Bahena v. State

604 S.W.3d 527

Raul BAHENA, Appellant

v.The STATE of Texas, Appellee

NO. 14-18-00760-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed June 23, 2020

Discretionary Review Granted November 18, 2020

Kem Thompson Frost, Chief Justice

Appellant Raul Bahena challenges his conviction for aggravated robbery. In three issues appellant asserts (1) the evidence is insufficient to support his conviction, (2) the trial court erred in failing to charge the jury on a lesser-included offense, and (3) the trial court abused its discretion in allowing a State's witness to give evidence of jailhouse calls. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant, a high school student who worked as an assistant manager of a sandwich shop, closed the shop at ten o'clock in the evening. A friend picked her up from the shop to give her a ride home. On the way to the complainant's home, the two friends stopped at a nearby park to talk and listen to music.

As the friends sat in the parked car, a man, whom the complainant later identified as appellant, approached and asked for a cigarette. When the complainant's companion said he had none, the man walked away. Moments later the man returned wielding a gun. He took the complainant's backpack.

The next day, Detective Eusevio Del Toro with Harris County Constable Precinct 4 took a written statement from the complainant. The complainant made a positive identification of appellant from a photo array.

The same day, law-enforcement officers answered disturbance calls at the Bahena home in Cypress, Texas, located near the park where the complainant was robbed. They arrested appellant's brother after a short foot chase, and then returned to the same home an hour later for a disturbance involving appellant and appellant's cousin. Officers established a perimeter around the Bahena house and brought a canine unit to assist in locating appellant. After an hour of searching, a police dog found appellant hiding in a neighbor's backyard. At the time, the officers were unaware that appellant was a suspect in the complainant's case. Appellant was not in possession of the complainant's property at the time of the arrest.

In searching for appellant and appellant's brother, the officers found the complainant's debit card and another person's credit card in the brother's jacket when they apprehended him. Meanwhile, a Cypress homeowner who also lived near the park called the school district to report property scattered across the homeowner's backyard. Among the items found were a backpack, the complainant's Cypress Woods High School identification card, the complainant's Texas driver's license, a sandwich-shop apron, a ball cap with the complainant's nametag, and the complainant's achievement certificate.

Indicted for the felony offense of aggravated robbery by use or exhibition of a deadly weapon, appellant elected to have a jury trial on guilt-innocence, and for the judge, if necessary, to assess punishment. The jury found appellant guilty of the offense charged in the indictment. At the conclusion of the punishment hearing before the trial judge, the State urged the court to assess punishment at forty years' confinement. The trial court assessed appellant's punishment at twenty-five years' confinement. On appeal, appellant presents only issues pertaining to the guilt/innocence phase of his trial.

II. ISSUES AND ANALYSIS

A. Is the evidence sufficient to support appellant's conviction for aggravated robbery?

In his first issue, appellant asserts that the evidence is insufficient to support his conviction. In evaluating this complaint, we view the evidence in the light most favorable to the verdict. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State , 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State , 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

The indictment alleged that appellant "on or about May 20, 2017, did then and there unlawfully while in the course of committing theft of property owned by [the complainant], and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place [the complainant] in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, namely, a firearm."

One commits the offense of aggravated robbery if one commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code section 29.03(a)(2). One commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, one intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code, section 29.02(a)(2). A deadly weapon is "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury," or, "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code, section 1.07(a)(17).

The trial court's jury-charge instructions tracked the indictment, and the instructions were consistent with the language for an aggravated-robbery offense under the Penal Code. Appellant contends in his sufficiency challenge that the State failed to prove that he "robbed [the complainant] with a firearm."

Use or Exhibition of a Firearm

The complainant testified that after the initial encounter with appellant and his request for a cigarette, appellant returned about 30 seconds later and pointed a black handgun at the complainant and her companion, stating, "This is a stick-up. Give me everything you have." According to the complainant, for "maybe three minutes," appellant pointed the handgun, waved the gun around, and demanded that the complainant turn over her purse. The complainant saw appellant "cock" the firearm when the two friends failed to comply with appellant's demand. The complainant had no purse, but she turned over what she did have—a backpack containing her wallet, a debit card, a gift certificate, her school identification, her hat, and the key to the sandwich shop. The companion turned over his hat. Then, when the companion attempted to start the car, appellant reached into the car and fought with him to keep him from doing so. Appellant's efforts proved unsuccessful. The companion started the car and "sped off" driving "on to the grass and off the curb."

The black handgun the complainant described was not offered into evidence. Nor does the record contain any mention of the handgun having been recovered. But the complainant testified that she believed the gun was real, that it could cause death or serious injury, and that appellant's wielding of the gun caused her to be scared. The complainant testified that when appellant approached the car with the handgun, he demanded that they give him their belongings. The complainant testified that appellant pointed the gun at her and her companion and that appellant waved the gun around for roughly three minutes and cocked the gun to prompt compliance with his demand. See Johnson v. State , 509 S.W.3d 320, 324 (Tex. Crim. App. 2017) (finding that a jury reasonably could have inferred that a butter knife, based on the wielder's threats, proximity to the complainant, the brandishing of it, the manner used, or intended to be used "rendered it capable of causing serious bodily injury or death.").

Though at some point the complainant testified that she believed the gun was not loaded, this evidence does not mean that the evidence is insufficient to support a finding that appellant used or exhibited a deadly weapon. See Thomas v. State , 36 S.W.3d 709, 711 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) ("The State is not required to show that a firearm was operable or even loaded."); see also Aikens v. State , 790 S.W.2d 66, 67–68 (Tex. App.—Houston [14th Dist.] 1990, no pet.) ("firearm discovered in complainant's car need not be serviceable in order to be classified as a deadly weapon"). The record contains sufficient evidence to sustain the deadly-weapon finding and to sustain a finding that the "black handgun" the complainant described was "used or exhibited" during the robbery. See Johnson v. State , 509 S.W.3d at 324 (knife found to be a deadly weapon even though the knife was not entered into evidence and complainant and video could provide only limited information that the blade of the knife was a couple of inches long and was used to threaten the complainant and other witnesses).

Identity

Based on a liberal construction of appellant's brief, he also challenges the sufficiency of the evidence identifying appellant — as opposed to his brother — as the perpetrator. As with every other element of an offense, the State must prove beyond a reasonable doubt that the accused is the person who committed the charged offense. Miller v. State , 667 S.W.2d 773, 775 (Tex. Crim. App. 1984). A defendant's identity and criminal culpability may be proved either through direct or circumstantial evidence, coupled with all reasonable...