Opinion
Nos. 05-04-00105-CR, 05-04-00581-CR
Opinion issued November 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-01508-Sq F03-01504-TQ. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Abdul Saboor Elamin appeals his convictions for aggravated robbery. After finding appellant guilty and that appellant used or exhibited a deadly weapon during commission of each offense, the jury assessed punishment, enhanced by two prior convictions, at thirty seven years' confinement in each case. In two issues, appellant claims the evidence is factually insufficient to support his convictions and that the trial judge erred in failing to instruct the jury on the burden of proof for extraneous offense evidence admitted during punishment. We affirm the trial court's judgments. In his first issue, appellant claims the evidence is factually insufficient to support his convictions because one of the witnesses "was unsure when selecting [appellant's] photo from the lineup" and the jury struggled to reach a verdict. We disagree. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). That a jury struggles to reach a verdict is not, by itself, indicative of factually insufficient evidence. A person commits aggravated robbery if, in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2), 31.03(a) (Vernon Supp. 2004-05). A firearm is a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2004-05). Although appellant claims the evidence is factually insufficient to support his aggravated robbery convictions, we disagree. At trial, Maximo Bello testified he is a builder with a construction company. On June 13, 2003, he lived with his brother, Manuel Bello, and his brother's family, in an apartment. Around 6:30 a.m. that morning, Max was on his way to work when he stopped outside the apartment to have a cigarette. Although it was dark outside, the area had some artificial lighting. Appellant, who Max identified in court, walked up, pointed a gun at him, and said something. Although Max could not understand because he does not speak English, appellant indicated through gestures he wanted Max's watch and money. Max gave him what he had, but appellant wanted more. He poked Max with the gun. Max feared appellant was going to shoot him because there was no one around and he did not have much money. Appellant forced Max upstairs to the apartment. Max pretended he could not open the door, but Manuel opened the door. Appellant forced Max into the apartment. Manuel's daughter, Lupita Bello, walked into the living room. Appellant forced Max, Manuel, and Lupita to sit on the sofa and demanded money. Manuel gave him what little money they had but appellant wanted more. He demanded Manuel's jewelry and made him walk through the apartment in search of more money. Appellant was in the apartment for fifteen to twenty minutes, then left. Manuel called the police. Max testified he was sure that appellant was the person who robbed him. Manuel testified to similar facts. On the morning of June 13, 2003, his wife had left for work. Max then followed. About fifteen minutes later, Manuel heard someone trying to get in the house. Looking through the peep hole in the door, he saw Max; he opened the door. Max fell in the apartment followed by appellant who was carrying a gun. He pointed the gun at Manuel and told him he wanted money. The apartment was well-lighted, and Manuel could see appellant's face clearly. Manuel gave appellant his wallet but there was little money in it. Appellant got mad and demanded Manuel take off his jewelry. When Manuel responded, "Take 'em off yourself," appellant acted as though he was going to hit Manuel with the gun. Manuel removed the jewelry and gave it to appellant. He then forced Manuel to walk through the apartment, going in each room, looking for money and jewelry. Manuel was afraid of what appellant was going to do with the gun. After fifteen to twenty minutes, appellant left. Manuel called the police. About a month later, Manuel, his wife, and Lupita were leaving the apartment around two in the afternoon when he saw appellant. He told his daughter his suspicions and that she should not look at appellant until they reached the car. When they got to the car, Lupita told Manuel, "That's him, that's him." Manuel notified the police. Lupita testified she was watching television when appellant and her uncle came in the apartment. According to Lupita, appellant said he needed money, and he was sick. He made them walk to the bedroom. There, she saw appellant's face. He told them to give him the "good stuff." Appellant pointed the gun at her father and uncle. Appellant looked all over the apartment for things then left. Lupita was afraid because he pointed the gun at the three of them. Later, Lupita saw appellant outside her apartment. She recognized him from her memory and by his shoes and mustache. The evidence shows that appellant pointed a gun at Max, Manuel, and Lupita, demanding money and jewelry. The apartment was well-lighted, and all three testified they could see appellant clearly. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue. In his second issue, appellant claims the trial judge erred in failing to instruct the jury on the burden of proof for extraneous offense evidence admitted during punishment. Appellant concedes he did not object to the error in the trial court. Nevertheless, he argues he was egregiously harmed as evidenced by his two thirty-seven-year sentences. We disagree. Article 37.07, section 3 of the Texas Code of Criminal Procedure provides
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible . . .Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon). The court of criminal appeals recently determined "[t]he criminal record of the defendant is not grouped with extraneous offenses, and therefore . . . the legislature did not intend to require the same burden of proof that it attached to extraneous, unadjudicated offenses." Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). Thus, although prior convictions must be properly proved, prior convictions need not be re-proved beyond a reasonable doubt. Bluitt, 137 S.W.3d at 54. It follows that a trial judge does not err in failing or refusing to instruct the jury that extraneous offenses must be proved beyond a reasonable doubt. Bluitt, 137 S.W.3d at 54. Because all the evidence of appellant's criminal behavior was in the form of prior offenses which had been subjected to judicial testing under the proper burden and the burden had been met, the trial judge did not err in failing to give the requested instruction. Bluitt, 137 S.W.3d at 54. We overrule appellant's second issue. We affirm the trial court's judgments.