Eusebio Rodriguez v. State

NUMBER 13-00-097-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

__________________________________________________________________

EUSEBIO RODRIGUEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

__________________________________________________________________

On appeal from the 377th District Court

of Victoria County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Eusebio Rodriguez, appellant, was found guilty of aggravated assault with a deadly weapon,⁽¹⁾ enhanced with a prior felony, and sentenced to fifty years confinement, and a $5,000 fine. By two issues, appellant contends there is insufficient evidence to support his conviction and that the punishment assessed amounts to cruel and unusual punishment. We affirm.

Juan Gonzalez attended a small party at the home of Manuel Camacho, appellant's cousin. Gonzalez had never met any of the people at the party except for his girlfriend, who had invited him to the party. During the party, an altercation took place and appellant was stabbed. According to Gonzalez, appellant arrived at the party followed by Erasmo Rodriguez, appellant's brother, who stated, "Let's 'F' up anybody that was not family." Gonzalez was the only one who was not family. Erasmo walked up to Gonzalez, took a swing at him, and knocked him to the ground. The two wrestled on the ground, and Gonzalez rolled on top of Erasmo. At that point, Gonzalez felt a numbness in his left side. Gonzalez got up and saw appellant swinging a knife around. Gonzalez realized he had been stabbed in the side and had been cut a few times on his elbows and hand. Though he never saw appellant stab him, he did see him cut him.

Gonzalez fled the scene and eventually arrived at the hospital. While at the hospital, Gonzalez gave a statement to Detective Tom Copeland of the Victoria Police Department wherein he named "Pumpkin" as the person who had stabbed him. At the time, Gonzalez knew appellant only as "Pumpkin." Detective Copeland showed Gonzalez pictures of appellant and Erasmo, and asked him if either of the persons in the photographs had stabbed him. Gonzalez signed the photograph of appellant as the person who stabbed him. During trial, Gonzalez identified appellant as the person who cut and stabbed him.

Camacho gave a written statement to Detective Copeland. At trial, Camacho claimed Detective Copeland fabricated most of the statement. According to the statement, appellant had a knife in his hand and started hitting Gonzalez. Camacho testified at trial, however, that appellant was not at the party and that he never saw a knife.

Detective Copeland testified that he investigated the scene and took statements from a number of individuals. He stated Gonzalez identified appellant as the person who stabbed him. Detective Copeland further testified that he did not fabricate Camacho's statement.

Dr. Bruce McDaniel treated Gonzalez when he arrived at the hospital. According to Dr. McDaniel, Gonzalez said he was stabbed by an unknown assailant. In response to this testimony, Gonzalez stated that at the time he did not know appellant's name. Finally, appellant took the stand in his defense and denied having been at the party and denied stabbing Gonzalez. The jury found appellant guilty of aggravated assault, and this appeal ensued.

In his first issue, appellant asserts the evidence is insufficient to support the jury's verdict. In the absence of specificity, we will presume appellant's challenge is to both the legal and factual sufficiency of the evidence.

We conduct a legal sufficiency review by examining the evidence in a light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.⁽²⁾ Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury is the sole trier of fact, and may judge the credibility of the witnesses, reconcile conflicts in the testimony, and accept or reject any or all of the evidence on either side. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). If the evidence establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, the appellate court does not reverse the judgment on legal sufficiency grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In reviewing the factual sufficiency of the evidence, we view all the evidence 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. Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App.1996). We apply the factual sufficiency test to the facts without the prism of "in the light most favorable to the verdict." Clewis, 922 S.W.2d at 135. The review must be appropriately deferential so as to avoid substituting this Court's judgment for that of the jury. Cain, 958 S.W.2d at 407.

A person commits aggravated assault if the person intentionally, knowingly, or recklessly causes serious bodily injury to another or the person uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a) (Vernon 1994).

In his challenge to the sufficiency of the evidence, appellant claims Gonzalez's testimony was not entirely consistent. Appellant notes Gonzalez did not give law enforcement officials appellant's name as the person who stabbed him. His statement says he was stabbed by Pumpkin, and does not name appellant. However, Gonzalez explained he did not know appellant's name at the time, and only knew him as "Pumpkin."

Appellant points out that Gonzalez did not tell sheriff's deputies that appellant or "Pumpkin" had stabbed him, but just that two guys had cut and stabbed him. He was not sure how many officers he told that to. On redirect examination, Gonzalez testified that two people attacked him; somebody hit him and somebody stabbed him. He was bleeding and was a little excited when he went to the sheriff's department.

Appellant also contends the evidence is insufficient for the following reasons: Gonzalez's testimony was contradictory as to whether he actually saw appellant cut him or whether he saw appellant with the knife at the time of the incident; an individual named Melissa Cordova tried to tell police she stabbed Gonzalez; officers apparently found no fingerprints, hairs, or fibers tying appellant to the crime; and Gonzalez did not describe to the officers the clothing Erasmo and appellant were wearing.

Gonzalez identified appellant as the person who stabbed him at trial. He testified he saw appellant with a knife in his hand. Detective Copeland testified a knife can be used as a deadly weapon. The jury is the sole judge of the weight and credibility of the witnesses, and it may accept or reject any or all of the testimony of any witness. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). We conclude a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. There is legal and factually sufficient evidence. Appellant's first issue is overruled.By his second issue, appellant contends his sentence of fifty years confinement is cruel and unusual punishment under the United States Constitution and the Texas Constitution. Appellant states that his argument of cruel and unusual punishment is predicated on the court's severe punishment in light of the insufficient evidence presented by the State. We have concluded there was sufficient evidence to support the verdict. Moreover, the punishment assessed here was within the statutory range of punishment. The jury found appellant guilty of aggravated assault, and the offense was elevated to a first degree felony based on a prior felony conviction. See Tex. Pen. Code. Ann. § 12.42 (b) (Vernon Supp. 2001). The range of punishment for a first degree felony is life or five to ninety-nine years in prison, with a maximum fine of $10,000. See Tex. Pen. Code Ann. § 12.32 (Vernon 1994). Appellant was sentenced to fifty years confinement, well within the statutory range of punishment. Generally, punishment within the statutory of punishment is not cruel and unusual punishment. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972). Appellant's second issue is overruled.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 8th day of March, 2001.

1. ¹Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a) (Vernon 1994).

2. Appellant urges that his conviction cannot be sustained if the circumstantial evidence does not exclude every reasonable hypothesis except that of his guilt. This standard has long been rejected in favor of the Jackson v. Virginia standard of review. Geesa v. State, 820 S.W.2d 154, 159 n. 6 (Tex. Crim. App. 1991), overruled on other grounds by Reyes v. State, 938 S.W.2d 718, 719 (Tex. Crim. App. 1996).