Carballo v. State

303 S.W.3d 742, 2009 WL 2343214
CourtCourt of Appeals of Texas
DecidedDecember 2, 2009
Docket01-07-00824-CR
StatusPublished
Cited by28 cases

This text of 303 S.W.3d 742 (Carballo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carballo v. State, 303 S.W.3d 742, 2009 WL 2343214 (Tex. Ct. App. 2009).

Opinions

OPINION

LAURA CARTER HIGLEY, Justice.

The jury found appellant, Leeroy Cesar Carballo, guilty of aggravated robbery.1 After finding one enhancement allegation to be true, the jury assessed punishment at 40 years in prison.

In four issues, appellant complains that (1) he received ineffective assistance of counsel during the punishment phase; (2) “the trial court erred by not sua sponte permitting appellant to testify to his version of events and by refusing to permit appellant to read his statement about the events for which he was standing trial”; (3) “the trial court erred in denying appellant’s motion for mistrial after the prosecutor, in closing argument, violated appellant’s state and federal constitutional right to remain silent”; and (4) the evidence was factually insufficient to support the judgment of conviction.

We affirm.

Background

On Halloween night 2006, Luis Solis drove his car to a local convenience store to purchase a beer for his cousin. When he got out of his car, Solis noticed a man— later identified as appellant — near the pay phone outside the store. As he was leaving the store, Solis heard a noise. Solis’s cousin had been working on Solis’s car that night, and Solis thought that the noise may be his muffler falling off his car. He went to the back of the vehicle and knelt down to check the muffler. Solis then heard appellant say to him from behind, “Nice car.”

Solis stood up to say “thank you.” At that point, appellant demanded Solis’s car keys. Solis refused to give appellant the keys, and appellant pulled a handgun from his jacket pocket. Solis continued to refuse to hand over his keys. Appellant raised the handgun and pointed it at Solis’s head. Solis grabbed appellant’s arm. The gun fired and the bullet grazed Solis’s head. Solis punched appellant, and appellant fired the weapon shooting Solis in his shoulder. Solis punched appellant again, and appellant shot him in the chest. The two men fell to the ground with Solis on top of appellant, and Solis grabbed the gun from appellant’s open hand. The two men stood up, and Solis shot appellant twice in the region of his face and neck. Solis then saw appellant get into a pickup truck that had pulled up to the scene. Solis fell to the ground and tossed the handgun a few feet away. Solis called his wife and then 9-1-1 on his cell phone.

When the first police officer arrive, Solis told the officer that he had been robbed by a Hispanic man wearing blue and that he had seen the man leave in a pickup truck. A short time later, appellant walked into a nearby fire station and collapsed. Both [745]*745Solis and appellant were taken to the hospital for treatment.

Solis was placed in a medicated coma for one month in the hospital. When he awoke, he picked appellant out of a photographic lineup.

Appellant was indicted for aggravated robbery. He did not testify during the guilt-innocence phase of trial, but did testify during the punishment phase. After appellant was convicted of aggravated robbery, this appeal followed.

Factual Sufficiency

In his fourth issue, appellant challenges the factual sufficiency of the evidence to support his conviction.2

Factual Sufficiency Standard of Review and Elements of the Offense

An appellate court can deem the evidence to be factually insufficient in two ways: (1) the evidence supporting the conviction is “too weak” to support the factfin-der’s verdict or (2) considering conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance of the evidence.” Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009) (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006)). The Court of Criminal Appeals has set out three rules for a court of appeals to follow when conducting a factual sufficiency review: (1) all of the evidence must be considered in a neutral light and not in a light most favorable to the explicating verdict; (2) the evidence may be found to be factually insufficient only when necessary to prevent manifest injustice; and (3) an explanation must be provided regarding why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id. In addition, when conducting a factual-sufficiency review, a court of appeals must defer to the jury’s findings Id. (citing Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997)).

A person commits robbery if, in the course of committing theft, as defined in Chapter 31, and with intent to obtain or maintain control of property, he, inter alia, intentionally or knowingly places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2008). A person commits aggravated robbery when he commits robbery as defined in section 29.02, and he uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).

Analysis

In conducting a factual sufficiency review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Here, appellant contends that the testimony of the complaining witness, Luis Solis, was not credible. At trial, appellant’s defensive theory was that Solis had been the aggressor, not appellant.

Appellant points to Solis’s own testimony that he had a criminal history of burglary and family-violence assault. At the time of trial, Solis testified that he was on deferred adjudication community supervision for burglary. He acknowledged that the State had filed a motion to revoke his deferred adjudication community supervision based on a pending family-violence assault indictment in which Solis was alleged to have assaulted his common-law wife. Solis admitted that he had also been previously prosecuted for at least one other family-violence assault.

[746]*746Appellant also contends that the substance of Solis’s testimony is not credible. Appellant asserts that “[Solis’s] story stretches credulity and would be difficult to believe if it had been told by a person with no history of deceit.”

Appellant first takes issue with Solis’s testimony that he went to the convenience store to purchase a beer for his cousin, who had been making repairs to Solis’s car. Appellant points out that “the car went with [Solis] to the store, and the cousin did not.” Appellant speculates that it is more likely that Solis purchased the beer for himself, but could not admit to this because alcohol consumption is a violation of the terms of his community supervision.

Appellant points out that Solis’s injuries from being shot twice by appellant were extensive and life-threatening.

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Cite This Page — Counsel Stack

Bluebook (online)
303 S.W.3d 742, 2009 WL 2343214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carballo-v-state-texapp-2009.