JHOSVAN MORENO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed September 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01721-CR
No. 05-07-01722-CR
............................
JHOSVAN MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-53210-QR & F07-53359-QR
.............................................................
OPINION
Before Chief Justice Thomas and Justices Wright and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Jhosvan Moreno was indicted for two offenses of aggravated robbery during which he used or exhibited a deadly weapon, to-wit, a firearm. One robbery was committed late on May 30, 2007, against Samuel LeCates and two of his friends and the other robbery was committed early on May 31, 2007, against a cab driver, Teressa Sufa. Appellant pleaded not guilty before a jury to each aggravated robbery. The jury found appellant guilty of each aggravated robbery and, after hearing evidence on punishment, assessed appellant's punishment at twenty years' imprisonment in each case. Appellant now appeals, contending in four “points of error” the evidence in each case is both legally and factually insufficient because the State did not prove the deadly weapon element of the offenses. Concluding the evidence in each case is both legally and factually sufficient to support the jury's verdicts, we affirm each judgment.
Background
        On May 30th, around 4:00 or 5:00 in the afternoon, appellant and several of his friends were at his apartment. Among those friends were twins Pedro Antonio Rodriguez (Antonio) and Pedro Luis Rodriguez (Luis). Also present were J.W., a 16-year-old black male, and Gabriel, Danny, and Milton.   See Footnote 2  According to appellant they were on the outside porch drinking alcohol and smoking marijuana. When appellant and J.W. decided to “hit some licks,” which the Rodriguez twins knew to mean they were going to “rob and steal,” the Rodriguez twins left appellant's apartment and went home. A little later that day, however, the twins saw appellant drive by their house in a Suburban that was painted black and white in a cow pattern. J.W. was in the passenger side of the vehicle. At first, Danny was standing outside the vehicle holding a black .380 gun, but then got inside the vehicle as it drove away.
        At about 11:00 p. m. on May 30th, Sam LeCates   See Footnote 3 , Michael Rote   See Footnote 4  and William “Ridge” Lawrence   See Footnote 5  were walking to a corner store to buy some snacks.   See Footnote 6  As the trio were walking, a vehicle with two people inside turned around and stopped in front of them. The driver was later identified as appellant and the passenger was identified as J.W. J.W. pointed a gun at the youths out the window of the vehicle, told them to stop, and demanded their property. LeCates described the gun as a silver semiautomatic handgun. J.W. took LeCates's cellular telephone. Appellant got out of the vehicle and patted the youths down and took anything he found in their pockets. Appellant and J.W. then got back in the vehicle and left. LeCates and his friends returned to his home but did not tell his parents about the incident until the following morning, at which time the parents were told and the police were called.
        Rote testified to essentially the same facts as LeCates. When the black male pointed the gun at Rote, he was afraid for his life. Rote gave up his money and the robber moved on to the next person. The driver, described by Rote as an Hispanic long-haired male, got out of the vehicle and searched the youth's pockets and took what he found. During the ordeal the robbers made derogatory remarks to the youths. Rote said the gun looked real to him. Later Rote picked the black male out of a lineup but was not able to identify the Hispanic robber. Rote testified he was focused on the gun the black male had pointed in his face and he was afraid he was going to be shot.
        Lawrence testified to the same facts, stating the gun was pointed mainly at Rote, although it was also pointed at the others briefly. Lawrence said after he figured out it was a “mugging” he did not think they were going to be shot. Lawrence did not remember appellant ever talking. Lawrence later picked both robbers out of a photographic lineup.
        At about 3:30 in the morning of May 31st, Teressa Sufa, a cab driver, was waiting to pick up a customer at a taxi stand at the Westin Hotel on Merit Drive. A Suburban painted black and white like a cow pulled up behind him. A black male in the vehicle, holding a silver gun, told Sufa not to move or he would kill Sufa. The driver of the vehicle was a long-haired Spanish male. He also had a gun and pointed it at Sufa. After Sufa gave the pair his money the black male searched his cab while appellant held a gun on Sufa. Upon completion of the search, the two men eventually left. Sufa called the police. When the police came, Sufa was taken to identify the black male robber. Sufa later identified appellant in a photographic lineup.
        About 4:00 in the morning of May 31st, Richardson police officer Tanya Evans was on patrol in a police vehicle. As she patrolled the parking lot of an apartment complex, her attention was drawn to a vehicle that was not parked properly in a parking spot. The vehicle was painted like a “cow car.” The vehicle had a paper license plate. Evans saw a male in the passenger seat. He appeared to be asleep or passed out. Thinking perhaps the male was intoxicated, Evans returned to her patrol car and called for backup. While waiting for backup, Evans saw movement inside the vehicle. When she again approached the vehicle, Evans saw someone in the driver's seat with a silver chrome-plated automatic handgun in his lap. Evans “gained distance,” drew her weapon, and told the male to show his hands. The male then put his hands on the steering wheel, started the vehicle, and drove away. Evans pursued the vehicle but eventually lost it. Evans received information from the Dallas Police Department that the vehicle was suspected of being involved in several aggravated robberies that night. During the chase, J.W. jumped out of the Suburban and ran. The Dallas police captured J.W. in a nearby backyard. Evans was not able to identify the driver in a photographic lineup.
        An investigator with the Dallas County District Attorney's Office, Juan Cervantes, testified he caused some of appellant's mail from jail to be intercepted and copied. Certain portions of that intercepted mail were admitted into evidence at trial. In one of the letters, appellant wrote he was going to “take care of” the “homeboy who snitched on [him].”
        Appellant testified in his own behalf. He testified he was seventeen years old and on the date of the first offense, at about 4:00 or 5:00 p.m., he was outside of his apartment drinking alcohol and smoking marijuana with his friends, J.W., Gabriel, the Rodriquez twins, and Danny. J. W. began talking about the days when they hung out and stole and J.W. thought they should do it again. Appellant said because he was not thinking right, due to smoking and drinking, he said okay. Appellant did not invite the others to participate. Appellant did not have a driver's license. Nevertheless, he borrowed a vehicle from Gabriel. Appellant felt awful for the victims and opined he should have stayed home while he was on drugs. Appellant agreed that Danny had a revolver; however, appellant testified Danny was not with J.W. and him during the robberies. He testified that during the robberies he and J.W. had only toy guns that they bought from Wal-Mart. He explained that if the orange tip of a toy gun was removed or colored it looked like a real gun. The toy gun had a barrel and you could see metal when you looked down the barrel. Appellant and J.W. used the toy guns to scare the victims into giving up their property. The defense offered as defense exhibit number one an airgun like the one appellant said he and J.W. used during the robberies. Appellant testified, however, that the ones they used looked like real guns. Appellant admitted at trial that one of the letters the District Attorney intercepted talking about “leaning on Pedro Luis Rodriquez” was basically telling his brother “[t]o revenge” or “[t]o get at him.”   See Footnote 7 
        Appellant confirmed much of the earlier testimony of LeCates and his friends. Appellant said he and J.W. were driving around looking for someone to rob when they saw the group of boys walking. J.W. put the gun out the window and told the boys to stop. J.W. also told appellant to stop the vehicle. Appellant testified they targeted younger victims because they were easier to rob. They were going to use the money they got in the robberies to go to Jack-In-the-Box. The Jack-in-the-Box was near the Westin. When they saw the cab driver counting money, they decided to rob him. Afterwards, appellant and J.W. went to an apartment complex in Richardson to wait until the next morning but they passed out in the parking lot. Appellant was scared when the officer told him to put his hands up because she had a real gun. After appellant evaded the officer, he parked the vehicle behind a laundromat and left it there. J. W. was arrested that night; appellant was arrested one week later at his home. Appellant took the stolen property to his house and got rid of it. When the police knocked on appellant's door he tried to shut the door on them, intending to run and hide, but the police pushed their way in. Appellant was home alone at the time of the arrest. Appellant said at the time he was arrested the toy guns were on the couch; however, the police did not search the apartment and did not take the guns. Appellant later talked to his mother and she told him she had already gotten rid of the guns.
        Appellant admitted he wrote the letters admitted into evidence as State's exhibits 14 and 15. He also admitted he sent a picture out and that he goes by the name “Beto.” During cross- examination the following exchange occurred between the prosecutor and appellant:
 
        Q [by the prosecutor]: When did you write that first letter to the female inmate?
 
 
 
        A: When did I write the first letter?
        Q: Yeah, when did you write that?
        Q: I don't recall. I wrote her one letter then she wrote me back and I wrote that one.
 
 
 
        Q: Okay. So was it when you first got in or what?
        A: Like a month ago.
        Q: A month ago?
        A: Yes, sir.
        Q: And you knew this trial was coming, right?
        A: Yes, sir.
        Q: And in the letter to the female, you actually said “What's up Boo? Yeah, I'm doing the same shit you doing, wasting time in here. I'm in here for agg rob. When I get a chance I'm going to cop out for papers.” That means probation to you, right?
 
 
 
        A: Yes, sir.
        Q: And then, “You know 'cause they don't got no gun but they got my old homeboy who snitched on me. So he's going to get taken care of any ways.” And you're saying I'm going to cop out for papers because the police department never recovered a gun, right?
 
 
 
        A: Yes, sir.
        Q: Because your mother got rid of the guns?
        A: Yes, sir.
 
        Appellant later testified he wanted Pedro Luis to get taken care of because he told on him.
        On cross-examination the following exchange occurred between the prosecutor and appellant:
 
        Q: I mean, you already knew what you're [sic] defense was going to be, you wrote it out; isn't that true?
 
 
 
        A: Yes, sir.
        Q: Because you know if this jury says that wasn't a real gun or they don't have a real gun it gets reduced to robbery. You know that, don't you?
 
 
 
        A: I knew that when I went to the library, law library.
        Q: Yeah. You researched that, didn't you?
        A: Yes, sir.
        Q: You sure did. And that's why you wrote that because you know that, that if you fool this jury into thinking that it was a toy gun out [there] that night [the] charge gets reduced to robbery and it's two to 20 instead of five to life. You know that, don't you?
 
 
 
        A: Yes, sir.
        Q: You researched that in the law library?
        A: Yes, sir.
        Q: You went there?
 
        A: Yes, sir.
        Q: Trying to figure out what you were going to say to this jury. Because we had you cold; isn't that right?
 
 
 
        A: Yes, sir.
        Q: You've got to come up with something and you did, didn't you?
        A: Yes, sir.
 
* * * *
 
 
        Q: So you came up with this ridiculous story that you guys had a toy gun in Defendant's Exhibit 1?
 
 
 
        A: Yes, sir.
        Q: This is what you're talking about right?
        A: Yes, sir.
        Q: This gun?
        A: Yes, sir.
        Q: So somehow this gun had some sort of spring in it, some sort of spring in it and some kind of orange tip at the end is what fooled three kids, a cab driver who's been robbed before, and a veteran officer, is what you came up with?
 
 
 
        A: Yes, sir.
        Q: Right? That's your story?
        A: Yes, sir.
 
        Appellant confessed to the jury he was “absolutely guilty of robbing those people,” but he used a fake gun and no one could be shot with a fake gun. The toy guns were on the couch when appellant was arrested but his mother got rid of them before appellant talked to his mother. Appellant apologized to the victims. He denied holding the gun to Sufa's head or telling Sufa he was going to kill him. However, appellant admitted that if Sufa had a customer in the cab he would have also robbed the customer.
        On re-direct, appellant testified that prior to meeting with his attorney appellant did not know that having a real or a fake gun would make a difference in the punishment range for the offenses he committed. He first learned that from his attorney and then he went to the law library and researched it. Appellant testified that from about 8:00 p.m. on May 30th until 3:30 a.m. on May 3lst, he and J.W. were “just out looking for people to rob.”
        The jury found appellant guilty, in each case, of aggravated robbery. After hearing punishment evidence, the jury assessed appellant's punishment at twenty years' imprisonment in each case.
Appeal
        In each case on appeal appellant contends the evidence is both legally and factually insufficient to support his conviction because the State failed to meet its burden of proving the deadly weapon element of the offense of aggravated robbery because the guns used were fake guns.
Standards of Review
        The standards of review are well known to the parties. In determining whether the evidence is legally sufficient to support a conviction, the reviewing court determines whether, after viewing all the evidence in the light most favorable to the verdict, 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); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
If the record supports conflicting inferences, the reviewing court must presume the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
        The proper factual sufficiency review requires the reviewing court to review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The reviewing court must determine whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 7, 10- 11. An appellate court cannot conclude the evidence is factually insufficient simply because it would have voted to acquit the defendant. Watson, 204 S.W.3d at 417. To reverse for factual insufficiency, a reviewing court must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Id.
Analysis
        Under the indictments, the State was required to prove as an element of its case that appellant used or exhibited a deadly weapon during the commission of the robberies. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). In each case the jury was instructed on the law of parties. Deadly weapon is defined by the penal code as: “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Tex. Penal Code Ann. §1.07(17)(A) (Vernon Supp. 2008).
        Appellant confessed to the jury he “absolutely” committed robbery; thus, the only issue is whether the guns used by appellant and J.W. were real or fake. Viewing the evidence in the light most favorable to the jury's implied finding the guns were real, the record shows the following evidence. The Rodriguez twins saw Danny, one of appellant's passengers in the black and white Suburban, with a black .380 gun both outside and inside the vehicle on May 30th. LeCates and Rote believed the gun pointed at them by J.W. was a real gun and they feared for their lives. Sufa saw both appellant and J.W. with a silver gun as they ordered him to turn over all his possessions to them. Appellant held a gun to Sufa's head and threatened to kill him. Sufa believed the guns he saw were real. Also, veteran police officer Evans saw a silver automatic handgun on the lap of the driver of the black and white painted Suburban when she approached the vehicle in the apartment complex parking lot. Evans testified there was no doubt in her mind the gun she saw on the driver's lap was real. Although Evans was not able to pick appellant out of a photographic lineup, appellant admitted he was the driver of the vehicle. And, finally, one of the intercepted letters from appellant to a fellow inmate boasted that appellant would receive probation because the State did not recover the guns used during the robberies.
        Applying the legal sufficiency standard earlier set out to the testimony above, we conclude the evidence is legally sufficient to support the jury's verdict in each case.
        The only testimony that the guns were fake came from appellant. However, his testimony is inconsistent, contradictory, and uncorroborated. There was no evidence presented that at any time prior to trial appellant had claimed the guns he and J.W. used during the robberies were not real, but fake. Appellant testified his attorney told him the penalty range would be different for the offenses he had committed if the guns used were fake and not real. Thereafter, appellant testified he went to the law library in the jail and researched that issue. Even in the intercepted letters, however, appellant did not contend the guns were fake; he simply said the police did not have any guns. And the guns were disposed of by appellant's mother who did not testify at trial. The jury was free to discredit appellant's testimony that the guns were fake and credit the testimony of not only the victims but also of a veteran police officer who had no doubt the weapon she saw on the lap of the driver of the black and white Suburban was real. Appellant admitted he was that driver.
        Viewing all the evidence in a neutral light, we cannot say that the evidence that the guns were real, not fake, is so weak as to be clearly wrong or manifestly unjust or that the adverse finding is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 7, 10-11.
        We affirm each judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
071721F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 According to Pedro, Milton was present; however during appellant's testimony, he did not mention Milton being present.
Footnote 3 LeCates was 16 years old and in the eleventh grade.
Footnote 4 Rote was 16 years old and in the tenth grade.
Footnote 5 Lawrence was 16 years old and a junior in high school.
Footnote 6 Earlier in the day, around 4:30 p. m., the trio had smoked marijuana before going to a video arcade. By 11:00 p. m., the effects of the marijuana had worn off and they had decided to get some food.
Footnote 7 Following appellant's answer, defense counsel rephrased his answer and appellant agreed with her recharacterization.