Nos. 14-06-00333-CR, 14-06-00334-CR, 14-06-00335-CRNO. 14-06-00336-CR
Opinion filed June 21, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause Nos. 1026203, 1026204, 1026205, 1026206.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
In this consolidated case, appellant Jerry Medel contends the evidence is legally and factually insufficient to support his conviction as a party to three counts of aggravated robbery and one count of aggravated kidnapping. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 3:00 a.m. on May 7, 2005, Veronica Armendariz, Jeffrey Escobar, Natalie Goffney, and Hugh Ausobsky went to a restaurant located near Richmond and Fondren in Houston. The group left the restaurant about an hour later, and as Escobar later testified, he noticed a champagne-colored Toyota Matrix in the parking lot. According to Escobar, a man whom he later identified as appellant Jerry Medel exited the car and asked Escobar for a cigarette. Escobar gave appellant a cigarette and lit it for him. Appellant thanked Escobar and returned to his car. Escobar then drove to his townhouse at 9595 Pagewood or 9797 Pagewood in Houston, followed by Armendariz, Goffney, and Ausobsky. As the two couples exited their vehicles, Escobar noticed that the champagne-colored Matrix had followed them inside the gates of the complex. According to his trial testimony, Armendariz was removing things from her car and the remainder of her group was walking toward Escobar's townhouse when appellant exited the Matrix and approached Escobar, Ausobsky, and Goffney. Escobar testified that Medel pointed a gun at him and demanded that he and his friends give him all of their belongings. Medel was joined by a black male later identified as Eric Smith, and a Hispanic female subsequently identified as Leslie Rodriguez. Escobar testified that the men took a pocket knife from him, and Smith pointed the knife at Escobar and Ausobsky. According to Escobar, Rodriguez tore off Goffney's shirt before the three were ordered to lie on the ground. Escobar testified that one or more of the strangers kicked and hit him as he lay on the ground. Escobar also testified that after he heard the Matrix leave, he, Goffney, and Ausobsky got up from the ground, and he immediately saw that Armendariz was not with them. According to Escobar, he knew the Matrix would have to pass his townhouse again to exit the gated complex, so he led Goffney and Ausobsky inside to wait until the car had passed. There was no phone in the townhouse, and all of their cell phones had been taken, so Escobar then ran toward a club where he believed he could find a police officer. He found an officer and reported the crime, and the officer drove him back to the townhouse. According to Escobar, they arrived at the townhouse at about the same time the officer received word that suspects had been detained. Escobar testified that the officer drove Ausobsky, Goffney, and him to another location where he was reunited with Armendariz and identified Medel, Smith, and Rodriguez as the perpetrators. Ausobsky offered similar testimony. Like Escobar, he testified that Medel was the first to approach the group, and that Medel pointed a gun at Escobar. He similarly testified that Smith held Escobar's knife to his side. According to Ausobsky, Rodriguez ordered them to lie on the ground, where Medel kicked Escobar. Goffney did not testify that Medel pointed a gun at anyone; instead, she testified that Smith lifted his shirt and showed the gun to the group. She also testified that it was Rodriguez rather than Smith who held the knife to Ausobsky. In addition, she testified that as Medel and his companions were leaving, she heard him say something indicating that he "just wanted to leave [Armendariz] there." Armendariz testified that while she was removing things from her car, she saw Medel approach her friends with a gun. She stated that as her friends lay on the ground, Rodriguez ran to her, pulled off her shirt, and told her to lie on the ground. Armendariz heard Medel "tell them to hurry up and let's go." According to Armendariz, Smith pulled her by the arm, said that she was going with them, and pushed her into the backseat of the Matrix. She testified that as she sat in the middle of the backseat, Smith pushed her head into an empty box on the seat beside her. She stated that she felt something against her ear that she believed to be a gun. According to Armendariz, Smith touched her breasts and told her that he was going to "f-the s-out of [her]," and Rodriguez "was agreeing with him that they were going to f-the s-out of me." Armendariz testified that Medel "was asking where they were going next." Armendariz further testified, "When we were trying to find a way out of the apartment [complex], the light-complected male was saying just to let me out and the black male was telling him no, that I was staying." Armendariz testified that the car stopped once and she heard the two men discussing whether to stop or keep driving. According to Armendariz, Smith told Medel "just to go," and Medel agreed. When the car stopped a second time, a police officer approached, and Armendariz lifted her head enough to mouth "help me" to the officer. Houston police officer John Fisher testified that he saw the Matrix run a stop sign and signaled the driver to pull over. Medel stopped the car in a residential area on Meadowglen in Southwest Houston. According to Fisher, Medel exited the vehicle and began walking toward the patrol car, but then ran back to the Matrix, jumped into the driver's seat, and sped away. Fisher called for backup and pursued the Matrix until appellant stopped the car at a gated apartment complex at 3030 Elmside. Fisher testified that Smith exited the backseat of the Matrix and ran southbound down Elmside. Medel also ran, and Fisher caught him as he attempted to climb a gate. According to Fisher, two of the bones in his hand were broken in the struggle with Medel. He further testified that the chase began and ended in Harris County. Armendariz, Escobar, Goffney, and Ausobsky participated in a live lineup that night and independently identified Medel, Smith, and Rodriguez as the same individuals who had participated in the robbery and kidnapping. Fisher stated that a loaded semi-automatic pistol was found in the Matrix, and that the gun is a deadly weapon. He and other police officers further testified that watches, cell phones, and other personal property were found in the car, and that the property was identified by Armendariz, Escobar, Goffney, and Ausobsky as property that had been stolen from them. Smith was captured after jumping a fence, and Officer Chris Stephens testified that he searched Smith and discovered Escobar's pocketknife. Officer Mike Faulhaber retrieved Ausobsky's cell phone from Rodriguez. Medel was charged with the aggravated robbery and aggravated kidnapping of Armendariz, and with the aggravated robberies of Escobar and Goffney. He was tried with Smith, convicted on all counts, and sentenced to a total of twenty years' imprisonment. II. ISSUES PRESENTED
Medel presents six issues for review. In his first two issues, he contends that venue was not established in the trial court, and thus, the evidence is legally and factually insufficient to support his convictions. In his third and fourth issues, he challenges the legal and factual sufficiency of the evidence to support his convictions as a party to two of the aggravated robberies. Finally, Medel argues in his fifth and sixth issues that the evidence is legally and factually insufficient to support his conviction as a party to the offense of aggravated kidnapping. III. ANALYSIS
A. Venue
The State bears the burden to establish venue by a preponderance of the evidence. TEX. CODE CRIM. PROC. ANN. art. 13.17 (Vernon 2005); Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App. 1983) (en banc). However, the evidence used to satisfy the burden may be either direct or circumstantial. Black, 645 S.W.2d at 790. The evidence of venue is sufficient if it permits the factfinder to reasonably conclude that the offense was committed in the county alleged. Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964); Sudds v. State, 140 S.W.3d 813, 818 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Where venue is sought to be established by someone in a moving vehicle, specific points of reference and measurable passages of time constitute circumstantial evidence. Edwards v. State, 97 S.W.3d 279, 286 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Medel argues that, although three police officers testified 9577 Pagewood is an address in Harris County, Escobar testified his townhouse was located at 9595 or 9797 Pagewood; thus, he argues, the State failed to establish venue in Harris County. We disagree. This testimony supports an inference that the townhouse where the robberies occurred and where the kidnapping began is located in Harris County. Moreover, Officer Fisher testified that he saw the Matrix run a stop sign in Harris County, and that the Matrix finally stopped in Harris County. We hold the evidence is legally and factually sufficient to establish venue in Harris County; therefore, we overrule Medel's first and second issues. B. Legal and Factual Sufficiency
1. Standard of Review When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Rather, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc). When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder's role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). 2. Aggravated Robbery A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property without the owner's consent. TEX. PENAL CODE ANN. ` 31.03(a), (b)(1) (Vernon 2003 Supp. 2006). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. ` 29.02(a)(2). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course of committing robbery. Id. ` 29.03(a)(2). Medel challenges the sufficiency of the evidence supporting his convictions for the aggravated robberies of Armendariz and Goffney on the grounds that the jury charge submitted allowed the jury to convict him only as a party and only if Smith or Rodriguez used or exhibited a firearm. However, we do not measure the sufficiency of evidence by the jury charge actually given, but by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997) (en banc). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense charged. Id. at 240. Under the law of parties, a person is criminally responsible "if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." TEX. PENAL CODE ANN. ` 7.01(a) (Vernon 2003 Supp. 2006). Here, the charge incorrectly stated the law of parties in that it permitted the jury to convict Medel as a party only if the firearm was wielded by one of his companions, but did not allow the jury to convict him as a party based on his own conduct as described in the indictments. Armendariz, Escobar, and Ausobsky testified that Medel held the gun during the robberies, and Escobar testified that as he did so, he said, "Hey, give me f-ing everything you got. . . ." Whether this evidence is viewed in a neutral light or in the light most favorable to the verdict, a jury could reasonably conclude that Medel directed both the threat posed by the gun and his commands to surrender property toward everyone in the group. As the sole trier of fact, the jury could reasonably choose to accept the testimony of Escobar, Ausobsky, and Armendariz. Moreover, this court will not reevaluate the weight and credibility of the record evidence. See Johnson, 967 S.W.2d at 412. Thus, under a hypothetically correct charge, a reasonable jury could find all the essential elements to convict Medel as a party to the challenged aggravated robberies based on Medel's own conduct. We overrule Medel's third and fourth issues. 3. Aggravated Kidnapping A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. TEX. PENAL CODE ANN. ` 20.03(a) (Vernon 2003). A person commits aggravated kidnapping if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Id. ` 20.04(b). "Where a defendant forcibly drives another person to various parts of a city and keeps that person isolated with intent to prevent liberation by anyone who might be capable of helping the person, abduction is proven." Wilson v. State, 863 S.W.2d 59, 66 (Tex.Crim.App. 1993) (en banc). Medel first argues that "Armendariz testified that she was kidnapped and physically assaulted by co-defendants Smith and Rodriguez. She also testified that only Smith and Rodriguez verbally threatened her once she was pushed into the Matrix." He further argues that "there is no evidence that [he] agreed to or voluntarily assisted in the kidnapping." We disagree with this characterization of the evidence and its legal effect. A defendant can be convicted as a party if he provides aid or encouragement. See TEX. PENAL CODE ANN. ` 7.02(a)(2) (Vernon Supp. 2006) (stating that one is guilty as a party if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense"). Evidence that Medel may not have provided encouragement, and even may have verbally discouraged the kidnapping, does not diminish the strength of the evidence that he, in fact, aided in its commission. Evidence of a defendant's guilt as a party may be circumstantial. See Vaughn v. State, 888 S.W.2d 62, 68 (Tex.App.-Houston [1st Dist.] 1994), aff'd, 931 S.W.2d 564 (1996) (per curiam) (en banc). In reaching its verdict, the jury may consider events that occurred before, during, and after the offense, and may rely on those events as indicative of an understanding and common design to commit the offense. Id. (citing Moore v. State, 804 S.W.2d 165, 166 (Tex.App.-Houston [14th Dist.] 1991, no pet.). Here, Armendariz testified that she did not enter the Matrix voluntarily, but felt threatened by the gun she had seen in Medel's hands. Perhaps more importantly, the evidence is uncontroverted that Medel knew Armendariz had been forced into the car against her will, but nevertheless, he drove the car away, isolating Armendariz from anyone capable of helping her. See Wilson, 863 S.W.2d at 66; Rodriguez v. State, 730 S.W.2d 75, 79 (Tex.App.-Corpus Christi 1987, no pet.) (upholding conviction for kidnapping and concluding that victim's presence against her will between two abductors in a fast-moving vehicle constituted confinement and a substantial interference with her liberty). Finally, Medel's flight from police, both in the car and on foot, is further evidence of his guilt. See Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994) (en banc) (stating that evidence of flight "shows a consciousness of guilt of the crime for which the defendant is on trial"). Whether viewed in the light most favorable to the verdict or in a neutral light, a reasonable jury could have found all of the elements necessary to convict appellant as a party to aggravated kidnapping. We therefore overrule Medel's fifth and sixth issues. V. CONCLUSION
Having overruled each of the issues presented on appeal, we affirm the judgment of the trial court on each of Medel's four convictions.