Joe Maloy v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00196-CR

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Joe Maloy, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0985179, HONORABLE BOB PERKINS, JUDGE PRESIDING

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A jury found appellant guilty of robbery. See Tex. Penal Code Ann. § 29.02(a)(1) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for twenty-four years. Appellant contends the evidence is both legally and factually insufficient to sustain the jury's verdict. Finding the evidence sufficient in all respects, we will affirm the conviction.

The indictment alleged that appellant, in the course of committing theft and with the intent to obtain and maintain control of the property, intentionally, knowingly, and recklessly caused bodily injury to John Flores and Victor Mendoza "by dragging [them] into a moving motor vehicle . . . ." Appellant contends the State did not prove that he injured either of the complainants in the manner alleged.

Mendoza was a loss-prevention investigator for an Austin department store. On the day in question, he watched appellant place two knit shirts in his pants and walk out of the store without paying. Mendoza and his supervisor Flores followed appellant into the parking lot, identified themselves, and attempted to restrain appellant and return him to the store. Appellant resisted, and "started throwing arms, kicking . . . ." A woman in a small car drove up and opened the passenger door. Appellant attempted to enter the car as Mendoza and Flores continued to struggle with him. Mendoza testified:

The female in the vehicle pulled up. He [appellant] was trying to get in the vehicle. He had one leg in, pulling himself in still, struggling with us with the other leg, pulling, yanking. I had him from the waist down. My supervisor was trying to get him from the shoulder and chest area to bring him out. At that time, the female was yelling, screaming, "Let him go. What's going on?"

. . .

I could still see it [the car] in drive. The lady was very nervous, crying, screaming. I was starting to inform the female to stop the car, just stop the car. At that time, he made himself farther into the vehicle. I was concerned for the well-being of me and my supervisor. I reached over and turned off the vehicle.

Mendoza testified that he suffered bruises and abrasions to his arms and knee during the struggle with appellant. He was asked, "[A]t least some part of your body was pulled into the vehicle by his [appellant's] actions?" He was also asked, "Was the vehicle moving as you-all -- when I say, 'moving,' I don't mean driving forward or back. Was it actually moving as you were all struggling in the vehicle?" Mendoza answered each of these questions, "Yes."

Flores's description of the struggle in the parking lot was similar to Mendoza's:

He did make it into the vehicle. He was not all the way, but he had -- his foot was out, and I think his arm was still out. And he -- I don't know if either I fell in or he pulled me in, but somehow I struck myself with the vehicle on my mouth and my forehead. And he was trying to -- he was yelling verbal commands to the female to go, but she came back and said that, you know, she had her kids and, I guess, didn't want to be a part of that.

Flores testified that in addition to the injuries to his face and head, he had bruises on his arms where appellant grabbed him. His wrist also was injured when appellant slammed the car door on it.

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

Appellant argues that the State did not prove that he intentionally, knowingly, or recklessly caused bodily injury to either Mendoza or Flores by dragging him into a moving motor vehicle as alleged in the indictment. He urges that there is no evidence that he grasped either complainant and physically pulled him into a rolling automobile.

It is undisputed that appellant was physically struggling to escape the grasp of Mendoza and Flores, enter the automobile, and make his getaway. Mendoza testified that he was pulled into the car by appellant during the struggle, and sustained scrapes and bruises on his arms and knee. Flores testified that he struck his mouth and forehead against the vehicle when he fell or was pulled into the vehicle. While there is no evidence the car was rolling forward or backward during the altercation, Mendoza testified that it was moving, presumably in a rocking motion, as he and Flores attempted to prevent appellant's escape. Viewed in the light most favorable to the jury's verdict, a rational trier of fact could find beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Mendoza or Flores by dragging him into a moving motor vehicle. The legal sufficiency issue is overruled.

In his factual sufficiency argument, appellant asks this Court to substitute its opinion of the evidence for that of the jury. Appellate courts exercise their fact jurisdiction only to prevent a manifestly unjust result. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135; Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). We must maintain appropriate deference to the jury's verdict by finding error only when the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Reina, 940 S.W.2d at 773. The verdict in this cause is not against the great weight of the evidence, and therefore we overrule the factual sufficiency issue.

The judgment of conviction is affirmed.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: November 12, 1999

Do Not Publish

t. And he -- I don't know if either I fell in or he pulled me in, but somehow I struck myself with the vehicle on my mouth and my forehead. And he was trying to -- he was yelling verbal commands to the female to go, but she came back and said that, you know, she had her kids and, I guess, didn't want to be a part of that.

Flores testified that in addition to the injuries to his face and head, he had bruises on his arms where appellant grabbed him. His wrist also was injured when appellant sla