Opinion
No. 05-02-01901-CR
Opinion issued January 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th District Court Dallas County, Texas, Trial Court Cause No. F02-01681-LR. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Bruce Sterling Trammell appeals his aggravated robbery conviction. The trial court found appellant guilty and sentenced him to sixty years' confinement. In two issues, appellant complains of the admission of certain extraneous offenses and challenges the factual sufficiency of the evidence to support his conviction. We affirm the trial court's judgment. On the night of June 10, 2002, Jason Weisman left a bar in Dallas and walked through a parking lot. A Hispanic male and a man Weisman identified as appellant approached Weisman, and appellant demanded Weisman's wallet. When Weisman refused, appellant pulled out a gun and shot Weisman. After hearing all the evidence, the trial court convicted appellant, and this appeal followed. We first address appellant's second issue in which he challenges the factual sufficiency of the evidence. When reviewing a challenge to the factual sufficiency of the evidence, we apply well known standards. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The factfinder is the sole judge of the witnesses' credibility and their testimony's weight. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). The factfinder may believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control over another's property, he causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). Here, Weisman testified appellant demanded his wallet and pulled out a gun and shot him when he refused. Appellant cites Weisman's testimony that he had twelve beers on the night of the robbery, apparently in an attempt to argue Weisman was not a competent witness. Further, in challenging the factual sufficiency of the evidence, appellant cites his own testimony that his Hispanic companion robbed and shot Weisman. However, the trial judge, as finder of fact, was entitled to believe Weisman's testimony and disbelieve appellant. See Sharp, 707 S.W.2d at 614. Accordingly, after reviewing the evidence, we conclude the evidence supporting appellant's aggravated robbery conviction is not greatly outweighed by contrary proof, and the proof supporting his conviction is not so obviously weak as to undermine confidence in his conviction. See Johnson, 23 S.W.3d at 11. We overrule appellant's second issue. In his first issue, appellant argues his rights under the double jeopardy clauses of the United States and Texas constitutions were violated because his conviction was based on the impermissible introduction of extraneous offenses demonstrating his criminality in general. Specifically, appellant complains of the prosecutor's questioning of appellant concerning 1989 and 1990 burglary of a habitation convictions, a 1996 delivery of a controlled substance conviction, and "two more burglaries." Appellant did not object to this testimony, comprising fewer than two pages of the record. Nevertheless, appellant argues, this evidence resulted in his conviction on the basis of prior convictions and constituted fundamental error of constitutional dimension requiring no objection. See Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000). Assuming that a violation of appellant's right not to be subjected to double jeopardy would constitute fundamental error of constitutional dimension, we conclude appellant's right has not been violated. See Gonzalez v. State, 8 S.W.3d 640, 643-646 (Tex.Crim.App. 2000). The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision is applicable to the States through the Fourteenth Amendment. See Brown v. Ohio, 432 U.S. 161, 164 (1977). The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). We have already concluded the evidence was factually sufficient to support the trial court's implied finding that appellant demanded Weisman's wallet and shot Weisman when he refused. No other evidence was required to support his conviction. Appellant argues the evidence of certain extraneous convictions subjected him to double jeopardy. However, appellant's argument focuses on the admissibility of the extraneous offense evidence under rules 609 and 404(b) of the Texas Rules of Evidence. Whether or not the evidence was admissible, that issue was not preserved by timely objection. See Tex.R.App.P. 33.1. The only issue arguably before us is whether appellant's double jeopardy rights were violated. Here, the record contains sufficient evidence of appellant's guilt, and appellant makes no citation to the record to support his assertion that the trial judge based appellant's conviction on prior extraneous offenses and not on the evidence of his guilt in this case. Under these circumstances, we cannot conclude appellant's right not to be subjected to double jeopardy was violated. We overrule appellant's first issue. We affirm the trial court's judgment.