Beau John Maloney v. State ( 2006 )

Opinion issued June 15, 2006

Opinion issued June 22, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00725-CR

BEAU JOHN MALONEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 983422

MEMORANDUM OPINION

          A jury found appellant, Beau John Maloney, guilty of aggravated robbery[1] and assessed punishment at life imprisonment. On appeal, Maloney contends the evidence is legally and factually insufficient to support his conviction. We hold that sufficient evidence supports the conviction and therefore affirm.

Facts

          In March 2004, Juli Graves, an advertising executive, drove to Kubo’s Sushi Bar in Houston for a client meeting.  She parked on the second level of the Rice Village Arcade parking garage and remained in her car for approximately five minutes to finish a telephone conversation with a coworker.  While still on the telephone, she opened the driver’s side door, stuck her foot out, and reached over to the passenger’s seat to retrieve her receipt book.

When she turned to exit the car, she saw a man later identified as Maloney standing next to her driver’s side door.  Startled, Graves ended her call and apologized to Maloney for blocking his path. Graves attempted to close her car door, but Maloney said “no” and placed his fingers over the top of the door so she could not close it.  Maloney then ordered her to “scoot over and you won’t get hurt.”  Graves responded that she was unable to climb over the center console because the parking brake was in the way.

          Maloney then pulled out a small black revolver and pointed it at Graves’s face.  Graves managed to climb over the console into the passenger’s seat while Maloney, still pointing the gun in her direction, sat down in the driver’s seat.  Graves attempted to open the passenger’s side door, but it was locked.  Maloney commanded her, “Don’t open the door.  Don’t get out.”

Maloney tried to place the gun on her body, but Graves was able to push it away. At the same time, she succeeded in unlocking the passenger’s side door.  As she slipped out of the car, Graves saw her purse and instinctively reached for it. Maloney yelled “no” and fired a shot at Graves while he lunged for her purse.  The bullet entered Graves’s arm, passed through both of her breasts, and exited her other arm, narrowly missing her heart but injuring her median nerve. Graves screamed and ran to her client’s restaurant, where she was assisted by customers and employees until an ambulance arrived.

          Caroline Awe-Husky had just finished eating lunch at a restaurant in the Rice Village Arcade and was walking through the bottom level of the parking garage with her husband when she heard a gunshot and a woman’s screams.  Shortly thereafter, she saw Maloney running down the stairwell with a purse under his arm. Maloney exited the garage and ran toward Istanbul Restaurant, after which Awe-Husky lost sight of him.

          Nicholas Gasparis and George Hristopoulos were eating lunch at Istanbul Restaurant when they heard a big bang and screams from the vicinity of the parking garage.  They then saw Maloney exiting the parking garage at a quick pace.  Maloney exchanged words with a security guard and fled the scene.

          Daniel Lopez, the security supervisor for the Rice Village Arcade, saw Maloney walking out of the parking garage, carrying a handbag. Lopez was unaware at the time that there had been a shooting in the garage, but thought it odd that a male was carrying a purse.  He therefore made a U-turn in his golf cart in an attempt to follow Maloney.  Maloney saw Lopez make the U-turn and quickened his pace, circumventing a Miller Light delivery truck before reaching the sidewalk. Lopez stopped Maloney and asked him whose purse he was carrying.  Maloney responded that it belonged to his wife.  Lopez told Maloney that he wanted to talk to him “a little bit longer,” but Maloney broke into a run and managed to escape.

          Jose Villarreal, a speed driver for the Miller Light Company, was delivering beer to a restaurant in the Rice Village Arcade when he heard a gunshot.  Shortly thereafter, he saw Maloney exit the parking garage and flee on foot.

          Officer T. Coy Morales arrested Maloney one month later at a rest stop in Kerrville.  He recovered a Charter Arms .38 revolver from the center console of the truck in which he found Maloney sleeping.  The State’s ballistics expert testified that the bullet found at the scene of the shooting was fired by the Charter Arms .38 revolver found in Maloney’s possession at the time of his arrest.[2]  The police never recovered Graves’s purse.

          After Maloney’s arrest, Officer Robert Sherrouse conducted a photographic line-up, from which Graves, Lopez, Gasparis, and Hristopoulos independently identified Maloney as the assailant.  The next day, Graves, Lopez, and Gasparis also independently identified Maloney from a live line-up.  At trial, Graves, Lopez, Gasparis, Hristopoulos, Awe-Husky, and Villarreal made in-court identifications of Maloney.

Analysis

          On appeal, Maloney contends the evidence is legally and factually insufficient to support his conviction for aggravated robbery.

Standards of Review

          In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and decide whether a 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); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).  Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence or substitute our judgment for that of the fact-finder.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

          In a factual sufficiency review, we view all of the evidence in a neutral light, and we set the verdict aside only if “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.”  Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (internal quotation marks omitted).  In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute to the evidence that tends to disprove it.  Id.  We may disagree with the jury’s determination even if probative evidence exists to support the verdict, but we should avoid substituting our judgment for that of the fact-finder.  Id. The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Aggravated Robbery

          A person commits aggravated robbery if he commits robbery and causes serious bodily injury to another, or uses or exhibits a deadly weapon.  Tex. Pen. Code Ann. § 29.03(a)(1)–(2) (Vernon 2003).  A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Id. § 29.02(a)(2).  “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the attempt or commission of theft.  Id. § 29.01(1).  A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property.  Id. § 31.03(a) (Vernon Supp. 2005).  A jury may infer intent from the defendant’s conduct and surrounding circumstances.  LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986); Ford v. State, 152 S.W.3d 752, 756 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

Sufficiency of the Evidence

          Maloney contends that, although the evidence is sufficient to support a conviction for aggravated assault, it is neither legally nor factually sufficient to support a conviction for aggravated robbery because the State did not prove that he shot Graves in the course of committing theft. He acknowledges that Graves’s purse was missing after the incident and that some witnesses testified they saw him carrying a purse as he left the scene, but he urges that the State did not establish that the purse he was carrying belonged to Graves.  He also notes that the police did not find Graves’s purse or its contents in his truck at the time of his arrest.

          These contentions are without merit.  Maloney forced his way into Graves’s car by holding her at gunpoint.  When he saw Graves reach for her purse as she slipped out of the car, he yelled “no” and shot her while simultaneously lunging for her purse.  Graves testified that her purse was brown leather with brightly colored embroidered flowers on one side.  The descriptions given by the witnesses who saw Maloney fleeing with a purse were remarkably similar to Graves’s description of the purse.  Specifically, Lopez testified that “[t]he handbag was brown and leather, short strap, multiple color, the design on the front flap of the purse. . . .  [T]his handbag got my attention because it was made out of leather.  Also, . . . because it had multiple colors and I myself am a leather craftsman.”  Similarly, Awe-Husky testified that the purse “had a design on the front.”  From this testimony, Maloney’s actions, and the surrounding circumstances, a jury reasonably could have determined that the purse Maloney was seen carrying as he fled the scene belonged to Graves.  See, e.g., Caldwell v. State, 943 S.W.2d 551, 552–53 (Tex. App.—Waco 1997, no pet.) (in bank robbery case, rejecting appellant’s assertion that he could not have committed aggravated robbery because he left money bag in bank, where witness testified that she saw appellant running from bank carrying bag matching description of bag in which teller had placed money).

          Nor is it determinative that the police did not find Graves’s purse or any of its contents in Maloney’s truck at the time of his arrest.  See Petro v. State, 176 S.W.3d 407, 408, 410 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that evidence was legally and factually sufficient to support appellant’s aggravated robbery conviction, even though police did not find complainant’s purse in appellant’s possession at time of his arrest). “[T]he accused may be convicted of theft without being seen or found in the possession of stolen property.”  King v. State, 712 S.W.2d 799, 801 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d); see also Chaney v. State, 474 S.W.2d 711, 712 (Tex. Crim. App. 1972) (“Appellant contends that the evidence was insufficient in that there was no showing that he was found in possession of the property alleged to have been stolen.  Such is not required.”).  Moreover, a jury reasonably could have determined that the month-long lapse between the date of the robbery and the date of the arrest gave Maloney sufficient time to dispose of the purse and its contents.  See Petro, 176 S.W.3d at 410 (“A reasonable jury could have rationally determined that the 30-minute time lapse between the time of the offense and the time of appellant’s arrest allowed appellant sufficient time to dispose of any physical evidence that may have connected him to the offense.”).

          Viewed in the light most favorable to the verdict, we conclude that the evidence was legally sufficient for a rational jury to find that Maloney shot Graves in the course of committing theft.  Viewed in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust.  We further conclude that the contrary evidence is not so strong that the standard of proof beyond a reasonable doubt could not have been met.  Accordingly, we hold that the evidence is factually sufficient to support Maloney’s conviction.

Conclusion

          We conclude that the evidence is legally and factually sufficient to support the conviction for aggravated robbery.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Keyes, Alcala, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1] See Tex. Pen. Code Ann. § 29.03 (Vernon 2003).

[2] During the punishment phase, the State presented evidence linking the same revolver to a murder that had occurred at a Chevron gas station located near the Rice Village Arcade two weeks after the incident involving Graves.