Guzman v. State

Full title: JUAN GUZMAN A/K/A JOSE ANTONIO PEREZ, Appellant v. THE STATE OF TEXAS…

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

Date published: Mar 5, 2004

No. 05-03-00465-CR (Tex. App. Mar. 5, 2004)

Opinion

No. 05-03-00465-CR.

Opinion Filed March 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203^rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-60415-P.

Before Justices WHITTINGTON, WRIGHT, and LANG.

OPINION

Opinion By Justice WRIGHT.

Juan Guzman a/k/a Jose Antonio Perez appeals his conviction for aggravated robbery. After the jury found appellant guilty, it assessed punishment at 55 years' confinement and a $10,000 fine. In three issues, appellant generally contends the evidence is factually insufficient to support his conviction and the trial court erred by failing to give certain instructions to the jury. We overrule appellant's issues and affirm the trial court's judgment.

Background

Juan Antonio Velasquez and his wife, Mayra Flores, went to visit Velasquez's brother. When they arrived at his brother's apartment, he was not at home. Velasquez and his wife returned to their car. As they did so, Velasquez noticed a red four-door Toyota Corolla driving very slowly. The Toyota parked behind Velasquez so that he could not back his car out to leave. Four men got out of the Toyota and ran toward Velasquez's car, two men approached the driver's side and two men approached the passenger's side. One of the men held a gun to Velasquez's head, threatened to kill him and demanded his money and jewelry. According to Velasquez, the men reached into the car through the open window and took Velasquez's wallet from his back pocket. The men on the passenger's side of the car likewise demanded Mayra's money and jewelry. When she did not quickly remove her jewelry, they threatened to cut her hands off to get it. Velasquez reached over, broke the bracelet, and gave it to the men. After getting the money and jewelry, as well as Mayra's leather coat, the four men went back to the red Toyota and drove away. Velasquez went to use a public telephone to call the police. On the way, he saw a patrol car driving by. He flagged down the car and described what happened to Officer John O'Brien. O'Brien then broadcast a description of the car and the robbers. About an hour later, a patrol officer stopped a car matching the description. O'Brien took Velasquez and Mayra to the scene. Velasquez identified each of the robbers. He also identified appellant as the man who had held a gun to his head. When the police searched the car, they found, among other things, Velasquez's and Mayra's identification cards, Mayra's leather jacket, and her wedding ring. Appellant had Mayra's earrings in a brown wallet. Appellant was later charged with aggravated robbery and was tried with his co-defendant, Livis Flores. After hearing this and other evidence, the jury found appellant guilty of aggravated robbery. This appeal followed.

Discussion

In his first issue, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant maintains that the "inconsistencies" in Velasquez's and Mayra's testimony "lead to the conclusion that their testimony was untruthful." We disagree. To support appellant's conviction for aggravated robbery, the State was required to show appellant intentionally or knowingly, while in the course of committing theft, threatened or placed Velasquez in fear of imminent bodily injury or death, and used or exhibited a deadly weapon during the course of the offense. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While we have some authority to disregard evidence that supports the verdict, we may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). The evidence shows Velasquez identified appellant an hour after the offense and again at trial as one of the men who robbed him and his wife at gunpoint. Mayra also identified appellant as one of the men who robbed them. When the police stopped appellant, several items stolen from Velasquez and Mayra were found in the car and in appellant's possession. Any "inconsistencies" in Velasquez's or Mayra's testimony, such as the difficulty in removing Velasquez's wallet while he was seated in the car, or why Velasquez's sister was not home when she had invited Velasquez and Mayra for dinner, were matters for the jury, not this Court, to reconcile. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Appellant's challenge to the factual sufficiency of the evidence is nothing more than an attack on the credibility determinations made by the jury. The jury, not this Court, is the exclusive judge of the witnesses' credibility. We may disagree with the jury's determination only when the record indicates such a step is necessary to "arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. After reviewing the evidence in this case, we conclude such a step is not warranted here. Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by failing to include a proper parole instruction in the jury charge at punishment. In particular, appellant contends the trial court omitted portions of the language contained in section four, article 37.07 of the code of criminal procedure. The State concedes the trial court erred by failing to give the complete charge, but contends appellant was not egregiously harmed. We agree with the State. When, as here, the jury makes an affirmative finding of a deadly weapon, or if a defendant is convicted of aggravated robbery, the trial court must give the parole instruction set out in section four of article 37.07 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). The parole instructions inform the jury how good-conduct time combines with actual time served to determine parole eligibility. Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.-Dallas 1992, pet. ref'd). The instruction was designed to increase jury sentences. Id. Thus, it is the State, not the defendant, that benefits from the parole law instructions. Here, the record shows the trial court modified the article 37.07 parole law, omitting, among other things, the language that informed the jury that appellant could earn time off the period of incarceration by the award of good conduct time. Appellant acknowledges he did not object to the trial court's modification. Nevertheless, he asserts he is entitled to a new punishment hearing because he suffered egregious harm from the modification. See Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App. 1984). Appellant has not, however, suggested any manner in which the omitted portion of the charge could have harmed him. Indeed, the omitted portion of the charge clearly favored the State. Thus, if anything, appellant benefitted from the modification. Consequently, we cannot conclude appellant was egregiously harmed by the trial court's modification. See Grigsby, 833 S.W.2d at 576. We overrule appellant's second issue. In his third issue, appellant contends the trial court erred by failing to include a limiting instruction in the jury charge at punishment. According to appellant, the trial court should have instructed the jury not to consider extraneous offenses committed by his co-defendant when assessing his punishment. Rule 105(a) of the rules of evidence provides as follows:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

Tex. R. Evid. 105(a). However, when, as here, the record does not show that the appellant requested the limiting instruction contemporaneously with the admission of the complained-of evidence, then the evidence is admitted for all purposes. See Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App. 2001) (extraneous offense evidence offered during guilt/innocence). Because the complained-of evidence was admitted without limitation, a limiting instruction is not within the applicable law of the case and is not warranted in the jury charge. Id. Appellant did not request a limiting instruction at the time the complained-of evidence was admitted, thus, his complaint lacks merit. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgment.