men. Samuel Garcia testified that about 1:30 a.m., he was in his white Chevrolet pick-up truck stopped in a parking lot. Suddenly, a man with a shotgun got into the passenger side of his truck, pointed the shotgun at Garcia, and told Garcia to get out. After the man drove away in Garcia's truck, Garcia called the police and reported the robbery. Officer Rikicia Robinson testified that she and her partner received a dispatch to be on the lookout for a black Harley-Davidson pick-up truck. A short time later, she saw a truck matching that description. When she turned her patrol car around to stop the truck, it "took off." She and other officers pursued the truck for about ten minutes. Appellant was the only person in the truck. When the police searched appellant's truck, they found Ramirez's stereo behind the driver's seat. Officer Tony Castleberg testified that when he asked appellant about the stereo, he first told Castleberg he had bought it from a guy on the street. Later, appellant told Castleberg that his cousin, Ismael Gonzalez, had borrowed his truck earlier that night and he got the stereo from his cousin. Castleberg and his partner then went to speak with Ismael. When Castleberg arrived at Ismael's house, Castleberg saw a white Chevrolet pick-up truck parked blocking the driveway. Ismael was inside the truck wearing a blue baseball jersey. When Castleberg knocked on the window, Ismael saw him and immediately began to back away. Castleberg broke the driver's window with his flashlight and tried to get the key from the ignition. Ismael put the truck into drive and began driving forward. As he drove away, he dragged Castleberg a short distance before Castleberg was able to free himself. Ismael ran into a tree a short distance away. He was able to escape on foot, leaving Garcia's wrecked pick-up truck behind. The next night, Castleberg arrested Ismael as he was walking down the street. At the time, he was wearing a large medallion that was later identified as the one taken from Ramirez the night before. Detective James M. Brigdon interviewed both appellant and Ismael after they were arrested. In a written statement, appellant claimed he loaned his truck to Ismael. About an hour later, Ismael returned and asked appellant to take him to his girlfriend's house in North Dallas. Appellant noticed Ismael had a stereo in the truck. Ismael's girlfriend was not home so appellant drove him around for a short time. Ismael eventually told appellant to stop near a white truck. Ismael got out of appellant's truck carrying what appellant thought was a shotgun and appellant drove away. Appellant thought Ismael might have been intending to rob someone. Ismael confessed to committing the robberies. However, he claimed that appellant was present and participated in the robberies by driving the truck. Jose Gonzalez, Ismael's brother and appellant's cousin, testified that one afternoon, he overheard appellant and Ismael planning to "jack someone." According to Jose, it was appellant's idea and he was attempting to convince Ismael to participate. Arturo Silerio testified that appellant and Ismael came to his house about 9:00 on the night of the robberies. They stayed outside drinking for some time and then Silerio and appellant went into the house to eat. Ismael stayed outside in appellant's truck. Appellant and Silerio were inside for a long time and did not come back outside until after midnight. At that time, appellant told Silerio he was taking Ismael to North Dallas to his girlfriend's house. According to Silerio, appellant was with him the entire time from 9:00 p.m. until after midnight. After hearing this and other evidence, the jury found appellant guilty of the aggravated robberies of Ramirez and Garcia. This appeal followed.

Sufficiency of the Evidence

In the first four issues, appellant contends the evidence is legally and factually insufficient to support his convictions for aggravated robbery. In particular, appellant contends we must reverse his convictions because neither victim was able to identify appellant as the robber or as an accomplice to the robberies and Jose's and Ismael's testimony is not credible. Reviewing the evidence by well-established standards, we conclude it is both legally and factually sufficient. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840227 (Tex.Crim.App. April 21, 2004) (factual sufficiency). The record shows that two men were involved in robbing Ramirez, one driving the black pick-up truck and the other using the shotgun. Ismael claimed it was appellant who assisted in the robberies by driving the pick-up truck. Jose identified appellant as the one who instigated the robberies and persuaded Ismael to participate. Although appellant denied participating in the robberies, the jury made any credibility determinations with respect to his testimony and that of his cousins, Ismael and Jose. Further, contrary to appellant's assertion, eyewitness identification is not necessary; the identity of a perpetrator can be proved by direct or circumstantial evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986). Under the evidence presented, a reasonable jury could have concluded beyond a reasonable doubt that appellant, as a party, committed the aggravated robberies. Further, the evidence presented was neither too weak nor was contrary evidence so strong that the factual sufficiency standard could not have been met. We overrule issues one through four.

Accomplice Witness Testimony

Appellant next contends there is insufficient evidence to corroborate Ismael's accomplice witness testimony. We disagree. Under article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot stand upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it merely proves the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999). In conducting a sufficiency review under the accomplice-witness rule, we eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is other evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). The corroborating evidence need not directly connect the defendant to the crime, nor be sufficient by itself to establish guilt. Cathey, 992 S.W.2d at 462. Evidence of the defendant's presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense. Dowhitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). All facts and circumstances in evidence may be looked at to determine whether an accomplice's testimony is corroborated. Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App. 1993). In this case, there is ample evidence tending to connect appellant with the crime, including (1) Jose's testimony that appellant persuaded Ismael to rob someone, (2) Ramirez's testimony that two people participated in the robbery, one of whom drove a truck matching the description of appellant's truck, (3) appellant's admission that he was at the scene of the second robbery when he let Ismael out of the truck carrying what appeared to be a shotgun, (4) appellant was stopped driving his black truck soon after the robberies and had the stolen stereo behind the driver's seat, and (5) appellant attempted to avoid the police and lied about how he obtained the stereo. This evidence tends to connect appellant with these offenses. See Gill v. State, 873 S.W.2d 48, 49 (Tex.Crim.App. 1994) (defendant had opportunity to commit robbery because he was long time acquaintance of victim and resided near victim's grocery store and home; shortly after robbery was committed, defendant and his friend acted secretively; and they jointly possessed items matching items stolen from victim). We overrule issue five.

Hearsay

In his sixth issue, appellant contends the trial court erred by admitting Ismael's statement because it is hearsay and does not meet an exception to the hearsay rule. The State maintains that Ismael's statement is admissible as a statement against interest. We agree with the State. In order for a declaration against interest to be admissible under rule 803(24) of the Texas Rules of Evidence, the statement must be self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statements. It is not necessary for the declarant to be unavailable as a witness. Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). A statement which is self-inculpatory can be admissible against a defendant who was not the declarant of the statement. Id.; Cofield v. State, 891 S.W.2d 952, 956 (Tex.Crim.App. 1994). First, we must determine whether Ismael's statement was sufficiently self-inculpatory. Ismael's statement inculpated both himself and appellant in the robberies. The detective who took both Ismael's and appellant's statements testified that at the time Ismael made his statement, Ismael was unaware of appellant's version of events. Nothing in the record indicates that Ismael was aware the police came to his house only after speaking with appellant. In his statement, Ismael confesses that he was the man who robbed Ramirez and Garcia by holding a shotgun to the men's heads and he inculpates appellant as the driver of the pick-up truck. Ismael does not attempt to shift or spread blame, curry favor, avenge himself, or divert attention to another, the primary concerns with using a co-defendant's statement. See Cofield, 891 S.W.2d at 956. Thus, we conclude his statement was sufficiently self-inculpatory to be reliable. See Dewberry, 4 S.W.3d at 751-52. Having determined the statement was sufficiently self-inculpatory, we must next determine whether there was sufficient corroboration of Ismael's statement. In making this determination, we consider such factors as: (1) whether the guilt of the declarant is inconsistent with guilt of the defendant, (2) whether the declarant was so situated that he might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the declarant and the party to whom the statement is made, and (6) the existence of independent corroborative facts. Id. at 751; Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). Here, there is sufficient evidence to show Ismael's statement was trustworthy. First, Ismael's guilt is not inconsistent with appellant's guilt. The evidence at trial indicates two men committed the Ramirez robbery, one who was the driver of a pick-up truck matching the description of appellant's truck. Secondly, appellant admitted being at the scene of the second robbery when he said in his statement that he stopped near a white pick-up truck and Ismael got out of appellant's truck with what appeared to be a shotgun. Thus, appellant was situated so that he could have committed the offenses. Finally, although Ismael made the statement to police in response to custodial interrogation, the State developed independent corroborative facts, including (1) Jose's testimony that appellant persuaded Ismael to rob someone, (2) appellant was stopped driving his black truck soon after the robberies and had Ramirez's stolen truck stereo behind the driver's seat, and (3) appellant attempted to avoid the police and admitted lying about how he obtained Ramirez's stereo. Further, to the extent appellant argues Ismael's statement was inherently unreliable because it was made in retaliation for appellant's statement to the police that it was Ismael who committed the robberies, the record belies appellant's claim. As stated above, at the time Ismael made his statement, Ismael was unaware of appellant's version of events and there is no indication in the record that Ismael knew it was appellant who led the police to him. This evidence is sufficient to support the trial court's determination that Ismael's statement was trustworthy under rule 803(24). See Dewberry, 4 S.W.3d at 751-52. We overrule issue six.

Confrontation Clause

Lastly, appellant contends the trial court erred by admitting Ismael's statement because doing so violated appellant's sixth amendment right to confrontation. We do not reach the merits of this claim because appellant failed to preserve error. At trial, appellant made the following objection to Ismael's statement:
The nature of the objection is that it's a self-serving declaration, Judge. Although it's against his interest, it's also a statement in retaliation of what information was given to the police by the corroborating co-defendant [appellant] and that he was trying to gain favor by making that statement, your Honor.
It's not strictly a statement against self-interest; it's more than that; and therefore it's hearsay and should not be admitted, your Honor.
Appellant did not complain that admission of the statement would violate his sixth amendment right to confrontation. Consequently, he has failed to preserve that issue for our review. Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (hearsay and optional completeness objection insufficient to preserve error under Confrontation Clause); Dewberry, 4 S.W.3d at 752 n. 16 (objection on Confrontation Clause as to one witness statement insufficient to preserve same complaint as to other witnesses). We overrule the seventh issue. Accordingly, we affirm the trial court's judgments.


Summaries of

Davila v. State

Court of Appeals of Texas, Fifth District, Dallas
May 27, 2004
Nos. 05-03-00689-CR, 05-03-00690-CR (Tex. App. May. 27, 2004)
Case details for

Davila v. State

Case Details

Full title:CARLOS MARTIN DAVILA, JR., Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 27, 2004

Citations

Nos. 05-03-00689-CR, 05-03-00690-CR (Tex. App. May. 27, 2004)