No. 05-05-00261-CR
Opinion Filed October 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-50378-HQ. Affirm.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
Opinion By Justice MOSELEY.
A jury convicted Bobby Lee Villa a/k/a Billy Joe Villa of aggravated robbery of an elderly person. During the punishment phase, appellant pleaded true to two enhancement paragraphs. The trial court found the enhancement paragraphs true and sentenced appellant to forty years' imprisonment. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
Marvin Johnson, a seventy-three-year-old retired Navy veteran, testified that on March 25, 2004, appellant and an accomplice robbed him and took his wallet. The wallet contained two one-dollar bills in the main compartment and a $100 bill in a hidden compartment. Johnson testified he had parked his truck in front of Johnny's Liquor Store at 3202 Samuell Boulevard at about 2:00 p.m. While Johnson looked inside his vehicle to check that it was in gear, a man grabbed him around the chest, pinning Johnson's arms to his side. The man said, "Don't move. Don't you dare more. Don't move." Johnson turned his head and saw appellant standing a few feet away. Appellant had a gun in his hand, but held it down at his side. Johnson felt his wallet being removed. Johnson testified he believed appellant took the wallet because the other man was still holding Johnson's arms. After appellant took the wallet, he ran off. The other man released Johnson and ran behind appellant. Johnson testified he sustained bruises to his ribs and the pain lasted for about one week. Johnson testified that while he watched appellant and the other man run toward a nearby alley, an employee at the store and an off-duty police officer came outside and chased appellant and the other man. Several minutes later, two patrol cars brought the men back to the scene separately. Both appellant and the other man had on different shirts, but Johnson was able to identify them as the men who had robbed him. Johnson testified appellant was the man who took his wallet and had the gun. Johnson further testified he clearly saw appellant because it was a "bright day," and Johnson's vision was good even though he used glasses for reading and had previously had cataract surgery. Paul Rojas, a store employee, testified he was stocking beer when he heard a customer say someone in the parking lot was being robbed. Rojas ran outside and saw Johnson pointing toward two men and saying he had been robbed. Rojas chased the men, who were wearing hooded shirts or sweaters. An off-duty officer who worked security in the store also chased the men. Rojas testified that appellant was one of the men he chased, and he saw appellant's face when appellant turned around to see if anyone was chasing him before appellant jumped over a fence. Rojas lost sight of appellant and the other man for one to two minutes because he ran around the building instead of jumping over the fence. People on the streets pointed to where appellant and the other man had run. Rojas saw appellant and the other man kneeling behind a white car parked near a convenience store. Appellant and the other man were taking off their clothing. Rojas testified he clearly saw their faces and saw their hooded shirts on the ground by the car. The men now wore white T-shirts. Rojas testified the officer ordered appellant to get up. Appellant stood up and tried to run, but the officer sprayed appellant with pepper spray and handcuffed him. The other man ran off, but was later found and arrested by other officers. Dallas County deputy sheriff Mike Dolliff testified he had been working as an off-duty security officer for the store. He heard someone say a man was being robbed in the parking lot. Dolliff ran outside and followed Rojas, who was chasing two men who were wearing hooded shirts. Dolliff lost sight of the men when they ran down an alley. He pursued them. People in the area pointed toward a convenience store's parking lot, yelling, "They went that way." As Dolliff walked through the parking lot, he saw two men kneeling behind a white car. The vehicle appeared to be filled with clothing and trash. Dolliff identified appellant in open court as one of the men he saw kneeling behind the vehicle. The other man had a shirt in his hand, and there was a shirt on the ground near appellant. Dolliff ordered both men to get on the ground; both men stood up. The other man ran across the road. Appellant tried to run away, but Dolliff sprayed him with pepper spray and handcuffed him. Dallas police officers arrived and took appellant into custody. Fifteen minutes later, the other man was found and arrested by officers. When the officers took appellant and the other man back to the store, Johnson identified them as the men who had robbed him. Dolliff testified the officers searched the surrounding area, but never found a gun or Johnson's wallet. Dallas police officer Kenneth Budjenska testified he arrived on the scene after appellant was in custody. Budjenska spoke with Johnson, Rojas, and Dolliff briefly, but did not conduct an in-depth interview. Budjenska testified his role was to ascertain what had occurred and then hand the case over to a detective for investigation. After speaking with Johnson, Budjenska believed appellant was the person who grabbed and held Johnson, and the other man was the person who reached into Johnson's pocket and took the wallet. Applicable Law
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, while in the course of committing theft and with intent to obtain or maintain control of the property, intentionally or knowingly caused bodily injury to Marvin Johnson, who was sixty-five years of age at the time of the offense. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). 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 solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). 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. Medellin v. State, 617 S.W.2d 229, 231 (Tex.Crim.App. [Panel Op.] 1981; Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient because Johnson's identification of appellant was weak. Appellant contends that because Johnson had vision issues and only saw his assailants for a few seconds, he mistakenly identified appellant as one of the robbers. Appellant asserts the evidence from the witnesses was too contradictory and weak to support the conviction because Johnson said appellant was the man who took his wallet and had a gun whereas Budjenska said appellant was the man who held Johnson's arms down. The State responds that the evidence is legally and factually sufficient to support appellant's conviction. Johnson positively identified appellant both at the scene and in open court as one of two men who robbed him. Although Johnson admitted he wore reading glasses and had previously had eye surgery, he testified he clearly saw appellant's face. Both Rojas and Dolliff identified appellant as one of two men who fled the scene and were pursued moments after the robbery. Rojas saw appellant's face as he fled, and both Rojas and Dolliff saw appellant's face when they found him kneeling behind a vehicle while changing his clothing. Johnson identified appellant as the individual who had a gun and took his wallet. Budjenska testified that after speaking with Johnson, he believed appellant was the individual who held Johnson's arms. The jury was the exclusive judge of the facts provided and of the weight to be given to the testimony, and it was their role to resolve conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.3d at 717. We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's 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.