Opinion issued July 26, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00295-CR ——————————— DARYL LEE SAAVEDRA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Case No. 76576-CR
MEMORANDUM OPINION
A jury found appellant, Daryl Lee Saavedra, guilty of the offenses of
aggravated robbery1 and aggravated assault.2 After finding true the allegation in an
1 See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011). 2 See id. § 22.02(a)(2) (Vernon 2011). enhancement paragraph in each indictment that appellant had been previously
convicted of a felony offense, the trial court assessed his punishment at
confinement for forty-eight years for the offense of aggravated robbery and
twenty-five years for the offense of aggravated assault. And it ordered that the
sentences run concurrently. In two issues, appellant contends that the evidence is
legally insufficient to support his convictions and the trial erred in instructing the
jury on the law of parties.
We affirm.
Background
Javier Cruz-Tovias, the first complainant, testified that on June 26, 2015,
while he was preparing to vacuum the inside of his truck at a self-service car wash
with his sister, Maria Oviedo, the second complainant, he heard a noise, “turned
around,” and saw appellant was “pointing at [him] with a gun.” Appellant
“hollered” at Cruz-Tovias to “give [him] the money, to give him [the] . . . money,”
saying it “in English and Spanish.” He pointed a small “black handgun”
approximately six to eight inches from Cruz-Tovias’s head. At the same time,
appellant also noticed Oviedo and “hollered at her, hey, you girl, don’t move.” As
Cruz-Tovias reached for his wallet to give appellant money, appellant “grabbed”
the wallet from him. He also took Cruz-Tovias’s ring off of his finger and ripped a
chain from his neck. “After [appellant] took everything[,] he pointed and he fired
2 a shot.” Cruz-Tovias did not know “if [the shot] was at [him] or the truck”
because, as appellant fired, Cruz-Tovias “threw [himself] in the truck.” Appellant
then “got in a car,” and it drove off.
Soon after, a law enforcement officer arrived at the scene and took Cruz-
Tovias and Oviedo to another location to determine whether they recognized two
detained individuals. Of the two, Cruz-Tovias identified appellant as the assailant,
noting that he recognized appellant’s face and stating, “I don’t [sic] forget it. And
the tattoo.” He also identified appellant in court as the person with the firearm
who had robbed him. However, Cruz-Tovias “never saw” the driver of the car in
which appellant had fled.
Oviedo testified that on June 26, 2015, she and Cruz-Tovias went to a self-
service car wash to “wash the[ir] truck.” As they prepared to vacuum the truck,
she heard appellant demanding money from Cruz-Tovias. Oviedo explained that
appellant pointed a “little . . . black” firearm at Cruz-Tovias. And when she “went
to get [her] wallet,” appellant saw her through the truck’s window. He then
pointed his firearm at Oviedo and told her not to move, which scared her and made
her nervous. Appellant did not take anything from Oviedo, but he took Cruz-
Tovias’s “ring,” “chain,” and wallet. She then “heard the shot that was fired,” a
“car came real fast,” and appellant got in the passenger side of the car, which drove
off. Oviedo further testified that a law enforcement officer subsequently arrived
3 and took her and Cruz-Tovias to a parking lot where they both identified appellant
as the person with the firearm who had robbed Cruz-Tovias. And she identified
him again in court. Oviedo noted, however, that she and Cruz-Tovias could not
identify the driver of the car in which appellant had fled.
Carrie Banuelos testified that, in June 2015, while she was at the self-service
car wash after lunch, she saw “a guy in a large Ford SUV vacuuming his car.” A
gray, four-door Honda Accord then drove up with a driver and a passenger. When
the car stopped, “the passenger got out with a gun,” “pulled his arm
up . . . sideways,” and “went towards that guy vacuuming his car.” As soon as she
saw the gun, Banuelos drove away. As she drove, she called for emergency
assistance and “hear[d] a gunshot.” Banuelos then drove to a school parking lot
where she met with a law enforcement officer and told him what she had seen. She
told the officer that the person with the firearm was a “[l]ight skinned Hispanic”
with “really short hair” and “the driver [of the car] and the passenger . . . looked
pretty similar.” Although Banuelos in court identified appellant as the person that
she had seen with the firearm at the car wash, she admitted that she was “not sure”
whether appellant was the driver of the car or the person with the firearm.
Brazoria County Sheriff’s Department Deputy J. Staner testified that while
he was on patrol on June 26, 2015, “the City of Pearland . . . put out a be-on-the-
lookout for a suspect vehicle that was used in an [a]ggravated [r]obbery.” The
4 description given for the car “was a four-door silver car with paper tags.” Staner
then heard over his radio that a “unit farther north” of him had located the car, so
he headed in that direction “to try to intercept them.” Staner explained that
because the car did not stop for law enforcement officers, he “joined the pursuit,”
which included several patrol cars with activated emergency lights. Eventually the
car stopped when it “rear-ended” another car. “After the vehicle crashed[,] the
driver exited the vehicle and ran west or northwest across the southbound lanes of
Interstate 45 into a wooded area.” However, the passenger of the car “stuck his
hands out of the window . . . and [Staner] made contact with the passenger and
took him into custody.”
Deputy Staner further testified that appellant was the person he took into
custody on June 26, 2015, and although appellant did not have a firearm on him,
Staner saw one in the car “on the floor.” He also noted that Cruz-Tovias and
Oviedo positively identified appellant as the person who had robbed Cruz-Tovias
with a firearm. And Staner explained that a firearm is a deadly weapon capable of
causing serious bodily injury or death.
Pearland Police Department (“PPD”) Detective J. Albin testified that on
June 26, 2015, he was the first law enforcement officer to arrive at the car wash
after the robbery. He met with Cruz-Tovias and Oviedo, and he collected a “shell
casing” near their truck. Albin also identified a “mark” on the ground, which
5 indicated a bullet strike near where Cruz-Tovias had been standing when appellant
pointed a firearm at him.
PPD Detective E. Morton testified that on June 26, 2015, he collected
evidence from the car in which appellant had been a passenger after the robbery.
Inside the car, he found items belonging to Cruz-Tovias, including a Texas driver’s
license with the name “Javier Cruz Tovias.” Morton also found a “white towel
with some bullets” in it and a “handgun . . . between . . . the passenger seat and the
door jamb.”
PPD Detective S. Weaver testified that on June 26, 2015, he met Cruz-
Tovias and Oviedo at the car wash and then took them to another location to see
whether they could identify the person who, with a firearm, had robbed Cruz-
Tovias. Cruz-Tovias and Oviedo identified appellant as the passenger of the car
and the man with the firearm. Weaver also noted that law enforcement officers
recovered $282 from the driver upon his arrest and the following from the car in
which appellant was a passenger: $283 inside a wallet, “$8 in Mexican currency,”
a “gold ring, a gold necklace,” a “Texas driver’s license,” a “visa prepaid debit
card,” a “Mexican resident ID card,” and a “Western Union” card. These items
were consistent with Cruz-Tovias’s description of the items that had been stolen,
and Cruz-Tovias identified them as belonging to him upon viewing them.
6 Shane Windsor, a forensic scientist for the Texas Department of Public
Safety Crime Laboratory in Houston, testified that he performed an analysis of the
shell casing and firearm collected in this case. He concluded that the shell casing
recovered by Detective Albin from the car wash had been fired by the same
firearm recovered from the passenger seat of the car in which appellant had been a
passenger after the robbery.
Sufficiency of Evidence
In his first issue, appellant argues that the evidence is legally insufficient to
support his convictions for aggravated robbery, as to Cruz-Tovias, and aggravated
assault, as to Oviedo, because “his intent to obtain and maintain control of
[Cruz-]Tovias’s wallet, at the time he turned toward him with [a] firearm was not
shown” and “the [S]tate had to prove [that] [a]ppellant, did then and there while in
the course of committing theft of property owned by . . . Oviedo, and with intent to
obtain or maintain control of said property, intentionally or knowingly threaten or
place . . . Oviedo in fear of imminent bodily injury or death, and said defendant did
use or exhibit a deadly weapon, namely, a firearm.”
We review the legal sufficiency of the evidence by considering all the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
7 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id.
In reviewing the legal sufficiency of the evidence, we treat direct and
circumstantial evidence equally because circumstantial evidence is just as
probative as direct evidence in establishing the guilt of a defendant. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence
constitutes “direct proof of a secondary fact which, by logical inference,
demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684
(Tex. Crim. App. 1984). And it alone can be sufficient to establish guilt. Clayton,
235 S.W.3d at 778. Further, the “cumulative force” of all the circumstantial
evidence in a case can be sufficient to support a jury finding of guilt beyond a
reasonable doubt. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
8 “Intent is almost always proven by circumstantial evidence.” Trevino v.
State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet. ref’d); see also
Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the
requisite intent is not required.”); Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer intent from any facts
which tend to prove its existence, including the acts, words, and conduct of the
accused, and the method of committing the crime and from the nature of wounds
inflicted on the victims.” Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.
App. 1999).
Aggravated Robbery
A person commits the offense of robbery “if, in the course of committing
theft . . . and with intent to obtain or maintain control of the property, he
intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.” TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A person
commits the offense of aggravated robbery if he commits a robbery and “uses or
exhibits a deadly weapon.” Id. § 29.03(a)(2) (Vernon 2011). A firearm is
considered a deadly weapon per se. Id. § 1.07(a)(17)(A) (Vernon Supp. 2017);
Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). “‘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
9 or commission of theft.” TEX. PENAL CODE ANN. § 29.01(1) (Vernon 2011). Theft
is the unlawful appropriation of property with intent to deprive the owner of the
property. Id. § 31.03(a) (Vernon Supp. 2017).
Here, Cruz-Tovias and Oviedo both, shortly after the robbery and again at
trial, positively identified appellant as the person with the firearm who had robbed
Cruz-Tovias. And they identified him in court as the assailant. Cruz-Tovias
testified that appellant held a firearm six to eight inches from his head and
demanded money. Appellant then took cash and other belongings from him, fired
a shot, and got into the passenger side of a car that drove away. Cruz-Tovias
recognized appellant by “[h]is face, I don’t [sic] forget it” and his “tattoo.”
Further, Oviedo testified that appellant pointed a firearm to Cruz-Tovias’s head
and took his wallet, ring, and chain necklace. And Banuelos testified that she saw
appellant approach Cruz-Tovias with a firearm. Additionally, Deputy Staner and
Detective Morton testified that, immediately following the robbery, law
enforcement officers recovered a firearm from the passenger side of the car in
which appellant was a passenger. And Windsor’s testimony links that firearm to
the shell casing recovered by Detective Albin at the car wash.
Such evidence is sufficient to support appellant’s conviction for the
aggravated robbery of Cruz-Tovias. See Gilmore v. State, 397 S.W.3d 226, 240
(Tex. App.—Fort Worth 2012, pet. ref’d) (complainant unequivocally identified
10 defendant as shooter and “jury could have reasonably concluded beyond a
reasonable doubt that [defendant] was the man in the park who shot [complainant]
based on th[is] identification testimony alone”); see also Garcia v. State, 563
S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (complainant’s identification
of defendant “as the man who raped her” sufficient); Padilla v. State, 254 S.W.3d
585, 590 (Tex. App.—Eastland 2008, pet. ref’d) (“[T]he victim’s testimony alone
is sufficient to support a guilty verdict.”); Davis v. State, 177 S.W.3d 355, 359
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (“It is well established that a
conviction may be based on the testimony of a single eyewitness.”). We further
note that appellant’s possession of stolen property at the time of his arrest,
including a driver’s license bearing Cruz-Tovias’s name, and the fact that he fled
the scene of the crime permit inferences of guilt. Rollerson v. State, 227 S.W.3d
718, 724–25 (Tex. Crim. App. 2007) (“[A] defendant’s unexplained possession of
property recently stolen in a burglary permits an inference that the defendant is the
one who committed the burglary.”); Sosa v. State, 177 S.W.3d 227, 230 (Tex.
App.—Houston [1st Dist.] 2005, no pet.) (“[E]vidence of flight from a crime scene
is a circumstance from which an inference of guilt may be drawn.”).
Although appellant asserts that “his intent to obtain or maintain control of
Tovias’[s] wallet, at the time he turned toward him with the firearm, was not
shown,” Cruz-Tovias testified that appellant grabbed his wallet from him as he was
11 attempting to give appellant money from it. And Cruz-Tovias and Oviedo testified
that appellant approached them with a firearm and demanded money. See Edwards
v. State, 497 S.W.3d 147, 159 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)
(“The intent to obtain or maintain control of property may be inferred from
appellant’s actions and a verbal demand for money or property is not required.”).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have determined beyond a reasonable doubt that appellant
committed the aggravated robbery of Cruz-Tovias. Accordingly, we hold that the
evidence is legally sufficient to support appellant’s conviction for the offense of
aggravated robbery.
Aggravated Assault
A person commits an assault if he “intentionally or knowingly threatens
another with imminent bodily injury.” TEX. PENAL CODE ANN. § 22.01(a)(2)
(Vernon Supp. 2017). A person commits the offense of aggravated assault if he
“commits assault as defined in [section] 22.01 and [he] . . . uses or exhibits a
deadly weapon during the commission of the assault.” Id. § 22.02(a)(2) (Vernon
2011). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A); see also Jones
v. State, 500 S.W.3d 106, 113 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
“‘Bodily injury’ means physical pain, illness, or any impairment of physical
condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2017). “The
12 display of a deadly weapon of and within itself constitutes a threat of the required
imminent harm.” Sosa, 177 S.W.3d at 231 (quoting Robinson v. State, 596 S.W.2d
130, 133 n.7 (Tex. Crim. App. 1980)).
As discussed above, Cruz-Tovias and Oviedo both positively identified
appellant as the person with the firearm who had robbed Cruz-Tovias. And
Banuelos testified that she saw appellant approach them with a firearm. Windsor’s
testimony links the firearm recovered from the passenger side of the car, in which
appellant was a passenger immediately following the robbery, as described in the
testimony of Deputy Staner and Officer Morton, to the shell casing recovered by
Detective Albin at the car wash. Oviedo also testified that appellant pointed his
firearm at her and told her not to move while he was in the process of robbing
Cruz-Tovias and that she was scared. And Cruz-Tovias and Oviedo both testified
that appellant fired a shot from the firearm before fleeing the scene. “The act of
pointing a loaded gun at someone, by itself, is threatening conduct that supports a
conviction for aggravated assault.” Jones, 500 S.W.3d at 113; see also Robinson,
596 S.W.2d at 133 n.7 (“[T]he display of a deadly weapon of and within itself
constitutes a threat of the required imminent harm.”); Peterson v. State, 574
S.W.2d 90, 92 (Tex. Crim. App. [Panel Op.] 1978) (“[I]mplicit in the allegation
that a ‘Deadly Weapon’ was used to threaten the complainant is the possibility that
the complainant was threatened with death as well as bodily injury.”); Boston v.
13 State, 373 S.W.3d 832, 840 (Tex. App.—Austin 2012) (“The act of pointing a gun
at an individual is, by itself, threatening conduct.”), aff’d, 410 S.W.3d 321 (Tex.
Crim. App. 2013); Sosa, 177 S.W.3d at 231 (“[D]isplay of a deadly weapon while
demanding money constitutes a threat of the required imminent harm.”).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have determined beyond a reasonable doubt that appellant
committed the aggravated assault of Oviedo. Accordingly, we hold that the
evidence is legally sufficient to support appellant’s conviction for the offense of
aggravated assault.
We overrule appellant’s first issue.
Law of Parties
In his second issue, appellant argues that the trial court erred in instructing
the jury, over his attorney’s objection, on law of parties in its charge because the
State’s evidence concerned appellant’s actions as a principal actor and not as only
a party to the offenses.
A review of alleged jury-charge error is a two-step process. See Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether
error exists in the charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013). Second, if there is error, the court must determine whether the error caused
14 sufficient harm to require reversal of the conviction. Id. When there is an
objection to preserve the error, the appellate court will reverse if the defendant
demonstrates that he suffered “some harm.” Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009).
Under the law of parties, “[a] person is criminally responsible as a party to
an offense if the offense is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both.” TEX. PENAL CODE
ANN. § 7.01(a) (Vernon 2011). 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) (Vernon 2011). “In
general, an instruction on the law of parties may be given to the jury whenever
there is sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex.
Crim. App. 1999).
From our review of the record, the evidence presented at trial would support
a jury verdict that the appellant is criminally responsible under the law of parties.
At trial, appellant’s counsel questioned witnesses as to whether appellant was the
driver or passenger of the car in which he was found after the robbery. Testimony
from three witnesses established that the passenger of the car is the person who,
15 while using a firearm, robbed Cruz-Tovias and assaulted Oviedo. The driver,
however, drove the person with the firearm to the car wash, waited for him to take
Cruz-Tovias’s belongings, and then led law enforcement officers on a lengthy
pursuit, at the end of which he attempted to flee on foot. “Courts have repeatedly
upheld convictions under the law of parties when the evidence establishes that the
defendant participated in the commission of the offense by driving the getaway
vehicle.” Rodriguez v. State, 521 S.W.3d 822, 828 (Tex. App.—Houston [1st
Dist.] 2017, no pet.). Accordingly, we hold that the trial court did not err in
submitting the law-of-parties instruction to the jury.
However, we note that because there is, as previously discussed, sufficient
evidence to support appellant’s guilt as a principal actor, any error in submitting
the parties instruction would have been harmless. Black v. State, 723 S.W.2d 674,
675 (Tex. Crim. App. 1986) (“Where the evidence clearly supports a defendant’s
guilt as a principal actor, any error of the trial court in charging on the law of the
parties is harmless.”). “In other words,” if “there was no evidence tending to show
appellant’s guilt as a party, the jury almost certainly did not rely upon the parties
instruction in arriving at its verdict, but rather” would have “based the verdict on
the evidence tending to show appellant’s guilt as a principal actor.” Ladd, 3
S.W.3d at 565.
We overrule appellant’s second issue.
16 Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Massengale, and Caughey.
Do not publish. TEX. R. APP. P. 47.2(b).