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MEMORANDUM OPINION
No. 04-08-00335-CR
Lee MENDOZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-9290
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: March 25, 2009
AFFIRMED
Lee Mendoza was convicted of two counts of aggravated robbery. On appeal, he claims the
evidence was legally insufficient to sustain his conviction. We find the evidence sufficient and affirm
the trial court’s judgments.
04-08-00335-CR
DISCUSSION
A. Standard of Review
In a legal sufficiency review, we view the evidence in the light most favorable to the verdict
and then determine whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005).
B. The Evidence
Bernice Rios
On December 6, 2005, Bernice Rios was working as an assistant manager at the Las Palmas
Payless Shoe Source. She arrived at work at 3:30 p.m., but had to leave the store at 3:45 p.m. to pick
up her daughter. As she was about to leave, she observed a person, whom she later identified as
Mendoza, come into the store. Then, as she left the store, she noticed a green car in the parking lot
with a man in it. The man appeared to be waiting for someone. Rios became suspicious:
When I walked out, I went into my truck, and I noticed that there was a – a car
waiting, you know, with a guy in it. There was nobody in the store. So I guess
working with Payless so long you have those instincts, you know, where we’ve had
people [—] somebody’s waiting for them in the car. They go in, take shoes, and they
run out in the car. So before I left, I went back into the store, and I told my – my boss
was helping him, and I told my boss I think somebody’s waiting out there for him
[Mendoza]. And, she said okay.
Mendoza then picked up some shoes. Rios’s boss explained a sock promotion to Mendoza, which
appeared to confuse Mendoza. According to Rios, Mendoza then told her and her boss, “Don’t
worry. I don’t have nothing [sic]. You don’t have to be scared.” Rios responded that she was not
scared. The person who had been waiting in the car then came into the store and told Mendoza to
hurry because he had to pick someone up at four o’clock. Mendoza then asked what time the store
closed and was told nine o’clock. Mendoza said he would be back for his shoes later and left.
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According to Rios, Mendoza was looking at size ten and a half or eleven shoes. Mendoza was
wearing a blue windbreaker and khaki pants.
Later that evening at about 8:30 p.m., Rios and her co-worker, Angelica Gonzalez, were
putting shoes back and straightening up the store when Mendoza walked in. Rios told Gonzalez that
Mendoza had been in earlier to get some shoes, but that she had put them back on the shelf.
Gonzalez then went to help him. Mendoza was wearing khaki pants, a gray pullover, a hat, and a
blue bandana tied on his head. Rios had a bad feeling about the man, so she went to the back office
and called security. Gonzalez and Mendoza then walked up to the register, and Mendoza pulled a
gun on Gonzalez. Rios pressed the panic button that was in her pocket, and Mendoza then came
toward her with the gun. Mendoza was going to grab her arm, but she told him her arm was broken.
He said he was not going to hurt her, but asked her to come to the register. Mendoza told Gonzalez
to open the register, but Gonzalez could not open it. Rios was able to open it, and then the security
guard came in. Mendoza pointed the gun at the security guard and told him to get on the ground. The
guard complied. Mendoza took the gun out of the guard’s holster. Rios then took the money and put
it in a bag. Mendoza got the money and the shoes, and ran out of the store. Although there is video
surveillance in the store, the batteries were corroded so there were no pictures. On the night of the
robbery, Rios told the police that the robber was 5' 8" and 170 pounds. A month later, however, she
said he was 5' 3" to 5' 4". She also described him as Hispanic, young, and having a stutter.
Sometime in January, Rios saw a man whom she thought was the man who robbed her. In
fact, she saw him on about three occasions. According to Rios, she wanted to make sure it was the
man, but she did not know how to do it. So, she told a police officer, who said that if she ever saw
the man again, she should call the police. Thus, when Rios saw the man again, she called the police.
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When the police responded, Rios gave them a description of the man and told them the direction in
which the man was walking. The police then stopped a man who fit Rios’s description, a man in
khaki pants and blue shirt. The officer told Rios the man was mentally retarded. Rios asked the
officer if the man stuttered, and the officer responded that he did. Shortly after that, Rios was shown
a photo line-up. She identified Mendoza as the man who robbed her. According to Rios, there is no
doubt in her mind that the man she identified is the man who robbed her.
Angelica Gonzalez
On December 6, 2005, Angelica Gonzalez was working as a manager at the Las Palmas
Payless Shoe Source. At about 8:45 p.m., she and her assistant manager, Bernice Rios, were
preparing to close the store when a man came in and asked her to help him with some shoes. He was
looking for shoes in a size ten or eleven. The man put some shoes and socks on the counter and, as
Gonzalez rang up his purchases on the register, the man pulled a gun on her. He told her to put the
money and the shoes in a sack. Gonzalez told him she would have to call the manager to open the
register. She then called for Rios to come. Rios, who had a broken arm, kept telling the man not to
touch her because of her broken arm. Rios started crying and then opened the register and gave him
the money. Before the man was able to leave, a security officer came in, but the man took the
officer’s gun and made him lie on the floor. The man, who was Hispanic, was wearing baggy blue
jeans, a T-shirt, a hat, and a bandana covering his eyes and forehead. He spoke both English and
Spanish at the same time, and he stuttered when he spoke. The man was not aggressive, and he
appeared both calm and nervous. After the man left the store, he got into a green car, which was
driven by another individual.
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Gonzalez gave a statement to police about the incident, and in January 2006, she identified
the man who pointed the gun at her from a set of photographs. According to Gonzalez, she was
100% sure the man in the picture was the man who pointed the gun at her. There was no doubt in
her mind about her identification. The man whom Gonzalez identified in the photographic line-up
was Mendoza. At trial, however, Gonzalez was unable to identify the defendant, Mendoza, as the
man who pulled the gun on her. Gonzalez testified at trial that she was scared to be in court and that
the only reason she came was because she received a subpoena. Additionally, Gonzalez testified that
because she was scared, she had quit her job, sold her car, and moved away from San Antonio.
Rafael Martinez
On the day of the robbery, Rafael Martinez was the security guard on duty. Martinez
responded to a call from Payless. According to Martinez, when he walked into the door of Payless,
he saw two women and a man. The man pointed a gun at him and told him to lie down. Martinez lay
down on the floor, and the man removed Martinez’s gun from its holster. The man then got the
money from the cash register, left the store, and got into an older model green Monte Carlo or Grand
Prix. Martinez then called the police. Later, when Martinez was shown a photographic line-up, he
was unable to identify the man who pointed the gun at him. According to Martinez, he did not
believe he would be able to identify the man because, in his job as security officer, he looks at a lot
of pictures of shoplifters so that he can watch for them in stores. At trial, Martinez was also unable
to identify the defendant, Mendoza, as the man who pointed the gun at him. When Martinez gave
his statement to the police, he described the suspect as weighing 170 to 180 pounds, about 5' 6" in
height, and in his twenties to early thirties.
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Greg Andrade
Greg Andrade is the San Antonio police officer who responded to the robbery in progress call
from Payless. When Andrade arrived, he talked to the security guard and two women, who reported
they had been robbed at gunpoint. Andrade interviewed the witnesses and made a report indicating
the robber wore a long sleeve blue or gray shirt or sweat shirt, tan pants, a black baseball cap, and
a blue cloth. The gun was an automatic handgun. The witnesses described the man as a Hispanic
male, about thirty years old, and about 5' 8" and 170 pounds. On January 25, 2006, Andrade was
called back to the Payless because one of the women who had been robbed, Bernice Rios, reported
that she had seen a man who looked like the robber walking in the area. When the man walked away,
Rios followed him and got an address for his location. When Andrade went to this address, he found
Mendoza and a green vehicle. Andrade then transported Mendoza and Mendoza’s mother to the
police substation for an interview.
James Foster
James Foster is a robbery detective with the San Antonio Police Department and was the
follow-up detective on the Payless robbery. According to Foster, on January 25, 2006, he received
a call reporting that an officer had located a possible suspect in the Payless robbery. Foster drove to
the address given and made contact with Mendoza. Foster told Mendoza that somebody had called
and said Mendoza may be responsible for a robbery that had occurred in December. Although Foster
did not mention the robbery had taken place in a shoe store, Mendoza stated he did not rob a shoe
store. However, according to Foster, he did not know whether Andrade had told Mendoza they were
questioning Mendoza about a shoe store robbery. Mendoza was then transported to the police
substation where his picture was taken. Mendoza was not arrested at that time because he had not
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yet been identified as the robber. A photographic line-up was prepared and shown to the witnesses.
Foster presented the line-up to the security guard, but the guard was unable to make an identification.
However, because two other witnesses identified Mendoza as the robber, Foster filed a case against
Mendoza.
Patricia Villegas
Patricia Villegas is a sergeant with the San Antonio Police Department. She assisted her
partner in the case by presenting line-ups to both Rios and Gonzalez. According to Villegas, when
she presented the photographic line-up, which consisted of six pictures, to Rios at the Payless store,
Rios immediately recognized the man who robbed her and identified the picture of Mendoza. When
Villegas presented the photographic line-up to Martinez at the police substation, Martinez also
identified Mendoza as the robber. Both witnesses were sure about their identification of Mendoza
as the robber.
Humberto Maldonado
Humberto Maldonado is a home-visiting counselor who has visited with Mendoza about once
a week for about six years, from about 1996 to about 2002. However, at the time of the robbery,
Maldonado was not seeing Mendoza. Maldonado observed Mendoza to be very shy, passive, and
withdrawn. According to Maldonado, Mendoza could not maintain eye contact and was not
aggressive or violent. Mendoza would avoid the streets, only walking two blocks to the store and to
run errands. When Maldonado heard about the charge against Mendoza, he was shocked and
stunned. Based on his experiences with Mendoza, he believed Mendoza was not that type of person.
Further, according to Maldonado, Mendoza was on SSI benefits and had no need for that type of
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money. Maldonado did not think Mendoza would have the guts to rob a store at gunpoint. According
to Maldonado, Mendoza has the mental age of a ten-year-old child.
Guadalupe Mendoza
Guadalupe Mendoza is the mother of the defendant, Mendoza. According to Ms. Mendoza,
her son is innocent, is like a child, and is not the type of person who could commit a crime like the
one charged. According to Ms. Mendoza, although Mendoza would walk to the store, most of the
time she went with him because Mendoza is shy and afraid to talk to people. Ms. Mendoza testified
that Mendoza goes to the H.E.B. almost every day and that he has to pass Payless to get there.
When Mendoza was about eighteen or nineteen, he started receiving social security benefits.
Before that, however, he was getting medical treatment for his condition. At one time, he saw a
psychiatrist because he was hallucinating. Ms. Mendoza was not aware of any medical records that
indicate Mendoza was violent.
Ms. Mendoza testified that she first found out about the accusations against her son when a
police officer came to her house on January 25, 2006. She went with Mendoza to the police station,
where they took fingerprints and a photograph, and then released him. The police came back the
following August and again in November when they arrested him.
Ms. Mendoza testified that she had taken Mendoza into the Payless before to look at shoes.
According to Ms. Mendoza, her son wears a size nine. Further, Ms. Mendoza testified that her son
never goes out at night because he is afraid.
Gilbert Mendoza
Gilbert Mendoza is Mendoza’s father. He described his son as very humble, shy, and truthful.
According to Mr. Mendoza, his son believes in God, prays, and goes to church. His son has never
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done anything wrong to anybody and has been a good son. Mr. Mendoza testified that his son is not
capable of committing robbery.
Lee Mendoza
The defendant, Lee Mendoza, testified that he has never been to Payless without his mom,
nor was he at the Payless store on December 5, 2006. He did not recognize Gonzalez, Rios, or
Martinez. Further, he has never owned a gun, nor has he ever held one. In fact, according to
Mendoza, he is afraid of guns and firecrackers. Mendoza testified that he wears a size nine shoe, is
on disability, and does not go out at night because it is dangerous. Mendoza graduated from high
school as a special education student because he was a slow learner. And, Mendoza testified that he
did not commit the crime with which he is charged.
Mendoza testified that he speaks both Spanish and English, but prefers English. He
sometimes mixes them together. He has been diagnosed as schizophrenic. His brother, Gabriel,
drives a light green car. Mendoza weighs 130 and is 5' 4".
Legal Sufficiency of the Evidence
In one issue on appeal, Mendoza argues the evidence is legally insufficient to support his
convictions for aggravated robbery. Specifically, Mendoza contends that this is a case of mistaken
identity; that is, the evidence is not sufficient to identify him as the person who committed the
aggravated robbery. In making this argument, Mendoza points out that Rios, who was the only
witness to conclusively identify Mendoza at trial, was so unsure of the robber’s identity that she
observed him three times after the robbery before reporting it to the police. Further, Mendoza
describes some inconsistencies in Rios’s testimony, including the fact that, although Rios described
Mendoza as 5' 8" immediately after the robbery, he is, in fact, 5' 4". And, according to Mendoza,
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because Rios testified that she did not know where Mendoza lived, there is some question regarding
how the police discovered where he lived.
Additionally, Mendoza points out that Martinez gave a physical description of the robber that
varied from Mendoza’s actual characteristics. Martinez described the robber as 5' 8" and 170 pounds,
whereas Mendoza is 5' 4" and weighs only 130 pounds. Further, Martinez was unable to identify
Mendoza.
Although there is some conflicting evidence and there are some inconsistencies in the
testimony of the witnesses, there is, nevertheless, legally sufficient evidence to support the jury’s
verdict. Considering the evidence in the light most favorable to the verdict, the jury could have found
the essential elements of aggravated robbery beyond a reasonable doubt. And, specifically, the
evidence is sufficient to support a finding that Mendoza was the individual who robbed Martinez and
Rios at gunpoint in the Payless store. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.
1971) (finding testimony of eyewitness alone sufficient to support jury’s verdict); Rodriguez v. State,
No. 04-00-00399-CR, 2002 WL 461379, at *3 (Tex. App.—San Antonio 2002, no pet.) (holding
evidence legally sufficient where four eyewitnesses identified defendant as perpetrator even though
testimony was not flawless) (not designated for publication).
Both Gonzalez and Rios identified Mendoza in a photographic line-up about two months
after they were robbed at gunpoint. Rios had actually seen Mendoza in the store earlier that day, only
to witness his return later that evening when he committed the robbery. Both Gonzalez and Rios
were absolutely certain of their identifications of Mendoza in the photographic line-up. Rios also
identified Mendoza at trial. Further, witnesses described Mendoza as speaking both English and
Spanish at the same time and having a stutter. Mendoza’s mother confirmed these characteristics
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about her son. Finally, the witnesses related seeing a green car in the parking lot when Mendoza was
in the store both earlier in the day and after the robbery. It was later discovered that Mendoza’s
brother drives a green car.
Thus, we find the evidence is legally sufficient to support the jury’s verdict and affirm the
trial court’s judgments.
Karen Angelini, Justice
Do not publish
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