Humberto Chavira v. State ( 2005 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

HUMBERTO CHAVIRA,                                     )

                                                                              )     No.  08-04-00132-CR

Appellant,                          )

                                                                              )                   Appeal from the

v.                                                                           )

                                                                              )     243rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 20030D06197)

O P I N I O N

Humberto Chavira appeals his conviction for robbery.  A jury found him guilty as charged in the indictment.  The trial court assessed punishment at 10 years= imprisonment, probated to 10 years= of community supervision, and imposed a fine of $500.  In his sole issue, Appellant challenges the factual sufficiency of the evidence to support his conviction.  We affirm.

On October 10 2003, around 1 p.m., Melissa Esparza walked to American Cash Express near Alameda and Croom to cash her paycheck and then went grocery shopping nearby at the Family Dollar in the Hidden Valley Shopping Center.  She purchased a bottle of water from another store and then began walking home.  Ms. Esparza had the cash in her black purse and was carrying three or four shopping bags.  As she was walking, she felt someone pulling her purse and when she turned around she saw a man wearing a cap tugging on her purse.  He was straddling a black lowrider bicycle.  The man rode past her, but stopped when she held onto her purse.  Then he dropped the bicycle and grabbed Ms. Esparza=s by the hair.  Then he grabbed Ms. Esparza and threw her to the ground.  The attacker hit her head against the ground three times.  Ms. Esparza gave up and let go of her purse.  Ms. Esparza noticed tattoos on the man=s arms and saw his face.  Ms. Esparza was still laying on the ground when the man ran away with her purse and carrying his bicycle.  Ms. Esparza positively identified Appellant in the courtroom as the man who had attacked her and had taken her purse.

The same day, Jesse Macias was working at Auto Planet on Alameda.  About 1:30 p.m., he saw a man running from the back of the business= lot toward the exit.  The man was running alongside his bicycle and was carrying a small black purse.  Mr. Macias described the individual as a dark-complected Hispanic male, five feet six inches tall, with tattoos on his forearms.  The man was wearing a black baseball cap but Mr. Macias was not able to distinguish the man=s face. Five minutes later, a police officer came by and Mr. Macias reported what he had just seen.

After the attack, Ms. Esparza went to a nearby house and called the police.  At 1:45 p.m., Officer Sergio Diaz was dispatched in reference to a robbery. Officer Diaz arrived within three minutes of the call and observed that Ms. Esparza was hysterical and crying. Officer Diaz obtained information and put out a spot broadcast to locate the suspect.  About ten officers and a helicopter unit canvassed the area for about thirty minutes, but did not locate the suspect.

Ms. Esparza gave a statement to Officer Ricardo Elias on October 16.  In her statement, Ms. Esparza told the officer that her assailant was a dark-complected Hispanic male about five feet three inches to four inches in height. Based on witness interviews, Officer Elias put together a composite description of the suspect.  Eight or nine days later, he was notified by another officer of two suspects arrested in another case and he constructed a six-person photo lineup.  Officer Elias contacted Ms. Esparza and sent an officer to her house to show her the photo lineup on November 4.  Ms. Esparza looked at the photo lineup and immediately identified the photo of Appellant as being her assailant.

Richard Zamora testified on behalf of Appellant=s defense.  He has known Appellant since he was five years= old and considers him a good friend.  On October 10, 2003, Mr. Zamora was living on Bowen Road in El Paso, Texas with his parents.  That day, he slept in late and woke up at noon to get ready for work. His shift started at 3 p.m. and he left for work around 2:30 p.m. As he was leaving, Mr. Zamora saw Appellant working in the yard, which was a routine job that Appellant did for Mr. Zamora=s parents.  Mr. Zamora remembered the day because the following day was his twenty-first birthday and Appellant was doing yard work in preparation for a planned birthday party.

According to Mr. Zamora, his house on Bowen is about three miles from the intersection of Alameda and Croom.  Mr. Zamora stated that Appellant was not riding a bicycle back in October and has not ridden one for three years.  He agreed that it was possible that someone riding a bicycle could reach his house within fifteen to thirty minutes from the Hidden Valley Shopping Center on Alameda.  Officer Elias had earlier testified that Bowen is a quarter of a mile or half a mile away from the Hidden Valley Shopping Center on Alameda.  According to Officer Elias, someone could easily walk the distance and if traveling by bicycle, it would take someone six or seven minutes to ride from the Family Dollar vicinity to Bowen Street.

Sylvia Zamora, Richard Zamora=s mother, testified that Appellant routinely cut the grass at her house on Bowen in 2003.  She has known Appellant since he was three years= old.  Appellant was scheduled to do yard work on October 10, 2003 because her son=s birthday was the next day.  Mrs. Zamora wanted Appellant to fix up the front, back, and side yard because some of her son=s friends would be coming over to visit.  Appellant arrived at her house around 11:30 a.m.  She was at home the entire time Appellant worked in the yard. Appellant worked for about two to two and a half hours, which included the hour between 1 and 2 p.m.  Mrs. Zamora used to work at the Family Dollar in the Hidden Valley Shopping Center.  According to Mrs. Zamora, it takes thirty to forty-five minutes to drive to the Family Dollar from her house.  Mrs. Zamora agreed that Appellant has a tattoo on his left forearm.  She has never known Appellant to ride a bicycle.

In his sole issue, Appellant contends that the evidence is factually insufficient to support his conviction.  Specifically, Appellant complains that Ms. Esparza=s confident eyewitness identification, a form of evidence which is generally unreliable, provided the only eyewitness testimony identifying Appellant as the perpetrator of the offense.  Appellant also asserts that Ms. Esparza=s confident identification was significantly undermined by the inconsistencies within her testimony and due to the stressful nature of her brief encounter with the attacker.

Standard of Review

Appellant does not challenge the legal sufficiency of the evidence.  A factual sufficiency review of the evidence begins with the presumption that the evidence supporting the conviction was legally sufficient.  See Clewis v. State, 922 S.W.2d 126, 129, 134 (Tex.Crim.App. 1996); Moore v. State, 140 S.W.3d 720, 726 (Tex.App.--Austin 2004, pet. ref=d).  In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust.  Zuniga, 144 S.W.3d at 481.  A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

In this case, Ms. Esparza, the complaining witness, positively identified Appellant in the courtroom as the man who attacked her and took her black purse on October 10, 2003.  She had no doubt that Appellant was the perpetrator of the offense.  She stated that she saw his face and noticed tattoos on his arms during the struggle for her purse.  There was also evidence that Ms. Esparza had immediately identified Appellant=s photo in a six-person photo lineup shown to her on November 4.  In her police statement, Ms. Esparza described her assailant as a

dark-complected Hispanic male about five feet three or four inches in height. Ms. Esparza saw her assailant leave the scene by climbing over a wall, carrying the bicycle and her purse. Another witness, Jesse Macias, was working at a nearby business and noticed a man running alongside a bicycle and carrying a black purse crossing the property around 1:30 p.m.  Mr. Macias= description of the man he observed was very similar to Ms. Esparza=s description of her assailant, including that the individual was a dark-complected Hispanic male, had tattoos on his forearms, had a bicycle with him, and was wearing a cap.

Appellant asserts that there were inconsistencies in Ms. Esparza=s testimony concerning whether or not the robber was still riding the bicycle when he grabbed her hair and about the height of the wall.  He contends that such inconsistencies destroyed her credibility.  However, it was within the jury=s province to assess the credibility of Ms. Esparza and our review should not intrude upon the jury=s role in evaluating the weight and credibility given to any witness=s testimony.  See Cain, 958 S.W.2d at 408-09.  Appellant also asserts that Ms. Esparza conceded that the entire incident could have taken less than a minute even though she had originally stated it took place over five minutes, thus she may have overstated the time she had to observe the assailant.  While Ms. Esparza did testify that the time frame of the incident could have been three minutes or less than a minute, she maintained that she saw the assailant=s face and his tattoos during that time frame.

Because Ms. Esparza identified Appellant in the photo lineup after some time had passed and because Appellant=s photo shows that he is not a Adark complected@ Hispanic, Appellant argues that Ms. Esparza=s memory had faded significantly and her identification of Appellant was tainted by the passage of time and the intervention of a photo lineup, in which she perhaps made the identification to satisfy the police.  Ms. Esparza=s description of her assailant as dark complected appears to be a matter of her opinion.  According to Ms. Esparza, she told the officer that her assailant was AHispanic, not that white and not that dark.@  As to the extent that her description conflicted with the photographic evidence presented, the jury, as fact finder, apparently resolved the conflicting testimony in favor of the State.  Likewise, the jury resolved the conflicting alibi evidence in favor of the State. After considering all the evidence in a neutral light, we conclude that the evidence was not too weak to support the guilty finding beyond a reasonable doubt nor was the contrary evidence so strong that guilt could not be proven beyond a reasonable doubt.  See Zuniga, 144 S.W.3d at 484-85.  Because the evidence was factually sufficiency to support Appellant=s conviction, we overrule his sole issue for review.

We affirm the trial court=s judgment.

December 1, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)