Nos. 05-03-01536-CR, 05-03-01537-CR
Opinion Filed August 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-51236-W, F03-51235-W. Affirmed.
Before Justices MOSELEY, BRIDGES and LANG-MIERS.
LANG-MIERS, Justice.
Appellant Raymond Derrick Grice appeals his two convictions for aggravated robbery. The jury assessed his punishment at fifteen years in prison for each offense, the sentences to run concurrently. In his sole issue on appeal, appellant complains that the evidence is factually insufficient to support his convictions. We affirm the judgments of the trial court.
FACTUAL SUFFICIENCY
Standard of Review In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex.Crim. App. LEXIS 668, at * 20 (Tex.Crim.App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The factfinder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). When the evidence is conflicting, the jury's verdict is generally regarded as conclusive. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). A jury's verdict is not manifestly unjust or clearly wrong merely because the jury resolved conflicting views of the evidence in favor of the State. See id.Evidence Luis Marquez testified that on May 4, 2003, he and his friend Mario Merino went to the hospital to visit Merino's girlfriend and newborn baby. Marquez, Merino and another friend then went out to dinner and to the friend's house. Marquez and Merino returned to their apartment complex, where they lived with another family. Before getting out of the car, they remembered that they needed to pay the rent. Marquez drove them to the office, paid the rent, then returned to the parking lot in front of their apartment. It was, by this time, approximately 2:00 in the morning on May 5. Marquez and Merino were walking through the hallway to their apartment when they saw a car stop and a man jump out with a shotgun. The man, who Marquez identified at trial as appellant, told them to get on the ground and give him their money. Merino threw his keys and some money on the ground. Merino then jumped on appellant and started wrestling with him. The gun went off, Merino fell, and Marquez grabbed the gun. Marquez and appellant fell to the ground and continued fighting. Merino then got up and kicked appellant in the back. By this time, the fight had moved into a grassy area close to the parking lot. The car in which appellant arrived was driven up onto the grass; it then backed up and drove away. Marquez never saw the driver, but testified that he was almost run over by the car. The three men continued fighting, and Marquez began beating appellant with the gun, which broke into several pieces. They finally subdued appellant, and Marquez called the police on his cell phone. Marquez and Merino kept appellant from leaving the scene until the police could arrive. While sitting on the curb, Appellant threatened them. Merino kicked appellant in return. When the police arrived, Marquez was told to put down the shotgun. Marquez heard appellant telling the police that Marquez and Merino had tried to rob him. Later, the police opened their apartment with their keys to make sure that they lived there. Merino testified to the same basic scenario, with some differences. He stated that in addition to going to a restaurant and to his friend's house, they also drove around in a parking lot of a club. He stated that he could not remember if they had visited his newborn, but he knew that by May 4, his girlfriend and baby were at his girlfriend's mother's house, not at the hospital. Merino also testified that he saw the driver of the car and that she was a black woman. There was an inconsistency with Marquez's testimony as to how long they stayed at the restaurant. Mary Hernandez testified about rent payment records for the Bruton Oaks Apartments. Hernandez, who was not the apartment manager at the time of the offense, stated that the rent for Marquez's and Merino's apartment was paid on May 1. She also testified that if it had been paid on May 5, as Marquez and Merino testified, a late fee would have been assessed. Further, if a late fee had been waived, it would have been noted in the records. The first officer on the scene, Carlos Rivera, testified that he received a dispatch to the Bruton Oaks Apartments. When he arrived at approximately 3:00 a.m., he observed the two complainants and appellant fighting in the parking lot. Rivera separated the three men, took a broken shotgun out of Marquez's hands, and told them each to stand at a different spot. Appellant's head and face were covered in blood. Rivera spoke to each of the complainants separately and, as a consequence of his report, appellant was charged with two counts of aggravated robbery. He never heard appellant say that Marquez and Merino had tried to rob him. Police officer Kurt Manasco arrived soon after Rivera-he saw Rivera separating the three men from each other. After appellant was given medical treatment, Manasco attempted to question appellant. The officer asked basic questions, such as name, date of birth, and address. Appellant did not respond. Manasco knew that appellant heard and understood his questions, though, because appellant moved out of the way of the ambulance when the officer told him to. Appellant also asked for a drink of water. When appellant refused to talk to him, Manasco asked a another officer to try to garner some information from appellant. Appellant still said nothing. Manasco searched appellant, but did not find anything of significance. He did not search the complainants' apartment or vehicles, but another officer did escort the two men to their apartment and went inside. After speaking to Rivera about the complainants' version of events, Manasco decided to arrest appellant for aggravated robbery. He testified that he never heard any officer say that appellant was claiming he was the victim. Manasco also stated that the evidence at the scene corroborated the two complainants' version of events. Further, he testified that it was very unusual for a victim to refuse to give his name, address, and a description of what had happened. Kenneth Blank, a crime scene detective, testified that he was called to the scene to investigate the incident. He found car keys, a gold filling, and a broken watch in the breezeway. He found a piece of a broken shotgun, three dollar bills, and tire marks in the grassy area. And he found a spent shotgun shell, an unfired shotgun shell, and a piece of a shotgun barrel in the driveway. The shotgun barrel had blood on it. Blank testified that he was not able to get any prints off the evidence. He did not search the complainants' apartment or cars for shotgun shells or other evidence. He admitted that he did not know if anyone had checked the registration for the gun. Ronald Hill, who did not go to the scene, made the decision to charge appellant with two counts of aggravated robbery. He did not listen to the 911 tape, he did not canvass the apartments, and he did not know if there were any other witnesses. Hill attempted to contact the two complainants for about two weeks before finally talking to Marquez. Marquez confirmed the information on the police report. However, Marquez did not tell Hill that he was living in the apartment; instead he said that he was simply spending the night. Hill never spoke to appellant, never got his side of the story, and did not know appellant had been taken to the hospital for medical treatment. The medical records specialist from Parkland Hospital testified that appellant was treated there on May 5, 2003. Appellant suffered from head trauma and a dislocated shoulder. Appellant testified that on the night of the offense, he had been at a friend's house playing dominoes and drinking. He left his friend's house and walked to the Bruton Oaks Apartments where he was going to buy cocaine. He had made arrangements to meet the drug dealer there. When he was going through the breezeway, two Mexicans, one with a shotgun, said that they knew why he was there. The man with the gun demanded that appellant give him his money. Appellant told him he did not have any, and then charged the man and grabbed the gun. They began wrestling. When the gun went off, he got up and tried to run, but the man hit him on the back of the head with the gun. Both of the men started beating him. He tried to run again, but they kept beating him. Appellant denied that a car drove into the grassy area and tried to run them over. Appellant testified that when the police arrived, he told the officers that he had been robbed. He remembers asking for some water, but other than that he was in and out of consciousness and did not remember anything else until he got to the hospital. When asked on cross-examination if he recalled telling Officer Steen that the two men who beat him were big drug dealers and he owed them money, he denied it. He said, instead, that he told an officer that his "guy" was a drug dealer. Appellant initially denied knowing the complainants, but then said "as I think of it today, those two might know my guy." Appellant admitted that he had served two years in prison for possession of a controlled substance and theft by check. Corporal James Steen testified that he transported appellant from the scene to the hospital. Steen stated that appellant told him he owed some drug dealers some money and that the individuals that beat him up were drug dealers. He said that they beat him because he could not come up with the money. Appellant also stated that the men had large amounts of drugs in their apartment. Steen had no doubt that when appellant was referring to the "drug dealers," he was talking about the complainants. Steen testified that on the way to the hospital appellant would talk a while then stop talking and put his head down. He did not check to see if appellant was conscious the whole time, but believed that he was. Steen also testified that there was some drug activity in the area, but that there was mostly disturbance calls to the Bruton Oaks Apartments. Areneida Sanchez testified that she and her family lived in the apartment at Bruton Oaks with Merino and Marquez. She stated that Merino took the money order to pay the rent that month. Sanchez never saw Marquez or Merino selling drugs out of their apartment. And as far as she knew, there was no drug dealing going on in their apartment complex. Analysis We have viewed all of the evidence in a neutral light, favoring neither party. The evidence supporting the verdicts is not too weak to support the finding of guilt beyond a reasonable doubt. Neither is the contrary evidence so strong that the beyond-a-reasonable doubt standard is not met. As we stated earlier, the jury is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. And when the evidence is conflicting, the jury's verdict is generally regarded as conclusive. We hold that the evidence demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt on both counts of aggravated robbery. See Zuniga, 2004 Tex.Crim. App. LEXIS 668, at * 20. We affirm the trial court's judgments.