Lawrence Amaro v. The State of Texas--Appeal from 179th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-142-CR

LAWRENCE AMARO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 179th District Court

Harris County, Texas

Trial Court # 665,367

O P I N I O N

This is an appeal by defendant Amaro from his conviction for aggravated assault, enhanced by two prior felony convictions, for which he was assessed forty years in the Institutional Division of the Texas Department of Criminal Justice.

Defendant was indicted for aggravated assault, enhanced by two prior felony convictions. He pled not guilty but was found guilty by the jury. He pled "true" to the enhancement allegations and requested the court to assess punishment. The court found the enhancement allegations "true" and assessed his punishment at confinement for forty years.

Defendant appeals on one point: "The evidence at trial was insufficient to sustain his conviction."

On May 26, 1993, complainant Saldana, a taxi driver, drove two fares to the north side of Houston. He took the fares' luggage to their door and then walked back toward his cab. Defendant approached him from the street and said, "Do you have a problem?" Saldana answered that he did not. Defendant, coming closer, repeated his question several times. Each time Saldana answered, "No." Defendant then grabbed Saldana by the shirt. Saldana pulled away and got into his cab. While inside the cab, Saldana picked up the cab microphone to call his dispatcher so that the dispatcher could call the police. Defendant then pulled out a pistol and pointed it at Saldana and threatened, "Get it and I'll kill you." Defendant then hit Saldana in the face with his hand while holding the gun in his other hand. Defendant then put the gun in his waistband and walked away. Defendant went up to other persons and harassed them. Saldana called his dispatcher to call the police. The police later arrived and arrested defendant.

Defendant concedes there was sufficient evidence to support a finding of assault. He contests the finding that he used a gun during the commission of the offense. He testified that he did not have a gun and offered a demonstration intending to prove that the pants he wore could not hold the pistol. He further testified that he was wearing the same pants he wore during the alleged assault. He then placed a pistol in his waistband and walked around the courtroom. The pants held up the pistol and thus the demonstration backfired on the defendant.

Challenges to the sufficiency of the evidence should be reviewed in the light most favorable to the prosecution. Jackson v. Virginia, S.Ct., 443 U.S. 307, 319; Butler v. State, (Tex. Crim. App.) 769 S.W.2d 234, 239. The reviewing court should determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler, supra.

Reconciliation of conflicts and contradictions in the evidence is within the province of the jury. Such conflicts should not result in a reversal if there is enough credible testimony to support the conviction. Losoda v. State, (Tex. Crim. App.) 721 S.W.2d 305, 309.

In this case Saldana testified that defendant pointed a gun at him during the assault. Defendant testified he did not have a gun. Defendant has not shown why Saldana's testimony was not credible and should not have been accepted by the jury. A rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Defendant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 26, 1994

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