Juventino Lance Flores v. The State of Texas--Appeal from 262nd District Court of Harris County

Opinion issued August 16, 2007

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-05-01016-CR

 

JUVENTINO LANCE FLORES, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

 

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1016222

 

MEMORANDUM OPINION

 

Appellant, Juventino Lance Flores, appeals from a jury verdict for aggravated robbery with a deadly weapon. See Tex. Pen. Code Ann. 29.03 (Vernon 2003). After finding an enhancement to be true, the jury sentenced appellant to 30 years in prison. In five issues on appeal, appellant argues that (1) the evidence is legally and factually insufficient to support his conviction as a party to aggravated robbery; (2) the trial court abused its discretion by admitting evidence of extraneous offenses; and (3) the trial court's finding that he used or exhibited a firearm in the commission of the offense is invalid.

We affirm.

Background

On February 8, 2005, the complainant, Victor Gutierrez, got a flat tire during his drive home from a friend's house in the Aldine-Westfield area. After pulling into a car wash, he called his wife, Abigail, but she could not leave the house because her children were sleeping. The complainant called a wrecker on his cell phone at 12:02 a.m., left his truck at the car wash with the doors locked and the hazard lights on, and began to walk home. (1) Approximately 10 to 15 minutes later, a black sports car with a rear spoiler stopped and asked the complainant for directions. The complainant thought it was odd that the occupants inside the car were asking for directions to Highway 59 because the vehicle had come from that direction. The complainant had started to walk home again when the passenger of the car appeared next to him and stated, "Give me your money," in Spanish, and revealed a "big black gun" which he was holding underneath his jacket. The complainant then handed him his wallet, truck keys, and cell phone. Once the gunman took the complainant's items, the driver of the car said, "Let's go," in Spanish. When the gunman looked back toward the driver, the complainant saw the driver, as he was sticking his head out of the open passenger door of the car, about 20 feet away. At trial, the complainant identified the driver as appellant and testified that the gunman displayed a .44 magnum, a firearm. During the robbery, the complainant feared for his life.

The complainant's wife, Abigail, testified that about two hours after the complainant was robbed, she went to look for the complainant's truck at the car wash. She testified that this happened at about 1:45 in the morning, an hour after the complainant had arrived home. She drove by the car wash but did not see the truck. She eventually found the truck in a dark, wooded area away from the car wash. She testified that she saw two people standing around the truck. They were holding something and she saw sparks. She testified that the two people were trying to "light up our truck." She proceeded to the fire station, told the personnel what had happened, and returned with them to the car wash and saw the vehicle on fire. The complainant testified that his truck had been burned after the robbery and that his toolbox was missing from within the truck.

Dustin Deutsch, an arson investigator and certified peace officer with Harris County, testified that he initially became involved in the case because the primary investigation was a vehicle fire, but the secondary investigation was the crime related with the vehicle fire. He testified that the complainant's truck had been intentionally set on fire. He also testified that "the person that most likely set this fire that left the vehicle in the remote location had the keys, had direct access to the vehicle." He testified that this usually means that the owner was involved. Deutsch investigated the vehicle's owner, the complainant, and determined that he had reported an aggravated robbery. He also learned that the complainant's cell phone had been stolen.

After sending a court order to Sprint PCS Communication to release all phone records, Deutsch determined that an outgoing phone call was made from the complainant's phone after the commission of the crime. Deutsch traced this call to a person with the last name of Suarez who lived in the immediate area where the crime was reported to have occurred. Deutsch went to the Suarez home and spoke with the owners, who said that they had a daughter named Vanessa. Discussions with Vanessa led Deutsch to the residence of Edward Martinez. Deutsch found the complainant's cell phone in Martinez's bedroom.

Based on interviews with Martinez, the officers drove to appellant's residence. When the officers arrived, they noticed a black, two-door Toyota Solara with a rear spoiler in the driveway and learned that it belonged to appellant. Deutsch attempted to talk with appellant, but he was not home. Deutsch then had the complainant identify the driver from a photo line-up. Based on the identification, the officers attempted to arrest appellant at his house. Although appellant was not home, the officers found a .44-magnum shell casing and four .44-magnum bullets.

Martinez, who at the time of trial was residing in the Harris County jail, testified that, on February 9, 2005, the police entered his house and found a stolen cell phone. When the police questioned him at his home, Martinez told the police that he received the stolen cell phone from appellant. At trial, Martinez testified that he was not telling the truth when he told the officers that he received the phone from appellant. He explained that he lied for revenge because he heard that appellant had been "messing around" with his girlfriend.

Isabelle Flores, appellant's mother, testified that on February 8 and 9, her son, appellant, was at home with her.

Legal Sufficiency

In his first point of error, appellant argues that the evidence is legally insufficient to show that he was a party to the aggravated robbery.

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and 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, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

Law of Parties

In order to convict appellant as a party to aggravated robbery, the State had to prove that he was criminally responsible for the perpetrator's use or exhibition of a firearm during the offense. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986) (holding that, in order to convict defendant as party to aggravated offense, there must be sufficient evidence that defendant was criminally responsible for aggravating element); Wooden v. State, 101 S.W.3d 542, 547-48 (Tex. App.--Fort Worth 2003, pet ref'd) (same). A person is criminally responsible for the conduct of another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Pen. Code Ann. 7.02(a)(2) (Vernon 2003); Wooden, 101 S.W.3d at 546. In determining whether an accused bears criminal responsibility for an offense, we may look to events before, during, and after the commission of the offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).

A person commits aggravated robbery if (1) in the course of committing a theft, intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death and used or exhibited a deadly weapon or (2) acted with intent to assist in the commission of the offense while encouraging, aiding, or attempting to aid others in committing the offense. Tex. Pen. Code Ann. 7.02(a)(2), 29.02, 29.03 (Vernon 2003).

Appellant argues that he cannot be guilty as a party to aggravated robbery merely because he was present when the gunman robbed the complainant and that the State did not show "that appellant could see the firearm concealed beneath the robber's clothes before or after the robbery." We agree that mere presence at the scene is insufficient evidence to support a conviction under the law of parties. See Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981). Here, however, the State presented additional evidence of appellant's guilt as a party in addition to his "mere presence."

The jury heard evidence that men in a black sports car with a rear spoiler stopped to ask the complainant for directions. When the complainant continued to walk home, the car stopped a second time, and the gunman exited the vehicle and brandished a .44-magnum handgun. The complainant identified the driver of the sports car as appellant. After the complainant gave his wallet, cell phone, and truck keys to the robber, appellant told the gunman, "Let's go," in Spanish.

Although the State presented no direct evidence that appellant knew that the gunman would rob the complainant, circumstantial evidence showed that appellant assisted the gunman in carrying out the crime by providing transportation to the robbery, waiting as the robbery was committed, and providing transportation for the gunman to flee the scene with the stolen items. Circumstantial evidence also showed that ammunition from the same type of firearm that was alleged to have been used in the offense was found in appellant's room. The jury could also have concluded that the words, "Let's go," stated after the complainant handed his wallet, cell phone, and truck keys to the gunman, showed that appellant recognized the need that both he and the gunman needed to leave the crime scene in a hurry.

Moreover, the jury could have rationally believed that appellant knew the gunman was armed when he transported him to the scene of the robbery, that he saw the firearm when he observed the robbery, and that he saw both the firearm and the stolen items when the gunman returned to appellant's vehicle to flee the scene. After Martinez told officers that he received the cell phone from appellant, officers went to appellant's home and discovered a black two-door sports car with a rear spoiler in the driveway and learned it belonged to appellant. Taking all of this evidence together, we conclude the evidence is legally sufficient to convict appellant of aggravated robbery under the law of parties. See Johnson v. State, 6 S.W.3d 709, 711 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant performed reconnaissance of robbery location and drove getaway car, but was not present at robbery when gun was displayed); see also Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.--Corpus Christi 2000, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant entered getaway vehicle with stolen merchandise while third party pointed gun at victim); Brewer v. State, 852 S.W.2d 643, 647 (Tex. App.--Dallas 1993, pet. ref'd) (holding sufficient evidence of aggravated robbery under law of parties because defendant dropped off and picked up accomplice who committed armed robbery).

We overrule appellant's first point of error.

Factual Sufficiency

In his second point of error, appellant argues that the evidence is factually insufficient to prove that he was a party to the aggravated robbery.

When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence may be insufficient if, considered alone, it is too weak to support the verdict, or if, weighing all the evidence, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute to the evidence that tends to disprove it. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005). We are authorized to disagree with the jury's determination even if probative evidence exists to support the verdict, but we should not substitute our judgment for that of the fact-finder. Id. In conducting a factual sufficiency review, we consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Under his factual insufficiency argument, appellant incorporates by reference his previous arguments from his legal insufficiency argument. The only evidence that weighs in appellant's favor is the testimony of his mother, who testified that appellant was at home with her around the time of the offense, and the testimony of Martinez, who testified at trial that he had lied to the police when he told them that he received the stolen cell phone from appellant. The jury, as trier of fact, is the sole judge of the credibility of witnesses and may believe or disbelieve all or any part of a witness's testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.--Houston [1st Dist.] 1994, no pet.). The jury could have disbelieved both the mother's testimony and the changed story of Martinez. After reviewing all the evidence, we conclude that the conviction is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

We overrule appellant's second point of error.

Extraneous Offenses

In his third and fourth points of error, appellant argues that the trial court abused its discretion by admitting evidence of extraneous offenses committed several hours after the alleged aggravated robbery. Specifically, appellant argues that the trial court admitted evidence that someone, presumably appellant, stole the complainant's tools from his vehicle and set the vehicle on fire. The State argues that the evidence was admissible as same-transaction contextual evidence.

A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion, and the trial court's ruling will be upheld. Id.

The trial court conducted a hearing on the admissibility of the extraneous offenses. At this pre-trial hearing, appellant argued that admitting the extraneous offense would unduly prejudice him pursuant to Rule 403. See Tex. R. Evid. 403. Appellant argued,

On Rule 403, the probability of damage to his--to the defendant based on allowing this ancillary unrelated matter in is going to prejudice him far beyond any probative value it has. There is no evidence at all that this accused had anything to do with this setting of the fire. The car was set on fire several hours--and as a matter of fact, it was the next day after the robbery. It was not robbed and turn around and go back to the car and take the car and set it on fire.

 

The trial court ruled, "I'm going to let it in; and I will allow you to cross-examine on it." Appellant made a further objection pre-trial and asked for a ruling from the trial court. The trial court stated,

As far as the motion to limine, it has been complied with. I will allow the State to go into that in their opening statement. If it turns out that it is not admissible at the time that it's offered, well, I'll make that ruling. I will say sustained. That does not come in. It is not relevant or something to that effect. Right now I'm ruling on the motion to limit. Certainly your exception to that ruling is noted and let's proceed.

 

Before the trial court ruled on the admissibility of photos that showed the burned truck, appellant objected that the photos would be prejudicial to the accused. The trial court made a finding that "their probative value outweighs any prejudicial value."

On appeal, appellant now argues that the "extraneous offenses should have been excluded under Texas Rules of Evidence Rules 401, 403 and 404." Preliminarily, we hold that appellant's complaints to the extraneous offenses pursuant to Rule 404 are waived because appellant made no Rule 404 objection at trial. Appellant asserts the Rule 404 objections for the first time on appeal. See Tex. R. App. P. 33.1 (stating that to preserve complaint for appeal, complaint must have been made to trial court by timely request, objection, or motion). Appellant did preserve his Rule 403 objection which we address. "A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence." Prible, 175 S.W.3d at 733.

Appellant argues that the extraneous offense evidence was not relevant because the "extraneous offenses that occurred two hours [after the robbery] d[id] not make the issue of identity during the aggravated robbery more or less probable than it would be without the evidence of the extraneous offense."

The State argues that the evidence is relevant to the charged offense "within the meaning of Rule 401 . . . to inferentially show in light of all the circumstances that the vehicle and its contents were taken by the perpetrators of the robbery, and were to that extent part of the proceeds of the robbery offense." The State does not argue whether the probative value of the extraneous offenses is outweighed by unfair prejudice. Instead, the State argues that the "complained-of evidence was clearly intermixed with, related to, and connected with the robbery, and effectively showed one continuous transaction" and therefore it was admissible as "same transaction contextual evidence."

Same-transaction contextual evidence results when an extraneous matter is so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case incomplete or difficult to understand. See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). The purpose of admitting extraneous evidence as same transaction contextual evidence is to put the instant offense in context. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993); Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.--Houston [1st Dist.] 2003, pet. dism'd). This context permits the jury to realistically evaluate the evidence because "crimes do not occur in a vacuum." Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). Generally, although a trial court must still perform a balancing test to see if the same transaction contextual evidence's probative value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury's comprehension of the whole criminal transaction. Swarb, 125 S.W.3d at 681.

Here, appellant complains of the extraneous offenses that concern burglary and arson of the complainant's truck after two men robbed the complainant at gunpoint. Notably, the complainant testified that the gunman stole his truck keys and that he left his truck at a car wash with the doors locked and the hazard lights on. About two hours after the complainant was robbed, the complainant's wife went looking for the complainant's truck at the car wash, but did not see it. She eventually found the truck in a dark, wooded area, saw two people standing around the truck holding something, and saw sparks. She testified that the two people were trying to "light up our truck." The complainant testified that his truck was burned after the robbery and that his toolbox was missing. Officer Deutsch testified that the person who moved the complainant's vehicle to the spot where it was found had used its keys because the truck did not show signs of forced entry. This testimony supports a reasonable inference that whoever took appellant's keys also took his truck, removed the tool box, and attempted to burn the truck.

Moreover, Officer Deutsch, an arson investigator, had originally investigated a vehicle fire. He did not become involved in the investigation of aggravated robbery until the complainant's wife discovered that the truck was not where it was supposed to be and that two people were standing by the car attempting to set fire to it. His investigation of that arson led him to the complainant's cell phone, which Martinez had used after the robbery; to appellant's vehicle which matched the description of the vehicle used by the robbers; and to appellant himself, whom the complainant identified in a line-up as the driver.

The extraneous offenses are contextual evidence that help to explain why the police became involved in the case that led to the investigation of the underlying facts and how the police ultimately arrested appellant for robbery. We also conclude that the prejudicial effect of the extraneous evidence did not substantially outweigh its probative value. The contextual evidence has probative value in that it shows how the investigation of the arson led to appellant's arrest. We note that the evidence did not have a high potential to impress the jury in some irrational, indelible way in light of the fact that the arson investigation was rationally tied to the armed robbery. The State did spend considerable time in developing the extraneous evidence, but the amount of time was necessary to explain how the arson investigation ultimately led police to appellant. As for the State's need for the contextual evidence, the State had no way of explaining a fact of consequence, i.e., the events that led to appellant's arrest. Thus, we conclude that the probative value of the evidence was not "outweighed by danger of unfair prejudice, confusing of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence and that the trial court did not abuse its discretion in admitting the evidence." Tex. R. Evid. 403.

We overrule appellant's third and fourth points of error.

Affirmative Finding on Deadly Weapon

In his fifth point of error, appellant argues that trial court erred in failing to submit a special issue to the jury requesting a finding on whether appellant used a deadly weapon. Specifically, appellant argues that because the trial court included a charge on the law of parties, the jury had to specifically find that he used or exhibited a deadly weapon.

To convict appellant of aggravated robbery under the law of parties, the jury was required to find that appellant intended to promote or assist the commission of the offense. See Tex. Pen. Code Ann. 7.02(a)(2). Thus, the jury was required to find that appellant intended to promote or assist an unknown person in robbing the complainant with a deadly weapon, namely, a firearm. Therefore, before the jury could convict appellant as a party, it had to find that he knew a deadly weapon would be used in the commission of the offense. See Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd); Johnson, 6 S.W.3d at 714. Because we previously held in appellant's first point of error that the State presented legally sufficient evidence that appellant committed aggravated robbery as a party, appellant's contention that the jury did not find that he used or exhibited a firearm is incorrect.

We overrule appellant's fifth point of error.

 
Conclusion

We affirm the judgment of the trial court.

 

Evelyn V. Keyes

Justice

 

Panel consists of Justices Nuchia, Keyes, and Higley.

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

1. The complainant left a message with the wrecker service's answering machine.