David Alejandro Flores Acosta v. State ( 2012 )

NUMBER 13-10-00598-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID ALEJANDRO FLORES ACOSTA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez
Appellant, David Alejandro Flores Acosta, raises three issues in his appeal from
his conviction for aggravated robbery, a first-degree felony, and possession of
marijuana, a state-jail felony. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011);
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West 2010). We affirm.
I. BACKGROUND
The evidence and testimony produced during the course of appellant’s jury trial
reveal the following facts. On November 30, 2009, Rigoberto Ramirez met up with
Angel Garza and they then went to pick up appellant. The three men drove around until
Ramirez observed a particular residence in Hidalgo County occupied by Herlinda
Hinojosa and her daughter Cecilia Hinojosa. Although Cecilia, a college student at the
University of Texas, Pan American, normally lived in a dorm room on campus, on this
particular night, she was staying with her mother in her parents’ home. Herlinda’s
husband, a truck driver, was out of town on a job.
As Ramirez walked up to the residence, he saw the lights were on in the house,
but he did not see anyone. He assumed that the house was occupied. He knocked on
the door. Herlinda answered the door, and Ramirez asked her if he could use her
phone because his vehicle was broken down. Herlinda noticed that Ramirez was
carrying a black bag that contained a ski mask. She was suspicious and signaled her
daughter to get the bat from her room. Cecilia ran off to the master bedroom to retrieve
the bat. Cecilia grabbed the phone and dialed 911. She took the phone and the bat
and locked the master bedroom door and the master bathroom door and hid in the
closet located in the master bathroom.
Ramirez signaled Garza and appellant, who then rushed the door and tackled
Herlinda. During the struggle, Herlinda screamed and was told by one of her assailants,
“[S]cream all you want it doesn’t matter” or “Keep screaming. Nobody’s going to help
you.” Appellant was identified as the assailant who made this remark.
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Ramirez then began to tie Herlinda up with duct tape. Garza and appellant
moved off to ransack the house. During their search, Garza and appellant came to the
door to the master bedroom and stated, “Someone is in here.” Herlinda then heard a
loud noise that she believed was the sound of the assailants knocking down the door.
Cecilia testified that it appeared to be a crowbar that the men used to break open the
door to the master bedroom and the door to the bathroom, where she was hiding.
After breaking through the doors to the master bedroom and the master
bathroom, Garza and appellant came to the door to the bathroom closet, which was
unlocked. Appellant entered the closet first and Garza followed him. Cecilia was
scared that they would use the crowbar to beat her to death. She swung the bat and
struck appellant on the head.
Garza and appellant ran back to the living room with Cecilia chasing them. Then,
Garza turned around and struck at Cecilia, hitting her on the back with the crowbar.
Cecilia swung the bat at Garza at the same time, but she was not sure if she hit him or
not. Cecilia fell to the ground, and appellant held her down, covering her mouth and
nose and causing her to have difficulty breathing. Cecilia feared that appellant was
going to keep covering her mouth and nose until she stopped breathing and died.
Seeing what appellant was doing, Herlinda began struggling, protesting to the
men that her daughter had a heart condition. Cecilia faked a panic attack, which
prompted Ramirez to come over to her. She was then tied up, but not very well.
Appellant asked Cecilia if she had called the police. She told him she had not.
Appellant, who was dripping blood from his head wound, grabbed Herlinda by her hand
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and dragged her back into a bedroom. Herlinda was scared that she was about to be
raped and killed and that this would be the last time she would see her daughter.
At this point, Officer Veronica Cedillo arrived on the scene, where she observed
a crowbar lying on the left side of the entrance to the residence. Appellant and Ramirez
fled through the backdoor, and Garza fled in the car. Officer Cedillo followed appellant
and Ramirez and observed that one of them dropped a black backpack. Officer Cedillo
lost sight of appellant when he crossed into a vacant lot.
Garza was apprehended after a chase that led to his residence. Items stolen
from the Hinojosa residence were recovered from the vehicle Garza used to escape.
Ramirez’s mother turned him into police. Garza and Ramirez both gave confessions
that implicated appellant and that enabled police to obtain an arrest warrant for
appellant and a search warrant for his residence.
SWAT team members found appellant hiding in his closet. Police found .04
ounces of marijuana in a medicine bottle in a drawer in appellant’s room. Police also
found 6.2 ounces of marijuana in a toolbox in a shed. A glass pipe typically used to
smoke marijuana was also found in the shed outside appellant’s residence.
Appellant’s mother testified that appellant and his younger brother and cousins
would hang out in the shed to be alone. Appellant’s mother denied that the marijuana in
the shed was hers.
DNA swabs were taken from the bat, Cecilia’s face and hands, and the inside of
the assailants’ vehicle. The sample of blood taken from Cecilia’s face and hands
matched appellant. The sample from the bat matched Garza. The blood sample from
the vehicle was not tested.
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Herlinda testified that two computers, two cell phones, her daughter’s purse, their
car keys and money from her purse were taken during the robbery. Everything but the
car keys and one of the cell phones was recovered and returned.
Cecilia testified that she needed a neck brace and an arm brace for several
weeks after the attack. She suffered from a shooting pain down her arm to her little
finger for several months. She required physical therapy to recover from the injury
caused by the crowbar.
A jury found appellant guilty of two counts of aggravated assault and one count
of possession of marijuana, as charged in the indictment. The jury assessed a 22-year
prison sentence for each count of aggravated assault, in addition to a $10,000 fine for
each offense, and a 2-year prison sentence for possession of marijuana. The trial court
accepted the jury’s punishment assessment, with the sentences to run concurrently.
This appeal ensued.
II. LEGAL SUFFICIENCY
In issues one and two, appellant challenges the legal sufficiency of the evidence
to prove aggravated robbery and possession of marijuana.
A. Standard of Review
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, 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 (1979); Brooks v. State, 323 S.W.3d 893, 899-99 (Tex.
Crim. App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering
all of the evidence in the light most favorable to the verdict, was a jury rationally justified
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in finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of
the credibility of witnesses and of the weight to be given to their testimony. Anderson v.
State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of
conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.
State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies
in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000)).
In reviewing the legal sufficiency of the evidence, we look at events occurring
before, during, and after the commission of the offense, and we may rely on actions of
the appellant that show an understanding and common design to do the prohibited act.
See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not
point directly and independently to the appellant’s guilt, so long as the cumulative effect
of all the incriminating facts is sufficient to support the conviction. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
307 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
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B. Deadly Weapon Finding and Aggravating Factor
Under a hypothetically correct jury charge, the State must prove either that
appellant committed the offense of aggravated robbery himself or that he was criminally
responsible for the offense as committed by the conduct of another. See TEX. PENAL
CODE ANN. § 7.02(a)(2), (b) (West 2011); Sorto v. State, 173 S.W.3d 469, 476 (Tex.
Crim. App. 2005) (“[I]t is well-settled that the law of parties need not be pled in the
indictment.”). The Texas Penal Code provides that a person commits the offense of
robbery 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. See TEX. PENAL CODE ANN. § 29.02
(West 2011). “In the course of committing theft” means “conduct that occurs in an
attempt to commit, during the commission, or in immediate flight after the attempt or
commission of the theft.” See id. § 29.01(1) (West 2011). The offense becomes
aggravated robbery, a first-degree felony, when the actor, inter alia, uses or exhibits a
deadly weapon. See id. § 29.03(a)(2). The hypothetically correct jury charge would
contain these requirements. See Howard v. State, 306 S.W.3d 407, 410 (Tex. App.—
Texarkana 2010), affirmed, 333 S.W.3d 137 (Tex. Crim. App. 2011).
To prove appellant was guilty of aggravated robbery under the law of parties, the
State was required to prove that appellant was criminally responsible for the actions of
another under section 7.02 of the Texas Penal Code. See TEX. PENAL CODE ANN. §
7.02. Section 7.02(a)(2) makes a person criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
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commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense. Id. § 7.02(a)(2). In addition, subsection (b)
provides as follows:
If, in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are guilty
of the felony actually committed, though having no intent to commit it, if
the offense was committed in furtherance of the unlawful purpose and was
one that should have been anticipated as a result of the carrying out of the
conspiracy.
Id. § 7.02(b). In this case, the jury was instructed on the law of parties.
Appellant argues that there is no evidence to support the jury’s finding that a
deadly weapon was used or exhibited during the robbery. See TEX. PENAL CODE ANN. §
29.03(a)(2). According to appellant, there is no evidence that he used or even touched
the crowbar during the commission of the offense.
There was ample evidence from which the jury could conclude that a deadly
weapon was used or exhibited during the commission of the offense. First, the police
recovered a crowbar from the scene of the crime. Second, Cecilia testified that she
believed the men used a crowbar during the commission of the offense. Third,
Detective Dina Valdez testified that a crowbar can be used as a deadly weapon.
The jury heard testimony indicating that the crowbar was used to break open the
door to the master bedroom, as well as the door to the master bathroom. The jury also
heard testimony that when appellant and Garza entered the closet in the master
bathroom, where Cecilia was hiding, one of the men was carrying the crowbar. The jury
also heard testimony that Cecilia was struck in the back and injured by one of the men
using the crowbar.
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Based on the foregoing, the jury had sufficient evidence, both direct and
circumstantial, to find that appellant either committed aggravated robbery by using and
exhibiting a deadly weapon or that he was a party to aggravated robbery in which a
deadly weapon was used or exhibited. Accordingly, appellant’s first issue is overruled.
C. Possession of Marijuana
Under a hypothetically correct jury charge, the State was required to prove that
appellant knowingly or intentionally possessed a quantity greater than four ounces but
less than five pounds of marijuana without legal authority to do so. See TEX. HEALTH &
SAFETY CODE ANN. § 481.121(a), (b)(3). To prove the element of unlawful possession,
the State was required to prove appellant: (1) exercised control, management, or care
over the marijuana; and (2) knew the substance possessed was contraband. See
Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). The State must
establish, either by direct or circumstantial evidence, that appellant’s connection with
the contraband was more than merely fortuitous. Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995). Evidence that “affirmatively links” appellant to the contraband is
sufficient to prove that he possessed it knowingly. Id.
Although appellant argues that, “[a]t most, [he] was guilty of a Class B
[misdemeanor] for the marijuana in his room,” we believe the jury had a sufficient
evidentiary basis to find that he was also guilty of possessing the marijuana found in the
shed outside his residence. The jury heard undisputed testimony that appellant was in
possession of the marijuana found in his room, and appellant’s mother testified that he
frequently hung out in the shed, where additional marijuana and a glass pipe for
smoking marijuana were recovered. According to appellant’s mother, appellant would
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frequently hang out in the shed to be “alone.” Although she too had access to the shed,
she denied that the marijuana was hers. Based on the foregoing, a rational trier of fact
could find that the marijuana recovered from the shed was in the control, management,
or care of appellant and that appellant knew the substance possessed was contraband.
Accordingly, appellant’s second issue is overruled.
III. IMPROPER JURY ARGUMENT
In his third issue, appellant complains that the trial court erred in overruling his
objection to the State’s improper jury argument.
A. Applicable Law
Proper jury argument includes four areas: (1) summation of the evidence
presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the
opposing counsel’s argument; or (4) a plea for law enforcement. Jackson v. State, 17
S.W.3d 664, 673 (Tex. Crim. App. 2000) (citing McFarland v. State, 845 S.W.2d 824,
844 (Tex. Crim. App. 1992)). To determine whether an argument falls within one of the
four categories, we consider the argument in light of the entire record. Magana v. State,
177 S.W.3d 670, 674 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
To constitute reversible error, the argument must be manifestly improper or inject
new, harmful facts into the case. Jackson, 17 S.W.3d at 673 (citing Gaddis v. State,
753 S.W.2d 396 (Tex. Crim. App. 1988); Everett v. State, 707 S.W.2d 638, 640 (Tex.
Crim. App. 1986)). It must also have affected appellant’s substantial rights. See TEX.
R. APP. P. 44.2(b). In determining whether the appellant’s substantial rights were
affected, we consider the following: (1) the severity of the misconduct (i.e., the
prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3) the
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certainty of conviction absent the misconduct. Montgomery v. State, 198 S.W.3d 67, 95
(Tex. App.—Fort Worth 2006, pet. ref’d).
B. Standard of Review
The trial court has broad discretion in controlling the scope of closing argument.
See Lemos v. State, 130 S.W.3d 888, 892-93 (Tex. App.—El Paso 2004, no pet.). The
standard of review for rulings on objections to improper jury argument is abuse of
discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); see
also Cole v. State, 194 S.W.3d 538, 546 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d). The reviewing court should uphold the trial court’s ruling if it was within the zone
of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App.
2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).
C. Discussion
Appellant complains about the following comment made during the State’s main
closing argument:
Ladies and gentlemen of the jury this could be your family . . . . Do you
want to feel safe in your home? Ladies and gentlemen of the jury, we
have a problem in the Valley with crime. And if you ever wanted to be a
part of fixing what’s going on in the Valley, this is your most important
opportunity. You can vote, you can follow the law, you can pay your taxes
and send your kids to school, and you can go to the school board
meetings, but right here is where the rubber meets the road. If you have
ever wanted to take a stand against crime in the Valley and make an effort
for everyone’s family, the entire community needs your help.
We conclude that this argument falls squarely within the category of permissible
jury argument involving a plea for law enforcement. See Jackson, 17 S.W.3d at 673. In
its brief, the State has cited two decisions from the Texas Court of Criminal Appeals,
which we also cite, in support of our conclusion. See Borjan v. State, 787 S.W.2d 53,
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55-58 (Tex. Crim. App. 1990) (overruling challenge to State’s comment, “[A]nd you’re
going to let him out? Please don’t do that . . . . For the ones who never come and tell
you about it, who are too frightened,” because the State “was referring in general to
those sexual abuse victims within the community” and this comment “constituted a
proper plea for law enforcement”); Stone v. State, 574 S.W.2d 85, 90 (Tex. Crim. App.
1978) (overruling challenge to State’s comment, “Let’s think about [the child victim] and
think about the other children that live in this community that are subjected to this type
of conduct by others and use your common sense,” because “this argument [is] a
proper plea for adequate punishment and law enforcement”).
Appellant’s third issue is overruled.
IV. CONCLUSION
The judgments of the trial court are affirmed.
__________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of August, 2012.
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