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Soliz v. State

Court of Appeals For The First District of Texas
Nov 16, 2017
NO. 01-16-00858-CR (Tex. App. Nov. 16, 2017)

Opinion

NO. 01-16-00858-CR NO. 01-16-00859-CR

11-16-2017

JUSTIN ISAIH SOLIZ, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 180th District Court Harris County, Texas
Trial Court Case Nos. 1451223 & 1452424

MEMORANDUM OPINION

Justin Isaih Soliz was indicted on two felony charges arising out of two separate incidents, one for aggravated assault with a deadly weapon in November 2014, and the other for aggravated robbery with a deadly weapon in December 2014. Soliz entered a plea of guilty without an agreed punishment recommendation on either charge, and the trial court ordered a pre-sentence investigation (PSI). After receiving the PSI report, the trial court held a punishment hearing. It assessed a sentence of 12 years' confinement in the aggravated robbery case. In the aggravated assault case, the trial court found that Soliz used a deadly weapon in the assault and assessed a sentence of three years' confinement, to run concurrently with the 12-year sentence in the aggravated robbery case. Soliz moved for new trial in each case, and the trial court denied both motions.

The aggravated assault case was assigned case number 1451223 and appeal number 01-16-00858-CR. The aggravated robbery case was assigned case number 1452424 and appeal number 01-16-00859-CR.

In a single issue on appeal, Soliz contends that the trial court erred in considering the PSI report's statement that Soliz had committed an extraneous, unadjudicated offense. We affirm.

BACKGROUND

The aggravated assault with a deadly weapon charge against Soliz resulted from an incident in which he and his friend, Tony Webber, visited a convenience store in Houston. As they entered the store, the clerk noticed Webber had a black semiautomatic handgun tucked into his waistband. The clerk told Webber he could not bring a gun into the store. Webber swore and threatened to shoot the clerk, and he and Soliz left the store. They got into Soliz's car, and Soliz began to back the car away from the store, but then stopped near the fuel pumps. Webber got out of the car and fired his gun several times toward the clerk, who was still inside the store. The clerk was uninjured, but his car and the storefront were damaged.

Soliz was charged with aggravated robbery based on an incident that occurred at a condominium complex located just west of the Greater Greenspoint area of Houston at about 1:30 one morning. Soliz and a friend, Leonel Salgado, entered the complex's parking lot in a silver Cadillac SRX, stepped out of the car, and approached an unarmed security guard. While Soliz pointed a handgun at the guard, Salgado ordered the guard to give him everything he had. The guard gave Salgado his cellphone and flashlight. Soliz and Salgado hastily returned to the car and left the complex at a high rate of speed.

DISCUSSION

A. Standard of review and applicable law

Soliz challenges the trial court's consideration of the PSI report's statement that Soliz had committed an extraneous, unadjudicated offense, as well as the admission of the testimony from Erick Mendoza, the complainant in that offense. We review a sentence imposed by the trial court for an abuse of discretion. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). Generally, we will not disturb a sentence assessed within the proper statutory punishment range and will find an abuse of discretion only when no evidence or factual basis for the punishment imposed exists. Id.

The Texas Code of Criminal Procedure provides that, when assessing punishment, the trial court shall direct a supervision officer to report to the court in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal-social history of the defendant, and any other information relating to the defendant or the offense requested by the court. TEX. CODE CRIM. PROC. art. 42.12, § 9(a); id. art. 37.07, § 3(a)(1), 3(d).

"By statute, the Legislature has directed what is to be included in a PSI, and the statute does not limit the criminal history to final convictions." Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim. App. 2010). In assessing punishment, a trial court may consider extraneous misconduct evidence if that extraneous misconduct is included in a PSI, even if the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt. Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007). Unlike the legally sufficient evidence required to support a finding of guilt on the underlying offense, the burden applicable to evidence of extraneous offenses or bad acts during the sentencing phase of a non-capital trial "does not require the offering party to necessarily prove that the act was a criminal act or that the defendant committed a crime." Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Instead, the trial court may consider an extraneous offense which is contained within a PSI report so long as there is some "evidence from any source from which it could be rationally inferred that the defendant had any criminal responsibility for that extraneous misconduct." Smith, 227 S.W.3d at 764.

B. Analysis

The PSI report states that the extraneous offense occurred in the Greater Greenspoint area of Houston, about a mile from the condominium complex where Soliz and Salgado robbed the security guard about an hour later. According to the PSI report and Mendoza's testimony, Mendoza was standing on his apartment patio smoking a cigarette when two men approached him. One of them asked Mendoza for a cigarette and, when Mendoza turned around to get the cigarette, the slimmer of the two pulled a black semiautomatic pistol out of his pocket and pointed it at Mendoza. The man holding the gun demanded Mendoza's property and Mendoza complied. The men then got into the same silver Cadillac SRX used later that night in the condominium complex robbery and left the scene.

Houston Police Department Officer Bruzas conducted the follow-up investigation. He discovered that the Mendoza robbery was related to the aggravated robbery of the security guard that involved Soliz and Salgado.

The Cadillac's owner, Melinda Tickner, was a friend of Soliz and Salgado. She confirmed that they were using her car that evening and stated that, although she had no knowledge of the robberies, Soliz and Salgado "were likely responsible" for both robberies. In Salgado's statement to the pre-sentencing investigator, he admitted that he and Soliz robbed the security guard in order to get money for "a female by the name of Melinda."

The PSI report also states that Soliz "admitted to his involvement in th[e] robbery [of the security guard] and all related cases . . . ." According to the PSI report, the district attorney declined to accept a charge against Soliz on the Mendoza robbery because Mendoza did not identify either Soliz or Salgado from the photo arrays presented to him. Soliz, however, told investigators that Salgado had given him Mendoza's cellular phone and that Soliz had used it and it was in Soliz's property bag at the jail. Investigators recovered Mendoza's phone from Soliz's property bag. Mendoza's testimony about the robbery at the punishment hearing was consistent with the information provided in the PSI report.

The State did not need Mendoza's testimony to demonstrate Soliz's criminal responsibility for the Mendoza robbery because the PSI report contains evidence and information from which the trial court could rationally infer that Soliz was criminally responsible. Both the robbery of the security guard at the condominium complex and Mendoza involved the same car and two suspects, one of whom was armed with a black handgun. Both robberies occurred close in time to each other, and the locations were about a mile apart. Soliz argues that his admission to being involved in "all related cases" does not clearly refer to the Mendoza robbery. Officer Bruzas, however, referenced the HPD case numbers for both the Mendoza robbery and the condominium security guard robbery, which the report notes he described as "related cases." Viewed in context, the report's statement that Soliz admitted to his involvement in "all related cases" reasonably refers to both the Mendoza robbery and the aggravated robbery for which he was convicted. Officers retrieved Mendoza's cell phone from Soliz's property bag. The PSI report independently supports the trial court's consideration of the Mendoza robbery as an extraneous offense.

We therefore hold that the trial court acted within its discretion in considering the PSI report and Mendoza's testimony about the robbery as an extraneous offense for which Soliz had criminal responsibility in assessing Soliz's sentence. See Smith, 227 S.W.3d at 764.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland

Justice Panel consists of Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).


Summaries of

Soliz v. State

Court of Appeals For The First District of Texas
Nov 16, 2017
NO. 01-16-00858-CR (Tex. App. Nov. 16, 2017)
Case details for

Soliz v. State

Case Details

Full title:JUSTIN ISAIH SOLIZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals For The First District of Texas

Date published: Nov 16, 2017

Citations

NO. 01-16-00858-CR (Tex. App. Nov. 16, 2017)