TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00045-CR
Bryan Ayala, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2014-227, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
In two issues, appellant Bryan Ayala asserts that the evidence is insufficient to
support his conviction for aggravated robbery and that the jury’s answer to the special issue
undermines the validity of his conviction. For the following reasons, we will affirm.
BACKGROUND
The jury heard testimony from complainant Joel Desrosiers, who testified, in relevant
part, as follows:
On May 15, 2013, Desrosiers received a call from an acquaintance,
Kelly Brown-Brannon, who asked if he would be willing to sell a large amount of pills to two men,
whom she did not identify by name. He agreed and, shortly thereafter, met the men at a gas station.
The two men suggested that they complete the transaction at a nearby hotel where Brown-Brannon
was staying. Desrosiers drove separately to the hotel. When he approached Brown--Brannon’s hotel
room, one of the men, who was later identified as Rumaldo Aguirre, was standing outside.
Desrosiers followed Aguirre into the room, where Brown-Brannon was lying on the bed. Desrosiers
then “noticed somebody come out of the shadows that had a gun on him and then closed the door
behind him.” Both men were standing by the door, and “[Aguirre] ended up with the gun.” Pointing
the gun at Desrosiers, Aguirre ordered Desrosiers to give him everything in his pockets, and
Desrosiers refused. Desrosiers tried to leave but was struck across the face by either a fist or a gun.
He was repeatedly hit, kicked, and choked by two different people. He recalled Brown--Brannon
saying, “choke him out,” and then he passed out. He awoke in the hotel parking lot with multiple
injuries. The items from his pockets—his keys, wallet, two knives, and prescription
medication—had been taken. He spoke with police who had been called to the scene and was
airlifted to the hospital.
At trial, Desrosiers positively identified Ayala as the other assailant. Aguirre and
Brown-Brannon also testified that Ayala was the other assailant. The jury found Ayala guilty, and
the trial court sentenced him to 11 years’ imprisonment. Ayala appealed.
DISCUSSION
I. Sufficiency of the evidence
In Ayala’s first issue, he asserts the evidence is legally insufficient to support his
conviction for aggravated robbery. Specifically, he argues that insufficient evidence corroborated
2
the accomplice-witness testimony provided by Aguirre and Brown-Brannon identifying Ayala as the
other assailant.1
A. Standard of review
When reviewing the sufficiency of the evidence to support a conviction, we consider
all of the evidence in the light most favorable to the verdict to determine whether, based on the
evidence and reasonable inferences therefrom, any rational jury could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The jury is the sole judge
of the weight and credibility of the evidence and may believe all, some, or none of a witness’s
testimony. Tex. Code Crim. Proc. art. 38.04; Brooks, 323 S.W.3d at 899. We may not reevaluate the
weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
We defer to the jury’s resolution of any conflicting inferences from the evidence and presume that
it resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State,
445 S.W.3d 159, 165 (Tex. Crim. App. 2014).
B. Aggravated robbery
As alleged in the indictment in the present case, a person commits an aggravated
robbery if, while in the course of committing theft and with intent to obtain or maintain control of
the property, he uses or exhibits a deadly weapon and either (1) intentionally, knowingly, or
1
He also claims that the evidence is factually insufficient to support the conviction, but
evidentiary sufficiency is reviewed under a single standard. See Adames v. State, 353 S.W.3d 854,
859 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)).
3
recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death. Tex. Penal Code §§ 29.02(a), 29.03(a)(2).
C. The accomplice testimony was sufficiently corroborated
Ayala claims that the evidence is insufficient because, he contends, Desrosiers’s
testimony does not sufficiently corroborate the testimony of Ayala’s accomplices identifying Ayala
as the third perpetrator.
The accomplice-witness rule provides that “[a] conviction cannot be had upon the
testimony of an accomplice unless corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not sufficient if it merely shows the commission
of the offense.” Tex. Code Crim. Proc. art. 38.14. Under this rule, a reviewing court eliminates the
accomplice testimony from consideration and then examines the rest of the record for “any
evidence that tends to connect the accused with the commission of the crime.” Castillo v. State,
221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient
by itself to support the conviction; it need only “tend[] to connect” the defendant to the offense. Id.
Ayala argues that Desrosiers’s testimony “was insufficient to support a finding of
guilt as to [Ayala] because of his inability to unequivocally identify [Ayala] as the second party with
[Aguirre] in the hotel room.” Ayala cites the fact that, in a photo lineup prior to trial, Desrosiers
identified Ayala as the second assailant, stating that he was “about 80, 85 percent sure that that’s
him.” First, corroborating evidence need only tend to connect the defendant to the offense; it need
not be sufficient by itself to support the conviction. See id. Desrosiers’s identification of Ayala from
a photo lineup with less than complete certainty satisfies that standard. Second, at trial, Ayala did
4
unequivocally identify Ayala as the second assailant. The jury was free to find his testimony
credible, and we must defer to that finding. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d
at 899.
After a full review of the record, we conclude that the evidence was sufficient to
support Ayala’s conviction.2 We overrule Ayala’s first issue.
II. The jury’s special-issue finding does not undermine the sufficiency of the evidence to
support the conviction
As previously discussed, the jury found appellant guilty as charged in the indictment,
which alleged aggravated robbery based on the use of a deadly weapon. See Tex. Penal Code
§§ 29.02(a), 29.03(a)(2). On special-issue submission, the jury found that Ayala “did not” use or
exhibit a deadly weapon. In his second issue, Ayala claims that the jury’s answer to the deadly
weapon special issue undermined the validity of the jury’s verdict of conviction. The State argues
that the jury could have rationally found both that Ayala used or exhibited a deadly weapon “while
in the course of committing theft” as alleged in the indictment and not “during the commission of”
the aggravated robbery as alleged in the special issue, which the State contends encompassed a
narrower time frame than did the indictment.
Assuming without deciding that the jury’s answer to the special issue was inconsistent
with its finding that Ayala was guilty of aggravated robbery based on the use of a deadly weapon as
2
We conclude that the record contains evidence from numerous sources supporting Ayala’s
conviction and also note that Desrosiers’s testimony alone suffices. See Lee v. State,
176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim.
App. 2006) (“The testimony of a single eyewitness is sufficient to support a felony conviction.”);
Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming
conviction for aggravated robbery when central issue involved a single witness’s credibility).
5
alleged in the indictment, that inconsistency did not undermine the validity of the conviction. An
affirmative deadly weapon finding affects a defendant’s eligibility for community supervision, not
his guilt or innocence of an offense. See Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2). The Texas
Court of Criminal Appeals has observed that “[i]f a deadly-weapon special issue is submitted to a
jury, the jury may answer that issue ‘no’ even in a case in which use of a deadly weapon is a
necessary element of the offense. Such a result in a jury trial would be internally inconsistent, but
the law does not bar inconsistent verdicts.” Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App.
2015). “When presented with seemingly inconsistent findings regarding a deadly weapon, the
appellate inquiry is limited solely to a determination of whether the evidence is legally sufficient to
support the jury’s verdict.” Lockett v. State, No. 14-03-00601-CR, 2004 WL 3202864, at *2 (Tex.
App.—Houston [14th Dist.] Nov. 24, 2004, no pet.) (mem. op., not designated for publication); see
also United States v. Powell, 469 U.S. 57, 68–69 (1984) (holding that any attempt to determine the
jury’s reasons for reaching inconsistent verdicts would require pure speculation and involve an
improper inquiry into jury’s deliberations); Dunn v. United States, 284 U.S. 390, 393 (1932)
(defendant may not attack conviction on one count if supported by sufficient evidence, even though
that conviction was inconsistent with an acquittal on another count in the same indictment); Ward
v. State, 113 S.W.3d 518, 522 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (internal
inconsistencies within jury verdicts are not bases for reversal; “the only issue on appeal is whether
there is sufficient evidence to support the verdict upon which the conviction is based”). We have
already concluded that the evidence supports Ayala’s conviction. The jury’s negative finding on the
6
special issue does not affect the sufficiency of that evidence or the validity of the jury’s verdict of
conviction. See Guthrie-Nail, 506 S.W.3d at 6. We overrule Ayala’s second issue.
CONCLUSION
We affirm the judgment of conviction.
_________________________________________
Cindy Olson Bourland, Justice
Before Chief Justice Rose, Justices Field and Bourland
Affirmed
Filed: December 7, 2017
Do Not Publish
7