No. 05-06-01374-CR
Opinion issued March 13, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-54039-MI.
Before Justices MORRIS, WRIGHT, and MOSELEY.
JOSEPH B. MORRIS, Justice.
In this case, a jury convicted Jesus Fraire Jimenez of aggravated robbery. On appeal, he challenges the factual sufficiency of the evidence against him and complains the trial court erred in how it defined the applicable mental states and reasonable doubt in the jury charge. We affirm the trial court's judgment.
Factual Background
The complainant in this case identified appellant as one of two men in white t-shirts who robbed him at gunpoint in his apartment complex parking lot as he was returning home from a nightclub. He specifically recalled appellant as the assailant who threatened him with a revolver during the robbery. After the robbers left the parking lot in a black Ford Mustang, the complainant walked back to the nightclub, where he had seen police officers. As he was reporting the robbery to the officers, a black Mustang pulled up nearby. Three men got out and changed from white t-shirts into black shirts. Complainant identified two of the men as the ones who had robbed him. At that time, the officers arrested all three men — appellant, his brother, and a friend. One of the officers testified that, while he was being handcuffed, appellant said there was a .45 caliber handgun under the Mustang's passenger-side floorboard. The officer found a gun matching that description in that spot. In addition, the officer who transported appellant to the jail testified that appellant told him he would "beat" the case. At trial, appellant admitted being with his brother and the friend the night of the robbery. He contended, however, that he could not remember whether he robbed the complainant because he was too intoxicated from alcohol and marijuana that night. He did not deny committing the robbery but merely claimed he was too intoxicated to remember whether he had. He admitted he had previously been convicted of the felony offense of false imprisonment. Both the officer who arrested appellant and the officer who transported him to the jail testified that they did not smell marijuana or alcohol on appellant the night of his arrest. Appellant's brother also testified for the defense. He claimed that although appellant had been with him and the friend when they committed the robbery, appellant had been passed out drunk in the back seat of the Mustang when the robbery occurred. The brother admitted he had already been convicted and sentenced for the robbery and had nothing to lose by claiming appellant was innocent of the offense. The State also admitted into evidence a written statement and transcribed previous court testimony by the brother in which he said that appellant had participated in the robbery. Discussion
In his first point of error, appellant claims the evidence against him is factually insufficient. He specifically contends that his testimony and that of his brother show that he was not guilty of the offense. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, ___ U.S.___, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watston, 204 S.W.3d at 417. Here, appellant's testimony in his own defense did not preclude the possibility that he had, in fact, committed the offense. And his intoxication was not a defense to the crime. See Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003). His brother's testimony was contradicted by other evidence in the case, and the jury was justified in not finding his testimony credible. After reviewing the entire record, we conclude the evidence against appellant is factually sufficient. We overrule appellant's first point of error. In his second point of error, appellant complains the trial court failed to properly limit the mental state definitions of "intentionally" and "knowingly" in the jury charge to their applicable conduct elements. He argues that although the mental states for aggravated robbery were applicable to the nature of the conduct, the result of the conduct, and the circumstances surrounding the conduct, the trial court failed to limit the mental state definitions in the charge to the applicable conduct elements. See Ash v. State, 930 S.W.2d 192, 195 (Tex.App.-Dallas 1996, no pet.). Appellant did not object on this basis at trial, and therefore any error on this ground is not reversible unless the record shows he was so egregiously harmed that he did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). We assess harm in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. See id. The record in this case makes clear appellant was not harmed. The evidence of his mental state during the offense was never seriously disputed at trial; the defense simply contended appellant had not committed the offense at all. Because the applicable definitions of "intentionally" and "knowingly" did not significantly impact appellant's conviction, he could not have been harmed by any error in failing to limit the mental states' definitions to their applicable conduct elements. We overrule appellant's second point of error. In his final point of error, appellant complains the trial court erred by including in the jury charge an instruction that the State was not required to prove guilt beyond all possible doubt. He argues that the Texas Court of Criminal Appeals has "forbidden the trial courts to define [reasonable doubt]." He acknowledges, however, that our Court has specifically found against him on this issue. In O'Canas v. State, this Court held that the applicable court of criminal appeals opinion did not prohibit a trial court from giving some guidance on the concept of reasonable doubt and an instruction that the State was not required to prove guilt beyond all possible doubt did not constitute a definition. See O'Canas, 140 S.W.3d 695, 701 (Tex.App.-Dallas 2003, pet. ref'd). Furthermore, as the State notes in its brief, the court of criminal appeals has since held that a trial court does not abuse its discretion by including in the jury charge the instruction complained of in this case. See Woods v. State, 152 S.W.3d 105, 115 (Tex.Crim.App. 2004). We are bound by the holding in Woods. See Sierra v. State, 157 S.W.3d 52, 60 (Tex.App.-Fort Worth 2004), aff'd, 218 S.W.3d 85 (Tex.Crim.App. 2007). Accordingly, we overrule appellant's third point of error. We affirm the trial court's judgment.