Escobar v. State

• Decision Date: 31 August 2000
• Docket Number: No. 13-98-316-CR,13-98-316-CR
• Citation: Escobar v. State, 28 S.W.3d 767 (Tex. App. 2000)
• Parties: (Tex.App.-Corpus Christi 2000) JESUS ESTEVAN MORENO ESCOBAR, Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 767

28 S.W.3d 767 (Tex.App.-Corpus Christi 2000)

JESUS ESTEVAN MORENO ESCOBAR, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-98-316-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 31, 2000

Rehearing Overruled September 28, 2000.

On appeal from the 93rd District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

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Before Justices Hinojosa, Chavez, and Rodriguez

O P I N I O N

Opinion by Justice Hinojosa

A jury found appellant, Jesus Estevan Moreno Escobar, guilty of the offense of aggravated robbery, and the trial court assessed his punishment at ten years imprisonment. By ten issues, appellant contends: (1) the evidence is factually and legally insufficient to support his conviction; (2) the trial court erred in various ways in writing the jury charge; and (3) he received ineffective assistance of counsel. We affirm.

A. Background

The record shows that on April 11, 1997, appellant entered the Casablanca Clothing store with Estela Garcia. A short time later, appellant's mother, Dora Campa, and her common-law husband, Arturo Gonzalez, also entered the store. While Campa attempted to distract the sales clerk, appellant rolled a pair of designer jeans¹ and a pair of shorts² into small bundles. Garcia then stuffed the bundles inside her clothing and an empty purse she carried. Campa and Gonzalez left the store. Appellant and Garcia were approached by store employee Ricardo Uresti, who followed them outside, demanding the return of the hidden items. Appellant and Garcia proceeded to a 1979 maroon two-door Chevrolet Monte Carlo in the parking lot, which had already been backed out of its parking space. Uresti was right behind appellant and Garcia as they opened the car door and began to enter the back seat. He looked over and saw the driver of the vehicle, Gonzalez, had a gun pointed at him. Uresti backed off, and the car sped away.

B. Legal Sufficiency

By his seventh issue, appellant complains the trial court erred in denying his motion for instructed verdict because the evidence is legally insufficient. By his eighth issue, he contends the trial court committed harmful federal constitutional error by denying his first motion for new trial because the evidence is legally insufficient. By his ninth issue, appellant asserts the evidence is legally insufficient, under the due course of law provision of article I, section 19 of the Texas constitution, to support the trial court's judgment.

1. Motion for Instructed Verdict

Appellant moved for instructed verdict as follows:

The State has failed to prove the essential elements of the offense charged against defendant. More specifically the government has failed to show that Mr. Escobar aided, abetted, participated or encouraged the crime in this case. Without said evidence, Mr. Escobar cannot be charged of [sic] aggravated robbery through the law of parties. Further, the State has failed to prove that Mr. Escobar, Defendant, had the intent to exhibit a weapon, to wit: a firearm, in the course of the transaction.

We will treat this issue as a challenge to the legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d 467, 469 (Tex. Crim. App. 1993) (in requesting an instructed verdict, one is merely challenging the legal sufficiency of the evidence).

When reviewing the legal sufficiency of the evidence, the appellate court shall look at all 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, No. 1915-98, 2000 Tex. Crim. App. LEXIS 12, at *14-15 (Tex. Crim. App. Feb. 9, 2000); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Turro v. State, 867 S.W.2d 43, 46-47 (Tex. Crim. App. 1993). This standard is applied to both direct and circumstantial cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.--Corpus Christi 1997, pet. ref'd). Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.--Corpus Christi 1999, pet. ref'd). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Appellant was charged with aggravated robbery as a party. Section 7.01 of the Texas Penal Code provides, in relevant part, as follows:

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

(b) Each party to an offense may be charged with commission of the offense.

Tex. Pen. Code Ann. § 7.01 (a) (Vernon 1994). Section 7.02 further provides:

(a) A person is criminally responsible for an offense committed by the conduct of another if: . . .

(2) 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. . .

Tex. Pen. Code Ann. § 7.02 (Vernon 1994). The elements of robbery are set forth in Texas Penal Code Section 29.02:

(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property 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.³

Tex. Pen Code Ann. § 29.02(a) (Vernon 1994). An aggravated robbery occurs when a person "commits robbery as defined in Section 29.02 and he . . . uses or exhibits a deadly weapon." Tex. Pen. Code Ann. § 29.03 (Vernon 1994). Therefore, the State was required to prove that appellant, acting with the intent to promote or assist in the commission of the aggravated robbery, solicited, encouraged, directed, aided or attempted to aid in the commission of the offense.

Circumstantial evidence may be used to prove party status. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1988); Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Rosillo, 953 S.W.2d at 814. In determining whether the accused participated as a party, 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. Ransom, 920 S.W.2d at 302; Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986); Rosillo, 953 S.W.2d at 814. The evidence must show that at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. Burdine, 719 S.W.2d at 315; Rosillo, 953 S.W.2d at 814; Wilkerson v. State, 874 S.W.2d 127, 130 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). Evidence is sufficient to convict under the law of parties if the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom, 920 S.W.2d at 302; Cordova, 698 S.W.2d at 111; Rosillo, 953 S.W.2d at 814. In determining the sufficiency of the evidence to show an appellant's intent, and faced with a record that supports conflicting inferences, we must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflict in favor of the prosecution, and we must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990).

Viewing the evidence presented in the light most favorable to the verdict, appellant and his associates went to the Casablanca Clothing store with a common design to steal merchandise. Appellant was Campa's son and Gonzalez's stepson. They all lived together in the same house, and they rode together to the store in the same vehicle. Garcia and Campa asked the sales clerk the same question at different times in a ploy to distract her from the theft. Gonzalez and Campa exited the store first and had the getaway car ready to go when appellant and Garcia came out of the store with the stolen merchandise. With Uresti in pursuit, appellant and Garcia had to pause to open the car door, push the front seat forward and enter the backseat. Appellant entered the car last. During appellant and Garcia's entry into the car with the stolen items, Gonzalez (the driver of the car) had a gun pointed at Uresti.

From the totality of the circumstances, we conclude the jury could have inferred that appellant, by his actions in entering the getaway vehicle with the stolen merchandise while Gonzalez pointed a gun at the victim, knew of the gun and intended to promote or assist in the aggravated robbery, thereby encouraging or aiding in the commission of the offense. We hold that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, and that the evidence is legally sufficient to support appellant's conviction. Appellant's seventh issue is overruled.

2. Motion for New Trial

Appellant has incorporated, by reference, his entire motion for new trial in his brief, but he specifically reurges the...