No. 14-03-01261-CR
Memorandum Opinion filed December 21, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 953,333. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
CHARLES W. SEYMORE, Justice.
A jury found appellant guilty of aggravated robbery and sentenced him to thirty-five years' confinement. In three issues, appellant contends (1) the evidence was legally and factually insufficient to support his conviction, and (2) the trial court erred in allowing the State to impeach appellant with extraneous offenses. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
BACKGROUND
On June 22, 2003, Amber Trevino, the complainant, finished her shift at the bar where she worked and drove to her boyfriend's house. When she arrived, she parked her car on the street and began to approach the house. A man, later identified as Willie Clay, approached Trevino from behind and struck her with a club. Trevino testified that as Clay continued to beat her with the club, appellant and his co-defendant, Chad Ivey, ran up to her and began hitting and kicking her in the head and body. Trevino testified that appellant and Ivey then took her purse and bag. Appellant and the other two men took Trevino's car keys out of her purse and drove off in her car. A few days later, appellant was driving Trevino's car while Clay and Ivey were passengers. When a Houston police officer observed that appellant was driving the car the wrong way on a one-way street, the officer attempted to stop the vehicle. Appellant accelerated and ran several stop signs before he ultimately lost control of the car and hit a telephone pole. After hitting the pole, appellant, Ivey, and Clay jumped out of the car and ran in different directions. The police gave chase, and all three men were apprehended. LEGAL SUFFICIENCY
In his first issue, appellant contends the evidence is legally insufficient to support his conviction of aggravated robbery. In reviewing legal sufficiency of evidence, we examine all of 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). Appellant was charged with the offense of aggravated robbery. A person commits robbery if, in the course of committing theft, he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PEN. CODE ANN. § 29.02(a)(1)-(2) (Vernon 2003). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003). A deadly weapon is anything that in the manner of its use or intended use is capable of causing serious bodily injury or death. See id. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). The trial court's charge authorized the jury to convict appellant of aggravated robbery as a principal or a party. To convict appellant as a principal, the State was required to prove that appellant actually used or exhibited a deadly weapon in the course of committing the robbery. However, the evidence clearly established that only Clay used the club, a deadly weapon, during the robbery. Therefore, the jury must have concluded that appellant was guilty as a party to the robbery. Under the law of parties, a person is criminally responsible as a party to an offense if it is committed "by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a)(2) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another 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. Id. § 7.02(a)(2) (Vernon 2003). Whether the accused participated as a party to an offense may be determined by examining the events occurring before, during, and after the commission of the offense and by examining the actions of the accused that show an understanding and common design to commit the offense. King v. State, 29 S.W.3d 556, 564 (Tex.Crim.App. 2000). Appellant contends that the evidence is legally insufficient to sustain his conviction under the law of parties because he did not act with the intent to assist, promote or otherwise encourage the commission of the offense. However, the State's evidence consisted of Amber Trevino's unequivocal testimony that appellant directly participated in the robbery. Trevino testified that appellant and Ivey hit and kicked her as Clay beat her with the club. She further testified that appellant and Ivey pulled on her bags until the straps broke and then ran away with her bag and purse. Trevino's testimony is legally sufficient to show appellant was at the scene of the robbery and acted with the intent to assist in the commission of the robbery. Even without Trevino's testimony, the evidence is sufficient for a rational jury to conclude appellant had the intent to promote or assist in the robbery. The jury can rely on circumstantial evidence and infer intent from appellant's words, acts or conduct. See Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). If there is no direct evidence of intent, the jury can use collective common sense and apply common knowledge and experience gained in ordinary affairs to draw reasonable inferences from the evidence as to appellant's guilt. Rodriquez v. State, 90 S.W.3d 340, 355 (Tex.App.-El Paso 2001, pet. ref'd). The trial testimony established the following facts: (1) the three men roamed the streets for several hours before the robbery, looking for someone to rob; (2) while roaming the streets, appellant found the club used in the robbery and handed it to Clay; (3) following the robbery, appellant fled the scene in Trevino's car and participated in looking through the contents of Trevino's purse; (4) the three men drove Trevino's car to the state of Alabama; and (5) appellant spent money taken from Trevino's purse to buy marijuana. Appellant's actions are sufficient to allow the jury to reasonably infer that appellant participated with the intent to promote or assist in committing the offense. Despite the State's evidence, appellant relies on his own testimony and his co-defendant, Chad Ivey's, testimony to argue he did not act with the intent to assist, promote, or otherwise encourage the commission of the offense. Both men admitted that they agreed to commit a robbery, but claimed they changed their minds shortly before the robbery took place. Both men admitted to being at the scene, but denied participating in the assault or the robbery. Although appellant and Ivey denied participating in the crime, they offered no corroborating evidence. Their testimony standing alone does not render the State's evidence insufficient. See Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996) (holding evidence is not rendered insufficient when conflicting evidence is introduced). Further, when faced with conflicting evidence, we presume the trier of fact has resolved conflicts in favor of the prevailing party. Herrero v. State, 124 S.W.3d 827, 832 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Viewing the evidence in the light most favorable to the jury's verdict, and considering all of the incriminating circumstances, we hold that a rational trier-of-fact could have found beyond a reasonable doubt that appellant was guilty of aggravated robbery, acting as a party. We overrule appellant's first issue. FACTUAL SUFFICIENCY
In his second issue, appellant contends the evidence is factually insufficient to support his conviction. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). When reviewing the evidence, we must give appropriate deference to the to the jury's findings in order to prevent intruding on the fact finder's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In our review, we must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). To support his factual insufficiency argument, appellant attacks the reliability of Trevino's testimony. Appellant contends that while Trevino was positive that appellant kicked and hit her, Trevino was not in a position to make the type of precise observations to which she testified. Specifically, appellant claims that it is more reasonable that Trevino made every effort to protect herself from the blows inflicted by Clay, and thus was not able to distinguish whether she was being hit with the club or being hit and kicked by appellant. We find appellant's argument unpersuasive. Although Trevino was severely beaten with the club, the jury could have reasonably concluded that she was still in a position to determine that appellant directly participated in the robbery. Because the jury could have reasonably believed Trevino's testimony was accurate, we must defer to its judgment. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Appellant further contends that "the record in its entirety reveals a great deal of contrary proof" that undermines the verdict. However, the only contrary evidence is appellant's own testimony and that of his co-defendant, Chad Ivey. While their testimony clearly conflicts with that offered by Trevino, questions concerning the credibility of witnesses and the weight given to their testimony are to be resolved by the trier-of-fact. Cain, 958 S.W.2d at 408-09. The jury was in a position to evaluate the credibility of these witnesses, and we must defer to that evaluation unless the record clearly reveals a different result. See Johnson, 23 S.W.3d at 8. We find nothing in the record to indicate any reason to disregard the jury's assessment of the credibility of the witnesses or the weight to be given their testimony. Viewing all the evidence neutrally, the State's evidence is neither so weak nor so greatly outweighed by contrary proof as to undermine the beyond-the-reasonable-doubt standard. Accordingly, we hold the evidence is factually sufficient to support appellant's conviction for aggravated robbery as a party. We overrule appellant's second issue. EXTRANEOUS OFFENSES
In his third issue, appellant contends that the trial court erred in allowing the State to impeach appellant with extraneous offenses because (1) the offenses did not result in a conviction as required by Texas Rule of Evidence 608(b), and (2) the State did not give him notice as required by Texas Rule of Evidence 609(f). However, appellant has failed to preserve this issue for our review. To preserve error for appellate review, a party must make a timely, specific objection at the earliest possible opportunity and obtain a ruling. See TEX. R. APP. P. 33.1; Goldberg v. State, 95 S.W.3d 345, 368 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). At trial, appellant testified on his own behalf. During cross examination, the State elicited testimony about previous, un-adjudicated burglaries committed by appellant. After five questions regarding the burglaries were asked and answered, appellant finally objected on the ground of "improper impeachment." This objection was not made at the earliest possible opportunity. Therefore, the objection was untimely and did not preserve the issue for our review. See TEX. R. APP. P. 33.1. We overrule appellant's third issue. Accordingly, the judgment of the trial court is affirmed.