Sisto Quiroz, III v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00478-CR
Sisto Quiroz, III, Appellant
v.
The State of Texas, Appellee
FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 16-3069-K277, THE HONORABLE STACEY MATHEWS, JUDGE PRESIDING
MEMORANDUM OPINION
Sisto Quiroz, III, was charged with one count of aggravated robbery and one
count of burglary of a habitation. See Tex. Penal Code §§ 29.03, 30.02.1 The jury charge
contained lesser-included-offense instructions for aggravated assault for both counts. See id.
§ 22.02. The jury acquitted Quiroz of aggravated robbery and burglary but found him guilty of
the lesser-included offense of aggravated assault in both counts, and the jury sentenced him to
twelve years’ imprisonment in each count. See id. § 12.33. In fifteen issues on appeal, Quiroz
argues that the evidence supporting his convictions is legally insufficient, that the trial court
erred by entering a deadly weapon finding, and that the trial court erred in denying his request
for a lesser-included-offense instruction for theft for the first count. We will affirm the trial
court’s judgments of conviction.
1
The indictment also alleged one count of aggravated assault, but the State later
abandoned that count.
BACKGROUND
On the night in question, Gary Eddleman and Amy Rogers were in their
apartment along with their two roommates. When someone knocked on the door, Rogers went
downstairs to see who was there. As she opened the door, she saw three men and a woman. All
three men were holding guns. One man was wearing a bandana over part of his face, and another
man was wearing a ski mask. Both of the masked men were also wearing gloves, and one of the
masked men had shorts on and had tattoos on his legs. The unmasked man and the unmasked
woman were Jason Williams and Kami Hanlon, with whom Eddleman and Rogers were both
acquainted. Hanlon was also wearing gloves.
After Rogers went to the door, Williams forced the door open, and the two other
men followed him up the stairs. Hanlon held a taser to Rogers, tased her multiple times, and
kicked her. While in the house, the three men demanded money and drugs. The men zip-tied the
hands and feet of Rogers, Eddleman, and the other two roommates, and one of the men covered
Rogers’s mouth with duct tape. Eddleman was able to break his zip ties, and one of the
offenders told him that they would kill him if he broke the ties again. Williams was holding
what Eddleman described at trial as an “SKS” rifle. Eddleman also testified that one of the
men was holding a revolver and that the other man was holding a shotgun. At trial, a photograph
of a shotgun seized by the police during their investigation was admitted into evidence, and
Eddleman testified that he recognized the shotgun as being one of the weapons used at the
apartment. During the incident, Williams pointed the “SKS” rifle at Eddleman’s head, and the
offenders eventually moved the four roommates to the bedroom of the apartment.
While Rogers, Eddleman, and the other two roommates were in the bedroom, one
of the offenders pointed a gun with a laser sight at Rogers’s face, demanded the title to her car,
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and told her that if she did not give them the title by the following day, they would return to the
apartment and kill her. Following this exchange, the four offenders closed the bedroom door and
left the apartment. Eddleman was able to get out of his zip ties again, released the others from
their zip ties, and called the police. On a recording of the 911 call, Eddleman stated that the
offenders left approximately two minutes ago, that the offenders had guns, and that one of the
offenders was Hanlon. After the offenders left, Rogers and Eddleman realized that the offenders
had taken several items from the apartment, including a duffel bag, her purse, and her iPhone.
The police arrived at the apartment a few minutes after Eddleman called 911 and
observed broken zip ties and duct tape in the apartment. Before the police arrived, Eddleman
remembered that he could use the Find My iPhone app to track the location of Rogers’s cell
phone and handed his phone to the police when they arrived so that they could track the location
of her phone. When the app would provide an update regarding the location of Rogers’s phone,
the officer would announce the location over the radio so that officers throughout the city
would be on the lookout. The app eventually indicated that Rogers’s phone had stopped moving
approximately thirty-five to forty minutes after the incident and was near a Super 8 Motel along
a highway.
Within a few minutes of hearing the latest update on the iPhone’s location,
several groups of police officers responded to the motel. One of the responding officers saw four
individuals—three men and one woman—near a car in the motel parking lot, and he and his
partner waited for more police to arrive before approaching them. When more police arrived,
they broke into two groups so that they could approach the individuals from two directions. At
that time, the group of four was walking on the motel’s second-story walkway. After the officers
began approaching and told the group to place their hands in the air, two of the men and the
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woman, who were later identified as Williams, Hanlon, and Michael Gonzalez, complied with
the officers’ directives, but the final member of the group, who was later identified as Quiroz,
quickly walked away from the group while carrying a duffel bag. Quiroz later dropped the
duffel bag, placed his back against a concrete pillar, and began reaching in his waistband.
Quiroz did not respond to the officers’ commands for several minutes but ultimately complied.
An audio recording of the exchange between the officers and Quiroz was admitted as an exhibit.
In addition, photographs of Quiroz from shortly after he was arrested were admitted into
evidence and showed him wearing shorts and showed that he has tattoos on one of his legs.
While the four individuals were being arrested, the police discovered that Quiroz
had a loaded Glock 23 handgun in his waistband, a “double edged dagger style blade” that was
attached to his shorts, a tire changing tool in his waistband, and bullets in his jacket pocket.
In addition, the duffel bag that Quiroz was seen carrying contained a loaded “Chinese SKS
semiautomatic rifle,” a large knife, ammunition, zip ties, a black ski mask, and his wallet and
identification card. In addition, the officers discovered that Williams was wearing a backpack,
and the backpack contained a loaded shotgun that had a laser pointer attached to it. The officers
did not find any weapons on Hanlon but did find two purses near her. The first purse had a taser
in it as well as Hanlon’s identification card. During her testimony, Rogers identified the other
purse as the one that was taken from the apartment, and photographs of the purse’s contents
showed that the purse contained several of Rogers’s identification cards. The police also
discovered that one of the rooms at the motel had been rented under Quiroz’s name. When the
police officers looked inside the car in the parking lot, they saw black gloves, latex gloves, a
black ski mask, zip ties, a roll of duct tape, and ammunition for a shotgun.
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After Quiroz was arrested, he was charged with aggravated robbery and burglary
of a habitation. The alleged victim of the robbery was Rogers, and the alleged victim of the
burglary was Eddleman. At the conclusion of the guilt-innocence phase, the jury acquitted
Quiroz of the charged offenses but found him guilty of the lesser-included offense of aggravated
assault against both victims. The trial court included deadly weapon findings in both judgments
of conviction. Quiroz appeals his convictions.
DISCUSSION
In his first and second issues on appeal, Quiroz contends that the evidence was
legally insufficient to support his two convictions for aggravated assault. In his third through
fourteenth issues, Quiroz challenges the propriety of the deadly weapon findings in both
judgments of conviction. In his final issue, Quiroz asserts that the trial court erred by denying
his request for a lesser-included instruction for theft in the first count.
Sufficiency of the Evidence
Under the Penal Code, an individual commits the offense of assault if he
“intentionally or knowingly threatens another with imminent bodily injury” and commits the
offense of aggravated assault if he “uses or exhibits a deadly weapon during the commission of
the assault.” Tex. Penal Code §§ 22.01(a), .02(a). Moreover, as specified in the jury charge in this
case, “[a] person is criminally responsible for an offense committed by the conduct of another if
. . . acting with intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2).
“Evidence is sufficient to support a criminal conviction if a rational jury could
find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,
5
602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). In making this determination, “[w]e view the evidence in the light most favorable to
the verdict and consider all of the admitted evidence, regardless of whether it was properly
admitted.” Id. “The jury is the sole judge of credibility and weight to be attached to the testimony
of the witnesses.” Id. “Juries can draw reasonable inferences from the evidence so long as each
inference is supported by the evidence produced at trial,” id., and are “free to apply common
sense, knowledge, and experience gained in the ordinary affairs of life in drawing reasonable
inferences from the evidence,” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d). “When the record supports conflicting inferences, we presume that
the jury resolved the conflicts in favor of the verdict and defer to that determination.” Merritt v.
State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
Appellate courts must “determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
Appellate courts also must bear in mind that “direct and circumstantial evidence are treated
equally” and that “[c]ircumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v. State,
361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Furthermore, reviewing
courts “measure the sufficiency of the evidence by the so-called hypothetically correct jury
charge, one which accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant is tried.” See
DeLay v. State, 465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014). The evidence is legally
6
insufficient if “the record contains no evidence, or merely a ‘modicum’ of evidence, probative of
an element of the offense” or if “the evidence conclusively establishes a reasonable doubt.”
Kiffe, 361 S.W.3d at 107 (quoting Jackson, 443 U.S. at 320).
On appeal, Quiroz contends that the evidence is insufficient to establish his
identity as one of the offenders at the apartment. As support for this assertion, Quiroz highlights
that no witnesses testified that he was present at the apartment when the offenses occurred, that
no witness saw the car found at the motel at the apartment complex, and that the car at the motel
was never linked directly to him. Further, Quiroz contends that the description of the clothing
worn by one of the offenders that the State argued was him at trial did not match what he was
wearing when he was arrested. Although Quiroz admits that the evidence showed that he “was
associated with the unloading of a vehicle that contained stolen property and items used in the”
offenses and “was found with stolen property,” he urges that evidence establishing his proximity
to the stolen property was insufficient to establish his identity as one of the offenders. On the
contrary, Quiroz contends that the evidence showed that he was “possibly helping individuals
known and identified with the offense to possibly unload a vehicle which possibly contained
property stolen from the victims.”
Similarly, although Quiroz acknowledges that the evidence established that he did
not cooperate with the police officers’ directives at the motel, he asserts that the evidence did not
establish that he was attempting to flee from the officers because he was arrested on the same
floor of the motel that the officers initially found him. Moreover, even though Quiroz concedes
that he was in the presence of individuals identified by witnesses as being involved in the
offenses when he was arrested, he contends that guilt by association is “contrary to our system of
justice” and should not be used to support his conviction and further argues that he was not seen
7
in the company of Hanlon and Williams until a significant period of time after the offenses
occurred. Relatedly, Quiroz highlights that the Find My iPhone app showed that the phone took
an indirect route to the motel, did not chronicle everywhere Rogers’s phone went nor provide
continuous updates, and therefore, could not have shown if the vehicle stopped to allow him to
get into the car after the incident at the apartment. Further, Quiroz asserts that the evidence
showed that, unlike the individuals identified as having been at the apartment, he had a reason to
be at the motel because he was a registered guest and was arrested near his room. Finally,
Quiroz urges that evidence indicating that he might have assisted a primary actor to escape or
that he may have helped unload the vehicle used by the offenders is insufficient to establish his
identity as a culpable actor under the law of parties.
Viewing the evidence in the light most favorable to the verdicts and resolving any
conflicts in the evidence in favor of the convictions, the evidence presented at trial established
that Hanlon, Williamson, and two masked men went to Eddleman and Rogers’s apartment; that
the three men were carrying a handgun, an SKS rifle, and a shotgun; and that the four offenders
zip-tied Eddleman, Rogers, and their roommates before taking their property, including Rogers’s
iPhone and a duffel bag. The evidence also established that the police were able to track the
location of Rogers’s iPhone using an app, that the app showed that the cell phone was driven to a
Super 8 Motel, that several police officers arrived at the motel within approximately forty
minutes of the incident and within a few minutes of when the app indicated that the phone was
near the motel, and that the police observed a group walking from a car in the parking lot toward
a room on the second floor of the motel where the police engaged the individuals and identified
them, including Quiroz, Hanlon, and Williamson.
8
Additionally, the evidence established that Quiroz unsuccessfully attempted to get
away from the police when they announced their presence before he positioned himself against a
wall, disregarded the police officers’ instructions for several minutes, and placed his hands in his
waistband where he had multiple weapons. Cf. Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex.
Crim. App. 2007) (explaining that evidence of flight evinces consciousness of guilt); Palomo v.
State, 352 S.W.3d 87, 91 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (observing that
defendant’s decision to barricade himself during standoff with police was indicative of his guilt).
Further, the group of offenders was found in possession of items taken from the apartment,
weapons matching the description of weapons used at the apartment, items similar to those worn
by the offenders (e.g., ski masks and gloves), zip ties like those used to bind the arms and legs
of the victims, and duct tape like the tape placed over Rogers’s mouth. Cf. Holloway v. State,
No. 05-05-01117-CR, 2006 WL 1545379, at *2 (Tex. App.—Dallas June 7, 2006, pet. ref’d)
(op., not designated for publication) (noting that State can prove identity “through circumstantial
evidence such as . . . recent and unexplained possession of stolen property”). Regarding Quiroz,
he was seen carrying a duffel bag that contained his wallet and identification card as well as an
SKS rifle, a ski mask, and zip ties like those used during the incident. Moreover, Rogers and
Eddleman described one of the masked male offenders as wearing shorts and having tattoos on
his legs, and photos of Quiroz from the night of his arrest shortly after the incident showed him
wearing shorts and having tattoos on one of his legs.
Based on this evidence and bearing in mind the reasonable inferences that the jury
could have made from that evidence, we conclude that the evidence is sufficient to establish
Quiroz’s identity as one of the offenders in the two aggravated-assault counts. See Jones v.
State, 458 S.W.3d 625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (stating that
9
identity of alleged perpetrator may be proven with circumstantial evidence); Roberson v. State,
16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d) (observing that identity may be
established by inference).
Accordingly, we overrule Quiroz’s first two issues on appeal.
Deadly Weapon Finding
In his third through fourteenth issues on appeal, Quiroz challenges the propriety
of the deadly weapon findings made in both of the trial court’s judgments of conviction.
The indictment in this case alleged in count one that Quiroz committed
aggravated robbery while using or exhibiting a deadly weapon and alleged in count two that he
committed burglary of a habitation while attempting to commit or committing aggravated assault
with a deadly weapon. The indictment also contained a deadly weapon allegation stating that
Quiroz used or exhibited a deadly weapon (a firearm) “during the commission of the charged
offense or during the immediate flight therefrom, or was a party to the charged offense and knew
that a deadly weapon would be used or exhibited.” The portion of the jury charge pertaining to
the aggravated-robbery count included lesser-included-offense instructions asking the jury to
consider whether Quiroz was guilty “of the lesser included offense of aggravated assault with a
deadly weapon” if it found him not guilty of aggravated robbery and directed the jury to consider
whether he, acting alone or as a party, intentionally or knowingly threatened or placed Rogers
in fear of imminent bodily injury or death while he was using or exhibiting “a deadly weapon,
namely: a firearm.” Similarly, the portion of the jury charge for the burglary count included
lesser-included-offense instructions directing the jury to consider whether Quiroz was guilty
of aggravated assault with a deadly weapon if it acquitted him of burglary and asked the jury
10
to determine if he, acting alone or as a party, intentionally or knowingly threatened or placed
Eddleman in fear of bodily injury or death while he was using or exhibiting “a deadly weapon,
namely: a firearm.” The jury charge also included a special-issue instruction pertaining to the
burglary offense and directed the jury to determine whether Quiroz used or exhibited a
deadly weapon if it determined that he committed the offense of burglary. After acquitting
Quiroz of burglary but finding him guilty of the lesser offense of aggravated assault, the jury
answered “We do not” on the deadly weapon special issue relating to the burglary. At the end of
the guilt-innocence phase, the trial court read the jury’s two verdicts finding Quiroz guilty of
“aggravated assault with a deadly weapon.” Further, the trial court read the jury’s finding on the
special issue and explained that the jury entered its finding as directed because there was no
burglary conviction.
On appeal, Quiroz contends that the inclusion of deadly weapon findings in
the two judgments of conviction was erroneous because there was no affirmative deadly
weapon finding by the jury. See Tex. Code Crim. Proc. art. 42A.054(b)-(d); Johnson v. State,
233 S.W.3d 420, 424 (Tex. App.—Fort Worth 2007, pet. ref’d). More specifically, Quiroz
contends that no special issue regarding the use of a deadly weapon accompanied the portions of
the jury charge setting out the lesser-included offenses of aggravated assault and that courts may
not look to the facts of a case in order to imply a deadly weapon finding. Moreover, Quiroz
argues that since the jury charge included instructions under the law of parties, there should have
been but was not a specific finding by the trier of fact that he personally used or exhibited a
deadly weapon before the deadly weapon findings could have permissibly been included in
the judgments of conviction. Next, Quiroz references the special-issue finding for the greater
offense of burglary, argues that the jury’s finding was an express determination that he did not
11
use or exhibit a deadly weapon during any of the alleged offenses, contends that juries are
entitled to return a negative deadly weapon finding even when the use of a deadly weapon is a
necessary element of the offense for which the defendant was convicted, and urges that the jury’s
determination on a deadly weapon finding should not be disturbed even if it is inconsistent with
their guilty verdicts.
Building on these arguments, Quiroz also contends that the deadly weapon
findings violated his right to have a jury decide every element of the offense and his right to have
the elements of his charges proven beyond a reasonable doubt. Similarly, Quiroz argues that the
deadly weapon findings were barred by double jeopardy and by collateral estoppel because the
jury had already answered the deadly weapon finding in his favor or, alternatively, did not make
an express deadly weapon finding. Finally, Quiroz urges that the deadly weapon findings were
improper because they were not orally pronounced when his sentence was imposed and,
accordingly, that the inclusion of the deadly weapon findings violated his due-process rights.
As an initial matter, we note that a trial court must enter a deadly weapon finding
when a jury makes an affirmative finding that a deadly weapon “was used or exhibited during the
. . . commission of a felony offense; or . . . immediate flight from the commission of a felony
offense; and . . . the defendant . . . used or exhibited a deadly weapon; or . . . was a party to the
offense and knew that a deadly weapon would be used or exhibited.” Tex. Code Crim. Proc.
art. 42A.054(b)-(d). Although it is true that jury answered “We do not” on the special issue set
out in the charge, that deadly weapon special issue was limited to the burglary offense, asked the
jury to find whether it found beyond a reasonable doubt that Quiroz used or exhibited a deadly
weapon “during the commission of the offense of Burglary of a Habitation,” and provided the
jury with only two options for answering the special issue: writing “We do” or “We do not.”
12
Given the limited nature of the special issue and given that the jury acquitted Quiroz of the
offense to which the special issue applied, we cannot agree with Quiroz’s argument that by
answering “We do not” in the circumstances present here, the jury expressly determined that no
deadly weapon was used in the aggravated assaults. The finding was not a finding by the jury
that Quiroz did not use or exhibit a deadly weapon during any of the other charged or lesser
offenses and was instead a reflection that the jury acquitted him of the burglary offense.
Similarly, we disagree with Quiroz’s suggestion that the jury made no express
deadly weapon finding for the two aggravated-assault convictions. See Guthrie-Nail v. State,
506 S.W.3d 1, 4 (Tex. Crim. App. 2015) (observing that “[a]n affirmative deadly-weapon
finding must be an ‘express’ determination in order to be effective”); see also Polk v. State,
693 S.W.2d 391, 393 (Tex. Crim. App. 1985) (explaining that “affirmative finding” means express
determination by jury that deadly weapon was exhibited or used). In determining whether an
express determination has been made, courts “look to the charging instrument, the jury charge,
and the jury verdict to evaluate the propriety of an entry of a deadly-weapon finding in the
judgment.” Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016). Although an express
determination can be based on the language of the indictment or on a special issue regarding the
use of a deadly weapon, id., for cases in which a defendant is found guilty of a lesser-included
offense, a deadly weapon finding is authorized when a jury finds the defendant guilty of a lesser-
included offense based on the jury-charge application paragraph that “explicitly and expressly”
requires the jury to find that the defendant used a deadly weapon while committing the offense
because it is an element of the offense, see Lafleur v. State, 106 S.W.3d 91, 98 (Tex. Crim. App.
2003). In other words, for cases involving convictions for lesser-included offenses, a jury makes
an express finding that a deadly weapon was used or exhibited when the following occurs:
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1) the indictment specifically alleges the use of “deadly weapon;”
2) the jury charge’s application paragraph on a lesser-included offense requires a
finding from the jury beyond a reasonable doubt that the defendant committed an
offense using the alleged “deadly weapon;” and
3) the jury finds the defendant guilty of that lesser-included offense.
Duran, 492 S.W.3d at 747.
As set out above, the indictment in this case alleged that Quiroz committed the
offense of aggravated robbery while using or exhibiting “a deadly weapon, namely, a firearm”
and committed the offense of burglary while attempting to commit or committing the offense
of aggravated assault with a deadly weapon. The indictment also contained a deadly weapon
allegation. The application paragraphs for the two lesser-included offenses asked the jury to
consider whether Quiroz was guilty beyond a reasonable doubt of committing “the lesser
included offense of aggravated assault with a deadly weapon” and directed the jury to consider
whether he, “acting alone or as a party,” intentionally or knowingly threatened or placed Rogers
and Eddleman in fear of imminent bodily injury or death while he was using or exhibiting “a
deadly weapon, namely: a firearm.”
The jury necessarily made express deadly weapon findings when it found him
guilty of the lesser offenses because “the jury could not have convicted” Quiroz of either
aggravated assault, “even as a party, unless it found his participation in the offense was
accompanied by the intent to promote or assist the commission of the offense[s].” McTier v.
State, No. 14-08-00476-CR, 2009 WL 1875684, at *2 (Tex. App.—Houston [14th Dist.]
June 30, 2009, pet. ref’d) (mem. op., not designated for publication); see Tex. Penal Code
§ 7.02(a)(2). “Because the use of a deadly weapon was an element of” those offenses, “before
the jury could have convicted” Quiroz, “it also must have believed beyond a reasonable doubt
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that he knew that a deadly weapon would be used in the commission of the offense[s].” McTier,
2009 WL 1875684, at *2; see also Johnson v. State, No. 01-06-00979-CR, 2007 WL 2874824,
at *3 (Tex. App.—Houston [1st Dist.] Oct. 4, 2007, pet. ref’d) (mem. op., not designated for
publication) (holding that there was no error in including deadly weapon finding even if
defendant was convicted as party to offense because by convicting defendant jury “necessarily
. . . found that” defendant “intended to promote or assist the other men in robbing the
complainant with a deadly weapon and that he knew a deadly weapon would be used in the
commission of the offense”); Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d) (concluding that deadly weapon finding was proper and explaining
that “where the use of a deadly weapon is an element of the offense, the State automatically
carries the burden of proving the defendant knew a weapon would be used or exhibited in the
commission of the offense” and that “before jurors were authorized to find [defendant] guilty,
even as a party, they first had to believe beyond a reasonable doubt that [defendant] knew a
deadly weapon would be used in the commission of the offense”).
For these reasons, the trial court’s inclusion of the deadly weapon findings in its
judgments of conviction was consistent with the jury’s deadly weapon determinations, was
consistent with the statutory provision setting out when a deadly weapon finding must be
included in a trial court’s judgment, and did not contravene any jury determination that no deadly
weapon was used during the offenses. See Tex. Code Crim. Proc. art. 42A.054(b)-(d); see also
Duran, 492 S.W.3d at 746 (explaining that affirmative finding under statute means “express
determination that a deadly weapon . . . was actually used or exhibited during the commission of
the offense”). In light of the preceding, we must also conclude that the deadly weapon findings
were not barred by double jeopardy or collateral estoppel and did not violate Quiroz’s right to
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have the jury decide the elements of the offenses or his right to have the elements of the offenses
proven beyond a reasonable doubt.
Turning to Quiroz’s argument that the deadly weapon findings were improper
because they were not orally pronounced when his punishments were imposed, we recognize that
there is a statutory obligation that a defendant’s sentence be pronounced in his presence, see Tex.
Code Crim. Proc. art. 42.03, and that when there is a dispute between a written judgment of
conviction and the oral pronouncement, the trial court’s oral pronouncement controls, see Ette v.
State, 559 S.W.3d 511, 515 (Tex. Crim. App. 2018). However, “the expectation of having the
oral pronouncement match the written judgment applies only to sentencing issues, such as the
term of confinement assessed and whether multiple sentences will be served concurrently or
consecutively.” Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). Although a
deadly weapon finding “may impact a sentence,” it is not part of “a ‘sentence’” as contemplated
by the legislature. State v. Ross, 953 S.W.2d 748, 751 (Tex. Crim. App. 1997); see Tex. Code
Crim. Proc. art. 42.02 (defining sentence as “that part of the judgment . . . that orders that
the punishment be carried into execution in the manner prescribed by law”). In other words,
although “a deadly-weapon finding does affect a defendant’s eligibility for probation and parole,
it does not alter the range of punishment to which the defendant is subject, or the number of
years assessed.” Ex parte Huskins, 176 S.W.3d at 821. For those reasons, “a trial court is not
required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a
deadly weapon is clear from the face of the indictment.” Id.As mentioned above, the indictment in this case alleged that Quiroz used or
exhibited a deadly weapon during both charged offenses, and the application paragraphs in the
jury charge for the lesser-included offenses instructed the jury to find him guilty only if, among
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other things, it determined beyond a reasonable doubt that he, either personally or as a party,
used or exhibited a deadly weapon while committing the offenses. When the jury found Quiroz
guilty, it made affirmative deadly weapon findings, and “the district court was free to enter a
deadly-weapon finding even though it did not make an oral pronouncement regarding the finding
when it imposed its sentence.” See Diaz v. State, No. 03-15-00539-CR, 2016 WL 1084398,
at *5 (Tex. App.—Austin Mar. 17, 2016, no pet.) (mem. op., not designated for publication).
Accordingly, we conclude that the inclusion of the deadly weapon findings did not violate
Quiroz’s due-process rights and that the trial court did not err by including those findings in its
judgments of conviction without orally pronouncing them. See Ex parte Huskins, 176 S.W.3d
at 820-21 (overruling claim asserting that defendant’s due-process rights were violated when
deadly weapon finding was not orally pronounced before being included in written judgment).
For all of these reasons, we overrule Quiroz’s third through fourteenth issues
on appeal.
Lesser-Included Offense
In his fifteenth issue on appeal, Quiroz contends that the trial court erred by
denying his request for an instruction on the lesser-included offense of theft for the first count.
Appellate courts “use a two-step analysis to determine if a defendant is entitled to
a lesser-offense instruction.” Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App. 2018).
“The first step is to determine whether the requested instruction pertains to an offense that is
a lesser-included offense of the charged offense, which is a matter of law.” Bullock v. State,
509 S.W.3d 921, 924 (Tex. Crim. App. 2016). “An offense is a lesser included offense if . . . it is
established by proof of the same or less than all the facts required to establish the commission of
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the offense charged.” Tex. Code Crim. Proc. art. 37.09(a)(1). In analyzing whether a lesser-
included-offense instruction was warranted, reviewing courts “do not consider what the evidence
at trial may show but only what the State is required to prove to establish the charged offense.”
Cannon v. State, 401 S.W.3d 907, 910 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
Reviewing courts then “compare these elements to those of the potential lesser-included offense
. . . and decide whether the elements of the lesser offense are functionally the same or less than
those required to prove the charged offense.” Id.; see also Tex. Code Crim. Proc. art. 37.09
(defining lesser-included offenses). “An offense is a lesser-included offense of another offense
. . . if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of
the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments,
such as non-statutory manner and means, that are alleged for purposes of providing notice) from
which all of the elements of the lesser-included offense may be deduced.” Ex parte Watson,
306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g).
Regarding the first step, consistent with the Penal Code, the indictment alleged
that Quiroz committed robbery by intentionally or knowingly threatening or placing Rogers in
fear of imminent bodily injury or death while he was “in the course of committing theft” and
while using or exhibiting a deadly weapon. See Tex. Penal Code §§ 29.02, .03. “‘In the course
of committing theft’ means conduct that occurs in an attempt to commit, during the commission,
or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1). Further, a
person commits theft “if he unlawfully appropriates property with intent to deprive the owner
of property.” Id. § 31.03(a). Appropriation is unlawful if “it is without the owner’s effective
consent” or if “the property is stolen and the actor appropriates the property knowing it was
stolen by another.” Id. § 31.03(b). “It is well settled that when the indictment alleges that a
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defendant committed robbery by causing bodily injury or threatening to cause bodily injury
in the ‘course of committing theft,’ the offense of theft is necessarily a lesser-included offense
of the robbery.” Knott v. State, 513 S.W.3d 779, 795 (Tex. App.—El Paso 2017, pet. ref’d).
“It follows that theft is a lesser included offense of aggravated robbery” where the element
that elevates the case to aggravated status is the use of a deadly weapon. See Jones v. State,
280 S.W.3d 294, 297 (Tex. App.—Amarillo 2007, pet. ref’d). Accordingly, the first step is
satisfied in this case.
To satisfy the second step, “there must be evidence from which a rational jury
could find the defendant guilty of only the lesser offense.” Ritcherson, 568 S.W.3d at 671.
“That requirement is met if there is (1) evidence that directly refutes or negates other evidence
establishing the greater offense and raises the lesser-included offense or (2) evidence that is
susceptible to different interpretations, one of which refutes or negates an element of the greater
offense and raises the lesser offense.” Id. Appellate courts “consider all the evidence admitted
at trial, not just the evidence presented by the defendant, and if there is more than a scintilla of
evidence raising the lesser offense and negating or rebutting an element of the greater offense,
the defendant is entitled to a lesser-charge instruction.” Id. “It does not matter whether the
evidence is controverted or even credible,” id., nor does it matter “whether that evidence is
weak or strong,” Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). “If the evidence
raises the issue, the trial court must include an instruction in the jury charge.” Ramirez v. State,
263 S.W.3d 40, 42 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
As support for his assertion that a lesser-included-offense instruction should have
been given, Quiroz highlights that no witnesses identified him as one of the offenders from the
apartment. From the absence of identifying witness testimony, Quiroz postulates that the jury
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could have concluded that he was not guilty of robbery or aggravated assault but concluded that
he was guilty of the offense of theft based on the evidence establishing that he was found in
possession of recently stolen property and that the items taken from the apartment were
appropriated without the consent of the owners of the property. In other words, Quiroz argues
that the jury could have inferred from the evidence presented that he exercised control over the
stolen property after individuals other than himself stole the property from the apartment. Based
on the preceding, Quiroz contends that he was entitled to an instruction because the evidence
was susceptible to two interpretations: (1) he was guilty of the charged offense of aggravated
robbery, or (2) he was simply guilty of possessing stolen property. Additionally, Quiroz
highlights that the jury rejected the first interpretation by acquitting him of the charged offense,
was improperly denied the option of considering the second option, and therefore, convicted him
of the only lesser offense included in the charge for the first count.
However, “[i]t is not sufficient to raise the lesser offense if the jury may have
simply disbelieved crucial evidence pertaining to the greater offense,” and “[t]here must be some
evidence directly germane to the lesser-included offense to warrant such an instruction.” See
Carson v. State, 422 S.W.3d 733, 747 (Tex. App.—Texarkana 2013, pet. ref’d). Although the
officer who used the iPhone app to track Rogers’s stolen iPhone acknowledged that the app did
not provide continuous updates, that he did not start tracking the stolen phone immediately upon
his arrival, that there were delays in the updates that lasted several minutes, and that he did not
know if the car being tracked stopped anywhere before reaching the motel to let individuals in or
out of the car, no evidence was presented during the trial indicating that Quiroz was not one of
the four offenders at the apartment or that he acquired property stolen from the apartment after
the four offenders left the apartment. On the contrary, shortly after the offense, Quiroz was seen
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in the company of the two suspects identified by eye witnesses, attempted to flee from the police
at the motel, and was carrying a duffel bag containing a weapon matching the description of one
of the weapons used in the offense, a black ski mask similar to the one worn by one of the
suspects, zip ties like those used during the offense that had been “pre-staged to form modified
hand restraints,” and his wallet. Moreover, Eddleman and Rogers both testified that one of the
suspects who covered his face was wearing shorts and had tattoos on his leg, and photographs
taken shortly after Quiroz’s arrest showed that he was wearing shorts and had tattoos on his leg.
Accordingly, we conclude that no evidence was presented showing that if Quiroz
was guilty of an offense, he was guilty only of theft. Compare Sweed v. State, 351 S.W.3d 63,
69 (Tex. Crim. App. 2011) (noting that central question at trial was whether defendant “pulled
knife on [the victim] during or in immediate flight after the commission of the theft” and
concluding that more than scintilla of evidence was present to allow jury to conclude that
defendant was guilty of theft only and not aggravated robbery where evidence showed that
defendant fled with stolen item, stayed in his apartment for twenty minutes, and then left his
apartment to talk with other group of individuals for five to ten more minutes before seeing
victim and brandishing his weapon), with Knott, 513 S.W.3d at 796, 797 (determining that trial
court did not err by failing to provide lesser-included instruction for theft in robbery case where
defendant relied on single statement from victim that he did not initially realize that he had been
punched because that statement when read in context was “not affirmative evidence that no
assault took place during the course of the theft”).
For these reasons, we overrule Quiroz’s last issue on appeal. Cf. Patterson v.
State, No. 09-12-00576-CR, 2014 WL 1778373, at *5 (Tex. App.—Beaumont Apr. 30, 2014,
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pet. ref’d) (mem. op., not designated for publication) (overruling issue asserting that trial court
should have included lesser-included instruction).
CONCLUSION
Having overruled all of Quiroz’s issues on appeal, we affirm the trial court’s
judgments of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Triana, and Kelly
Affirmed
Filed: January 14, 2021
Do Not Publish
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