Rogelio Cantu v. The State of Texas--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-03-00817-CR
Rogelio CANTU,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 02-CR-135
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: September 29, 2004

AFFIRMED AS MODIFIED

Following a jury trial, Rogelio Cantu was convicted of aggravated robbery and was sentenced to fifteen years imprisonment. In seven issues, Cantu appeals his conviction. As modified, we affirm the trial court's judgment.

Factual and Procedural Background

On August 12, 2002, Adolfo Garcia was in the back yard of his home in Duval County. Also present were David Valerio, Raul Ortiz, and Manuel Rodriguez. Appellant Rogelio Cantu drove up and approached Garcia. Cantu told Garcia to pay him the $10.00 Garcia owed him. Garcia replied that he did not owe Cantu anything. Cantu then went to his car and returned with a machete. Cantu told Garcia to pay him or he would chop Garcia's head off. At that point, Raul Ortiz paid Cantu the $10.00 so Cantu would leave. After receiving the $10.00, Cantu left, taking the machete with him. All four of the men who were there - Garcia, Valerio, Ortiz and Rodriguez - testified. Their testimony was, for the most part, consistent.

According to Valerio, during the argument between Cantu and Garcia, he was scared and concerned for his and Garcia's safety. He was so concerned that he began looking around for something with which to defend himself. According to Valerio, the machete was approximately a foot and a half long and two inches wide. In Valerio's opinion, the machete was big enough to have caused severe bodily injury. Valerio also testified, however, that Cantu never "went at" Garcia or himself with the machete.

According to Ortiz, Cantu and Garcia were arguing about the $10.00 Cantu claimed Garcia owed him. Garcia told Cantu he did not owe him money. Ortiz thought that Cantu was going to hurt Garcia. Ortiz testified that he offered to pay the $10.00 to Cantu so that Cantu would leave. Ortiz also testified that he did not see a machete, but that he had gone back to his car to get $10.00 for Cantu. When Ortiz came back, Cantu did not have a machete. Ortiz also testified that he never appeared before the grand jury in this case.

According to Rodriguez, he saw Cantu and Garcia arguing. Cantu seemed angry and Garcia looked scared. Cantu had a big machete in his hand, and he hit a tree with the machete. Cantu told Garcia that he was going to cut Garcia's neck. Rodriguez testified that he believes if Ortiz had not paid Cantu the $10.00, there would have been a fight. Rodriguez also testified that Cantu never "went at" Garcia with the machete. Rodriguez testified before the grand jury in this case on two occasions.

According to Garcia, Cantu came to his house and said he was there to collect the $15.00 (1) Garcia owed him. Garcia, however, did not owe Cantu any money. Cantu took out a machete and told Garcia to pay or he would cut off Garcia's neck. Cantu then hit a table with the machete. Garcia testified that Cantu was mad. Garcia felt sick and nervous. Ortiz then paid Cantu the money. Garcia stated he did not file a complaint or testify before the grand jury. Garcia also denied signing a statement that bore a signature purporting to be his. According to Garcia, he told his niece, Tita Martinez, about the incident with Cantu.

Mark Martinez was the investigating police officer. He responded to the call regarding a robbery that evening. The victim had called and said someone pulled a machete on him and wanted $15.00. Garcia gave Martinez a statement and signed it in his presence. Martinez also took statements from the other witnesses. He did not testify before the grand jury.

Tita Martinez, Garcia's niece, was the Crime Victim Coordinator for the county attorney. Her boss, the county attorney, was serving on the jury. During the course of the trial it became known to the defense that Tita Martinez was Garcia's niece. Cantu objected to the fact that the State had not listed Tita Martinez as a witness. According to the defense, if the State had listed Tita Martinez, the defense would have asked Tita Martinez's boss to be stricken for cause or would have used a peremptory challenge.

Following his conviction, Cantu filed a motion for new trial and a motion for arrest of judgment, both of which were denied. Cantu now brings this appeal.

Discussion

I. Failure to Name Tita Martinez as a Witness

In his first issue on appeal, Cantu argues that the trial court erred in not granting him a new trial after it was determined that the State failed to list Tita Martinez as a witness. According to Cantu, Martinez brought the complaint to the district attorney. And, she might have signed the complaint and testified before the grand jury. Canto also argues that the district attorney knew from the beginning of the case that Martinez was a potential witness. Thus, Cantu urges, the State's wilful act of withholding Martinez's name from the witness list deprived him of the ability to properly conduct voir dire and present his defense. In support of his argument, Cantu points to Garcia's testimony wherein he states that (1) Martinez, his niece, works in the courthouse and (2) the District Attorney's office had to have known from the very beginning that Martinez knew about the underlying facts of this case.

At trial and outside the presence of the jury, the defense argued that Martinez should have been listed as a State's witness because she had some information about this case and, had she been so listed, the defense would not have kept her employer, the county attorney, on the jury. The State's attorney responded that he had only found out that Garcia and Martinez were related the day before and that he was not aware who had made the report to the police. The State's attorney also noted that Martinez works as a Crime Victim Coordinator and has contact with all crime victims. The trial court denied Cantu's request for a mistrial.

At the hearing on the motion for new trial, Cantu re-urged his complaint concerning Martinez. The State presented Martinez's affidavit wherein she swore that she did not file the charges or testify before the grand jury in this case. She also affirmed that she is the Crime Victim Coordinator and that she told Garcia, her uncle, that if he wanted to do something he would have to file charges. She further stated she gave him a ride to the courthouse and the District Attorney's office.

There is, in fact, nothing in the record to indicate that Martinez was a person that should have been listed as a witness by the State. Despite Cantu's assertions, the record fails to show that Martinez filed the complaint with the District Attorney's office, that she signed the complaint, or that she testified before the grand jury. Martinez's affidavit, in fact, refutes these assertions. The only thing the record does show is that Martinez is Garcia's niece and that she told him he could file charges if he wanted to do so. Although Garcia testified that he believed the District Attorney's office knew from the beginning that Martinez had information about this case, the State represented to the court that it did not discover the relationship between Garcia and Martinez until the day before trial.

Cantu's complaint seems to rest mainly on his lack of knowledge that Garcia and Martinez were related, which led him to allow Martinez's boss, the county attorney, to remain on the jury. Yet, Cantu has failed to present any authority to support his argument that the trial court erred in this regard or to make any showing that he was prejudiced or harmed in any way by this factor. See Tex. R. App. P. 38.1(h). And, Cantu has not shown that the county attorney was prejudiced against him because of Martinez's relationship to Garcia. Finding no error, we overrule Cantu's first issue on appeal.

2. Intention to Commit Theft

In his second issue, Cantu contends that the State failed to prove he intended to commit a theft. Cantu was charged with aggravated robbery. The indictment read: "while in the course of committing theft of property [ ] [Cantu] intentionally and knowingly threatened Adolfo V. Garcia with imminent bodily injury." We construe this issue as one arguing that the evidence was legally and factually insufficient to support Cantu's conviction.

When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side.Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We review 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, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

In conducting a factual-sufficiency review, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex. Crim. App. Apr. 21, 2004). Under traditional factual sufficiency standards, we determine if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at *7. There is only one question to be answered in a factual-sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Id. There are two ways in which the evidence may be factually insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id.

Cantu emphasizes that the evidence shows he was merely collecting a debt when he went to see Garcia. Indeed, the evidence does show that Cantu told Garcia he was there to collect a debt; however, Garcia testified that he did not owe any money to Cantu and that he told Cantu so. Thus, the evidence is legally sufficient. And, viewing all of the evidence in a neutral light, we hold that a jury could be rationally justified in finding that Garcia did not owe Cantu any money and that Cantu was, in fact, intending to commit theft by threatening Garcia with the machete. Thus, the evidence is also factually sufficient. We overrule Cantu's second issue.

3. Variance Between Amount Alleged in Indictment and Amount Proved

In his third and fourth issues, Cantu contends that there was legally and factually insufficient evidence to prove that he committed a theft because the indictment alleged a theft of $10.00 while the evidence showed $15.00. According to Cantu, although the State was not required to allege a specific amount, once it did, it was required to prove that amount. In fact, there was evidence presented at trial to support the allegation in the indictment of a theft of $10.00. Valerio and Ortiz both testified that Cantu demanded $10.00 from Garcia. Thus, the evidence is legally sufficient. And, although Garcia testified that Cantu demanded $15.00, two other witnesses testified to $10.00. We, therefore, hold that the evidence is factually sufficient.

However, even if the State had not presented evidence of the $10.00 amount, there would still be no error. If there were a variance between the indictment amount and the evidence presented at trial, such a variance would render the evidence insufficient only if the variance was material. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A variance is material if the indictment failed to give the defendant sufficient notice of the charge against him or would subject the defendant to the risk of a second prosecution for the same crime. Id. at 257-58. Cantu has not argued how the indictment failed to give him sufficient notice of the aggravated robbery charge against him or how he would be subject to the risk of a second prosecution for the same crime. The indictment alleges the date of the offense, August 12, 2002, and it alleges that while in the course of committing theft, Cantu intentionally and knowingly threatened Adolfo Garcia with imminent bodily injury and that Cantu exhibited a deadly weapon, "to wit: a machete in the manner of its use and intended use was capable of causing death and serious bodily injury." This language sufficiently informed Cantu of the aggravated charge against him and would not subject him to the risk of a second prosecution. Thus, even if there had been a variance between the indictment amount of $10.00 and the evidence at trial, such a variance would be immaterial.

We overrule Cantu's third and fourth issues on appeal.

4. Exhibiting a Deadly Weapon

In his fifth issue, Cantu urges that the State failed to prove that he exhibited a deadly weapon which, in the manner of its use or intended use, was capable of causing death and serious bodily injury. Cantu rests his contention on the fact that the actual machete in question was never produced, that it was never sufficiently described, and that there was no indication that it was a deadly weapon or that Garcia was threatened with bodily injury. Again, we construe this issue as a legal and factual insufficiency issue.

A robbery becomes an aggravated robbery when the defendant "uses or exhibits a deadly weapon." Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 2003). A "deadly weapon" is either: (1) "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" or (2) "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. 1.07(a)(17) (Vernon Supp. 2004). The State alleged that the machete in this case falls into the second category of what constitutes a deadly weapon - that in the manner of its use or intended use is capable of causing death or serious bodily injury.

"The provision's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury." McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). In McCain, the defendant attacked the complainant in her home while he was carrying a nine-inch long butcher knife in his pocket. Id. at 499. He never "touched, brandished, referred to, or overtly displayed the knife" during the attack. Id. The court of criminal appeals held that the fact that the knife was partially exposed could lead a factfinder to rationally conclude "that the knife was exhibited during the criminal transaction, or at least, that its presence was used by appellant to instill in the complainant apprehension, reducing the likelihood of resistance during the encounter." Id. at 503.

In this case, the actual machete was never produced. However, there is evidence that Cantu threatened Garcia with a machete that was big enough to cause bodily injury. Although Cantu never tried to strike Garcia with the machete, there is evidence that he hit a tree or table with the machete and that he told Garcia he would chop his head off if he did not give him the money. Thus, the evidence is legally sufficient. And, in reviewing all of the evidence in a neutral light, we hold that a jury would be rationally justified in finding that Cantu exhibited a deadly weapon. We overrule Cantu's fifth issue.

5. Error in the Judgment

In his sixth issue, Cantu contends that the trial court erred in not correcting the judgment by deleting that there was a finding that a firearm was used or exhibited. This, in fact, was an error in the judgment that the State admitted in its post-trial "Response to Motion for Arrest in Judgment and Motion for New Trial"; however, a corrected judgment does not appear in the record. We, therefore, modify the judgment to delete the finding that a firearm was used or exhibited and to reflect that a machete was used or exhibited. See Tex. R. App. P. 43.2(b).

6. Violation of Due Process Rights

In his seventh and final issue, Cantu argues that his due process rights were violated because of grand jury irregularities. First, Cantu contends that the State never provided him with a list of grand jury witnesses even though he requested it. Second, he points to the testimony of the witnesses in court who stated that they never testified before the grand jury, with the exception of Rodriguez. From these factors, Cantu concludes that either the State presented no witnesses to the grand jury or the witnesses who did testify before the grand jury perjured themselves at trial.

Attached to the State's "Response to Motion for Arrest in Judgment and Motion for New Trial" is a copy of the "Minutes of the Grand Jury" which lists the witnesses who testified before the grand jury in this case. Three of the four witnesses who testified at trial are listed: Rodriguez, Garcia, and Valerio. Valerio, in fact, was never asked at trial whether he had testified before the grand jury. And, Ortiz, whose name does not appear in the grand jury minutes, testified that he had not appeared before the grand jury. Rodriguez, whose name does appear in the grand jury minutes, testified at trial that he had appeared before the grand jury. The only real inconsistency is Garcia's testimony wherein he states he did not appear before the grand jury even though his name is listed in the grand jury minutes. This, however, does not lead to the conclusion, as Cantu urges, that either no witnesses testified before the grand jury or that those who did then perjured themselves in court. Rodriguez did testify that he appeared before the grand jury and Valerio was never asked. Both were listed in the grand jury minutes as witnesses.

Cantu also complains that the written statement Martinez took from Garcia contained a forged signature because Garcia testified the signature was not his. Martinez, however, testified that Garcia signed the statement in his presence. Under these circumstances, we cannot say that Cantu's due process rights were violated. We overrule Cantu's seventh issue.

Conclusion

Based on the foregoing discussion of Cantu's issues on appeal, we affirm the judgment as modified.

Karen Angelini, Justice

Do not publish

1. Unlike the other witnesses, Garcia testified that Cantu was trying to collect $15.00, not $10.00.