No. 05-04-01399-CR
Opinion issued April 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-40782-MQ. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
WHITTINGTON, Justice.
A jury convicted Joe Montelongo of aggravated robbery, found two enhancement paragraphs true, and assessed punishment at forty-five years' confinement. The jury also made an affirmative finding that appellant used or exhibited a deadly weapon, a motor vehicle, during commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On April 17, 2003, Nathan Tisdale, the complainant, sustained a crushed foot and lacerations and bruises to his head, face, chest, stomach, and arms when he tried to stop appellant from driving away after appellant stole an Ekko trimmer. Tisdale testified his family owned a landscaping business. Tisdale had parked a company van and trailer in front of a customer's house. Three workmen were in the customer's back yard doing work. Tisdale crossed the street to talk with another customer. As Tisdale knocked on the second customer's front door, he saw a man drive up and park near the workmen Tisdale had left across the street. Tisdale testified he thought the man was going to talk to his crew about work. However, Tisdale then saw the man walk back to his car while carrying a trimmer. Tisdale testified it was between noon and 1:00 p.m., and he clearly saw the man. The trimmer had been inside the parked van. Tisdale testified he ran toward the man's car. The man walked quickly to the car, threw the trimmer into the back seat, jumped in the driver's seat, and started the engine. The driver's side window was rolled down. Tisdale jumped through the window and wrestled with the man. The man tried to push Tisdale off the car and said, "You stupid white boy, get out of the car." After about forty seconds, the man put the car into drive and started moving. Tisdale was dangling halfway out of the car. The man ran over a curb, struck down a stop sign, then turned down a street and started to speed up. Tisdale let go of the car when the man turned down the street. Tisdale hit the pavement face-first and blacked out for a few seconds. When he came to, Tisdale called an ambulance on his cell phone. Tisdale testified he gave the police a description of the Ekko trimmer and its model and serial numbers. Tisdale identified the man who robbed him as Hispanic, with long hair, a mustache, and some tattoos, and was "scruffy looking." Three weeks after the robbery, Tisdale went to the police station and viewed a photographic lineup. Tisdale identified photograph number one as showing the person who had robbed him. At trial, Tisdale testified he did not see the man who robbed him in the courtroom because the man seated at the defense table had changed his appearance too much. Mesquite police detective Kelly Davis testified he obtained the model and serial numbers of the Ekko trimmer from Tisdale. Davis received information from another officer who monitored pawn shops that an Ekko trimmer had been pawned. Davis went to the pawn shop and determined that the trimmer's model and serial numbers matched those given him by Tisdale. The pawn ticket was signed by appellant. Davis testified he prepared a photographic lineup containing appellant's picture for Tisdale to view. Tisdale positively identified photograph number one as the person who had robbed him. Davis testified that photograph number one was a picture of appellant. Brent Ramsey, the manager of Plus Pawn 2, testified that all persons who pawn items in his store must present a picture identification. The store clerk records the information from the identification, as well as the serial and model numbers from the item, if they are available. The person pawning the item must sign a printed ticket of the transaction. Ramsey identified the pawn ticket for the Ekko trimmer, and stated the trimmer was pawned at 1:21 p.m. on April 17, 2003 by appellant. Appellant did not testify during the guilt-innocence phase of the trial. Sufficiency of the Evidence
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused bodily injury to Nathan Tisdale while in the course of committing theft, and appellant used or exhibited a deadly weapon, a motor vehicle, during commission of the offense. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). A "deadly weapon" means a firearm or 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). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Appellant argues the evidence is legally and factually insufficient because no one identified him in court as the person who committed the robbery and there was no physical evidence linking him to the robbery. The State responds the evidence is legally and factually sufficient because the complainant identified appellant in a photographic lineup and other evidence linked appellant to the robbery. We agree with the State. Tisdale positively identified a photograph of appellant as the person who had stolen the trimmer and who had dragged Tisdale with a car as appellant tried to get away. Tisdale explained that appellant's appearance in court was very different from his appearance at the time of the robbery. The jury was shown the photographic lineup that Tisdale viewed, which included a picture of appellant with long hair, a mustache, and tattoos on his arm. Davis testified that the photograph Tisdale selected was a photograph of appellant. Davis further testified that the stolen trimmer was pawned the same afternoon that it had been stolen from Tisdale, and appellant's name and signature appeared on the pawn ticket. Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.