Minor v. State , 1983 Tex. App. LEXIS 4497 ( 1983 )

OPINION

TIJERINA, Justice.

This is an appeal from a conviction for aggravated assault with a deadly weapon. The jury found appellant guilty as charged and assessed his punishment at eight years’ confinement in the Texas Department of Corrections. In a companion case tried jointly, appellant was also assessed punishment for the offense of murder at thirty-five years’ confinement in the Texas Department of Corrections. The trial court ordered the sentences to run cumulatively pursuant to Tex.Code Crim.Proc.Ann. art. 42.08 (Vernon 1979).

The first ground of error contends that the court’s order cumulating the sentences denied appellant due process of law as a result of the following:

A. Appellant was not given written notice of the state’s motion to stack sentence or of the court’s intention to consider cumulating this sentence with that in cause number 81-CR— 0764.

B. Appellant was not given prior notice of the evidence on which the court would base its cumulation order.

C. Appellant was not given the opportunity to be heard and to present evidence on the issue of cumulation.

D. Appellant was not given the opportunity to confront and cross-examine the witnesses against him on the issue of cumulation.

E. Appellant was not provided with a written statement of reasons supporting the court’s order of cumulation.

F. The cumulation order penalized appellant’s exercise of his right to file a motion for new trial without providing objective information concerning identifiable conduct on which the cumulation order was based.

The jury found appellant guilty of aggravated assault with a deadly weapon upon the person of Fred Aguilar and the same jury found him guilty in the companion case, tried jointly, of murder in the shooting and killing of Jesse De Los Santos. Both offenses were simultaneous, arising out of the same occurrence. The brief necessary facts indicate that the offense occurred in San Antonio on December 31, 1980, at approximately 5:00 p.m. on a city Via bus parked at Travis and Navarro Streets. It appears that appellant and his friends had been fighting with the victim and some of his friends at and in the vicinity of Travis Park. A city Via bus stopped to load passengers and all the participants in the fight boarded the bus and continued fighting whereupon appellant shot the victim, Fred Aguilar.

Tex.Code Crim.Proc.Ann. art. 42.08, supra, provides as follows:

When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one convictions, except that in the discretion of the court, the judgment in the second and subsequent conviction may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly. [Emphasis ours.]

In Hammond v. State, 465 S.W.2d 748, 752 (Tex.Cr.App.1971), the Court of Criminal Appeals held that article 42.08 supra, does not deprive an appellant of his constitutional right of due process, and that the statute is constitutional. Later in Johnson v. State, 492 S.W.2d 505, 506 (Tex.Cr.App.1978), the court reiterated the holding of the Hammond case, supra, saying, “we reject the claim that the statute could be constitutional only if certain standards are set forth to guide the court in the exercise of its discretion.” “There is no ‘right’ to a concurrent sentence; whether punishment will run concurrently or cumulatively is within the discretion of the trial judge.” Carney v. State, 573 S.W.2d 24, 27 (Tex.Cr.App.1978). Appellant does not argue, nor does the record reflect an abuse of discretion by the trial judge. Hence, in view of the rulings in Hammond, Johnson, and Carney, supra, we conclude that appellant was not denied due process of law. The trial court properly exercised its discretion under article 42.08, supra, to cumulate the sentences. Ground of error number one is overruled.

In ground of error number two appellant asserts the evidence was insufficient to show that appellant shot the complainant. In Banks v. State, 510 S.W.2d 592, 595 (Tex.Cr.App.1974), the Court discussed the appropriate standard for review of insufficiency of the evidence questions, saying:

[I]t is the province of the jury to judge the credibility of the witnesses and the weight to be given their testimony and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused. [Citations omitted]

In accord with the Banks case, supra, is Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978). More recently in Combs v. State, 643 S.W.2d 709, 716 (Tex.Cr.App.1982), the Court discussed the difference between sufficiency of the evidence points in civil cases and criminal cases, saying:

Sufficiency of the evidence as determined by this Court is a question of law. It is irrelevant whether we as a court believe the evidence, or believe that defense evidence ‘outweighs’ the State’s evidence. If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds.

In the instant case, the record shows direct testimony by the witness Eugene Mí-reles, who testified he saw appellant shoot Fred Aguilar. The bus driver, David Dominguez, identified appellant as the only person with a pistol. Appellant testified in his own behalf and admitted that one of his friends gave him the pistol and that he fired two shots during the altercation in the Via bus. Thus, having viewed the evidence in the light most favorable to the jury verdict, we conclude that there was sufficient evidence to support appellant’s conviction. Ground of error number two is overruled.

The judgment is affirmed.

CANTU, J., concurs in result.