Opinion
Nos. 05-04-00257-CR, 05-04-00258-CR
Opinion Filed March 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-26066-Lt F02-26068-LT. Affirm.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
Appellant appeals two conviction for aggravated robbery. In three issues, appellant generally contends the evidence is factually insufficient to support his convictions. For the following reasons, we affirm the trial court's judgments. On August 28, 2002, appellant approached John Smith at a car wash, pressed a firearm to his head, and demanded all his money. After Smith gave appellant his wallet and other valuables, appellant told Smith to get in his truck and drive away. Smith complied. Shortly thereafter, at a nearby "dollar store," appellant approached Jean Boveri as he was leaving the store. Appellant pulled a gun, put it to Boveri's stomach and demanded his money. Boveri grabbed for the gun and a struggle ensued. Appellant pushed Boveri away just as Boveri's ex-wife, Marie Chehade, exited the store. Appellant pointed the gun at Chehade's forehead and demanded her purse. When she said no, appellant pulled the trigger two times. However, the gun was jammed and did not discharge. Appellant then ran and as he did so pulled the trigger of his gun again. This time the discharged, but did not hit anyone. Appellant's defense at trial was involuntary intoxication. Specifically, appellant testified at trial and claimed that on the day of the offense, he accepted a ride from a childhood classmate, "Kevin." While in Kevin's car, appellant asked Kevin if he could have one of his cigars. Kevin agreed. When appellant started smoking the cigar, he felt a "burden" fall upon him like he had never felt before. He became angry at Kevin believing the cigar was laced. Appellant testified he felt the drug "vehemently taking over," "beating" against his mind. When Kevin dropped appellant off at his friend's apartment, appellant laid down. The next thing appellant remembers is standing in an alley in a deep sweat with a gun in his hand. The gun was "heated" indicating it had just been fired. Appellant testified he does not recognize the victims and does not recall pulling a gun on them. The jury was charged on the affirmative defense of temporary insanity by reason of involuntary intoxication. The jury nevertheless found appellant guilty of the aggravated robberies of John Smith and Marie Chehade. This appeal followed. In his first and second issues, appellant contends the evidence is factually insufficient to support his convictions. Appellant does not dispute that the State proved he committed the offenses as alleged in the indictments. Instead, he asserts no rational trier of fact could have found against him on his involuntary intoxication defense. Appellant incorrectly directs this court to the standard of review set out by the court of criminal appeals in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) and refined in Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004). He contends "weighing all the evidence, the contrary evidence was strong enough that the beyond a reasonable doubt standard could not have been met." However, the defense of involuntary intoxication is an affirmative defense upon which appellant had the burden of proof by a preponderance of the evidence. Hardie v. State, 588 S.W.2d 936, 939 (Tex.Crim.App. 1979); see also Mendenhall v. State, 77 S.W.3d 815, 818 (Tex.Crim.App. 2002). Thus, the Clewis and Zuniga standards applying a factual sufficiency review to the beyond a reasonable doubt burden of proof are inapplicable. See Howard v. State, 145 S.W.3d 327, 330 (Tex.App.-Fort Worth 2004, no pet.). We have nevertheless reviewed the evidence in light of the correct standard and conclude the evidence is factually sufficient to support the jury's failure to find in favor of appellant on his defense. When a defendant has asserted an affirmative defense, we consider all the evidence and determine whether the judgment rendered is so against the great weight and preponderance as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App. 1990). In making this determination, we give due deference to the jury's credibility determinations. Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd). Here, the only evidence appellant presented to prove his defense was his own self-serving testimony that he committed the offense after smoking a laced cigar. While appellant presented evidence he had no recollection of the offense, he presented no evidence that he did not know his conduct was wrong at the time of the offense. See Mendenhall, 77 S.W.3d at 818. Moreover, the State presented evidence appellant was coherent and did not appear to be under the influence of drugs when he committed the offenses. The jury's failure to find appellant proved his defense is not so against the great weight and preponderance of the evidence as to be manifestly unjust. We resolve the first and second issues against appellant. In his third issue, appellant criticizes the current factual sufficiency standard of review set by the court of criminal appeals in that it gives deference to the fact finder on credibility issues. Appellant acknowledges the standard of review has been established by the court of criminal appeals and that this Court is required to follow it. See Duckworth v. State, 89 S.W.3d 747, 755 (Tex.App.-Dallas 2002, no pet.). Moreover, appellant does not request any relief from the judgments in this issue, much less argue how the evidence would be factually insufficient under his proposed standard. This issue presents nothing to review. We resolve the third issue against appellant. We affirm the trial court's judgments.