Nos. 04-06-00792- CR 04-06-00793-CR
Delivered and Filed: October 17, 2007. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2005-CR-9251 2005-CR-9252, Honorable Sid L. Harle, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
Opinion By: ALMA L. LÓPEZ, Chief Justice.
AFFIRMED After a bench trial, Paul Cazier was convicted of aggravated robbery and evading detention in a vehicle — second offense. Cazier contends: (1) the trial court erred in applying a mandatory presumption of guilt based upon Cazier's flight from police; (2) the evidence is factually insufficient to support both of his convictions; and (3) the evidence is legally insufficient to support his conviction for evading detention — second offense. We affirm the trial court's judgments.
Background
Erika Andrade, a clerk at a meat market, observed a man enter the store with his face covered with a grayish cloth revealing only his eyes. He was holding a gun and demanded money from Andrade. Andrade gave the man money made up predominantly of one dollar bills. Andrade noted that the man was wearing a gray shirt and jeans and that he had big blue eyes. The store's two butchers were in the back room and saw and heard the man ask for the money. They went out the back door and saw the man's vehicle with the engine running. Ortiz, one of the butchers, noted the man was wearing a gray shirt with jeans and was driving a maroon and white, older model Ford Bronco. Rodney Rapp, a witness, saw a man running out of the meat market with his face covered, suspected something was wrong, and followed the man to the back of the building. Rapp observed the man get into an older maroon and white Ford Bronco and drive away. Rapp followed the Bronco but lost the vehicle when Rapp failed to make a light. Rapp returned to the store while the store employees were on the phone with the police. Rapp told the police the direction the man had driven in and gave them a description of the vehicle. Officer Jim Kadric responded to the aggravated robbery call in his marked police cruiser. Within minutes of the robbery, Kadric spotted Cazier's vehicle, which matched the description of the suspect vehicle, in the vicinity of the meat market. Kadric approached Cazier's vehicle and made eye contact with Cazier. When Cazier accelerated away, Kadric immediately turned his vehicle around and activated his lights but Cazier did not stop. Cazier's evasive actions caused several drivers to brake and one driver to swerve. Eventually, Cazier stopped his vehicle and ran into a field. Kadric attempted to pursue Cazier but lost him in the field. Cazier was wearing a gray shirt and jeans. Officer Ben Flores also responded to the robbery dispatch. Flores pulled into a parking lot adjacent to a densely wooded area just as Cazier emerged from the woods wearing a gray shirt and jeans. Flores approached Cazier, asked what he was doing there, and explained that he needed to identify him in connection with a possible robbery. Cazier ran, and Flores chased him. During the chase, Cazier stopped briefly at the roots of a tree where a plastic bag was located and then continued running. Flores saw another patrol unit and radioed the dispatcher for help. The patrol officers stopped their vehicle and apprehended Cazier. Flores went back to the plastic bag where Cazier had stopped and found that it contained money; the majority of the money was one dollar bills. Each of the witnesses at the store later identified Cazier as the robber by his clothes, height, build, and/or "body." Ortiz and Rapp also identified Cazier's vehicle. Cazier testified at trial that he did not commit the robbery. He gave a very different account of his driving during Kadric's pursuit and of his encounter with Flores. He also presented two alibi witnesses who claimed to be with him at different moments during the time of the robbery and police chase. Cazier did not present any evidence corroborating the alibi witnesses' testimony. One of the alibi witnesses, Yvette Trevino, was engaged to Cazier at the time of trial, had a prior criminal record, and did not come forward to exculpate Cazier until the time of trial. The other witness, Kathleen Daniels, was a "close friend." Cazier admitted to having three convictions for felony DWI and one conviction for evading arrest. He also admitted that when he was pulled over by Kadric, he exited his car and ran. Mandatory Presumption Versus Inference
In his first two issues, Cazier contends the trial judge erred by applying a conclusive presumption of guilt based upon Cazier's admitted flight from the police. Cazier bases his argument on the following statement made by the trial judge immediately before he pronounced his verdict: You know, frankly, Mr. Cazier, I think you would have been found not guilty without any hesitation but for the running from the police. It's a caveat and a well-known axiom of law that flight equals guilt, and I have to look at that. So based on all the evidence, I'm going to find you guilty of each offense. Cazier argues that "The trial judge's finding of guilt clearly established a mandatory presumption of [Cazier's] guilt based upon [Cazier's] flight from police officers." In a bench trial, the trial judge is the fact finder. As fact finder, the trial judge is the sole arbiter of the credibility of witnesses and weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App. 1978). The trial judge may consider any or all of the evidence for either side, including evidentiary inferences. See id. Evidence of flight, while not dispositive, may be considered by the fact finder as an indication of guilt. Alba v. State, 905 S.W.2d 581, 586 (Tex.Crim.App. 1995) (citing Foster v. State, 779 S.W.2d 845, 859-60 (Tex.Crim.App. 1989)); Suarez v. State, 31 S.W.3d 323, 327 (Tex.App.-San Antonio 2000, no pet.). Evidence of flight shows a consciousness of guilt and enhances the State's case. Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994). Cazier contends that the judge "did not draw any inference of guilt from [Cazier's] flight, [but] rather . . . presumed [Cazier] was guilty based upon his flight from police officers." Regarding the evidence of flight, the judge stated "I have to look at that." The trial judge did not imply or state that he was required to find Cazier guilty due to the flight nor did the judge state that he found Cazier guilty based only upon the flight. The trial judge specifically stated "based on all the evidence, I'm going to find you guilty of each offense." The judge as fact finder has the exclusive authority to weigh the evidence whether it be direct or circumstantial. Johnson, 571 S.W.2d at173. Because flight may be an indication of guilt and Cazier's flight was within the same time frame and geographic area as the robbery, the trial judge could reasonably consider the flight to be an integral part of the overall evidence. See Bigby, 892 S.W.2d at 884. Although Cazier testified that his flight was prompted by numerous reasons and was not an indication that he was guilty of the charged offenses, the trial judge could properly disbelieve Cazier's defensive evidence regarding the reasons for his flight. See Johnson, 571 S.W.2d at 173. The trial judge's ruling, therefore, was within the zone of reasonable inference to be drawn from the flight. Cazier's first and second points of error are overruled. Factual Insufficiency
In his third and fourth points of review, Cazier contends the evidence is factually insufficient to support his convictions. We review the factual sufficiency of the evidence by considering all of the evidence in a neutral light and only reversing if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). Although we analyze all of the evidence presented at trial, the trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). We may not substitute our own judgment for that of the fact finder. Johnson, 23 S.W.3d at 12. The standard of review for cases comprised of circumstantial evidence is the same as cases comprised of direct evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). A. Evading Detention in a Vehicle A person commits the offense of evading detention — second offense if he intentionally flees in a vehicle from a person he knows is a peace officer attempting to lawfully arrest or detain him and the person has been previously convicted of evading detention. Tex. Pen. Code Ann. § 38.04(a), (b)(2)(A) (Vernon 2003). The Code does not require that the flight be of any certain length or duration to constitute an offense. See id. Additionally, the act of evading detention begins with the mode of locomotion being used by the suspect when the police pursuit starts, regardless of whether or not the original mode of locomotion is later abandoned during the pursuit. Hobbs v. State, 175 S.W.3d 777, 779 (Tex.Crim.App. 2005) (construing section 38.04 as requiring only that a vehicle be used at some point during the evasion). Officer Kadric testified that he spotted Cazier's vehicle and made eye contact with Cazier as he passed him. Kadric testified that Cazier immediately accelerated while Kadric turned around and activated his lights. Kadric testified that Cazier swerved into traffic causing several cars to brake. He testified that Cazier wove in and out of traffic and aborted a turn because he was traveling too fast. Kadric testified that Cazier was already out of his car and running before Kadric came to a full stop. Cazier testified that he did not notice Kadric's marked police car with lights flashing behind him. However, his friend, Kathleen Daniels, testified that she was "follow[ing] right behind [Cazier]," when she noticed a police car following her turn on its lights, and she immediately pulled over. Cazier testified that once he saw Kadric, he immediately stopped, exited his car, and ran. Cazier admitted that he intentionally fled from Officer Kadric once he stopped his vehicle. Cazier contends, however, that he did not intend to flee until after he exited the vehicle, and the short duration and distance of Officer Kadric's vehicular pursuit makes the evidence too weak to support his conviction. Because the Code does not require that the person drive at a certain speed, distance, or length of time to be found guilty of evading detention, whether Cazier's actions constituted evasion is a fact issue for the trier of fact. The trial judge as trier of fact could have reasonably chosen to believe the State's evidence regarding Cazier's actions and to disbelieve Cazier's evidence. See Watson, 204 S.W.3d at 415; see also Rogers v. State, 832 S.W.2d 442, 444 (Tex.App.-Austin 1992, no pet.) (noting that circumstantial evidence can be sufficient to support a conviction for evading detention in a vehicle). After a neutral review of the record, we hold the evidence is factually sufficient to support the trial court's verdict of guilt for evading detention using a vehicle — second offense. A. Aggravated Robbery In Sosa v. State, the appellant contended that the evidence presented in a bench trial was legally and factually insufficient to establish his identity for aggravated robbery and aggravated assault. Sosa v. State, 177 S.W.3d 227, 230 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Appellant argued in Sosa, as Cazier does here, that the witnesses identified him based upon his clothing and build rather than his facial appearance. Id. The Sosa court, held that identification based on an individual's build, when corroborated by other evidence, is legally sufficient. Id.; see also Hutchinson v. State, 42 S.W.3d 336, 342-43 (Tex.App.-Texarkana 2001), aff'd, 86 S.W.3d 636 (Tex.Crim.App. 2002). In the instant case, Cazier was identified by three independent witnesses who viewed him from different angles and distances. Andrade testified that she noticed the robber had blue eyes during the robbery but later identified Cazier by his clothing, height, and "body" because she was unable to see his eyes from her viewing position in the police car. Rodney Rapp witnessed the robber leave the store and later identified Cazier by his clothing, build, and the vehicle he was driving. Ortiz viewed the robbery from the back room of the store and identified Cazier by his clothing, "body," and the vehicle he was driving. Hence, all three witnesses identified Cazier based on his clothing, height, build, "body," and the vehicle he was driving. See Hutchinson, 42 S.W.3d at 342-43. In addition to these identifications, Cazier was driving the same color, make, and model of vehicle that the robber parked in back of the store and used in his get-away. He abandoned that same vehicle and fled on foot from Officer Kadric within the same time frame and geographic area as the robbery. Finally, Cazier was in possession of the general type and quantity of money taken during the robbery. Cazier argues that Andrade's identification is unreliable because Andrade: (1) described Cazier's eyes as blue when the police report stated his eyes were green and (2) signed a statement indicating her identification was based on Cazier's eyes and clothes, yet testified she could not see his eyes during the identification. Conflicting evidence goes to the witness's credibility, and it is within the exclusive province of the trier of fact to weigh the credibility of eyewitnesses and the strength of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); see also Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999) (noting that the appellate court presumes the fact finder resolves any conflict in favor of the prosecution) (citing Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993)). Although Cazier testified at trial that he did not commit the robbery or evade the police in a vehicle, and he presented two alibi witnesses who accounted for his whereabouts during the general time frame of the robbery, he did not present corroborating evidence. One defense witness was his fiancee. The other witness was a close friend. Cazier admitted to three convictions for felony DWI and one conviction for evading arrest. He also admitted that when he was pulled over by Officer Kadric, he exited his car and ran. Although the evidence presented by the State conflicted with the evidence presented by Cazier, the trier of fact must resolve any discrepancies in the evidence. Margraves, 34 S.W.3d at 919. The State's evidence is not so weak that the verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15. Cazier's evidence is not so strong as to preponderate against the great weight of the evidence. See id. at 415. After a neutral review of the record, we hold the evidence is factually sufficient to support the trial court's verdict of guilt for aggravated robbery.Legal Insufficiency In his fifth point of review, Cazier contends the evidence is legally insufficient to support his conviction for evading detention in a vehicle — second offense. Cazier argues that the State failed to offer proof of a prior evading detention conviction at the guilt-innocence phase of the trial. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the prosecution to determine whether a 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 (1979). The standard of review is the same for both direct and circumstantial evidence cases. Kutzner, 994 S.W.2d at 184. Although Cazier argues that the State did not offer evidence of his prior evading detention conviction during the guilt-innocence phase of the trial, his argument is unfounded. First, bench trials are not bifurcated proceedings. Calton v. State, 132 S.W.3d 29, 32-34 (Tex.App. — Fort Worth), aff'd, 176 S.W.3d 231 (Tex.Crim.App. 2005). The court's decision in a bench trial is not "fixed" until after all the evidence has been heard and the court renders judgment on guilt and punishment. Barfield v. State, 63 S.W.3d 446, 451 (Tex.Crim.App. 2001). Second, Cazier's testimony during the guilt-innocence phase of the trial established that he was previously convicted of evading detention. During the trial, Cazier testified that he had a previous conviction for "evading arrest in `98 when [he] picked up [his] second DWI." DWI is an offense that involves using a vehicle in its commission. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). Because both offenses require the use of a motor vehicle in their commission and Cazier admitted to a prior evading detention conviction when he received his second DWI, a rational trier of fact could have found that the prior conviction had been proven beyond a reasonable doubt. Therefore, we hold the evidence is legally sufficient to support Cazier's conviction of third degree felony evading detention, second offense. Cazier's fifth point of error is overruled. Conclusion
We affirm the trial court's judgments.