Opinion
01-22-00109-CR
03-30-2023
SALVADOR GALVAN ROCHA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. TEX. R. APP. P. 47.2(B).
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1364497.
Panel consists of Landau, Countiss, and Guerra, Justices.
MEMORANDUM OPINION
Amparo Guerra, Justice.
Appellant Salvador Galvan Rocha was charged with first-degree felony aggravated robbery by threat with a deadly weapon. A jury found Rocha guilty of the lesser-included second-degree felony offense of robbery. After finding the State's punishment-enhancement paragraph true, the trial court sentenced Rocha to 10 years' imprisonment. In one issue on appeal, Rocha argues there is insufficient evidence to support the jury's verdict because there is not legally sufficient evidence that Rocha was the person who robbed the complainant.
See id. § 29.02(a)(2).
We affirm.
Background
On the evening of May 26, 2012, close to midnight, Kathleen Loya and her girlfriend, Mirsha Alvarez, went to bed for the night in the home they shared with their children and Miguel Rivera (Alvarez's brother). Loya's niece, Senaida Rodriguez, was also staying at their house that evening. Shortly after Loya and Alvarez went to bed, Rodriguez-who had stayed up to watch movies on her laptop in the living room-came into Loya and Alvarez's bedroom to let them know the lights were out in the house. Alvarez thought "something [didn't] feel right" because "they don't cut the lights at night[,]" so she and Loya got out of bed and went to the living room window to see if they were the only house without power. After Alvarez opened the front door and saw that their house appeared to be the only one without power, Loya went through the garage to the outside to check the breaker box. As Loya approached the breaker box, she saw "a shadow coming towards [her]." She saw it was a person, later identified as Rocha, dressed in black clothing, black gloves, and a black ski mask, who then grabbed her by the neck and started choking her, pushed her against the wall, and held a gun to her temple. When Loya saw a second person heading inside the garage, who was also wearing a mask and carrying a knife or "something sharp," and later identified as Alvarez's cousin, Gilbert Herrera, she began "yelling and screaming" for Alvarez. Loya closed her eyes, but continued screaming, while Rocha repeatedly told her "[s]hut up, shut up, I'm going to kill you."
Inside the house, Alvarez heard Loya scream and "ran back towards the garage to get to her." When Alvarez reached the garage, she took two steps in and saw Herrera coming in through the side door. He was "dressed all in black, had a mask, and . . . a knife in his hand." As he came towards Alvarez with the knife, she reached for his hands and they struggled in front of the pool table in the garage. Alvarez fought with Herrera, kicking him and causing both of them to fall to the floor during their struggle.
Outside, apparently hearing the "commotion" in the garage, Rocha released Loya, jumped over a fence and ran to a nearby church where, according to Herrera's mother (Alba Herrera), Rocha's wife, Patricia, picked him up at a nearby church in the early morning hours of May 27. Realizing Rocha was gone, and still hearing a commotion in the garage, Loya ran through the garage to the kitchen to retrieve a handgun. Because the power was still out to their house, the garage was dark and Loya could hear only movement, "pool table, like, slamming . . . stuff knocking over," so she "just opened fire and shot" two or three times. Shortly after the shots were fired-at least one of which struck Herrera-the lights came back on inside the house and garage. Herrera, who was still masked, attempted to hide under the pool table. Herrera's mask was pulled off, and that was when Loya and Alvarez recognized him as Alvarez's cousin. Unsure where the knife was, Alvarez grabbed a baseball bat and struck Herrera. Loya and Alvarez then asked Herrera who the second robber was, who had held a gun to Loya's head outside. Herrera told them the person with him was "Salvador." Rodriguez called 911 and an ambulance arrived, followed by the police. The ambulance transported Herrera to the hospital, where he later died from his gunshot wound.
The police conducted interviews at the scene and found a Mitsubishi Montero parked across the street from Loya and Alvarez's house. Alvarez identified the vehicle as her aunt's, Herrera's mother, and informed police officers that Herrera also drove the vehicle. Inside the vehicle, the police discovered the keys, with an identification card for Herrera attached, still in the ignition, a large knife on the backseat, and a credit card and cellphone on the front passenger seat. During interviews with members of Herrera's family, the police discovered that Herrera and Rocha were neighbors. Upon learning that Herrera and Rocha were neighbors, the police interviewed Rocha's wife, Patricia, who identified the cellphone recovered from Herrera's car as belonging to Rocha. However, she denied that Rocha had any involvement with the robbery, claiming that he was home with her that night, and she and Rocha stated that Rocha loaned his cellphone to Herrera on the evening of the robbery. On November 14, 2012, Rocha was arrested and charged with aggravated robbery with a deadly weapon.
Sufficiency of the Evidence
In his sole issue on appeal, Rocha argues that the evidence is legally insufficient to support his conviction for robbery because there is insufficient evidence that he was one of the perpetrators of the robbery. A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See TEX. PENAL CODE ANN. § 29.02(a)(2). The State must prove not only that an offense was committed, but that the party charged was the person who committed it or was a participant in its commission. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984). Of these elements, Rocha disputes only whether the State presented sufficient evidence to prove Rocha's identity as one of the perpetrators because "[n]either Ms. Loya nor Ms. Alvarez, or anyone else, identified appellant as being the person who robbed Ms. Loya."
As identity is the only element challenged by Rocha on appeal, we need not address the sufficiency of any other element. See, e.g., Murray v. State, 457 S.W.3d 446, 448 n.1 (Tex. Crim. App. 2015) ("We solely address the sufficiency of the evidence as it pertains to the element of 'operating' in the DWI statute because Appellant challenged only that element of the statute."); English v. State, No. 01-20-00139-CR, 2021 WL 4202159, at *3 (Tex. App.-Houston [1st Dist.] Sept. 16, 2021, no pet.) (mem. op., not designated for publication) (limiting sufficiency review to element of identity because defendant did not challenge other elements of aggravated robbery or dispute that State presented sufficient evidence that aggravated robbery occurred).
A. Standard of Review and Applicable Law
Every criminal conviction must be supported by legally sufficient evidence as to each element of the offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In a legal sufficiency review we consider all the evidence in the light most favorable to the verdict, and we decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010).
The evidence may be circumstantial or direct, and juries may draw multiple reasonable inferences from the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App. 2007). The jury is the sole judge of witness credibility and of the weight given to any evidence presented. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). A jury may believe or disbelieve some or all a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We presume that the jury resolved any conflicting inferences in favor of the verdict, and we defer to that determination. Merritt, 368 S.W.3d at 525-26.
Identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) (citing Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009)). Proof by circumstantial evidence is equally as probative as proof by direct evidence. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (alteration in original) (quotation omitted). In reviewing historical facts that support conflicting inferences, we must presume that the jury resolved any such conflicts in the State's favor, and we must defer to that resolution. Id. The absence of an in-court identification does not render the evidence insufficient if the State offers other evidence sufficient to identify the defendant as the perpetrator. See Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.-Fort Worth 1999, pet. ref'd).
"[I]dentity may be proven by inferences." Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd); see also Greene v. State, 124 S.W.3d 789, 792 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) ("Identity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary."). When identity is at issue, we must consider the combined and cumulative force of all the evidence. See Merritt, 368 S.W.3d at 526. We may not employ a "divide-and-conquer" approach to reviewing the evidence. Id.
B. Analysis
The State presented no direct evidence identifying Rocha as the second person involved in the robbery. However, as previously mentioned, the absence of direct evidence or eyewitness identification does not render the evidence insufficient if the State offered other evidence sufficient to identify Rocha as the perpetrator. See Greene, 124 S.W.3d at 792; Couchman, 3 S.W.3d at 162.
Considering the combined and cumulative force of all the evidence, as we must, see Merritt, 368 S.W.3d at 526, we conclude that there is sufficient evidence as to Rocha's identity as the second perpetrator. Loya and Alvarez both testified that Herrera told them shortly after he was shot that "Salvador" was the "one who had the gun to [Loya's] head by the breaker lights." Additionally, the police found Rocha's cellphone on the front passenger seat of the vehicle that Herrera drove to the crime scene to commit the offense. Although Rocha and Patricia testified that Rocha loaned his cellphone to Herrera that evening, and that Rocha was not present for and did not participate in the robbery, the jury was free to reject that testimony. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (explaining that although defendant presented alibi defense, jury, as sole factfinder, was free to reject this testimony and resolve conflicts in evidence in favor of State).
Herrera's mother, Alba Herrera, testified that she, Patricia, and Herrera's wife picked up Rocha early in the morning on May 27, 2012, shortly after the crime, at a church close to Loya and Alvarez's house. Herrera's mother further testified that Rocha told her that he had been present at Loya and Alvarez's house during the robbery. According to Herrera's mother, Rocha said "that he had heard screams and then he had heard shots and that then he ran off but before that, that he had stayed in [Herrera's] pickup truck." Expert testimony at trial established that, not only was Rocha's cellphone near the robbery scene between the hours of 10:35 PM on May 26 and 3:16 AM on May 27, but Patricia's cellphone was also in that area around the time of the crime. The jury could have reasonably inferred from this testimony that Patricia picked up Rocha near Loya and Alvarez's house in the early morning hours of May 27 after the robbery, as Herrera's mother had testified. See Ingerson, 559 S.W.3d at 509 (stating that identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from evidence).
Moreover, Herrera's mother testified that Herrera knew Rocha, that Rocha was their neighbor, and that she had seen Herrera interact with Rocha previously. Although Rocha and Patricia testified that Rocha and Herrera were not close friends, only neighbors, the jury was free to disbelieve and reject Rocha's and Patricia's testimony. See Penagraph, 623 S.W.2d at 343 ("The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. A jury is entitled to accept one version of the facts and reject another or reject any of a witness' testimony."); Kinnett v. State, 623 S.W.3d 876, 895 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd) ("The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony.").
Considering the cumulative force of all the evidence and deferring to the jury's role as the sole judge of credibility, a rational factfinder could conclude beyond a reasonable doubt that Rocha was the second perpetrator at the robbery. See Ingerson, 559 S.W.3d at 509 (stating that identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from evidence); Merritt, 368 S.W.3d at 526 (explaining that when identity is at issue, court must consider combined and cumulative force of all evidence); Carter v. State, Nos. 14-15-00051-CR, 14-15-00052-CR, 2016 WL 1578836, at *2-3 (Tex. App.-Houston [14th Dist.] Apr. 19, 2016, no pet.) (mem. op., not designated for publication) (rejecting defendant's "divide-and-conquer" approach and finding sufficient evidence of defendant's identity as robbery participant, despite lack of direct identification, when circumstantial evidence placed defendant at crime scene); Dean v. State, No. 13 00370-CR, 2015 WL 5451106, at *3-4 (Tex. App.-Corpus Christi-Edinburg July 24, 2015, pet. ref'd) (mem. op., not designated for publication) (finding sufficient evidence of defendant's identity as robbery participant when record showed that defendant had access to car used during crime and that defendant was in company of others linked to offense); Davila v. State, Nos. 05-03-00689-CR, 05-03-00690-CR, 2004 WL 1173395, at *2 (Tex. App.-Dallas May 27, 2004, no pet.) (not designated for publication) (finding sufficient evidence of identity when defendant's cousin identified defendant as robbery participant). Thus, the evidence sufficiently establishes Rocha's identity beyond a reasonable doubt.
We overrule Rocha's sole issue.
Conclusion
We affirm the trial court's judgment.