Opinion
Nos. 05-03-00598-CR, 05-03-00599-CR, 05-03-00600-CR.
Opinion issued May 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd District Court, Dallas County, Texas, Trial Court Cause Nos. F02-73374-PV; F02-73375-PV; F02-73376-PV. Affirmed as reformed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
Jose Daniel Madrigal appeals his aggravated assault convictions. A jury convicted appellant and sentenced him to ten years' confinement and a $5000 fine in cause numbers 05-03-00598-CR and 05-03-00599-CR. in cause number 05-03-00600-CR, the jury sentenced appellant to 12 years' confinement and a $10,000 fine. In seven issues, appellant challenges the legal and factual sufficiency of the evidence to support his convictions and argues the judgments should be reformed to delete the fines imposed. We reform the trial court's judgments and, as reformed, affirm the trial court's judgments. At approximately 11:00 p.m. on August 31, 2002, David Rojas and his girlfriend, Xochitl Castillo went to a night club in Dallas. Inside the club, Castillo pointed out appellant, Castillo's former boyfriend. Rojas and Castillo left the club around 2:30 a.m. As they approached the car, appellant and four companions started "jumping" Rojas and hitting him with their fists and beer bottles. Rojas fell, and the men continued hitting him and kicking him before finally leaving the area. Rojas and Castillo drove away from the club, and Castillo told Rojas that appellant and his companions were following them. Appellant continued to follow Rojas and Castillo, and at one point Rojas saw a dark object in appellant's left hand Rojas was headed back to the night club to see if his friends were there when he crashed into a car driven by Rawn Lindsey. Rojas pulled in to the night club parking lot and got out of his car. Rojas and Lindsey were exchanging insurance information when Castillo told Rojas that appellant was back in the parking lot. Appellant and his companions approached, and Rojas called out for help to some men leaving the club. The men went toward appellant and his companions who retreated. Appellant and his companions got back in their car. As appellant drove past Rojas, Castillo, and Lindsey, he stuck his left hand out of the car and started shooting at them. Rojas saw appellant firing the gun and "hit the floor." The gunshots continued, and Rojas saw Castillo standing and crawled over to her, telling her to "get on the floor." Finally, appellant drove away, and the police arrived shortly thereafter. Appellant was subsequently charged with the aggravated assault of Rojas, Castillo, and Lindsey, a jury convicted him, and this appeal followed. In his first, second, third, fourth, fifth, and sixth issues, appellant argues the evidence is legally and factually insufficient to show he committed aggravated assault against Rojas, Castillo, and Lindsey. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex. App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). The question is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02 (Tex.Crim.App. April 21, 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. A person commits the offense of aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the offense. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004). The indictments in the above-numbered causes alleged appellant intentionally and knowingly threatened Castillo, Lindsey, and Rojas with imminent bodily injury and used and exhibited a firearm during the commission of the assault. The record shows that appellant repeatedly shot at Castillo, Lindsey, and Rojas in the night club parking lot after earlier beating Rojas and chasing him in his car. In attacking the sufficiency of the evidence to support his conviction, appellant points to Castillo's testimony that she was unsure whether appellant was the driver of the car and the person that fired the gun. Appellant also cites Lindsey's testimony that he did not see appellant fire a gun and did not know who fired the gun. However, the jury was free to believe Rojas' testimony that appellant fired the gun toward him and Castillo and Lindsey and to give more weight to Rojas' identification of appellant as the shooter than to Castillo's and Lindsey's testimony that they could not identify the shooter with certainty. See Adelman, 828 S.W.2d at 421; Sharp, 707 S.W.2d at 614. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational jury could have found the essential elements of the crime of aggravated assault in each case beyond a reasonable doubt. See Turner, 805 S.W.2d at 427. Further, after reviewing all the evidence in a neutral light, we cannot conclude: (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence establishes the beyond-a-reasonable-doubt standard could not have rationally been met. See Zuniga, slip op. at 8. We overrule appellant's first, second, third, fourth, fifth, and sixth issues. In his seventh issue, appellant argues the judgments in the above-numbered causes should be reformed because the trial court did not orally pronounce the fines assessed by the jury. The State agrees that the judgments should be modified to delete the fines. Accordingly, appellant's seventh issue is sustained. We modify the judgments in cause numbers 05-03-00598-CR and 05-03-00599-CR to delete the $5000 fine imposed in each judgment. We modify the judgment in cause number 05-03-00600-CR to delete the $10,000 fine imposed in that judgment. As reformed, the trial court's judgments are affirmed.