Sarmiento, Francisco Javier v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed as Reformed and Opinion filed June 27, 2002

Affirmed as Reformed and Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01297-CR

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FRANCISCO JAVIER SARMIENTO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

HarrisCounty, Texas

Trial Court Cause No. 816,986

O P I N I O N

Appellant Francisco Javier Sarmiento was indicted for aggravated robbery. The jury charge authorized conviction of the appellant either as a principal or a party to the offense. The jury returned a general verdict of guilty and assessed 30 years= confinement and a $10,000 fine. On appeal, appellant contests the legal and factual sufficiency of the evidence to support his conviction as a principal or a party; the failure of the trial court to instruct the jury on the lesser-included offense of robbery; and the entry of an affirmative deadly weapon finding. Finding only the latter complaint to have merit, we reform the judgment and affirm.

On the morning of June 29, 1999, Pedro Nistal was getting out of his car in the parking lot of the jewelry store he owned in Houston, when he heard a car approaching him at high speed. Turning, he saw a woman driving, and then two men getting out of the car, one or both wearing wigs. The man from the front seat held an automatic pistol, and the man from the back seat held a revolver. Nistal recognized the former as appellant, who had approached him in the same parking lot several weeks earlier around the same time of the morning, accompanied at that time by the woman driving the car.

Nistal reached for a gun he kept in his car, but was shot several times (he did not know by whom) before he could take aim. He saw appellant=s accomplice reach over him and take his briefcase from his car. Nistal suffered injuries to his right elbow, right lower leg, jaw, and abdomen; he lost the ability to walk and the normal function of his right arm.

One of Nistal=s employees, Nelly Miranda, and her husband, Salvador Arcilla, were stopped at a red light in front of the store. They saw two people running from the parking lot, a man with short hair and a person with long hair they thought was a woman.

Rosa Flores was driving nearby when she heard the gunshots, and saw a car coming out of a parking lot in reverse, driven by a woman, with a Hispanic man in the front passenger seat. She saw another Hispanic man with long, black hair running toward the car with a briefcase and gun. She drove to a nearby bank to find a police officer.

Officer Robert Manzo, who had also heard the gunshots, returned with Ms. Flores to the parking lot, and broadcasted a description of the car and the suspects on police radio. About five minutes later, Officer Gerardo Rodriguez stopped a car matching the description with three occupants inside. When the officers stopped the car, the appellant was in the front passenger seat and his sister was in the driver=s seat. In the backseat, they found Walter Flores with bullets for a .357 revolver in his pockets, as well as a long, black wig, a .357 Ruger revolver, a long kitchen knife, a taser or stun gun, and a black tote bag containing four bank bags.

Rosa Flores identified Walter Flores as the man she saw wearing a wig and running toward the maroon car. She could not identify appellant. Only Pedro Nistal identified appellant as one of the participants.

In his interview with police, appellant admitted he and Walter Flores purchased a .357 black handgun for $50 two months earlier. He admitted Flores told him about the planned robbery and where it would happen. His answers were inconsistent about whether he knew the robbery was going to take place on the day it did, but he admitted he knew Flores was carrying a bag containing a wig and the gun on June 29th. He also said Flores promised to help him and his sister with some money for giving him a ride to the parking lot that day. He denied ever holding a weapon, stating Flores fired the gun, grabbed the man=s black bag, returned to the car, and told him ALet=s go.@

At trial, appellant denied knowing the robbery was to happen, and denied knowing Flores had a gun or a wig, admitting only that he saw something Asmooth@ that was like a wig. He testified he gave Flores a ride only to be nice and not because he was expecting any money. In addition, he said he was only going to drop Flores off and not wait for him, and denied ever getting out of the car. Appellant said he had not understood some questions during the police interview and was nervous, as he was from Honduras, had only a first-grade education, and could not read either English or Spanish.

Legal and Factual Sufficiency

In his first point of error, appellant argues the evidence was legally and factually insufficient to convict him of aggravated robbery, either as a principal or as a party. We follow the usual standards of review. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Appellant was charged in the indictment with threatening Pedro Nistal and placing him in fear of imminent bodily injury while in the course of committing theft and of using or exhibiting a deadly weapon. See Tex. Pen. Code ' 29.03 (a)(2). The charge allowed the jury to convict him for his own conduct or the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense. See Tex. Pen. Code ' 7.02(a)(2). Because the jury returned a general verdict, the evidence is sufficient if it supports a finding of liability under either theory. See Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).

Appellant points to the conflicting testimony of the eyewitnesses, the inability of some of them to identify him, and that all of the physical evidence was found by the police in the back seat of the car near Walter Flores. But appellant acknowledged in his police interview that he helped buy the gun used in the shooting, was aware of Flores=s plan and where it would take place, knew Flores had the gun and wig with him, and consented to give Flores a ride to the jewelry store parking lot on the day of the offense. Furthermore, Nistal identified him from their previous encounter in the parking lot (supporting an inference that he engaged in reconnaissance in preparation for the offense), and testified that appellant pointed what looked like an automatic handgun at him. This evidence is legally and factually sufficient to support the jury=s verdict of aggravated robbery. We overrule appellant=s first point of error.

Lesser-Included-Offense Instruction

In his second point, appellant argues the trial court erred in refusing to submit an instruction on the lesser-included offense of robbery. A charge on a lesser-included offense is required if (1) the elements of the lesser offense are included within the proof necessary to establish the greater, and (2) some evidence exists in the record to permit a jury rationally to find the defendant guilty only of the lesser offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001). The State does not contest the first prong, that robbery can constitute a lesser-included offense of aggravated robbery. See Castillo v. State, 944 S.W.2d 440, 442 (Tex. App.CHouston [14th Dist.] 1997, no pet.). But the State does contest whether there was some evidence that appellant was guilty only of the lesser offense.

  If a defendant presents no evidence or evidence that he did not commit any offense, he is not entitled to a lesser-included offense instruction. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (quoting Bignall v. State, 887 S.W.2d 21, 22 (Tex. Crim. App. 1994)). But if there is evidence in his testimony that would support conviction of the lesser-included offense, it is not dispositive that this evidence conflicts with other parts or the larger theme of his testimony. Id. The jury is free to believe or disbelieve any part of a witness=s testimony, but its verdict must be rational.

To be guilty of robbery but not aggravated robbery, an accused must intend to commit theft by threatening another with imminent bodily injury or death without the use of a deadly weapon. See Tex. Pen. Code '' 29.02 & 29.03. Appellant testified at trial this was not his intent:

Q: [Y]ou planned the robbery, you wanted to rob the man, I mean, it wasn=t part of your plan that somebody would get shot, but it happened; isn=t that true, sir?

A: I didn=t plan anything.

In fact, during his testimony appellant denied everything C helping Flores buy a gun, planning a robbery with him, meeting Nistal on an earlier occasion in the parking lot, or even seeing Flores with a wig, stun gun, or revolver on June 29th. He testified he had never seen the revolver at issue until trial, asserting it was a Acoincidence@ that he correctly described it in his statement as a black .357 revolver.

Nevertheless, he argues on appeal that a jury could have been persuaded he was guilty only of robbery based on the following evidence: (1) his testimony that he did not know Flores had a gun with him, (2) the stun gun found in the car shows he Amay have@ approached Nistal with it (rather than a deadly weapon), and (3) Rosa Flores=s testimony that she only saw one man after hearing the shots might mean he was not present when the shots were fired.

We hold these facts are no evidence that appellant committed the lesser crime but not the greater. First, assuming a jury believed that appellant did not know about the deadly weapon, we do not see how they could find he intended to rob Nistal nonetheless. But for the deadly weapon, there was no evidence to suggest how appellant intended that he or Flores would threaten Nistal C a jewelry store owner likely to be armed[1] C with imminent bodily injury in broad daylight in a public place.

Second, no one testified that the stun gun found in the car (or the knife, for that matter) was used during the robbery, or that appellant and Flores intended to threaten Nistal with it alone.[2] While Nistal testified that both men held guns, he described the one held by appellant as an Aautomatic pistol.@ There was no evidence to the contrary. We do not think a jury could speculate from the mere existence of various implements somewhere in the car that Nistal was wrong and some other implement must have been used.

Finally, we do not think a witness=s testimony that she saw one man running toward the getaway car is evidence that only one man participated in the robbery. Consequently, the appellant was not entitled to an instruction on the lesser-included offense of robbery, and we overrule appellant=s second point of error.

Deadly Weapon Finding

In his third point, appellant argues that because he was charged as a party and there was no affirmative jury finding establishing that he used or exhibited the weapon himself or that he knew a deadly weapon would be used or exhibited, the judgment must be reformed to delete the finding. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 3g (a)(2).

The jury found appellant guilty of aggravated robbery, impliedly finding that as a principal or party he used or exhibited a deadly weapon. The trial court entered an affirmative finding of a deadly weapon by circling AYes@ on a pre printed form. The form did not indicate that appellant was convicted as a party. The jury was the trier of fact for guilt-innocence and punishment. Consequently, the jury was the proper fact finder to decide the deadly weapon issue. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995).

Our sister court has held that to find a person guilty of aggravated robbery as a party, a jury must find the defendant intended the use or exhibition of the deadly weapon, and thus a separate deadly-weapon finding by the jury is not necessary. Johnson v. State, 6 S.W.3d 709 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). However, this Court has repeatedly held to the contrary. See, e.g., Taylor v. State, 7 S.W.3d 732, 740B41 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Tate v. State, 939 S.W.2d 738, 753B54 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); Pritchett v. State, 874 S.W.2d 168, 172 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). Other courts of appeals appear to agree with our previous opinions. Barnes v. State, 62 S.W.3d 288, 303B04 (Tex. App.CAustin 2002, pet. ref=d); Enlow v. State, 46 S.W.3d 340, 345 (Tex. App.CTexarkana 2001, pet. ref=d).

Short of en banc consideration, we must follow our previous cases. See O=Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (stating decision of panel constitutes decision of the whole court unless court chooses to hear case en banc). Thus, we sustain appellant=s third point of error and order that the affirmative deadly weapon finding be deleted from the judgment.

As reformed, we affirm the trial court=s judgment.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Chief Justice Brister and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Nistal testified that he always carried an automatic pistol with him when he arrived at his store in the morning, and that he had the pistol in his hand when he met Sarmiento and his sister on the earlier occasion in the parking lot.

[2] Appellant=s testimony was just the opposite:

Q: Was it your plan, Mr. Sarmiento, just to stun Mr. Nistal while you took his property?

A: No, sir.