No. 13-03-292-CR
Opinion delivered and filed June 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 103rd District Court of Cameron County, Texas.
Before Justices YAñEZ, RODRIGUEZ, and GARZA
Opinion by Justice RODRIGUEZ.
Appellant, Alfredo Melo, was tried before a jury and convicted on two counts of aggravated robbery. The jury sentenced appellant to five years imprisonment for each count to be served concurrently. The trial court has certified that this criminal case "is not a plea-bargain case, and the defendant herein has the right of appeal." See TEX. R. APP. P. 25.2(a)(2). By two issues, appellant contends that the evidence is legally and factually insufficient to support a finding that he participated in the offenses for which he was convicted, either as a principal or as a party. We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. II. AGGRAVATED ROBBERY
Appellant challenges the legal and factual sufficiency of the evidence to support the jury's finding that he assaulted and robbed the two victims in this case, either as a principal or as a party. A. Standard of Review 1. Legal Sufficiency
In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). A jury "as the sole judge of the weight and credibility of the evidence" is free to accept or reject any evidence "even if that evidence was uncontradicted." Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App. 1994) (citing Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim. App. 1981)). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Poindexter v. State, 115 S.W.3d 295, 298 (Tex. App.-Corpus Christi 2003, pet. denied). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim. App. 2000). 2. Factual Sufficiency
We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd) (discussing application of "hypothetically correct jury charge" analytical construct in context of factual sufficiency review in case tried to jury). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "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 the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). In our factual sufficiency review, we are again required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. B. Applicable Law
A person commits robbery if, in the course of committing a theft, he intentionally or knowingly places another in imminent fear of bodily injury or death. See Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits aggravated robbery if he commits a robbery and uses or exhibits a deadly weapon. See id. § 29.03(a)(2). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17)(B) (Vernon Supp. 2004). Under the law of parties, a person is criminally responsible for the offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. § 7.02(a)(2) (Vernon 2003). Although the mere presence at the scene of a crime is not alone sufficient to prove that a person is a party to the offense, it is a circumstance that, when combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987); Barnes v. State, 62 S.W.3d 288, 297 (Tex. App.-Austin 2001, pet ref'd). The law of parties can apply to the offense of aggravated robbery. See Johnson v. State, 32 S.W.3d 388, 392-94 (Tex. App.-Houston [14th Dist.] 2000, no pet.). C. Analysis
At trial, both victims testified that five people approached them from an alley and proceeded to attack and rob them; one attacker used a baseball bat. The evidence shows two assailants attacked one victim while three other assailants assaulted the other victim. One of the victims testified that he was struck in the face by the bat and feared he would be killed. Appellant was not identified by any witnesses. However, in his statement to the police, appellant admitted to being in the alley with four friends. In his statement, appellant claimed he stayed behind when some of his friends ran out of the alley to attack the two victims, but ran to the scene of the crime once the attack began. Although appellant admitted to being at the scene, he denied participating in either the assault or the robbery. Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury could have found the elements of aggravated robbery beyond a reasonable doubt. See TEX. PEN. CODE ANN. § 29.02(a)(2); see also Warren v. State, 764 S.W.2d 906, 908 (Tex. App.-Corpus Christi 1989, pet ref'd) (finding sufficient evidence that a baseball bat was used in a manner to qualify as a deadly weapon). Moreover, deferring to the fact finder's resolution of conflicts in the testimony, see Matchett, 941 S.W.2d at 936, the jury could have found, under the law of parties, that appellant was criminally responsible for his friends' actions. See TEX. PEN. CODE § 7.02(a)(2). Therefore, the evidence is legally sufficient to sustain the conviction for aggravated robbery. Appellant's first issue is overruled. Furthermore, based on the evidence presented above, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination. See Swearingen, 101 S.W.3d at 97. While appellant was not positively identified by any witnesses as one of the five attackers, "circumstantial evidence may be sufficient to show that one is a party to an offense." See Perez v. State, 41 S.W.3d 712, 717 (Tex. App.-Corpus Christi 2001, no pet.) (citing Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987)). Appellant admitted he was with four friends in the alley and that his friends participated in the attack and robbery. Both victims testified that they were assaulted and robbed by five assailants. While appellant denies participating in the crime, no corroborating evidence exists that would greatly outweigh the jury's verdict. See Swearingen, 101 S.W.3d at 97. The evidence is therefore factually sufficient to uphold the jury's verdict. Appellant's second issue is overruled. IV. CONCLUSION
Accordingly, the judgment of the trial court is affirmed.