Juan Manuel Deleon v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00629-CR
JUAN MANUEL DELEON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1285696R
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MEMORANDUM OPINION1
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Appellant Juan Manuel DeLeon appeals from his conviction for aggravated
robbery and forty-year sentence. We affirm.2
1
See Tex. R. App. P. 47.4.
2
This appeal was originally submitted without oral argument on September
30, 2013, before a panel consisting of Chief Justice Livingston, Justice Gardner,
and Justice Gabriel. See Tex. R. App. P. 39.8; 2nd Tex. App. (Fort Worth) Loc.
R. 3B(2). The court, on its own motion on June 10, 2014, ordered this appeal
I. BACKGROUND
Aurelio Rodriguez lived with his girlfriend, Gardenia Torres. Aurelio and
Appellant were very close friends. In February 2011, Aurelio planned to rob
Travis and Virginia Waters with his brother Jose Rodriguez, Appellant,
Appellant’s brother Eddylberto DeLeon, and Ryan Garcia. Eddylberto was
friends with the Waterses’ grandson, John Waters, who lived with the Waterses
and his mother in the same home. Eddylberto had the code to open the
Waterses’ garage. Eddylberto assured the others that cash, jewelry, and gold
could be found in the Waterses’ home.3 Eddylberto drew a map of the home,
and the participants specified what each would do during the robbery, with
Aurelio agreeing to be the getaway driver. The night before the robbery, Aurelio
became sick; thus, Gardenia agreed to be the getaway driver.
On February 15, 2011, Gardenia, Appellant, and Jose drove to Appellant’s
home to pick up Eddylberto. When they arrived, Appellant went into the house
and returned to the car with a gun. Gardenia, Appellant, Jose, and Eddylberto
then drove to Ryan’s house and picked him up. The five then ensured that John
Waters’s mother was at work and not at the Waterses’ home by checking the
parking lot where she worked. Gardenia then drove to the Waterses’ street and
resubmitted without oral argument on July 1, 2014; assigned the appeal to a new
panel, consisting of Chief Justice Livingston, Justice Dauphinot, and Justice
Gabriel; and assigned the undersigned to author the opinion.
3
The Waterses previously had owned a jewelry store and had kept some of
the leftover inventory.
2
dropped off Appellant, Jose, Ryan, and Eddylberto. Gardenia saw the four enter
the Waterses’ garage, carrying sacks. Gardenia drove to the end of the street to
wait but stayed on the phone with Ryan so she would know when to return to
pick them up.
Eighty-four-year-old Virginia, investigating a noise in her garage on
February 15, 2011, was confronted by a “boy” in dark clothes with a cap on his
head, a scarf over his face, and a gun in his hand. The man, who was short,
pointed the gun at Virginia and forced her to lie face down on the floor. 4 Virginia
was aware that four or five other men entered the house. One of the other men,
who seemed to know the location of the Waterses’ safe, demanded that Virginia
give him the combination. One of the robbers heeded Virginia’s pleas that she
was in pain, helped Virginia off the floor and tied her to a chair facing the wall.
The robbers could not get the safe open with the combination, so they untied
Virginia and made her open the safe. They then retied Virginia to the chair. The
robbers took jewelry, including Virginia’s wedding ring; $45,000 in gold coins;
loose diamonds and gems; and $700 in cash. They also took Travis’s two
hunting rifles, watches, and fountain pens. Before fleeing, the robbers warned
Virginia that they would return and hurt her if she looked back at them. After
4
The record revealed that Appellant is significantly shorter than Jose,
Eddylberto, and Ryan.
3
about five minutes, Virginia loosened the restraints and ran to a neighbor for
help, and the neighbor called the police.5
After leaving the Waterses’ home, Ryan told Gardenia to come get them,
which she did. Jose, Eddylberto, Ryan, and Appellant threw “full” bags and two
rifles into the back of Gardenia’s car. As they pulled away, Jose took off his
gloves and threw them out of the car window. Gardenia drove the men to her
home. Appellant’s girlfriend picked up Ryan, Appellant, Eddylberto, and Jose
and took them to a pawn shop. Appellant pawned eight gold and diamond rings,
but in identifying himself, he used his middle name as his first name and provided
his correct driver’s license number and birthdate. Appellant was paid $285.
Jose—using his correct full name, address, and driver’s license number—sold a
necklace and several diamond rings for $407. Appellant’s girlfriend then dropped
off the four men at a local mall.
Meanwhile, Fort Worth Police Detective Ernie Pate arrived at the scene of
the robbery. A patrol officer discovered a pair of gloves abandoned in the street
near the Waterses’ home. After speaking with the Waterses, including John
Waters, Pate suspected that Eddylberto had told the other men how to enter the
home through the garage based on his relationship with John Waters. In
investigating Eddylberto’s known associates, including Appellant, Pate
discovered an outstanding arrest warrant for Ryan. Pate distributed descriptions
5
Virginia could not call the police from her house because the robbers had
taken her cell phone and the phone receiver for her land line.
4
of the stolen items to local pawn shops and asked to be notified immediately
when Ryan’s warrant was executed.
On March 8, 2011, Ryan was stopped for a traffic violation and arrested
based on the outstanding warrant. When the arresting officer stopped Ryan, he
noticed that Ryan had new rims on his car. The arresting officer notified Pate,
who interviewed Ryan and Ryan’s two passengers—Eddylberto and Appellant—
at the scene. Pate obtained all three men’s driver’s license numbers, and all
three consented to DNA tests. Pate later checked Appellant’s driver’s license
number against information provided by pawn shops about their sellers and
discovered Appellant’s pawn-shop sales the day of the robbery.6
Pate asked Detective Jerry Cedillo to go to Appellant’s house where
Appellant consented to a search of his bedroom. Cedillo asked Appellant if there
were any weapons or drugs in the house. Appellant responded that there were
two handguns, which were found in a laundry basket and in the pocket of
Appellant’s shirt hanging in his closet.7 Appellant told Cedillo that he had some
coins and cash hidden in the room. Cedillo discovered gold coins, loose
diamonds, and $3,140 in Appellant’s bedroom. Cedillo asked Appellant if the
6
Because Appellant did not use his first name when pawning the rings,
Pate’s earlier searches of pawn-shop information did not reveal that Appellant
had sold anything. Virginia later identified several of the items sold with
Appellant’s driver’s license number as having been stolen during the robbery.
7
Appellant’s fingerprints were not found on either gun but he later told his
girlfriend, who testified at trial, that he had possessed one of the guns “for a long
time.”
5
coins were from the Waterses’ robbery, and Appellant nodded his head
affirmatively. After Appellant’s arrest, Appellant told his friend that he, Ryan,
Jose, and an unnamed fourth person had robbed the Waterses’ home, entered
the home armed, and tied up an old woman. The Waterses’ rifles were later
discovered in a dumpster near Gardenia’s home. Jose’s DNA was found on one
of the rifles and on the gloves found near the Waterses’ home.
A grand jury indicted Appellant for the offenses of (1) aggravated robbery
by threatening or placing Virginia, who was sixty-five or older, in fear of imminent
bodily injury or death and (2) aggravated robbery by threatening or placing
Virginia in fear of imminent bodily injury or death and exhibiting a deadly weapon.
See Tex. Penal Code Ann. § 29.03(a)(2), (3)(A) (West 2011). At trial, the State
introduced the pawn-shop ticket of Appellant’s sale after the robbery, which the
trial court admitted over Appellant’s Confrontation-Clause objection. The State
also elicited Pate’s testimony regarding the records of the Department of Public
Safety showing Appellant’s driver’s license number, which the trial court admitted
over Appellant’s relevance objection. A jury found Appellant guilty of aggravated
robbery by threats of an elderly person and assessed his punishment at forty
years’ confinement.
II. SUFFICIENCY OF THE EVIDENCE
In his first point, Appellant argues that the evidence was legally insufficient
to support his conviction because “no physical evidence links the Appellant to the
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home of Ms. Waters during the robbery. No prints, DNA, hair fibers, or witnesses
that are credible can put the Appellant at the scene of the robbery.”
A. STANDARD OF REVIEW
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). The standard of review is the same for direct and
circumstantial evidence cases; circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor. Winfrey, 393 S.W.3d at 771;
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not assess
the sufficiency of the evidence by focusing on what evidence the State did not
introduce. Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
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Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the fact-finder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Temple, 390 S.W.3d at 360.
B. APPLICATION
Appellant is correct that no DNA or fingerprint evidence connects him to
the robbery. But we may not focus on what evidence is missing. See Chambers,
711 S.W.2d at 245. We must focus on the admitted evidence and determine
whether the inferences from that evidence are reasonable based upon the
evidence’s cumulative force when viewed in the light most favorable to the
verdict. Therefore, the absence of DNA or fingerprint evidence does not, ipso
facto, result in a conclusion that the evidence was insufficient to support the
jury’s verdict. Appellant next argues that no “witnesses that are credible can put
Appellant at the scene of the robbery.” This argument strays from the
appropriate standard of review. We may not evaluate a witness’s credibility as
that is the sole province of the fact-finder. See Tex. Code Crim. Proc. Ann. art.
38.04; Winfrey, 393 S.W.3d at 768. Thus, in accordance with this review
standard, we look to the cumulative force of the admitted evidence in the
deferential light most favorable to the jury’s verdict.
The evidence admitted at trial showed that Appellant agreed to rob the
Waterses along with Eddylberto, Jose, Aurelio, and Ryan. Gardenia testified that
she dropped off Appellant, Eddylberto, Jose, and Ryan off at the Waterses’ home
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and that the four returned with full bags and two rifles. That same day, Appellant
and Jose used their driver’s license numbers to pawn several items, which
Virginia later identified as having been stolen from her home. Although the
majority of the evidence implicating Appellant was introduced through Gardenia’s
testimony, we may not re-evaluate whether Gardenia was credible or not. We
may only view her testimony in the light most favorable to the verdict. The
cumulative force of this evidence shows that the jury’s verdict was based on the
reasonable inference that Appellant participated in the robbery. See, e.g.,
Woolridge v. State, No. 04-12-00402-CR, 2014 WL 667500, at *5 (Tex. App.—
San Antonio Feb. 19, 2014, no pet.) (mem. op., not designated for publication);
Landrum v. State, No. 10-08-00359-CR, 2010 WL 3342003, at *2–3 (Tex. App.—
Waco Aug. 25, 2010, pet. ref’d) (mem. op., not designated for publication);
Martinez v. State, 313 S.W.3d 358, 363 (Tex. App.—Houston [1st Dist.] 2009,
pet. ref’d). Thus, the evidence was sufficient, and we overrule Appellant’s first
point.
III. ADMISSION OF EVIDENCE
In his final two points, Appellant argues the trial court erred by admitting
the pawn-shop ticket of the sale and Appellant’s driver’s license information. We
review a trial court’s decision to admit evidence under an abuse-of-discretion
standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh’g). If the trial court’s ruling falls within the zone of reasonable disagreement,
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we will affirm it. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). Relevant evidence is presumed admissible. Montgomery, 810 S.W.2d at
389.
A. PAWN-SHOP TICKET
In his second point, Appellant contends that the trial court erred by
admitting the pawn ticket, which showed what Appellant had pawned on
February 15, 2011, because it violated his right to confront and cross-examine
the pawn-shop employee who had bought the rings from Appellant and had filled
out the ticket—Zach Pope.
At trial, Virginia identified several pieces of jewelry in photographs as
pieces that had been taken from her home on February 15, 2011. The State
then offered the pawn-shop ticket into evidence as a business record. See Tex.
R. Evid. 803(6). In response to Appellant’s Confrontation-Clause objection, the
State argued that Pope was “in fact, one of the witnesses that’s on deck to testify
today.” The trial court stated that the ticket was a business record not subject to
cross-examination, overruled Appellant’s objection, and admitted the pawn-shop
ticket during Virginia’s testimony.
Pope testified later that same day and confirmed that he was the clerk who
had filled out the ticket for Appellant’s sale on February 15, 2011. Appellant
chose not to cross-examine Pope in open court. In an offer of proof, however,
Appellant renewed his Confrontation-Clause objection based on Pope’s
testimony that he had no independent recollection of the sale and that he did not
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enter the information on the ticket into the police database. The trial court again
overruled the objection. The owner of the pawn shop later testified that he was
present during Appellant’s sale and remembered several details of the purchase.
He also testified that the ticket was a regularly-kept business record. Neither
Pope nor the owner could positively identify Appellant.
The Confrontation Clause is not offended if the declarant of a testimonial
statement is available and later testifies at trial. Crawford v. Washington, 541
U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); Zuniga v. State, No. 08-08-00314-CR,
2011 WL 1157555, at *5 (Tex. App.—El Paso Mar. 30, 2011, no pet.) (mem. op.,
not designation for publication); Marzek v. State, No. 06-10-00087-CR, 2011 WL
238347, at *2 (Tex. App.—Texarkana Jan. 25, 2011, no pet.) (mem. op., not
designated for publication); Thompson v. State, No. 2-04-496-CR, 2005 WL
3343872, at *3 (Tex. App.—Fort Worth Dec. 8, 2005, no pet.) (mem. op., not
designated for publication). Pope and the owner of the pawn shop, who were
both present at the time of Appellant’s sale, testified about the ticket and were
subject to cross-examination. The Confrontation Clause was not violated, and
we overrule Appellant’s second point.
B. APPELLANT’S DRIVER’S LICENSE INFORMATION
In his final point, Appellant argues the trial court erred by allowing Pate to
testify that Appellant’s driver’s license number matched the number on the pawn-
shop ticket because it was not relevant. During Pate’s testimony, and in an effort
to establish that Appellant’s driver’s license number was the same number that
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was used to pawn the rings identified by Virginia as hers, the State offered into
evidence a redacted copy of Appellant’s driving record. 8 Appellant objected
because “there’s not been a witness that’s testified to [link Appellant to the
pawning of the jewelry], so it’s not relevant.” The trial court overruled Appellant’s
objection and admitted Appellant’s drivers’ license picture and number into
evidence.
To the extent Appellant’s argument is based on his contention that the
driver’s license information was not relevant because of the inadmissibility of the
pawn-shop ticket, we have concluded that admission of the pawn-shop ticket did
not violate the Confrontation Clause. Further, the driver’s license information
was relevant and admissible. See Tex. R. Evid. 401, 402. The information in
Appellant’s driver’s license record confirmed that Appellant’s driver’s license
number was used to pawn several of Virginia’s rings on the day of the robbery.
Further, it showed Appellant’s height, which indicated he was the person who
had held a gun to Virginia based on her testimony that a shorter man guarded
her. The evidence supported a fact of consequence—that Appellant participated
in the robbery of the Waterses—and was admissible. See Tex. R. Evid. 401; see
also Waldrop v. State, 133 S.W.2d 969, 970 (Tex. Crim. App. 1939) (“[I]t is
relevant to put in evidence any circumstance which tends to make the proposition
at issue either more or less probable.”); Condarco v. State, No. 03-12-00572-CR,
8
The State redacted all “extraneous” information—“a laundry list of
extraneous” offenses included in Appellant’s driving record.
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2013 WL 4822939, at *4 (Tex. App.—Austin Aug. 27, 2013, no pet.) (mem. op.,
not designated for publication) (holding statutory-warning form admissible
because it contained identifying information of defendant, which was relevant for
purposes other than to bolster police officer’s testimony). The trial court did not
abuse its discretion by admitting the evidence, and we overrule point three.
IV. CONCLUSION
Having overruled Appellant’s points, we affirm the trial court’s judgment.
See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 14, 2014
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