Victor Manuel Roque v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed December 9, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00831-CR
VICTOR MANUEL ROQUE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 87269-CR
MEMORANDUM OPINION
A jury convicted appellant Victor Manuel Roque of the first-degree felony
of aggravated robbery on or about April 7, 2019. Tex. Penal Code Ann. §§ 29.02
(robbery), .03 (aggravated robbery). Appellant pleaded true to an enhancement
paragraph for a previous conviction for aggravated robbery with a deadly weapon,
and the jury assessed an enhanced punishment of imprisonment for 40 years. See
Tex. Penal Code Ann. §§ 12.32 (first-degree-felony punishment), .42(c)(1)
(enhancement). Roque raises four issues on appeal: (1) the evidence supporting the
element of identification was legally insufficient; (2) the trial court reversibly erred
by declining to instruct the jury on lesser-included offenses; (3) the trial court
reversibly erred by declining to remove a juror after the juror had a death in the
family; and (4) the trial court reversibly erred by revoking appellant’s pretrial
bond. We affirm.
I. BACKGROUND
Complainant Quyen Pham testified that, after he arrived home one evening
driving his Chevrolet Silverado pickup truck, a small gray pickup truck that had
been following him stopped behind him in his driveway. Two people got out of the
gray truck, both carrying guns. One of the people, whom complainant described
that night as wearing a black shirt and blue jeans, pointed his gun at complainant.
At least one other person remained in the gray truck. The men took complainant’s
phone, keys, and wallet, which had $400 in it. The two people drove off in
complainant’s Silverado, and the small pickup also drove off. Complainant was not
able to see any of the people’s faces.
The same night, the Silverado was located by police in a parking lot along
with a small gray pickup truck. After the Silverado drove off, a high-speed chase
ensued, which ended when the Silverado crashed into a tree near a wooded area.
Several people got out of the Silverado and fled into the woods. The first person
getting out on the driver’s side wore a dark shirt with a light image on it. Appellant
was apprehended in the woods. He was wearing a dark shirt with a light image on
it and jeans. Complainant’s wallet was found in the crashed Silverado, without any
money in it. When he was apprehended, appellant had $417 on him. Appellant was
arrested, along with three other people who were apprehended in the same area.
Complainant was taken that same night to see the arrestees. Appellant was
brought before complainant, who identified appellant as “the one that had the gun.”
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Complainant, however, then became confused as to whether appellant had been
involved or pointed a gun at him. At trial, complainant could not identify appellant
as having been involved in the incident.
After his arrest, appellant gave a statement to police. He stated that he had
been hanging out with the other arrestees that evening, then “blacked out.” He
stated that he only woke up when he was told to run after the truck crashed.
II. ANALYSIS
A. Evidentiary sufficiency
In issue 1, appellant challenges the legal sufficiency of the identification
evidence supporting his conviction. See Miller v. State, 667 S.W.2d 773, 775 (Tex.
Crim. App. 1984) (identification is element State must prove). In determining
whether the evidence is sufficient to support a conviction, a reviewing court must
consider all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom, a rational
jury could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). We may not reevaluate the weight and
credibility of the evidence and substitute our judgment for that of the jury. Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s
resolution of any conflicting inferences from the evidence and presume that it
resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley
v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). Although juries may not
speculate about the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is supported by the
evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.
2016) (citing Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d 9, 13 (Tex.
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Crim. App. 2007)).
Appellant argues that the only evidence identifying him as the perpetrator of,
or a culpable participant in, the offense is the fact that he was found in the woods
nearby the crashed vehicle. However, the following evidence, viewed in the light
most favorable to the verdict as required on legal-sufficiency review, supports the
identification element:
• The night of the incident, complainant identified the person who
pointed a gun at him as wearing a black shirt and blue jeans. When
apprehended in the woods after the crash, appellant was wearing a
dark shirt with a light image on it and jeans. See Earls v. State, 707
S.W.2d 82, 85 (Tex. Crim. App. 1986) (evidence sufficient to support
conviction based in part on testimony by complainant who identified
perpetrator by clothing).
• After the Silverado crashed, a person wearing a dark shirt with a light
image on it was the first person to get out on the driver’s side. As
above, when appellant was apprehended, he was wearing a dark shirt
with a light image on it. See Earls, 707 S.W.2d at 85 (clothing may
be considered in identification analysis); see also Jackson v. State,
530 S.W.3d 738, 743 n.1 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (evidence that defendant was observed in car and got out on
driver’s side is circumstantial evidence that defendant had driven the
car).
• Complainant testified his wallet containing about $400 in cash was
stolen. Complainant’s wallet was found in the truck without any
money in it. When appellant was apprehended, he had $417 on him.
Cf. Bonner v. State, 492 S.W.2d 498, 500–01 (Tex. Crim. App. 1973)
(evidence sufficient to support aggravated robbery conviction when,
inter alia, money in appellant’s possession exactly matched that taken
from the victim).
• Complainant initially identified appellant as the person who had
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pointed a gun at him, though he later stated he could not be sure
appellant was involved in the incident.
• In his statement to police, appellant did not deny that he was in the
truck when it crashed and stated that he fled after the crash. While not
sufficient on its own, presence at a crime scene and flight from police
may, in conjunction with other evidence, prove that appellant
participated in the offense. See Valdez v. State, 623 S.W.2d 317, 321
(Tex. Crim. App. 1979); Sosa v. State, 177 S.W.3d 227, 230 (Tex.
App.—Houston [1st Dist.] 2005, no pet.).
While there is conflicting evidence in the record—complainant identified the
person pointing a gun at him as having long hair, which appellant did not have,
and, in addition to recanting his initial identification of appellant, could not
identify appellant in the courtroom—these conflicts go to the weight of
complainant’s testimony, which is an issue for the jury to resolve. See Garza v.
State, 633 S.W.2d 508, 513 (Tex. Crim. App. 1982) (involving witnesses who were
unable to observe accused’s face but were able to see clothing and general physical
characteristics). Considering the above evidence in the light most favorable to the
verdict, a rational juror could infer that appellant threatened complainant with a
gun in the course of his theft of complainant’s property. Accordingly, this evidence
is legally sufficient to identify appellant has having committed aggravated robbery,
which offense is committed when, as relevant here, a person intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death
while exhibiting a deadly weapon in the course of committing theft. See Tex. Penal
Code Ann. §§ 29.02(a)(2), .03(a)(2), 31.03(a).
We overrule issue 1.
B. Lesser-included offenses
In issue 2, appellant argues the trial court reversibly erred by denying
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appellant’s request for jury instructions on the lesser-included offenses of theft and
unauthorized use of a vehicle. A two-part test is used to determine whether a
lesser-included offense may be submitted to a jury. Campbell v. State, 149 S.W.3d
149, 152 (Tex. Crim. App. 2004). First, to be considered a lesser-included offense,
the lesser offense must be included within the proof necessary to establish the
offense charged. Id.; see Tex. Code Crim. Proc. Ann. art. 37.09. Second, some
evidence must exist in the record that would permit a rational jury to find that if
appellant is guilty, he is guilty only of the lesser offense. Campbell, 149 S.W.3d at
152.
Both theft and unauthorized use of a vehicle and theft can be lesser-included
offenses of aggravated robbery based on their elements.1 Bullock v. State, 509
S.W.3d 921, 924 (Tex. Crim. App. 2016); Griffin v. State, 614 S.W.2d 155, 158
(Tex. Crim. App. 1981). The question, then, is whether the evidence in this case
would permit a rational jury to conclude that appellant was guilty only of one of
these lesser offenses. Campbell, 149 S.W.3d at 152. “Anything more than a
scintilla of evidence is sufficient to entitle a defendant to a lesser charge.” Bignall
v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Although this threshold
showing is low, “it is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense, but rather, there must be some evidence directly
germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011).
In his statement to police, appellant stated that he had been “chilling” with
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A person commits the offense of theft if he unlawfully appropriates property with intent
to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a). A person commits the
offense of unauthorized use of a vehicle if he intentionally or knowingly operates another’s boat,
airplane, or motor-propelled vehicle without the effective consent of the owner. Tex. Penal Code
Ann. § 31.07(a).
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his friends before he “blacked out,” only waking up when told to run after the truck
crashed. This evidence supports a theory that appellant did not commit any offense
at all, not that he committed either of the lesser-included offenses of theft or
unauthorized use of a vehicle. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.
App. 2001) (“A defendant’s own testimony that he committed no offense, or
testimony which otherwise shows that no offense occurred at all, is not adequate to
raise the issue of a lesser-included offense.”).
We overrule issue 2.
C. Juror removal
In issue 3, appellant argued the trial court reversibly erred by declining to
remove a juror. During trial, one of the jurors had a death in her family,
specifically her husband’s grandmother. The trial court questioned the juror on the
record as to whether she was able to continue her jury service. The juror stated she
wanted to continue serving, and that her emotional state did not hinder her from
doing so. The trial court determined, over appellant’s objection, that the juror could
continue serving.
The trial court may remove a juror who “becomes disabled from sitting at
any time before the charge of the court is read to the jury[.]” Tex. Code Crim.
Proc. Ann. art. 36.29(a). “[T]he trial court is the sole fact-finder and judge of the
credibility of the testifying jurors,” and we review its decision regarding removal
for an abuse of discretion. Scales v. State, 380 S.W.3d 780, 784 (Tex. Crim. App.
2012).
Here, the testimony of the juror indicated that she was able to, and wished
to, continue her jury service despite the death in her family. There was no
testimony indicating she could no longer fulfill her duties as a juror. Based on this
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record, the trial court did not abuse its discretion by declining to remove her from
the jury.
We overrule issue 3.
D. Revocation of bond
In issue 4, appellant argues the trial court committed reversible error by
revoking his pretrial bond during trial. However, “[i]ssues concerning pre-trial bail
are moot after the accused is convicted.” Oldham v. State, 5 S.W.3d 840, 846 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d) (quotation omitted) (citing, inter alia,
Henriksen v. State, 500 S.W.2d 491, 494 (Tex. Crim. App. 1973)); see also Tex.
Code Crim. Proc. Ann. art. 17.01 (defining “bail” to include “a bail bond or a
personal bond”).
We dismiss as moot issue 4.
III. CONCLUSION
We affirm the trial court’s judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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