No. 05-09-00261-CR
Opinion issued April 2, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F08-24048-NI.
Before Justices O'NEILL, LANG, and MYERS.
Opinion By Justice O'NEILL.
Jose Raul Reyna waived a jury and pleaded nolo contendere to aggravated robbery with a deadly weapon, a motor vehicle. After finding appellant guilty, the trial court assessed punishment at five years' imprisonment. In a single point of error, appellant contends the evidence is insufficient to support his nolo contendere plea. We affirm the trial court's judgment.
Applicable Law
The legal effect of a nolo contendere plea is the same as a plea of guilty. See Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 2006). Article 1.15 of the Texas Code of Criminal Procedure provides that when a defendant pleads guilty, he cannot be convicted upon his plea alone without sufficient evidence to support the plea. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); see also Wright v. State, 930 S.W.2d 131, 132 (Tex. App.-Dallas 1996, no pet.). The State must introduce evidence showing the defendant's guilt. Wright, 930 S.W.2d at 132. We will affirm the trial court's judgment under article 1.15 if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Wright, 930 S.W.2d at 132. Our review of the record to determine whether the State complied with article 1.15 is not a factual sufficiency review, and there is no requirement that the supporting evidence prove the defendant's guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.-Dallas 2006, no pet.). To support appellant's nolo contendere plea, the State was required to prove that he, in the course of committing theft, intentionally or knowingly caused bodily injury to Bhevna Kothari, and appellant used or exhibited a deadly weapon, a motor vehicle, during commission of the offense. See Tex. Penal Code Ann. §§ 29.02(a(1), 29.03(a)(2) (Vernon 2003). At trial, the State argued that appellant was guilty as a party to the offense with Clayton Payne. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.). Evidence Presented
Bhevna Kothari, the complainant, owns a convenience store in Garland with her husband. On February 11, 2008, appellant and Clayton Payne came into the store at 10:30 p.m. Payne went to the bathroom while appellant stayed at the front counter "distracting" Kothari. When Payne came out of the bathroom, he went to a cooler where beer was kept, selected a beer, then put it in his pocket. Payne walked out of the store and went to his car. When Kothari attempted to follow Payne, demanding that he return the beer, appellant "pushed" her, then appellant walked outside and got into the front passenger seat of Payne's car. Kothari and Alaeddin Farhadpour, one of her employees, went outside and approached Payne's car. According to Kothari, both she and Farhadpour reached inside the open driver's window and tried to pull Payne out of the car. Both Kothari and Farhadpour testified they heard appellant tell Payne to start the car and "let's go, let's go." Payne pushed Kothari away from the car, causing her to fall on the ground, then he rolled up the driver's side window, injuring Farhadpour's arm in the process. While Kothari was on the ground, Payne started the car, drove in reverse, and ran the car's wheels over Kothari's legs. Payne then sped away from the store. Farhadpour called the police and for an ambulance. Kothari was transported to a hospital and received treatment for two broken legs. At trial, Kothari testified that when appellant and Payne entered her store, she recognized them because they had been in her store several times before that night. Although she could never catch them "red-handed" stealing merchandise, Kothari had instructed one employee to watch appellant and Payne whenever they entered the store again. Kothari testified that whenever appellant and Payne came into the store, one would go to the bathroom and one would keep her "occupied." A surveillance videotape from inside the store was played to the court. Photographs of bruises on Farhadpour's arm and Kothari's broken legs were admitted into evidence. Payne testified on appellant's behalf. According to Payne, neither he nor appellant had ever been in Kothari's store before February 11, 2008. While they were inside the store, Payne did not see appellant talk to anyone. Payne admitted he took the beer without paying for it, but stated appellant did not know he was going to steal the beer. When Payne left the store, he went to his car and started the engine. Payne denied that anyone grabbed his shirt or that he rolled the car's window up on anyone's arm or shoved Kothari on the ground. Payne also denied that appellant said anything to him while they were preparing to leave. Payne testified he never intended to hurt anyone, he simply backed out of a parking space and then drove off. Payne also testified he pleaded guilty to the aggravated robbery and received a five-year prison sentence. Appellant testified he had never been in Kothari's store before February 11, 2008. He and Payne stopped there to purchase cigarettes, and he did not know Payne intended to steal beer. Appellant denied he tried to distract Kothari from noticing Payne. According to appellant, he did not have his identification that showed he was old enough to buy the cigarettes, and that is what he and Kothari were discussing when Payne walked toward them and then went out the door. Appellant denied he tried to prevent Kothari from pursuing Payne or that he pushed her at any time. When appellant got into Payne's car, he saw a man reach through the open driver's side window and grab Payne. Appellant stated Kothari did not reach into the car, and Payne never pushed Kothari away from the car and onto the ground. Payne started the car, backed out of a parking space, then sped away. Payne never intended to hurt anyone. Appellant stated he did not promote or assist Payne in stealing the beer or hitting Kothari with the car. Appellant also stated he had prior felony convictions for theft, evading arrest, and unauthorized use of a motor vehicle. The trial court recessed the case for two weeks. When the case resumed, appellant testified that he knew Payne had stolen the beer as soon as they both left the store. He also said he never intended for anyone to get hurt, and he asked the trial court for probation. Discussion
Appellant contends the evidence is insufficient to hold him responsible for the conduct of another person under the law of parties, the evidence is insufficient to show the vehicle was a deadly weapon, and he was merely present at the scene and did not promote or assist anyone in hitting the complainant's legs with the vehicle. The State responds that appellant has not preserved his complaint for appellate review and, alternatively, the evidence meets the article 1.15 requirements. A claim regarding legal sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so. See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). Here, the evidence presented to the trial court showed appellant promoted, assisted, or aided Payne in committing the offense. Appellant and Payne entered Kothari's convenience store at 10:30 p.m. on February 11, 2008. Appellant stayed near the front counter while Payne went toward the back of the store. Kothari testified appellant and Payne had been in her store on other occasions, and one would go to the bathroom while the other would "distract" her. Payne admitted he put a can of beer in his pocket without paying for it and left the store. Kothari saw Payne take the beer although appellant was talking to her while the theft occurred. When Kothari attempted to pursue Payne out of the store, appellant pushed her out of the way, and when Kothari attempted to grab Payne through the open driver's side window, Payne pushed her to the ground. Both Kothari and Farhadpour heard appellant tell Payne to start the car and "let's go." Although appellant denied assisting Payne in any way with committing the robbery, the trial judge, as the fact finder in this case, reconciled any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A deadly weapon means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Penal Code Ann. § 1.07(17)(B) (Vernon Supp. 2009). An automobile may constitute a deadly weapon. See Tyra v. State, 897 S.W.2d 796, 798-99 (Tex. Crim. App. 1995) (anything used to cause death or serious bodily injury, including a motor vehicle, is a deadly weapon). The State need not prove appellant intended to cause death or serious bodily injury; it is sufficient to prove that the instrument as used was capable of causing death or serious bodily injury. See Roberts v. State, 766 S.W.2d 578, 579 (Tex. App.-Austin 1989, no pet). Here, the evidence showed that in the manner of its use, the car was capable of causing death or serious bodily injury. Having reviewed all of the evidence, we conclude it embraces all of the essential elements of the offense charged, and is sufficient to support the plea. See Stone, 919 S.W.2d at 427. We resolve appellant's sole issue against him. We affirm the trial court's judgment.