Opinion
No. 05-11-00261-CR
05-16-2012
SALVADOR LUNA, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM; Opinion Filed May 16, 2012.
On Appeal from the 363 Judicial District Court
Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F05- 54018-W).
Dallas County, Texas
Trial Court Cause No. F05-54018-W
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Morris
A jury convicted Salvador Luna of aggravated robbery with a deadly weapon. Luna brings this appeal challenging the sufficiency of the evidence to support the jury's finding that he committed the offense. Luna also contends that a portion of the prosecutor's argument to the jury during the punishment phase was manifestly improper. Finding no merit in appellant's arguments, we affirm the trial court's judgment. Factual Background
On May 20, 2005, Blanca Ceniceros was in her apartment making tamales with her mother, Rosa Cuevas, when she heard a knock at the door. Upon opening the door, Ceniceros saw a man she later identified as appellant. Ceniceros stated that appellant asked if Ramon lived there and she replied there was no one there named Ramon. Appellant then left.
Ceniceros testified that later, as she was opening the door to leave the apartment, she encountered appellant and two other men standing in front of the door. One of the men pointed a gun at her and told her to be quiet. The three men then entered the apartment. Another one of the men went to the kitchen, picked up a knife, and held it to Cuevas's neck. The men then used duct tape to bind the women's hands and cover their eyes before putting them in one of the bedrooms.
According to Ceniceros, she could hear the men pulling things out and throwing things around in the apartment. After awhile, the men brought Ceniceros and her mother back into the living room and took the tape off of their eyes and hands. Ceniceros was handed a locked jewelry box and told to open it. As she attempted to open the box, she heard one of the men call appellant “Chino.” When Ceniceros was unable to open the jewelry box, the men re-taped both women's eyes and hands and put them in the bathroom. The men continued to search through the apartment and Ceniceros estimated they were there for approximately an hour. The men eventually left, taking with them cash, calling cards, jewelry, a DVD player, and other valuables. Cuevas was able to work her hands free of the duct tape, cut Ceniceros loose, and call the police.
Officers Mary Hershiser and Lynn Hensley were the first to arrive at the scene. Hershiser testified the women reported being robbed by three Hispanic males and that one of the men was called Chino. Hershiser also stated Ceniceros and Cuevas told them that Chino had been wearing gloves and that he had dark, curly, shoulder-length hair. According to Ceniceros, she also told the officers that Chino had facial hair and a tattoo on the side of his lower leg. However, the report filed by Hensley indicated that Chino did not have facial hair and did not mention anything about a tattoo.
Approximately one month after the incident, detective Leopoldo Gonzalez met with Ceniceros in her apartment to show her a photographic lineup. Before meeting with her, Gonzalez spoke with Ceniceros over the phone to confirm her description of the suspects. Among other things, Ceniceros again mentioned that the man called Chino had a tattoo on his leg. At their meeting, Gonzalez handed Ceniceros six pictures of Hispanic males with similar facial features and body types. Gonzalez told Ceniceros that one of the suspects in the robbery may or may not be in the lineup. Out of the six photographs, Ceniceros positively identified the picture of appellant as being the man referred to as Chino during the robbery. From of a different photographic lineup, Ceniceros recognized a second suspect who was later identified as Ramon Sotelo.
Based on Cenicero's identification of appellant, Gonzalez had an at-large warrant issued for his arrest. Officer Antonio Aleman testified he assisted Gonzalez with execution of the warrant, but stated they were unable to arrest appellant in 2005 because he was in Mexico. Appellant was not arrested until 2010 when he was identified as being the subject of the warrant during a traffic stop in Dallas.
Appellant was charged with aggravated robbery with a deadly weapon and tried before a jury. At trial, the State submitted evidence of Ceniceros's identification of appellant in the photographic lineup. In addition, Ceniceros identified appellant in open court as being the man referred to as Chino during the robbery. Ceniceros stated she got a good look at appellant on several occasions including when he first came to the door and later when he came back to her apartment with the two other men.
Wayne Fulps, a criminal investigator with the district attorney's office in Dallas, testified he was familiar with appellant and that appellant had many tattoos on his arms, chest, and neck. Among those tattoos were two that said “Chino” - one on the back of his neck and the other on the back of his hand. Pictures of appellant's tattoos were submitted as evidence. Fulps did not know when appellant had the tattoos done and stated it was possible he obtained them after the robbery in 2005. Fulps also testified he did not see any tattoos on appellant's legs.
Finally, the State presented the testimony of Edgar Sorea. Sorea stated he knew appellant because appellant was formerly his wife's brother-in-law. According to Sorea, appellant was known by the nickname of Chino because of his curly hair. Sorea also testified that appellant knew and “hung out with” a man named Ramon Sotelo.
Appellant took the stand in his own defense but did not testify. He simply showed the jury his legs to demonstrate that he did not have any tattoos below his knees. After hearing the evidence, the jury found appellant guilty of the charged offense.
During the punishment phase, appellant pleaded true to an enhancement paragraph that alleged a previous felony conviction for possession of a controlled substance. The State presented the testimony of a deportation officer who stated that appellant was in the country illegally and had been deported earlier because of his drug conviction. As part of her closing argument, the prosecutor made the following statements:
. . . I don't want you to say, oh, because he is illegal, let's be easy on him. Let's not spend our tax dollars. You know what, you're gatekeepers for not only of Dallas County today, but of society - of the world, because if Mr. Luna can do that to Ms. [Ceniceros], if he can sell drugs in Dallas County, guess what if he goes somewhere else? So you have to now look broader than that. Sometimes we have to - as citizens, not only protect our community, what's happening in our backyard, but we've got to protect other people as well. And it's not Dallas County where he comes and commits crimes. This man is just a violent person altogether. . . .Defense counsel interrupted the argument to object on the ground that the prosecutor was misstating the facts because there was no evidence outside of the charged offense to show that appellant had ever been involved in a violent crime. The trial court overruled the objection. The jury sentenced appellant to forty years in the state penitentiary. Appellant now brings this appeal.
Discussion
In his first point of error, appellant contends the evidence is legally insufficient to support his conviction. Specifically, appellant argues there is no credible evidence to support his identification as one of the men involved in the robbery. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
Here, the State submitted eyewitness testimony from the victim, Ceniceros, who identified appellant both in a photographic lineup and in open court as one of the men who participated in the robbery. Ceniceros testified that, during the robbery, appellant responded to the nickname of “Chino.” This testimony was supported by evidence from another witness that appellant was known as Chino to his family and friends. In addition, appellant had the name “Chino” tattooed both on his neck and on his hand. Ceniceros stated she was able to get a good look at appellant on multiple occasions on the day of the incident and, after looking at photographic lineups, she positively identified not only appellant, but also Ramon Sotelo, a man known to associate with appellant. It is well settled that the testimony of a single eyewitness may be sufficient to support the jury's verdict. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971).
Appellant contends that Ceniceros's testimony is unreliable because she testified she saw a tattoo on the lower leg of the man she heard referred to as Chino. Appellant demonstrated at trial that he had no tattoos on either of his legs below the knee. In addition, Ceniceros did not mention any other tattoos in her description of Chino to the police and appellant demonstrated he had numerous, visible tattoos on his upper body. Appellant argues these discrepancies in the evidence render Ceniceros's testimony unreliable to such an extent that it amounts to no evidence in support of his conviction. We disagree.
The inconsistencies in the evidence were before the jury who were judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (en banc). The jury was free to accept some portions of Ceniceros's testimony and reject other portions. Id. Conflicts and contradictions in the evidence do not require reversal if there is enough credible evidence to support the conviction. Id.
Although Ceniceros did not mention any upper-body tattoos in her description of Chino, an investigator familiar with appellant's tattoos testified there was no way to tell whether appellant had those tattoos on the date of the offense or whether he obtained them some time during the five-year period between the robbery and his arrest. As for Ceniceros's belief that she saw a tattoo on appellant's lower leg, the jury was free to conclude she was mistaken about this detail, but correct in her recognition of appellant both in the photographic lineup and in open court. As stated above, Ceniceros stated she had ample opportunity to observe appellant on the day of the offense and her identification of him was supported by other corroborating evidence such as the tattoos of the nickname “Chino” on his neck and hand and her identification of an associate of appellant as one of the other perpetrators.
Viewing the evidence in the light most favorable to the jury's verdict, as we are required to do, we conclude the evidence is sufficient to support appellant's conviction. We overrule the first point of error. In his second point of error, appellant contends the trial court erred in overruling his objection to a portion of the prosecutor's closing argument in the punishment phase of his trial. Appellant argues the prosecutor's statements that “it's not Dallas County where he comes and commits crimes,” and “[t]his man is just a violent person altogether'” were outside the bounds of proper argument and constituted reversible misconduct. He contends the prosecutor's argument invited the jury to speculate about other violent offenses he may have committed.
Proper jury argument must fall within one of the following categories: 1) summation of the evidence; 2) reasonable deduction from the evidence; 3) response to argument of opposing counsel; and 4) plea for law enforcement. See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990) (en banc). To determine whether an argument fits within this permissible scope, we must consider the statements in the context in which they appear. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). A trial court's rulings on objections to argument are reviewed for an abuse of discretion. See York v. State, 258 S.W.3d 712, 717 (Tex. App.-Waco 2008, pet. ref'd). And even if the trial court abused its discretion, the jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence to constitute reversible error. See Gaddis, 753 S.W.2d at 398. Argument is extreme or manifestly improper if there was a willful and calculated effort on the part of the State to deprive the appellant of a fair and impartial trial. See Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)(en banc).
After examining the prosecutor's jury argument as a whole, we conclude the trial court could have reasonably viewed the statements about which appellant complains as part of a proper plea for law enforcement. The context in which the statements were made was a request to the jury to protect not only members of the Dallas community, but society in general by giving the defendant a lengthy sentence. Given the prosecutor's request that the jury protect even those citizens outside their own “backyard,” her reference to committing crimes in places other than Dallas County appears directed to appellant's capacity to commit future violent crimes rather than suggesting any past offenses not in evidence. Furthermore, her remark that appellant is a “violent person” is a reasonable deduction from the evidence that he participated in a robbery involving the use of deadly weapons. Even if the remarks could be seen as improper, there is nothing in the record to suggest that the prosecutor made a willful and calculated effort to deprive appellant of a fair and impartial trial. We overrule appellant's second point of error.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110261F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SALVADOR LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00261-CR
Appeal from the 363
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 16, 2012.
JOSEPH B. MORRIS
JUSTICE