Arturo Garza v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00715-CR
Arturo GARZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-5863
Honorable Mary Roman, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Arturo Garza appeals his conviction for theft of a firearm. After he was convicted by a jury, the trial court assessed punishment against Garza, a habitual offender, at twenty years incarceration. On appeal Garza requests a new trial pursuant to Rule 34.6(f) of the Rules of Appellate Procedure, contending that this appeal cannot be resolved without two diagrams drawn and introduced during trial that were subsequently lost. In addition, he contends the evidence presented by the State was legally and factually insufficient to establish his identity. We overrule all issues and affirm the judgment of the trial court.

Background

At approximately 2:00 p.m. on a Sunday afternoon, Chester Thurman and his fiancé, Sabrina Barbieri, were walking toward Thurman's parked vehicle when they realized it was being broken into. They were about twenty feet from the vehicle when they witnessed a man with black and gray hair reach into the back seat through a smashed in window, take Thurman's rifle, and place it inside a black Nissan. Thurman knew the rifle was unloaded, and he began running toward the suspect, coming within ten feet of him. The suspect stared directly at Thurman and Barbieri, hurriedly got into the Nissan and drove off. Thurman wrote down the suspect's license plate number and called the police. A police officer arrived thirty minutes later and obtained the license plate number of the Nissan from Thurman.

Another officer, Cruz Esquivel, investigated the crime later that afternoon and went to the home of the Nissan's registered owner, Alfredo Rodriguez. Rodriguez informed Officer Esquivel he had sold the vehicle to the appellant, Arturo Garza, a few months before. Officer Esquivel drove to Garza's home, but did not see the Nissan parked in the driveway. Garza was on his front porch, and Officer Esquivel noted that he had black and gray hair. Officer Esquivel asked Garza about the whereabouts of the Nissan, and Garza initally stated Rodriguez had the vehicle. When Officer Esquivel advised Garza he had just come from Rodriguez's home, Garza revised his statement and stated that a mechanic had taken his vehicle for repairs.

Thurman and Barbieri independently went to the police station a few days after the theft and identified Arturo Garza in a photo line-up as the man who had stolen the rifle from Thurman's vehicle. Garza's defensive theory centered around mistaken identity. The defense put on three witnesses who testified that Garza did not have the Nissan the day of the theft. Alfredo Rodriguez testified that Garza did not have possession of the vehicle on the day in question. Rosa DeLuna, Arturo Garza's live-in girlfriend, indicated that it was Garza's brother Ramon who had stolen the rifle. Ramon Garza denied stealing the rifle, but testified that it was he, not Arturo, who encountered Thurman and Barbieri in the parking lot. Both Thurman and Barbieri identified Arturo Garza in the courtroom as the suspect. The defense brought in Ramon Garza and asked Barbieri if he could have been the suspect, and Barbieri stated she had never seen Ramon Garza before.

Missing Exhibits

In his second issue, Garza requests a new trial, contending the appeal cannot be resolved without two diagrams depicting the crime scene that were drawn by Ramon Garza and Thurman, introduced at trial, and subsequently lost. Under Rule 34.6 of the Texas Rules of Appellate Procedure, a court should grant a new trial when the lost or destroyed record is necessary to resolve the appeal. Tex. R. App. P. 34.6(f)(3). If the exhibit is not necessary to the resolution of the appeal, the loss of that portion of the record is harmless. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). Garza contends the diagrams are essential to resolving the issue of identity. Wedisagree. Ramon Garza, who testified he, not his brother, was at the scene, concurred with Thurman and Barbieri that the suspect was a car length, or roughly ten feet, away from them. Because the amount of distance between Thurman, Barbieri, and the suspect was not in dispute, we are able to conduct a complete assessment of Garza's factual sufficiency challenge without the missing diagrams. We conclude the diagrams are not necessary for resolution of this appeal. Isaac, 989 S.W.2d at 757. Garza's second issue is overruled.

Legal and Factual Sufficiency

In two issues on appeal, Garza contends the evidence is legally and factually insufficient to establish his identity and therefore support his conviction for theft of a firearm. We disagree.

A. Standards of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 324 (1979). When performing a legal sufficiency review, we may not act as a thirteenth juror, reevaluating the weight and credibility of the evidence and substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

In contrast, when reviewing the factual sufficiency of the evidence to support the conviction, we view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt Id. at 484. We are to give deference to the jury's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for that of the jury. Zuniga, 144 S.W.3d at 482. We will not set aside the judgment unless the jury's verdict was clearly wrong and manifestly unjust, i.e., where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Id. at 481.

B. Analysis

In his third issue, Garza complains there was insufficient evidence to convict him because the evidence did not prove identity beyond a reasonable doubt. (1) Garza argues the only evidence linking him to the crime was the testimony of the two eyewitnesses and the license plate number of the black Nissan. In particular, Garza focuses upon the fact that Thurman stated Garza's hair appeared darker in the photo line-up than it was in the parking lot. DeLuna testified that she dyes Garza's hair black, and the defense argued that he could not have met the description of the suspect. Garza also asserts that Thurman and Barbieri did not see the suspect long enough to positively identify him. We disagree. Although there was conflicting testimony regarding Garza's hair color and whether he was driving the Nissan, we hold there was sufficient evidence of identity. Officer Esquivel independently corroborated that Garza's hair color was black and gray the day of the theft. Moreover, Thurman and Barbieri came within ten feet of the suspect and testified he stared directly at them. They each clearly saw his face and could recall his facial features. Thurman and Barbieri independently identified Garza's photo out of a photo line-up days after the encounter. We hold there was sufficient evidence of identity. Garza's third issue is overruled.

Garza also contends the evidence supporting mistaken identity so greatly outweighed the evidence of the State's two eyewitnesses that no rational jury could have convicted him beyond a reasonable doubt. Three witnesses testified that Arturo Garza did not have the Nissan the day of the theft. Alfredo Rodriguez testified that he had been giving Garza rides to work while the Nissan was being repaired. DeLuna testified that she saw Ramon Garza driving the Nissan the afternoon of the theft, and remembers that he was carrying a rifle. According to DeLuna, Ramon Garza had the rifle when he left Arturo Garza's home in the afternoon. The strongest evidence supporting mistaken identity was the testimony of Ramon Garza, who testified that he was at the scene and was the person observed leaving in the Nissan. However, during cross-examination of Ramon, the State impeached his testimony with a letter he wrote to Arturo Garza:

Q: And in that same letter, you wrote: "I can say that I took the car from the mechanic, because he was taking too long to fix it, and that I used the car that day but never said anything to you about it." Did you write that to your brother?

A: Yes. I did.

Q: And then you continued: "So, you never did know anything about it." Did you write that?

A: Correct.

Q: And then did you write: "But I have to know what you told the cops and your lawyer so I can get my story straight." Did you write that to your brother?

A: Correct.

Q: "I need some help here or else this whole thing can blow up on us and we'll both end up doing some time in prison." Did you write that to your brother?

A: Yes. I did.

Q: And then you wrote: "We have to be careful." Correct?

A: Correct.

Q: "Like I said, let's see what your lawyer can come up with first." You wrote all those things to your brother?

A: Yes. I did.

Q: And you are saying, you are telling this jury that you weren't conspiring back in December of 2002 to come in here and lie so that you could get your brother off of these charges?

A: No, ma'am.

The jury had to reconcile several conflicts in the testimony of the witnesses. Ramon Garza testified he encountered Thurman and Barbieri on a Saturday, not Sunday, and that it was 12:00 p.m., not 2:00 p.m. The jury also had to consider the conflicting testimony regarding Garza's hair color and whether he was driving the Nissan. As the fact finder, the jury may choose to believe or disbelieve all or any portion of the witness's or appellant's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Moreover, the jury has the exclusive responsibility of reconciling conflicts in the testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Here, the jury chose to believe the evidence that established Arturo Garza as the suspect in the parking lot, and we will not substitute our judgment for that of the jury. See Cain, 958 S.W.2d at 407-08. Garza's first issue is overruled. After a review of all the evidence, we hold the evidence is legally and factually sufficient to support the jury's verdict.

Conclusion

We overrule Garza's issues on appeal and affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH

1. Garza was charged with theft of a firearm, a state jail felony. Tex. Pen. Code Ann. 31.03(e)(4) (Vernon Supp. 2004-2005). The essential elements of a conviction for theft include the unlawful appropriation of the property and the intent to deprive the owner of property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2004-2005). Because Garza only challenges sufficiency of the evidence on the issue of identity, we focus our analysis on that issue.