Robert Rodriguez, Jr. v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00434-CR
Robert RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-4655B
Honorable Fred Shannon, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 11, 2003

AFFIRMED AS MODIFIED

Defendant Robert Rodriguez was convicted of one count of murder and two counts of aggravated assault, and sentenced to ten years' imprisonment for the murder, and ten years' imprisonment for each count of aggravated assault. In six issues on appeal, defendant contends there is legally and factually insufficient evidence to support the verdicts. In his last two issues, defendant argues the trial court erred when it entered the judgments for the sentences of ten years' confinement for each count of aggravated assault because the jury sentenced defendant to five years' confinement for each count; therefore, the judgments should be reformed. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm the trial court's judgments as modified.

Legal and Factual Sufficiency Challenges

In six issues, defendant asserts there is legally and factually insufficient evidence to support the jury's findings that he committed one count of murder and two counts of aggravated assault. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex. Crim. App. 2000) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

Murder

In his first and fourth issues, defendant asserts the evidence is legally and factually insufficient to support the jury's findings that he murdered Miguel Alvarado. At trial, the State offered evidence that the offense occurred in Bexar County, Texas. The State presented testimony from Diana Flores that she saw defendant cut Miguel's throat with a knife and his throat began to bleed. Then, she saw defendant hand the knife to his mother who threw the knife in the yard. The State also presented testimony from Ignacio Alvarado that he saw defendant approach and punch Miguel. Ignacio testified that it appeared defendant had a weapon in his hand, but it was difficult to be certain. Ignacio heard defendant say to Miguel, "I hope you fucking die, mother fucker" or "I hope you fucking die, you son of a bitch." Although another witness, Tom Albert Macias, testified that it was Lorenzo Garcia who stabbed Miguel, the jury is the sole judge of the credibility of the witnesses. Based on a review of the entire record, we hold the evidence is legally and factually sufficient to support the jury's verdict. Accordingly, we overrule defendant's first and fourth issues.

Aggravated Assault

In his second, third, fifth, and sixth issues, defendant asserts there is legally and factually insufficient evidence to support the jury's findings that he committed aggravated assault against Ignacio Alvarado and Mary Ann Alvarado. The records shows that defendant and Lorenzo Garcia, working together, attacked Ignacio. During the altercation, Ignacio was cut and his injuries required medical treatment, including a blood transfusion and forty-five to fifty stitches. The record also shows that Mary Ann was stabbed by both defendant and Lorenzo. Defendant stabbed her in the arm and Lorenzo stabbed her in the back.

Based on a review of the entire record, we hold the evidence is legally and factually sufficient to support the jury's verdict. Therefore, we overrule defendant's second, third, fifth, and sixth issues.

Request for Reformation of Judgments

In his seventh and eighth issues, defendant argues the trial court's judgments are incorrect because they state he was sentenced to ten years' imprisonment for each count of aggravated assault, but the jury actually sentenced him to five years for each count. Defendant asks that the judgments be reformed to reflect the correct sentences found by the jury. The State concedes the error, and we agree. At the punishment phase, the trial court sentenced defendant, in open court, to five years' confinement for each count of aggravated assault. The judgments, however, sentence defendant to ten years' confinement for each count. Therefore, we sustain defendant's seventh and eighth issues and modify the judgments to reflect the jury's sentences that defendant be confined five years for each count of aggravated assault. Tex. R. App. P. 43.2(b); see Campbell v. State, 900 S.W.2d 763, 773 (Tex. App.--Waco 1995, no pet.).

CONCLUSION

We affirm the trial court's judgments as modified. See Tex. R. App. P. 43.2(b).

Sandee Bryan Marion, Justice

DO NOT PUBLISH