Robert Frank Piazza v. State ( 2012 )

MEMORANDUM OPINION
No. 04-12-00124-CR
Robert PIAZZI, Jr.
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2007CR7397
Honorable Angus McGinty, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 5, 2012
AFFIRMED
Robert Piazzi, Jr. was convicted by a jury of four counts of aggravated sexual assault. On
appeal, Piazzi contends: (1) the trial court erred in denying his challenges for cause with regard
to five veniremembers; and (2) the evidence is insufficient to support his conviction. We affirm
the trial court’s judgment.
04-12-00124-CR
CHALLENGE TO VENIREMEMBERS
“To preserve error for a trial court’s erroneous denial of a challenge for cause, [Piazzi]
must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory
challenge on the complained-of venire member; (3) his peremptory challenges were exhausted;
(4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury.”
Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). In this case, Piazzi contends the
trial court erred in denying his challenge for cause to five veniremembers who stated that they
would be unable to consider probation as a punishment option. The State responds that Piazzi
failed to preserve this complaint for our review because defense counsel did not request
additional peremptory challenges. We agree with the State that the record does not show that
defense counsel requested additional strikes. Accordingly, the error, if any, was not preserved
for our review. See id.
SUFFICIENCY
Piazzi’s other complaint is that the evidence is insufficient to support the jury’s verdict.
Piazzi contends that the testimony of S.M., the complainant, regarding when the sexual assaults
occurred is inconsistent with records showing when he picked S.M. up from school and when he
dropped her off at daycare on the days her mother was working. The State responds that some of
the records relied upon by Piazzi were created by Piazzi’s mother, who ran the daycare where
S.M. would go after school, and the documentary evidence did not cover the entire period during
which the sexual assaults could have occurred.
In appeals in criminal cases, the only standard a reviewing court applies in reviewing
sufficiency challenges is the Jackson v. Virginia legal sufficiency standard. Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we view all of the evidence in
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the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Adames v. State, 353
S.W.3d 854, 860 (Tex. Crim. App. 2011). As a reviewing court, we defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Id.
S.M. and her mother moved in with Piazzi in November of 2006. S.M., who was ten-
years-old at the time of trial, testified that she was five-years-old when Piazzi sexually assaulted
her after he picked her up from school while her mother was working. S.M. testified that the
sexual assault occurred on several occasions, but she did not remember specific dates. When
S.M. was interviewed on April 13, 2007, she reported the last incident occurred in the week
before she was interviewed.
S.M. told her mother about the sexual abuse on April 9, 2007, and S.M. and her mother
moved out of Piazzi’s home that day. S.M.’s mother testified that S.M. began asking her
whether she had to work on a particular day approximately one month after they moved into
Piazzi’s home, and S.M. would cry when her mother told her she had to work. Although S.M.’s
mother asked her if Piazzi was hurting her, S.M. denied it. S.M. told her mother that the abuse
occurred on days when she was working, but S.M.’s mother testified that she did not know
specific dates.
Computerized records were introduced to show the dates and times S.M.’s mother
worked in March and April of 2007; however, the computerized records contained several entries
for “badge errors” where the computer did not note the times. Records were also introduced to
show the dates and times Piazzi would pick S.M. up from school beginning in January of 2007,
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04-12-00124-CR
and the dates and times Piazzi would drop her off at his mother’s daycare in March and April of
2007. Piazzi’s mother made all of the entries in the daycare records.
As previously noted, we defer to the jury’s credibility and weight determinations because
the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. “The jury may choose to accept or reject all or part of the testimony, and we must resolve
any conflicts and inconsistencies in the evidence in favor of the jury’s verdict.” Sony v. State,
307 S.W.3d 354, 354 (Tex. App.—San Antonio 2009, no pet.). Although the records that were
admitted showed that Piazzi took S.M. to his mother’s daycare upon picking her up from school
on several dates, the jury was required to determine what weight to give the daycare records.
Moreover, no daycare records were introduced with regard to four of the months S.M. and her
mother lived in Piazzi’s home, and no records were introduced for the months of November and
December of 2006. The evidence is legally sufficient to support the jury’s verdict.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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