Arthur Velasquez v. The State of Texas--Appeal from 264th District Court of Bell County

Velasquez v. State TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00477-CR
Arthur Velasquez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 44,866, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

PER CURIAM

 

A jury convicted appellant of attempted capital murder, aggravated robbery, and sexual assault. Tex. Pen. Code Ann. 15.01, 19.03, 22.011(a), & 29.03 (West 1994). The trial court assessed punishment for each conviction at life imprisonment. In his only point of error, appellant attacks the legal sufficiency of the evidence to establish his identity as perpetrator of the offenses. We will affirm the judgment of the trial court.

The offenses occurred in the early morning of October 27, 1994, at a convenience store in Temple called the Exxon E-Z Way. On that date the complainant, Patricia Lynn Fondren, was working the night shift alone. About 2:30 in the morning, she saw a man walking quickly toward the store with his head down and his hands appearing to hold something that she could not see. Fondren described the man as Hispanic, 5'4" or 5'5" tall, weighing 150 to 160 pounds, and having shoulder-length black hair. He was wearing a black and white checkered outer shirt with a white T-shirt underneath. The man entered the store and ran toward Fondren, yelling at her to give him all the money. As he walked behind the counter to the register where Fondren stood, the man held up a knife. He was standing, when he displayed it, "real close" to Fondren. The man removed sixty-seven dollars from the cash register, put it in a paper bag, and demanded that Fondren open the safe beneath the counter. When Fondren could not, the man became angry and grabbed her sweater, ripping it. He told her to go into the back office.

Once in the office, the man ordered Fondren to sit in a chair and disrobe. Photographs of the office admitted in evidence show it to be a small, cluttered room with two chairs placed several feet apart from each other, a desk, safe, and store supplies. The man stood in front of Fondren and held the knife even with her face, yelling that he would kill her. Fondren wrested the knife from one of his hands and ran from the office, but the man caught her by her hair, hit her in the face, and knocked her down. Fondren felt two thumps in her back, which were shown to be puncture wounds, and the assailant dragged her back to the office by her hair.

The man told Fondren to sit in one of the chairs, and he again held the knife in her face. He ordered Fondren to spread her legs, then held the knife near her vagina and penetrated her with his fingers for ten minutes. During this time, the assailant kissed her, bit her left breast, and bit the side of her neck just below the ear. Fondren stated that, while he was assaulting her in this manner, she was very close to his face. Although she could not look at him the entire time, she observed that the assailant had yellow teeth and a dark complexion. When Fondren told the assailant that the man who worked with her would return to the store shortly, the man ceased assaulting her and put the bag of money in his pants.

As the assailant lifted his shirt to place the money beneath, Fondren noticed part of a tattoo on the left side of his abdomen. She described the part she saw as being similar to a face, but shaped like a keyhole, and having the top shaded blue.

The man next pulled the phone from the wall and wrapped the cord around Fondren's hand and waist. Once he left the store, Fondren freed herself and called the police. She estimated that the assailant stayed in the store thirty minutes in all. When the officers arrived, Fondren described her assailant to them just as she did in court.

Fondren identified appellant in court as the man who stole the money and assaulted her. During these acts, appellant was at most two feet from her. She testified that she did not think she would forget the attacker's face and that she was one hundred percent positive that appellant committed the acts she had described.

Fondren also identified in court the shirt that the attacker wore. She particularly remembered a hole in the shirt through which she had noticed his white T-shirt. Although Fondren had earlier described the assailant's shirt as black and white, she agreed that the predominant color of the shirt she identified in court was blue. Temple police officer Jeffery Clark identified the same shirt as the one he took from appellant on the night of October 27, 1994, shortly after appellant was arrested for aggravated robbery.

Appellant displayed for the jury two tattooed faces on each side of his abdomen. Fondren recognized the top part of one of the tattoos, which was colored blue. Because of the way the assailant had pulled up his shirt to hide the money, she had seen only one side of his abdomen. She did not see any other tattoo on the attacker.

Fondren also testified that the police showed her a photographic line-up of six Hispanic males. She needed only two seconds to choose appellant's picture from the six. Fondren stated that she never identified anyone except appellant as the perpetrator.

Temple police officer Sean Childress testified that on October 27, 1994, he was patrolling an apartment complex two miles from the E-Z Way Store. At 12:20 a.m., he encountered appellant at the complex and asked him for identification. Appellant produced a social security card in the name of Arthur Velasquez. Childress noticed tattoos on appellant's neck and right arm and observed that appellant's teeth were dirty, as if they had not been brushed for some time.

Officer Childress recalled that appellant was wearing a blue, white, and gray checkered flannel shirt with a T-shirt underneath. When shown the shirt that Fondren had previously identified as worn by her assailant, Officer Childress stated that it was the same shirt appellant was wearing on October 27. Officer Childress did not see appellant return to the apartments before he left at 2:00 a.m.

Laura Jaramillo, who described herself as appellant's girlfriend, stated that appellant came to her house at 1:30 in the morning on October 27, 1994. Jaramillo accompanied appellant to another apartment, arriving at 1:45 a.m. She testified that appellant's friend Monica came to that apartment later to visit, but that appellant remained inside from 1:45 to 7:00 a.m. Jaramillo identified the plaid shirt admitted in evidence as the one appellant was wearing when he was arrested the night of October 27.

 

Monica Pippins, a friend of appellant, stated that she returned from a fishing trip early in the morning of October 27, 1994. Between 12:30 and 1:30 a.m., she went to the apartment where appellant was staying to ask if he wanted to play dominoes. Pippins said that she did not see appellant, but spoke to him through the apartment door; behind the door, she could hear appellant and Jaramillo talking. Pippins described the tattoos appellant bore on his face, neck, arms, and stomach. She denied that any tattoo on appellant resembled a keyhole. Pippins recognized the shirt the State had offered in evidence as belonging to appellant and stated that appellant was wearing this shirt the evening before the events in question occurred.

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). Our review of all the evidence in this case reveals an ample basis on which a rational jury could find that the perpetrator of the offenses was appellant. Fondren testified that the robbery and assault lasted thirty minutes, during which she observed appellant at close proximity under normal indoor lighting. She identified appellant both in and out of court and recalled numerous details of appellant's appearance and dress. That other evidence differed from Fondren's testimony does not affect the sufficiency of the evidence that, if believed, would sustain the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). We therefore overrule point one.

 

We affirm the judgment of conviction.

 

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: June 26, 1996

Do Not Publish

ing these acts, appellant was at most two feet from her. She testified that she did not think she would forget the attacker's face and that she was one hundred percent positive that appellant committed the acts she had described.

Fondren also identified in court the shirt that the attacker wore. She particularly remembered a hole in the shirt through which she had noticed his white T-shirt. Although Fondren had earlier described the assailant's shirt as black and white, she agreed that the predominant color of the shirt she identified in court was blue. Temple police officer Jeffery Clark identified the same shirt as the one he took from appellant on the night of October 27, 1994, shortly after appellant was arrested for aggravated robbery.

Appellant displayed for the jury two tattooed faces on each side of his abdomen. Fondren recognized the top part of one of the tattoos, which was colored blue. Because of the way the assailant had pulled up his shirt to hide the money, she had seen only one side of his abdomen. She did not see any other tattoo on the attacker.

Fondren also testified that the police showed her a photographic line-up of six Hispanic males. She needed only two seconds to choose appellant's picture from the six. Fondren stated that she never identified anyone except appellant as the perpetrator.

Temple police officer Sean Childress testified that on October 27, 1994, he was patrolling an apartment complex two miles from the E-Z Way Store. At 12:20 a.m., he encountered appellant at the complex and asked him for identification. Appellant produced a social security card in the name of Arthur Velasquez. Childress noticed tattoos on appellant's neck and right arm and observed that appellant's teeth were dirty, as if they had not been brushed for some time.

Officer Childress recalled that appellant was wearing a blue, white, and gray checkered flannel shirt with a T-shirt underneath. When shown the shirt that Fondren had previously identified as worn by her assailant, Officer Childress stated that it was the same shirt appellant was wearing on October 27. Officer Childress did not see appellant return to the apartments before he left at 2:00 a.m.

Laura Jaramillo, who described herself as appellant's girlfriend, stated that appellant came to her house at 1:30 in the morning on October 27, 1994. Jaramillo accompanied appellant to another apartment, arriving at 1:45 a.m. She testified that appellant's friend Monica came to that apartment later to visit, but that appellant remained inside from 1:45 to 7:00 a.m. Jaramillo identified the plaid shirt admitted in evidence as the one appellant was wearing when he was arrested the night of October 27.

 

Monica Pippins, a friend of appellant, stated that she returned from a fishing trip early in the morning of October 27, 1994. Between 12:30 and 1:30 a.m., she went to the apartment where appellant was staying to ask if he wanted to play dominoes. Pippins said that she did not see appellant, but spoke to him through the apartment door; behind the door, she could hear appellant and Jaramillo talking. Pippins described the tattoos appellant bore on his face, neck, arms, and stomach. She denied that any tattoo on appellant resembled a keyhole. Pippins recognized the shirt the State had offered in evidence as belonging to appellant and stated that appellant was wearing this shirt the evening before the events in question occurred.

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). Our review of all the evidence in this case reveals an ample basis on which a rational jury could find that the perpetrator of the offenses was appellant. Fondren testified that the robbery and assault lasted thirty minutes, during which she observed appellant at close proximity under normal indoor lighting. She identified appellant both in and out of court and recalled numerous details of appellant's appearance and dress. That other evidence differed from Fondren's testimony does not affect the sufficiency of the evidence that, if believed, would sustain the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). We therefore overrule point o