Jason Vela v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed March 27, 2007

Affirmed and Memorandum Opinion filed March 27, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01076-CR

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JASON VELA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1007201

M E M O R A N D U M O P I N I O N

Appellant was convicted of aggravated robbery and sentenced to fifty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. At trial, the complainant and the victim of an extraneous offense identified appellant as the person who, together with a heavier Hispanic man with longer hair, robbed or attempted to rob them at gunpoint as they worked alone at night in restaurants referred to as Ataquerias.@ Appellant argues on appeal that his conviction should be reversed because the witnesses were not credible and the extraneous-offense evidence was erroneously admitted. We disagree and affirm the trial court=s judgment.

I. Factual and Procedural History

Argentina Garcia is the sole owner and operator of a taqueria located at the corner of Long Drive and Lancaster in a predominantly Hispanic neighborhood of southeast Houston. On November 12, 2004, Garcia closed the taqueria and cleaned the interior, leaving the money she had earned that day in a box in the sink. At nearly 2:20 a.m., Garcia went outside to turn off the propane gas and saw a Achubby@ Hispanic man with slightly long hair and dark clothing standing outside. Garcia told the man the taqueria was closed, and continued walking around the outside of the taqueria to the propane tanks. She then heard someone inside the taqueria, and when she moved back to look, she was confronted by a tall, thin, fair-skinned man wearing light-colored clothing and holding a silver pistol. The man pointed the pistol at Garcia and told her not to move. Garcia was afraid the man would kill her. As Garcia later testified, she faced the man for two minutes before she ran screaming across the street toward a bar. Because the bar was closing, there were people outside, and she told them what had happened. One of these bystanders called the police.

Officer Raul Yzquierdo, Jr. was the first police officer to arrive at the scene. He discovered a small crowd in the middle of the street between the taqueria and the bar. According to Yzquierdo, Garcia was still frightened, and continued crying and screaming. After Garcia described the two men she had seen, an unidentified person in the crowd thrust a cell phone at Officer Yzquierdo. He took the phone and listened as an unidentified person gave him additional information about the suspects. From other evidence presented at trial, it is apparent that the caller told Yzquierdo that police should look for a red vehicle in a certain location. Yzquierdo relayed this information to a dispatcher.

Officer Gabriel Salcido heard the dispatch and followed a red vehicle as it made a sudden left turn. The vehicle=s lights initially were off, but as Salcido drove closer, the car=s hazard lights were activated. Salcido waited until other officers joined him before he turned on the lights of his patrol car and signaled to the vehicle=s driver to pull over. The vehicle traveled another block and turned before the driver stopped.

The driver was a juvenile with no license or registration. He was carrying $242 in bills in his pocket. The car=s two passengers matched Garcia=s description of the two men who approached her. One of these men was appellant Jason Vela.

Police placed each of the men into a patrol car, and three patrol cars returned to the scene of the crime. Garcia was asked to approach each patrol car and determine if the occupant was one of the men she described. Garcia did not recognize the juvenile, but immediately identified the heavier man as the man she had initially seen outside the taqueria. When she attempted to look at appellant=s face, he turned his head, and as Officer Salcido testified, Atried to duck down in the backseat.@ Once she saw his face, however, Garcia identified appellant without hesitation as the man who had pointed a gun at her.

Appellant was arrested for aggravated robbery. Because Garcia had not counted her earnings for the day at the time of these events, she was unable to say whether any cash had been stolen. She did, however, inform police that her cell phone had been taken.

Garcia and Officers Yzquierdo and Salcido testified at trial. Over appellant=s objections, Neris Velasquez also testified to an extraneous offense. Like Garcia, Velasquez operates a taqueria at an intersection in a predominantly Hispanic neighborhood. Three days before Garcia was robbed, Velasquez was working alone at around 10:30 p.m. when three men approached the taqueria. He described one of the men as chubby, with long hair, and described the second man as tall, skinny, and light-skinned. Velasquez described the third male simply as Ayoung.@ According to Velasquez, he saw the tall, skinny man for two or three minutes, and he identified this man as appellant. Velasquez testified that appellant pointed a gun at him and demanded money while the other two suspects tried to force the door of the taqueria open. The suspects left after Velasquez dropped to the floor and called police on his cell phone. Officer Patricio Saldivar, Jr. testified that the two taquerias are approximately two miles apart, and that this distance would take no more than ten minutes to drive.

Officer Gregory Salazar was the sole witness called by the defense. He testified that he responded to Velasquez=s call to the police and wrote in his offense report that Velasquez said the man with the gun had long hair.

Appellant was convicted of aggravated robbery, fined $10,000, and sentenced to fifty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.

II. Issues Presented

In his first two issues, appellant challenges the legal and factual sufficiency of the evidence on the grounds that the State=s witnesses are not credible. In his remaining two issues, appellant contends the trial court erred in admitting evidence of an extraneous offense because this evidence was irrelevant to any issue in the case and its probative value was substantially outweighed by unfair prejudice.[1]

III. Analysis

A. Sufficiency of the Evidence

 1. Legal Sufficiency

When reviewing the legal sufficiency of the evidence, we examine 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc). We do not ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Rather, we determine whether any rational trier of fact could have found the essential elements of aggravated robbery beyond a reasonable doubt. See Mason, 905 S.W.2d at 574.

2. Factual Sufficiency

We begin a factual sufficiency review by viewing all of the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (citing Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997) (en banc)). We will not reverse unless we are able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Id. at 417. We may not re-weigh the evidence or substitute our judgment for that of the jury. See Cain, 958 S.W.2d at 407. Unless the record clearly reveals a different result is appropriate, we Amust defer to the jury=s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor.@ Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (en banc).

 3. Applicable Law

A person commits the offense of robbery if the actor, while in the course of committing theft, and with intent to obtain or maintain control of the property, intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003 and Supp. 2006). A person commits the offense of theft if he unlawfully appropriates property with the intent to deprive the owner. Id. at ' 31.03(a). The offense of robbery becomes aggravated robbery if the actor uses or exhibits a deadly weapon during the commission of the robbery. Id. at '' 29.03(a)(2), (b). A firearm is a deadly weapon as a matter of law. See id. at ' 1.07(a)(17)(A).

4. Legally and Factually Sufficient Evidence Supports Conviction

Appellant first contends that the evidence is legally and factually insufficient to support his conviction because the witnesses against him were not credible. Specifically, he argues that Garcia=s testimony was not credible because she was unable to say whether any cash had been taken. Garcia did testify that her cell phone was stolen, and appellant does not contend that there is insufficient evidence that a robbery occurred. He instead argues that because Garcia does not know if cash was stolen, her remaining testimonyCincluding, presumably, her description of the crime and her identification of appellant as a perpetratorCis not credible. Appellant cites no authority in support of this argument, and does not explain how Garcia=s inability to testify to one fact undermines her ability to testify reliably to other, independent facts. We therefore consider this argument waived. See Tex. R. App. P. 38.1(h).

Appellant also asserts that no physical evidence links him to the crime. No firearm was recovered, and the police did not discover cash that Garcia identified as hers. Thus, he argues, Garcia=s testimony creates only a strong suspicion of guilt. But appellant cites no authority that physical evidence is required to sustain his conviction, or that, in its absence, the complainant=s testimony or identification are not credible. Cf. Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding the evidence presented legally and factually sufficient to uphold the appellant=s aggravated robbery conviction when the appellant was identified only by the complainant Awithout DNA evidence, fingerprint evidence, or evidence of the gun or cash . . . .@); Batts v. State, 673 S.W.2d 666, 668 (Tex. App.CSan Antonio 1984, no pet.) (A[T]he testimony of the complainant standing alone is sufficient to sustain the conviction.@). Thus, this argument also is waived. See Tex. R. App. P. 38.1(h).

In each of these arguments, appellant has correctly pointed out that particular evidence or testimony was not presented at trial. But the lack of such evidence does not affect the sufficiency of the evidence that was presented. Garcia testified that she viewed appellant for two minutes while he was illuminated by good light from two sources. Officer Yzquierdo also testified that the taqueria was illuminated by its own lights and by streetlights. According to Garcia, appellant pointed a silver pistol at her and told her not to move. She ran across the street, afraid that appellant would kill her, and later discovered that her taqueria had been ransacked and her cell phone stolen.

Appellant was apprehended in the company of a person who matched Garcia=s description of the second man who participated in the robbery. All of the witnesses who were present when Garcia identified appellant at the scene testified that appellant tried to prevent Garcia from seeing his face. Officer Yzquierdo testified that appellant turned his head away when Garcia tried to see him. Officer Salcido testified that appellant Atried to duck down in the backseat,@ and Garcia testified that appellant was Ahiding his face@ when she approached the patrol car. Although appellant=s defense counsel implied at trial that appellant averted his face because police shone a flashlight in his eyes, a rational jury could infer that appellant was conscious of his guilt and attempted to prevent Garcia from identifying him. See Gonzalez v. State, 195 S.W.3d 114, 125 n.47 (Tex. Crim. App. 2006) (noting, in the course of discussing forfeiture by wrongdoing, that courts may Ainfer from the record evidence that the defendant intended to prevent a witness or victim from identifying or testifying against him . . . .@);[2] Felder v. State, 848 S.W.2d 85, 97B98 (Tex. Crim. App. 1992) (en banc) (discussing relevance of an appellant=s presentation of false identification to police officers) cert. denied, 510 U.S. 829, 114 S. Ct. 95, 126 L. Ed. 2d 62 (1993). The witnesses also agree that Garcia identified appellant without hesitation, and in court, she again identified appellant as the man who held the gun. Velasquez provided further evidence of appellant=s identity.

Appellant asserts, without supporting authority, that the evidence could be legally and factually sufficient only if Aappellant=s identity was not an issue at trial.@ We disagree. Appellant=s identity was the central issue at trial. It is undisputed that a person matching appellant=s description pointed a pistol at Garcia and told her not to move. Garcia testified that she was afraid the armed man would kill her, and her testimony is corroborated by Officer Yzquierdo, who described Garcia as Ayelling,@ Ascreaming,@ Acrying,@Aupset,@ and Afrightened.@ Garcia=s testimony that her cell phone was taken is also undisputed. The jury was entitled to find all of this testimony credible, establishing all of the essential elements of aggravated robbery. Thus, the only remaining question is whether appellant is the man Garcia described. Although appellant=s defense counsel argued that Athis is a case of mistaken identity@ and attempted through cross-examination to undermine the credibility of the State=s witnesses, the jury impliedly found Garcia=s testimony credible on this issue as well. On the record before us, we have no basis on which to disturb that implied finding.

After viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of aggravated robbery beyond a reasonable doubt. Viewing the evidence in a neutral light, we are unable to find an objective basis in the record supporting appellant=s contention that the great weight and preponderance of the evidence contradict the jury=s verdict. Accordingly, we conclude the evidence is both legally and factually sufficient to support the verdict, and we overrule appellant=s first and second issues.

B. Extraneous Offense Evidence

Appellant next contends that the trial court erred in admitting Velasquez=s extraneous-offense testimony as evidence of appellant=s identity. See Tex. R. Evid. 404(b). Appellant argues that this evidence should have been excluded as irrelevant because his identity was not at issue and the two offenses are dissimilar. In addition, appellant contends that the probative value of the extraneous-offense evidence was substantially outweighed by unfair prejudice. See Tex. R. Evid. 403.

1. Standard of Review

We review a trial court=s ruling admitting extraneous-offense evidence for abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (en banc). We will uphold the ruling if, in light of the evidence before the trial court, the ruling is correct on any theory of law applicable to the case. Id.

2. Identity at Issue

As a threshold issue, appellant contends that extraneous-offense evidence was not relevant to any issue in the case because he did not place his identity at issue. He then relies on Elkins v. State for the proposition that extraneous-offense evidence of identity is not relevant, but instead is inherently prejudicial. 647 S.W.2d 663, 665 (Tex. Crim. App. 1983) (en banc). We do not find Elkins instructive. First, it was decided before the adoption of the present Rules of Evidence; thus, it does not stand for the proposition urged by appellant that the extraneous-offense evidence was improperly admitted under Texas Rule of Evidence 404(b). Moreover, identity was not at issue in Elkins, but is at issue here.

In Elkins, the appellant was also convicted for aggravated robbery. The evidence against him included the victim=s testimony identifying him and identifying clothing and a pistol recovered from the car in which the appellant was a passenger. Id. at 664. After the complainant Awithstood inconsequential cross[-]examination,@ the State presented six witnesses who testified regarding an extraneous offense. Id. In discussing the record, the Court of Criminal Appeals emphasized that the complainant=s identification of the defendant Astood in no way impeached or even weakened by the >manner= of cross[-]examination.@ Id. at 665. Nevertheless, the State devoted Afive times the witnesses and testimony to the extraneous offense@ as to the charged offense. Id. at 666. The Court held that A[t]he record as a whole reflects the issue of his >identity= was not contested by appellant so as to render extraneous[-]offense evidence more probative than prejudicial.@[3] Id.

Unlike the complainant=s testimony in Elkins, Garcia=s identification of the accused in this case was vigorously contested during cross-examination. As the Court of Criminal Appeals has repeatedly observed, the accused can open the door to admission of extraneous-offense evidence by placing his or her identity at issue during cross-examination. See, e.g., Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (APage I@) (defense cross-examination placed identity at issue by suggesting that the 200-pound assailant described by the complainant was not the 265-pound defendant); Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985) (en banc) (evidence of a similar extraneous offense admissible because the defense strategy was aimed at undermining the State=s identification, and cross-examination elicited testimony that the crime scene was dark and the witness did not recall that the defendant had a mustache); Walker v. State, 588 S.W.2d 920, 922B23 (Tex. Crim. App. 1979) (evidence of a similar extraneous offense admissible after witness impeached regarding failure to recall defendant=s tattoos); Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968) (extraneous-offense evidence admissible after identity contested in an unspecified manner during cross-examination of complainant). Specifically, cross-examination places identity at issue if the questions imply that the witness=s identification of the defendant is not trustworthy. Page I, 137 S.W.3d at 78. The relative strength or weakness of such an implication does not affect the admissibility of extraneous-offense evidence under Rule 404(b). Id. at 79 (AThat the impeachment was not particularly damaging or effective in light of all the evidence presented is not the question. The question is whether impeachment occurred that raised the issue of identity.@).[4]

Here, appellant=s defense counsel placed identity at issue during cross-examination. First, his questions to Garcia implied that it was too dark for Garcia to accurately identify the perpetrator:

Q: So, in looking at your taco standC

A: Yes, sir.

Q: Right above the door, there=s no light, is there?

A: The light=s right there.

Q: I=m saying above the door. There is no light, is there?

A: No, sir.

Q: So, you=re relying on a small light on the front of the taqueria?

A: And the one in the back.

Q: Okay.

The attorney also implied that a trustworthy observation would have resulted in a more detailed description of the suspect=s face, body, clothing, and accessories:

Q: [Y]ou gave a description to Officer Yzquierdo, correct?

A: Yes, sir.

Q: Okay. And you said the person with the gun was a tall, thin gentleman?

A: Yes, sir.

Q: With light skin?

A: Yes, sir.

Q: Light clothing?

A: Yes, sir.

Q: You didn=t describe his mouth.

A: No, sir.

Q: You didn=t describe his ears.

A: No, sir.

Q: You didn=t describe his eyes.

A: No, sir.

Q: You didn=t describe his nose.

A: No, sir.

Q: Okay. You didn=t describe if he had any tattoos or not.

A: No, sir.

Q: Didn=t describe if he had any scars or not.

A: No, sir.

Q: You didn=t describe his shoes.

A: No, sir.

Q: Okay. You didn=t describe if his shirt had any designs, stripes, anything like that.

A: No, sir.

Q: You didn=t describe if the pants were tanCtan or khaki.

A: No, sir.

Q: You didn=t describe if he had any jewelry on or not.

A: No, sir.

Q: You didn=t describe if he had facial hair or not.

A: No, sir.

Because appellant=s identity was placed at issue by this line of questioning, extraneous-offense evidence tending to prove identity became relevant to an issue in the case.[5]

 3. Extraneous Offense was a  ASignature@ Offense

Extraneous-offense evidence does not become admissible solely because identity is at issue. When the extraneous offense is introduced to prove identity by comparing common characteristics, the circumstances of the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant=s Adistinctive and idiosyncratic manner of committing criminal acts.@ Martin, 173 S.W.3d at 468 (quoting Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992) (en banc)). The common characteristics of the offenses must be so unusual as to act as the defendant=s Asignature.@ Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996). The signature must be apparent from a comparison of the circumstances in both cases. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (APage II@) (citing Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993)). The two offenses need not, however, be identical. Id., 2006 WL 3733256, at *4.

Appellant contends that the trial court abused its discretion in admitting extraneous-offense evidence to show identity because the extraneous offense is not sufficiently similar to the charged offense. In his brief, however, appellant fails to identify dissimilarities between the two offenses, while our review of the record reveals substantial similarities. In each offense, a person described as a tall, thin, fair-skinned man accompanied by a person described as a Achubby@ Hispanic man attempted the nighttime robbery of a taqueria located at an intersection in a predominantly Hispanic neighborhood on the east or southeast side of Houston. The two offenses occurred only three days apart. In both offenses, the complainant was alone, and identified appellant as the tall, thin, fair-skinned suspect. In both offenses, appellant was armed with a pistol, and was the only suspect who displayed a weapon or spoke directly to the victim. Both victims spoke limited English.[6] Neither victim observed the men arrive or leave in a vehicle; in both instances, the offenders apparently approached and left the taquerias on foot.[7]

The differences between the two offenses are slight. Garcia described appellant=s gun as silver, while Velasquez described appellant=s gun as Alighter brown.@ Velasquez testified that appellant and the heavy-set man were accompanied by a young man, and although Garcia did not see a third suspect, she heard someone inside the taqueria after she went outside and saw the two suspects that she later identified. Moreover, appellant was apprehended in a car with the heavy-set man and a youth within thirty minutes of the Garcia robbery.

Based on our review of the record, we conclude that the trial court did not abuse its discretion by admitting the extraneous-offense evidence. Because the facts of the charged offense and the extraneous offense show a pattern of conduct sufficiently distinctive to constitute a Asignature,@ the extraneous-offense evidence was properly admitted to establish appellant=s identity pursuant to Texas Rule of Evidence 404(b). We overrule appellant=s third issue.

4. Absence of Prejudice

Finally, appellant argues that the probative value of the extraneous-offense evidence was substantially outweighed by unfair prejudice. If relevant criteria, viewed objectively, caused us to conclude that the danger of unfair prejudice substantially outweighed the probative value of the extraneous-offense evidence, we would hold that the trial court erred in admitting such evidence. See Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (en banc) (op. on reh=g). Although several of these relevant criteria are discussed in Montgomery,[8] appellant does not contend that any of those criteria are present here. Instead, appellant argues only that the extraneous offense was not so similar to the charged offense as to constitute a Asignature@ offense. For the reasons we have already discussed, we disagree. Accordingly, we overrule appellant=s fourth issue.

IV. Conclusion

We hold the evidence is legally and factually sufficient to support appellant=s conviction, and that the trial court did not abuse its discretion in admitting evidence of an extraneous signature offense to establish appellant=s identity. We therefore affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed March 27, 2007.

Panel consists of Justices Anderson, Hudson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Although appellant also asserts that the probative value of this evidence was substantially outweighed by undue delay and confusion of the issues, these objections were not raised in the trial court or briefed on appeal. Thus, these arguments are waived. Tex. R. App. P. 33.1(a), 38.1(h).

[2] A jury is no less capable of drawing such an inference.

[3] Although appellant relies on Elkins for the proposition that identity was not at issue, and therefore, extraneous-offense evidence was not admissible under Texas Rule of Evidence 404(b), Elkins was actually decided on the grounds that the danger of unfair prejudice, delay, and confusion of the issues resulting from the evidence substantially outweighed its probative value. These issues are now addressed by Texas Rule of Evidence 403. Thus, the reasoning of Elkins is more closely related to Texas Rule of Evidence 403 than to Texas Rule of Evidence 404(b).

[4] This relative strength of the State=s case and the weakness of the impeachment still may be considered in performing a Rule 403 balancing test. See Montgomery v. State, 810 S.W.2d 372, 392B93 (Tex. Crim. App. 1990) (en banc) (op. on reh=g).

[5] Appellant=s defense attorney asked Officer Yzquierdo similar questions about Garcia=s description.

[6] Garcia and Velasquez testified through an interpreter.

[7] Garcia did not see the men approach, but saw men running away from the taqueria; Velasquez did not see the men leave, but saw them approach on foot.

[8] Id. at 392B93.