Robert Lee Prince v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00332-CR

Robert PRINCE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CR-4758B

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

A jury found defendant, Robert Prince, guilty of aggravated assault with a deadly weapon and assessed punishment of ten years' confinement and a $5,000 fine. On appeal, defendant challenges the legal and factual sufficiency of the evidence to support the verdict. Because the evidence is sufficient, we affirm.

SUFFICIENCY OF THE EVIDENCE

In his first and second issues, defendant asserts the evidence is legally and factually insufficient to support his conviction. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (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).

In the early morning hours of January 18, 2001, Andres Guardado, Fernando Chavez, and Robert Narvis went to a Whataburger restaurant after spending part of the evening at the Atrium night club. While at the club, they exchanged words with members of a rival car club, including the defendant, Carlos Alonzo, brothers Phillip and Eric Lozano, and others. As Andres, Fernando, and Robert sat down to eat their meal, Phillip and Carlos entered the restaurant and got into an altercation with Robert. While the fight continued, an African-American male walked into the restaurant and fired two shots. Andres was hit by one bullet that traveled through his hip, leg, right testicle, and eventually lodged in his other leg.

Undercover officer, Guadalupe Anguiano, a detective with the San Antonio Police Department, was at the drive-through of the Whataburger and observed three individuals, two Latin males and a black male, walk toward the front of the Whataburger. Anguiano heard the gunshots and then saw the same three individuals leave the restaurant in a red SUV. As Anguiano was driving in pursuit of the SUV, he was shot at.

The red SUV was eventually stopped and four individuals were detained; defendant, Reginald Brown, Carlos Alonso, and Phillip Lozano. When defendant was detained at the scene, he was wearing black tennis shoes, blue jeans, a grey, black and white striped pullover, and eyeglasses. All four individuals were subjected to a gun residue test; however, only defendant tested positive for gunshot residue. Anguiano identified the defendant at the scene and in open court as the black male he had observed in the Whataburger parking lot who had jumped into the red SUV Anguiano pursued from the Whataburger.

Ben Lopez, the manager of the Whataburger, was in the parking lot preparing to leave after finishing his shift. Lopez observed the altercation in the restaurant and started toward the door. He then saw a third individual enter the restaurant and shoot Andres. At the restaurant, Lopez described the shooter as an African-American male standing about five-foot five or five-foot six inches who was wearing jeans, glasses, and a striped shirt that appeared to be blue and white. Later that morning, Lopez was taken to the site where the individuals from the red SUV were detained, and he made a positive identification of the defendant. Lopez also identified the defendant in open court.

Three shell casings were later found at the intersection where the shots were fired at Anguiano and two shell casings were also recovered from the Whataburger. A firearms examiner from the Bexar County Crime Lab testified that all these casings were fired from the same weapon that was later found at San Felipe and Rivas street. In addition, the bullet fragment recovered from Andres's leg was also fired from the recovered weapon.

On appeal, defendant asserts the evidence presented is insufficient because Andres, Fernando, and Robert, failed to identify him as the shooter, and the witnesses' testimony regarding the description of the shooter contained inconsistencies. Defendant also relies on the testimony of another individual, Robert Bradford, who was allegedly in another vehicle at the time. Bradford testified that he fired the shots at the Whataburger. It is true that Guardado did not positively identify the shooter from a photo array, and at trial, he could not say defendant was the person who shot him. Also, Fernando, and Robert did not identify defendant as the shooter during a line-up at the police station the morning after the altercation took place. However, our evaluation of the evidence "should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury as the sole fact-finder may believe some or all of the witnesses' testimony and reject any contradicting testimony. Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997). Here, the jury chose to believe the evidence that established defendant as the individual who shot Andres, and we will not substitute our judgment for that of the jury.

After a review of all the evidence, we hold the evidence is legally and factually sufficient to support the jury's verdict.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH