Lamont Curry v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00843-CR
Lamont CURRY,

Appellant
v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-7496A

Honorable Pat Priest , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: September 13, 2006

AFFIRMED

Lamont Curry appeals his conviction for robbery, asserting that the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.

Background

On February 17, 2004, Gilbert Silva was waiting at a downtown bus stop for a 9:30 p.m. bus with his brother, Rudy Silva, and his friend, Lazaro Martinez, after skateboarding for several hours in the area. Gilbert was holding a video recorder, which he had used to record their skateboarding stunts. Lamont Curry and three other men stood approximately six feet from where Gilbert and his friends were standing. Curry offered Gilbert a slice of pizza. "Sensing something," Gilbert asked Rudy and Lazaro if they should go to another bus stop. Before they could leave, Curry approached Gilbert and struck him in the arm. Curry then pulled Gilbert's arm behind his back, placed him in a choke-hold so that he could not breath, and said, "give me your camera." A struggle ensued between Gilbert, Curry and the three other individuals, lasting about four or five minutes; the second man hit Gilbert in the stomach with his fist while the third man tried to take the video camera. When Gilbert's brother, Rudy, tried to defend him, the fourth man lifted his shirt and said, "I wouldn't do that if I were you." Gilbert saw a metal object under the man's shirt, which he thought might be a knife or gun. Curry and the three others eventually gained possession of Gilbert's camera (1) and ran away. Rudy and Lazaro found a police officer across the street who came to the scene, took a description of the assailants from Gilbert, and sent a radio alert containing their descriptions. Gilbert was in pain, having difficulty breathing, and seemed agitated and nervous. Within about 10 to 20 minutes, three of the four suspects were apprehended and transported to the police station. Gilbert was taken to the police station to identify the suspects, which he did individually, without a lineup. Gilbert again identified Curry as his assailant during trial. The jury found Curry guilty of robbery causing bodily injury and sentenced him to 15 years imprisonment as a repeat offender. This appeal followed.

Analysis

In two issues, Curry challenges the legal and factual sufficiency of the evidence supporting his conviction. We overrule both issues and affirm the trial court's judgment.

Legal Sufficiency

In determining the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to 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); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A jury is also permitted to make reasonable inferences from the evidence. Id. at 254-55.

A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. 29.02(a)(1), (2) (Vernon 2003). The indictment alleges that Curry: "did then and there intentionally and knowingly cause bodily injury to Gilbert Silva, ... by striking [Gilbert] with the hand of the defendant, while the said defendant was in the course of committing theft of property, namely: ONE (1) VIDEO RECORDER, from [Gilbert]." Curry contends that while the indictment alleged a stolen video recorder, the evidence presented at trial established that a video camera was actually stolen. Curry argues that the difference between a video camera and a video recorder presents a "fatal" variance between the pleading and the proof, and therefore, the evidence is legally insufficient to support his robbery conviction. We disagree.

Throughout Gilbert's testimony at trial, he used the words "camera" and "recorder" interchangeably. For instance, while identifying one of the defendants, Gilbert stated, "[h]e's the one that took my camera, the video recorder." Later, on cross examination, Gilbert testified:

Q: And you've been talking about - I know it's in your statement that you say it was a Sony video camera, and when the prosecutor asked you questions, he talked about a video recorder?

A: Un-huh.

Q: Did you look into buying these things before you got one?

A: Yes, sir.

Q: Do you know the difference between a video camera and a video recorder?

A: Yes, sir.

Q: There's a difference, right?

A: Yes, sir.

Q: And what you got was a Sony Hi 8 Video Camera, correct?

A: Yeah, that's what it said on the box, video/audio recorder, but I consider it a video camera.

Gilbert conceded that, while he called the property a "video camera," the box in which the piece of property originated called it a "video/audio recorder."

"A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). However, when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a "material" variance will render the evidence insufficient. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). The test for materiality involves a two-pronged inquiry into whether a defendant's substantial rights have been prejudiced. Id. First, we must determine if the indictment sufficiently informed the defendant of the charges against him to enable him to prepare an adequate defense. Id. Second, we must determine whether prosecution under the alleged deficiently drafted charging instrument would subject a defendant to subsequent prosecution for the same offense. Id.

Here, if a variance exists, we believe it was immaterial. Under the first prong of the test, Curry makes no claim that he was inadequately informed of the charges, and there is no indication in the record that Curry did not know what item he was accused of stealing, or that he was surprised by the proof at trial. Further, under the second prong of the test, Curry fails to demonstrate how the variance between a "video recorder" and "video camera" would subject him to a subsequent prosecution for the same crime. The indictment clearly identifies the offense, the date, the owner of the property stolen, and the location of the offense; even if a subsequent prosecution was attempted for this offense, Curry may avail himself of the record in this case which clearly indicates that only one piece of personal property was stolen from Gilbert Silva on that date, for which he has already been prosecuted. Therefore, after applying both prongs of the materiality test, we conclude the variance, if any, was immaterial. See Gollihar, 46 S.W.3d at 257 (variance between model numbers of go-cart was not material); Fuller, 73 S.W.3d at 254 (misnaming victim was not material variance). We overrule Curry's first issue on appeal.

Factual Sufficiency

In Curry's second issue, he contends that the evidence was factually insufficient to sustain his conviction. In determining the factual sufficiency of the evidence, we view "all the evidence in a neutral light, both for and against the finding, and set aside the verdict if '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.'" Vodochodsky, 158 S.W.3d at 510. There are two ways in which evidence may be factually insufficient: (1) if the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) if contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

First, as we have previously discussed, if a variance existed between "video recorder" and "video camera," it was not material; thus, Curry's factual sufficiency challenge on this basis fails. Fuller, 73 S.W.3d at 253. Second, Curry argues that the identification evidence was unreliable because (1) Gilbert was "surprised" and felt "terror" when the incident occurred; (2) the "show-up at the police station was highly suggestive;" and (3) there were discrepancies between Gilbert's in-court testimony and his prior statement given to police. It is the jury's prerogative to draw reasonable inferences from the evidence and to judge the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). The appellate court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict, but must avoid substituting its judgment for that of the fact-finder. Vodochodsky, 158 S.W.3d at 510; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (appellate court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility given to witness testimony). Only when "proof of guilt is so obviously weak as to undermine confidence in the jury's determination," or "is greatly outweighed by contrary proof," may we reverse a conviction for factual insufficiency. Vodochodsky, 158 S.W.3d at 510. After a review of the entire record, we hold that the evidence is factually sufficient to support the jury's finding of guilt beyond a reasonable doubt. See id. We therefore overrule Curry's factual sufficiency challenge.

Based on the foregoing reasons, Curry's issues on appeal are overruled and the trial court's judgment is affirmed.

Phylis J. Speedlin , Justice

Do Not Publish

1. The video camera/video recorder was the only item that was stolen from Gilbert Silva.