11th Court of Appeals
Eastland, Texas
Opinion
Fermin Rodriguez
Appellant
Vs. Nos. 11-01-00035-CR, 11-01-00036-CR, & 11-01-00037-CR B Appeals from Dallas County
State of Texas
Appellee
Appellant was indicted in each of the three causes for aggravated robbery against three different victims. The three cases were tried together. The jury found appellant guilty of aggravated robbery in each case; and, after finding that appellant had been convicted of prior felonies alleged for enhancement, the jury assessed appellant=s punishment at confinement for 37 years in each case. The three sentences run concurrently. Appellant appeals each conviction. We affirm the judgment of conviction in each of the three cases.
Two of the robbery victims, Azucena Miranda[1] and Isaac Gonzales,[2] identified appellant and codefendant, Isaac Padilla,[3] as the persons who entered the kitchen of Azucena=s house and robbed each victim. Both victims testified that Padilla had a gun and that he placed the gun against the head of each victim and took money, jewelry, and a cell phone from the victims. Gonzales gave Padilla $600 in cash. Both victims testified that they were frightened and in fear of losing their lives. Both Azucena and Gonzales identified appellant as one of the robbers. While Padilla was robbing the two victims in the kitchen, appellant went to the bedrooms in the house. Appellant returned to the kitchen and told Padilla that it was time for them to leave. When the robbers left the house, Gonzales testified that appellant was driving a white Mustang. Azucena immediately called the police, who arrived within minutes. The victims gave the police a description of the robbers, and Gonzales told the officers that the robbers were driving a white Mustang.
Several police officers testified regarding the pursuit of the white Mustang and the arrest of Padilla and appellant. While officers were attempting to stop the white Mustang, the suspects threw a loaded gun and a cell phone out of the car. There was testimony that, during the chase by the officers, appellant was driving the white Mustang. When the car was stopped and appellant and Padilla were arrested, an officer testified that he found $393 in appellant=s hands and the same amount in Padilla=s pocket, plus another $100 bill in appellant=s pocket.
Azucena testified that the cell phone recovered by the officers was the cell phone taken by the robbers. Azucena also identified some of her jewelry that the officers recovered at the time of the arrest. Azucena identified the gun recovered by the officers as being the gun that was held to her head during the robbery by Padilla and appellant.
Joanna Miranda,[4] the 16-year-old daughter of Azucena, testified that she was asleep in a bedroom in the house when appellant came into her room. Appellant told her to give him her money and jewelry. While he did not have a gun, appellant threatened her, and she was afraid that she would be hurt or killed. Appellant threatened Joanna by telling her to lie on the floor Abecause the other guy had the gun.@ Joanna did not see the other guy.
Codefendant Padilla testified that appellant, Padilla=s uncle, did not participate in the robbery. Padilla stated that he and Jose Mendez or Morales robbed the victims. Padilla admitted having a gun but denied pointing it directly at Gonzales or Azucena. Padilla testified that Mendez drove the car away from the robbery, that Mendez was dropped off at an apartment, and that Padilla then picked up appellant. Padilla testified that appellant had nothing to do with the robbery. Padilla claimed that the police officers were lying when they said that appellant had the same amount of money as Padilla.
Appellant asserts in his third and fourth issues that the evidence was not legally or factually sufficient to support his convictions of the aggravated robbery of Azucena Miranda and Isaac Gonzales. In his first and second issues, appellant asserts that the evidence was legally or factually insufficient to prove that he Aused@ a deadly weapon in the robbery of Joanna Miranda.
In determining if the evidence is legally insufficient, this court must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In determining whether the evidence is factually sufficient, this court must review all of the evidence to determine if the verdict is so against the great weight of the evidence as to be clearly wrong or unjust. Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
TEX. PENAL CODE ANN. ' 29.03(a)(2) (Vernon 1994) states that a person commits AAggravated Robbery@ if the person commits robbery as defined in TEX. PENIAL CODE ANN. ' 29.02 (Vernon 1994), and the person Auses or exhibits a deadly weapon.@ Section 29.02(a)(2) provides that a person commits robbery if, in the course of committing theft, the person intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
The jury charge authorized the jury to convict appellant as either a primary actor or a party to the robberies. TEX. PENAL CODE ANN. ' 7.02(a)(2) (Vernon 1994) provides that a person is criminally responsible for an offense committed by the conduct of another if, Aacting 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.@
In determining whether an individual is a party to an offense, the court may look to events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act. Circumstantial evidence may be used to prove party status. Ransom v. State, 920 S.W.2d 288 (Tex.Cr.App.1994).
The evidence is both legally and factually sufficient to prove that appellant was a party to the aggravated robbery of Azucena Miranda and Isaac Gonzales. Appellant=s issues three and four are overruled.
Appellant contends that the evidence was legally and factually insufficient to prove that he Aused@ a deadly weapon in the robbery of Joanna. We disagree. The Court of Criminal Appeals recently said in McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App.2000), that:
[T]he determining factor is that the deadly weapon was Aused@ in facilitating the underlying crime. See Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App.1989). (Emphasis in original)
The record shows that appellant and Padilla entered the house to rob the victims. Padilla had the gun in the kitchen and pointed it at Azucena and Gonzales. Appellant was checking the bedrooms when he discovered Joanna. He told her to give him her money. Appellant threatened Joanna. Joanna thought that appellant was going to kill her. Appellant told her to lie down. Joanna did not see a gun, but appellant told her Athe other guy had the gun.@ Here, appellant made a verbal reference to the gun. Appellant told Joanna to lie down Abecause the other guy had the gun.@ (Emphasis added) The evidence was legally and factually sufficient to prove that the gun was used Ain facilitating@ the robbery. Appellant=s first and second issues are overruled.
The judgments of the trial court are affirmed.
AUSTIN McCLOUD
SENIOR JUSTICE
October 25, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCloud, S.J.[5]
[1]Azucena Miranda was named as the robbery victim in Cause No. 11-01-00035-CR.
[2]Isaac Gonzales was named as the robbery victim in Cause No. 11-01-00036-CR.
[3]Isaac Padilla pleaded guilty before the jury.
[4]Joanna Miranda was named as the robbery victim in Cause No. 11-01-00037-CR.
[5]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.