Nick Avila v. The State of Texas--Appeal from 238th District Court of Midland County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00014-CR

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  NICK AVILA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR31009

O P I N I O N

The jury convicted Nick Avila of robbery and assessed his punishment at confinement for five years. We affirm.

It is undisputed that appellant entered the EZ Mart Convenience Store with the intent to steal beer, which would be an offense of theft as defined by Tex. Pen. Code Ann. ' 31.03 (Vernon Supp. 2006). What is disputed is whether the evidence established that appellant knowingly, intentionally, or recklessly caused bodily injury to James Barton in the course of committing the theft so as to constitute the offense of robbery as defined by Tex. Pen. Code Ann. ' 29.02 (Vernon 2003). In his two issues on appeal, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, appellant contends that the video of the incident shows that he did not intend to cause bodily injury to Barton but was merely trying to avoid Barton on his way out of the store with the beer.

Barton testified that he was the manager of the store when appellant entered the store, walked back to the beer vault, jerked on the door to the vault until the lock broke, picked up two 30-packs of beer, and headed straight for the front door of the store. Barton stated that he positioned himself at the front door and was going to try to knock the beer out of appellant=s hands. Appellant Ablocked@and pushed Barton with his shoulders. Barton testified that his neck and shoulder were hurt in the confrontation.

The EZ Mart security video was introduced into evidence and played for the jury. Barton identified appellant on the video and explained for the jury what the video was depicting. Appellant did not present any evidence at trial.

The video shows that appellant entered the store, walked to the beer vault, and pulled on the vault door until it opened. Appellant then removed two large boxes and walked to the front door of the store. The video reflects that, as appellant tried to leave the store with the boxes, Barton stood in front of appellant. As appellant moved to avoid Barton, Barton moved to prevent him from leaving. Appellant=s body contacted Barton=s body several times as appellant tried to elude Barton. One box of beer was either knocked or placed on the floor. The other box broke open during the contact between appellant and Barton, and the cans rolled out onto the floor.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8-9; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

When the record is reviewed in the light most favorable to the verdict, the evidence is sufficient to support the jury=s determination that appellant committed the offense of robbery. The jury, as a reasonable fact-finder, could have concluded that all of the elements of robbery had been established. Likewise, when the entire record is reviewed in a neutral light, the evidence is factually sufficient to support the verdict: the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the conflicting evidence. The two issues are overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.