Timothy Quintana v. State ( 2002 )

Timothy Quintana v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-01-257-CR

     TIMOTHY QUINTANA,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 208th District Court

Harris County, Texas

Trial Court # 823,310

O P I N I O N

      Timothy Quintana appeals his conviction for aggravated robbery; he was sentenced to 28 years’ confinement. Quintana raises four points of error for our review. Finding no error, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

      In September 1999, Jaime Chavez Trevino (Chavez) and his wife, Ramona Silva (Silva), and their three children and Silva’s cousin, Jeremy Hernandez (Hernandez), lived together in an apartment at the Shenandoah Woods apartment complex in Houston. Chavez and his wife had been saving money to open up a “portable taqueria.” They had saved almost $1,500 which was kept by Chavez’s mother-in-law.

      At approximately 2:00 a.m. on September 11, Chavez heard someone knocking on the front door of his apartment; he looked out the window in his children’s bedroom and saw two individuals. He recognized one of the unexpected visitors as Timothy Quintana (Quintana), but he did not know the woman with him. Silva, who was eight and one-half months pregnant, the three children, and Hernandez were sleeping when Quintana arrived. Through the window, Chavez told Quintana to come back another time, but Quintana refused to leave. Reluctantly, Chavez opened his front door and told Quintana once more to leave, but Quintana became agitated and brandished a gun. Chavez struggled with Quintana to take the gun away from him but was unsuccessful.

      Quintana forced Chavez back into the apartment where Hernandez, who had been sleeping, woke up. Quintana asked Chavez where the money for the taqueria was, and he responded that there was no money in the apartment. Hernandez told the woman that the money was not there. Quintana and the woman searched the apartment for the money and found nothing. Quintana followed Chavez into the bedroom where his wife and youngest child were sleeping. Quintana kept asking Chavez to give him the money, and he threatened to kill Silva and the child. Chavez begged Quintana to kill him but spare his family.

      Quintana held the gun to Chavez’s back while escorting him outside of the apartment. Quintana walked Chavez through the complex, passing a bystander. Quintana stole Chavez’s bracelet and wallet. Quintana asked Chavez for the money once again and threatened to kill him if he did not produce it. Patsy Ball (Ball), one of Chavez’s neighbors, saw what was going on and yelled out, saying she had called the Houston Police Department for help. Quintana immediately ran away and got into a car that his female companion was driving; the duo sped off towards the parking lot exit. Houston police officer G.C. Wallace arrived and stopped the get-away car inside the complex. The officer held Quintana and the woman at bay while other officers arrived. After Chavez told the police what had happened, Quintana was arrested. The police, however, did not find the gun used during the robbery.

      Around 4:00 a.m., after the police had left, Chavez and Ball searched for the gun inside the complex. They found it hidden underneath shrubbery near the parking lot exit. Later, Officer Wallace returned to the complex, and Chavez showed him the gun they had discovered, which was unloaded. The officer took the weapon as evidence.

      Quintana was indicted for the felony offense of aggravated robbery. Tex. Pen. Code Ann. § 29.03 (Vernon 1994). He pled not guilty and was tried before a jury, which found him guilty and assessed punishment at 28 years’ confinement. Quintana filed a motion for new trial which was overruled by operation of law. He then brought this appeal.

      Quintana complains on appeal that the evidence is legally and factually insufficient to convict him because (1) the State did not prove he committed an offense against “Jaime Chavez” as alleged in the indictment, but rather the evidence pertained to an offense against “Jaime Chavez Trevino,” (points of error 1 and 2), and (2) the witnesses against him were not credible (points of error 3 and 4).

POINTS (1) AND (2)Quintana’s first and second points of error claim that the evidence is legally and factually insufficient to support his conviction in that the State failed to prove that an individual named “Jaime Chavez,” as alleged in the indictment, had been assaulted. The indictment alleged in part:

[That Quintana] did then and there unlawfully, while in the course of committing theft of property owned by Jaime Chavez and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Jaime Chavez in fear of imminent bodily injury and death, and [Quintana] did then and there use and exhibit a deadly weapon, to-wit: a firearm.

(Emphasis added). Quintana argues that the State was required to prove that the complainant of the alleged offense was named “Jaime Chavez.” He notes that when the complainant testified at trial, he introduced himself as “Jaime Chavez Trevino.” According to Quintana, neither the State nor his defense counsel questioned the complainant about the difference in his name. Thus, Quintana contends that the evidence is insufficient that he assaulted a complainant by the name of “Jaime Chavez.”

Standard of Review

      When a sufficiency-of-the-evidence claim, legal or factual, is based on an assertion that the evidence at trial proved a fact different from what is alleged in the indictment, i.e., there was a “variance,” our review begins with a determination of whether the variance is “material,” also called a “fatal” variance. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); accord Fuller v. State, No. 1283-98, slip op. at 5-7, 2002 WL 459834, at *2-3 (Tex. Crim. App. Mar. 27, 2002). A variance is material if the indictment (1) failed to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, or (2) does not describe the offense clearly enough to protect the defendant from being subjected to the risk of later prosecution for the same crime. Gollihar, 46 S.W.3d at 257 (adopting the standard in United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)); Fuller, supra. If the variance is immaterial, it is to be disregarded in the sufficiency-of-the-evidence review. Gollihar, 46 S.W.3d at 258.

Analysis

      As for whether Quintana was sufficiently informed about who the victim was, we have reviewed the record and found these references by witnesses about the name of the complainant:

● The complainant testified that his name is “Jaime Chavez Trevino.” He also said that his friends and family call him “Jimmy,” “James,” or “Jaime.”

● Ramona Silva, the complainant’s wife, said her husband’s name is “Jaime Chavez.”

● Jeremy Hernandez said the complainant’s name is “Jaime Chavez.”

● Patsy Ball said the complainant’s name is “Jaime Chavez.”

● The complainant told Officer Wallace that his name is “Jaime Chavez.”

● Sgt. John Roberts, an investigator in the “Home Invasion Squad” of the Houston Police Department, referred to the complainant as “Mr. Chavez.”

      There is no indication in the record that Quintana did not know what person the State was claiming he stole from and assaulted, or that Quintana was misled by the allegation concerning the complainant’s name or surprised by the complainant’s testimony that his name is also “Jaime Chavez Trevino.” Quintana did not attempt to raise a defense that he did not assault the complainant named in the indictment, i.e., that the State had misidentified the victim. Rather, Quintana admitted going to Chavez’s apartment on September 11, 1999, but claimed that the two men were fighting over a drug transaction gone awry.

      Neither does the additional surname of “Trevino” to the complainant’s name subject Quintana to the risk of being prosecuted later for the same crime. He is in no danger of being prosecuted again for aggravated robbery of the same complainant proved at trial. Gollihar, 46 S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir. 1988) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution)).

      We hold the variance was not material and, therefore, should be disregarded in a sufficiency of the evidence review. Because Quintana’s insufficiency claim is based solely on the variance, our inquiry is ended. An immaterial variance is disregarded in a sufficiency-of- the-evidence review. Gollihar, 46 S.W.3d at 258. We overrule points (1) and (2).

POINTS (3) AND (4)

      Quintana’s points (3) and (4) contend that the evidence is legally and factually insufficient to support his conviction, because the complainant’s testimony incriminating him was not credible. The recitation of the facts as stated in the beginning of our opinion is a summary of the evidence concerning what Quintana did to the complainant in the early morning hours of September 11 and is based on our review of the record. We incorporate those facts in this review of the evidence.

Legal Sufficiency Challenge

      Quintana’s point (3) alleges that the evidence is legally insufficient to support his conviction because the complainant’s testimony was simply not credible. In a legal-sufficiency-of-the-evidence review, however, “all of the evidence is viewed in a light favorable to the verdict, to determine whether any rational jury could find the essential elements of the offense beyond a reasonable doubt.” Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000) (emphasis in original). Therefore, the complainant’s testimony about what Quintana did to him that morning is to be viewed in a “light favorable to the verdict” of guilty. Id. And because the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony, we find that the evidence is legally sufficient to support Quintana’s conviction. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Rachal v. State, 917 S.W.2d 799, 805 (Tex. Crim. App. 1996). Thus, we overrule Quintana’s point (3).

Factual Sufficiency Challenge

      In conducting a factual-sufficiency review, we examine all of the evidence impartially, without the prism of “in the light most favorable to the verdict,” and ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). When performing our review, we give due deference to the factfinder’s assessment of the weight and credibility of the evidence. Calhoun v. State, 951 S.W.2d 803, 810 (Tex. App.—Waco 1997, pet. ref’d). We will defer to the jury, finding the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.

      Quintana argues his factual-insufficiency claim in his brief by stating that “the complainant’s testimony was simply not credible [and] the jury’s finding [of guilty] was against the greater weight and preponderance of the evidence.” (Appellant’s Brief P. 27).

      A person commits aggravated robbery if the person commits robbery, as defined in the Penal Code, and the person uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03(a)(2). “Robbery” is the unlawful appropriation of the corporeal personal property of another with intent to deprive such other person of that property. Id. § 31.03(a) (Vernon Supp. 2002). The complainant testified that Quintana displayed a firearm at the outset of their encounter with each other. A firearm is a deadly weapon. Dowdle v. State, 11 S.W.3d 233, 237 (Tex. Crim. App. 2000). The complainant also testified that Quintana stole his bracelet and wallet from him which means Quintana committed robbery as defined above. Accordingly, Chavez’s testimony was sufficient to establish that Quintana committed the offense of aggravated robbery.

      Moreover, as noted already, when performing our review, we give due deference to the factfinder’s assessment of the weight and credibility of the evidence. Calhoun, 951 S.W.2d at 810. In other words, because there was no evidence which showed that Quintana did not commit the offense, the factfinder in this case must have accorded the complainant’s testimony credibility in reaching a verdict of guilty. Therefore, we find the evidence to be factually sufficient to support Quintana’s conviction. And we overrule his point (4).

CONCLUSION

Having overruled all of Quintana’s points of error, we affirm the judgment.

                                                                         BILL VANCE

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed May 15, 2002

Do not publish

[CRPM]