Kaio, Thomas Marvin v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed July 10, 2003

Affirmed and Memorandum Opinion filed July 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01104-CR

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THOMAS MARVIN KAIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 925,602

MEMORANDUM OPINION

Appellant, Thomas Marvin Kaio, was convicted by a jury of aggravated robbery, sentenced to twenty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

I. Background

Around 9:00 p.m., on November 18, 2001, Homero Juan and Donaldo Cruz drove up to the Star Food and Grocery located at the intersection of Suburban and West Mount Houston. Appellant and another man named Charlie, whom Juan had seen at the store on previous occasions, were standing outside the store. Juan, who was driving, remained in the car while Cruz went into the store. Appellant got into the passenger side of the car, pointed a pistol at Juan, and ordered him to get out. When Juan did not get out of the car, appellant started hitting him with the pistol. When Cruz came out of the store, he saw someone in the car hitting Juan. When Cruz tried to separate appellant from Juan, the other man knocked him to the ground, pulled Juan out of the car, got in the driver s seat, and sped out of the parking lot, with appellant sitting in the passenger seat.

Harris County Deputy Donald Meade was waiting at a traffic light at the intersection of Suburban and Mount Houston when he observed a car driving at a high rate of speed fish-tail out of the parking lot of a convenience store. Meade immediately activated his lights and siren and attempted to initiate a traffic stop. Instead of stopping, the car accelerated, and Meade notified the dispatcher that the driver of the car was evading arrest. Meade pursued the car, which reached speeds of 75 miles per hour in a residential area with a posted limit of 35 miles per hour.

When Meade observed the car slow down and the brake lights going on and off, Meade notified the dispatcher that its occupants were going to bail out of the car. Reaching a dead-end at a bayou, appellant and Charlie jumped out before the car stopped, and ran toward the bayou and a heavily wooded area. Meade attempted to follow the suspects, but lost sight of them and notified the dispatcher. A canine unit tracked the suspects through the woods and located appellant. When appellant started kicking the dog, it started biting his leg. Appellant was told to stop fighting the dog and to show his hands. Appellant refused and, instead, started kicking the dog again. After the dog started biting his other leg, appellant complied. Appellant was arrested and Emergency Medical Services treated him for dog bites. Although a second canine unit was deployed to search for the second suspect, he was never found. After appellant s apprehension, Juan identified him as the assailant who had repeatedly struck him with the pistol.

After receiving consent to search Juan s car, Meade recovered a pistol from between the driver s seat and the passenger s seat. There was not a clip in the gun. Later, Juan found the clip to a .380 caliber gun underneath the seat of his car, but threw it away.

During his testimony at trial, appellant recounted a different version of what transpired at the convenience store. Appellant testified that he saw Juan pull up and Cruz get out of the car. According to appellant, he went up to Juan s car after Juan spoke to him. Juan indicated for appellant to get in the car. Appellant showed Juan some drugs and Juan put up three fingers like he said he wanted three rocks or whatever. Appellant s associate, Charlie said Juan owed him money, pulled a gun on Juan, and started hitting him with the gun. Juan started fighting Charlie. Cruz then came out of the store and ran behind Charlie, who hit Cruz twice in the face. Charlie pulled Juan out of the car, and jumped in and drove off. Appellant told Charlie to let him out because he had previously been at the Texas Youth Commission, was currently on community supervision, and was carrying drugs. Appellant denied hitting Juan or owning a gun.

II. Legal and Factual Sufficiency of the Evidence

In his first issue, appellant challenges the legal sufficiency of the evidence supporting his conviction. When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict 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); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

A person commits aggravated robbery if, while in the course of committing theft, and with the intent to obtain or maintain control of the property, he . . . intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. '' 29.02(a)(2), 29.03(a)(2) (Vernon 2003). Appellant complains that Juan=s identification of him was insufficient and there was no evidence linking him to the pistol used in the commission of the offense.

Appellant complains that the only evidence linking him to the offense was a tentative identification by the victim that was elicited by the prosecutor only after a great deal of prompting. With regard to his in-court identification of appellant, Juan testified:

Q. And what happened C what happened? When you pulled up at the store, what happened?

A. I just got to the store and then the two of them were there. The two of them were in the store.

Q. The two of who?

A. Him and another.

Q. Ask him to identify him by an article of clothing.

A. I don=t remember anymore.

Q. No. The type of clothing he=s wearing today.

A. Yes.

Q. What color?

A. Right now?

Q. Right.

A. The shirt he has on is one I m looking at.

MR. DOYLE (Prosecutor): Judge, may the record reflect that the witness has identified the defendant?

MR. FREED (Defense counsel): Your Honor, the record does not so reflect.

THE COURT: Continue your questions, Mr. Doyle.

Q. (By Mr. Doyle) Could you ask C

THE COURT: No. Mr. Doyle, you ask him questions like you ask him questions and let him translate and we ll get through this.

Q. (By Mr. Doyle) Will you please describe the color of the shirt he=s wearing right now.

A. It=s green, isn t it?

MR. DOYLE: May the record reflect that the witness has identified the defendant?

THE COURT: The record will so reflect.

It is evident from the record that any problems with the in-court identification of appellant were the result of the inarticulate manner in which the prosecutor initially posed his questions through the translator. In any event, Juan subsequently testified that appellant held a gun to his head and beat him with the gun:

Q. And the person who was pointing the gun at your head and hit you in the head with the pistol, is he in this courtroom today?

A. That one (indicating).

Q. The person who pointed this pistol?

A. Oh, yes.

Q. Is he in the courtroom today?

A. Yes.

Q. Where is he?

A. That one (indicating).

* * *

A. [The police] took me over there where the car was.

Q. Was the defendant in one of the police cars?

A. Yes.

Q. And did he identify the defendant as a person who was in the police car?

INTERPRETER: I=m sorry?

THE DEFENDANT: Yes.

Q. (By Mr. Doyle) Okay. So, you identified the person in the back of the police car as the person who pointed the pistol at you?

A. Yes.

Q. And are you sure that this is the person who pointed the pistol at you and took your car?

A. Yes.

The positive identification of the defendant as the person who committed the crime is sufficient to support the conviction. Jones v. State, 500 S.W.2d 661, 666 (Tex. Crim. App. 1973); Moore v. State, 446 S.W.2d 877, 878 (Tex. Crim. App. 1969); Fluellen v. State, 104 S.W.3d 152, 160 (Tex. App.CTexarkana 2003, no pet.).

Appellant further complains that although Juan identified him as the assailant who held a gun to his head and beat him, he also testified that he is afraid of black men generally. Appellant then continues to state that the only black man Juan saw, after seeing the two black men at the store when he first arrived, was appellant when the police first had him in custody, and later in the courtroom. Appellant, therefore, concludes that Juan had no choice but to identify him as his assailant because he knew that the man who attacked him was black.

Our review of the record reveals that according to Juan s testimony on cross-examination, he was afraid as he was sitting in the car because the two men, appellant and Charlie, were there. Juan did not state he was afraid of them because they were black or otherwise mention their race. Appellant s counsel raised the issue of race when he then questioned Juan about whether many blacks live in the part of Mexico where he lived, whether the the sight of two black men standing outside the convenience store made [him] afraid, and why Juan stop[ped] at the store if [he was] afraid by seeing two black men standing there. Juan did not testify that he is afraid of black men generally, as appellant asserts. Moreover, there is no evidence to suggest Juan positively identified appellant because of any racial animus.

Appellant further complains that the State did not present any evidence linking him to the gun. Appellant argues that although three latent prints were recovered from the gun, none of those prints matched his prints. Appellant, however, misconstrues the testimony regarding prints found on the gun. Deputy Katherine Mills, an evidence technician with the Sheriff s Department, testified that although she found three latent prints, she Adetermined that there were not enough characteristics within the latent prints to make a comparison to make them usable. Deputy Mills explained, however, that this meant she could not prove to whom the prints belonged, not that appellant did not handle the pistol.

Juan=s positive identification of appellant as his assailant is sufficient to support his conviction and defeat his legal sufficiency challenge. See Jones, 500 S.W.2d at 666; Moore, 446 S.W.2d at 878; Fluellen, 104 S.W.3d at 160. Thus, we find the evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that appellant is guilty of aggravated robbery. Appellant s first issue is overruled.

In his second issue, appellant challenges the factual sufficiency of the evidence supporting his conviction. When reviewing claims of factual insufficiency, it is our duty to examine the jury s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the manifestly unjust standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the against the great weight and preponderance standard applies. Id. Under the Texas Court of Criminal Appeals modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

With respect to factual sufficiency, appellant cites his own testimony that while he was a passenger in Juan s car, it was stolen by another black man. Appellant testified he was only in Juan s car to sell Juan drugs and denied owning a gun or beating Juan with a gun. Instead, appellant claims the other man, Charlie, demanded money from Juan and beat him with the gun.

The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref d). Therefore, the jury may believe or disbelieve all or part of any witness s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

The jury was entitled to determine the weight to be given the evidence and the credibility of the witnesses and whether or not to believe the testimony of any witness. By its verdict, the jury apparently chose to believe Juan s version of the events, not appellant s. Viewing the evidence without the prism of in the light most favorable to the prosecution, we find the evidence factually sufficient to support the verdict. Appellant s second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed July 10, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).