Opinion issued July 7, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00312-CR ——————————— HARVEY SMITH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1421605
MEMORANDUM OPINION
A jury convicted appellant Harvey Smith of aggravated robbery and found
that he used a deadly weapon in the commission of the offense. See TEX. PENAL
CODE § 29.03. The jury assessed punishment at 28 years in prison. On appeal he
challenges the legal sufficiency of the evidence to support the conviction, arguing that the State failed to prove beyond a reasonable doubt that he used or exhibited a
deadly weapon in the commission of the charged offense. We affirm.
Background
Juan Carlos Martinez worked as a mechanic for a trucking company. He was
working alone on a Saturday afternoon, repairing a transmission, which required
the use of an air compressor. While he was working, he heard a noise that sounded
like a person throwing items into the bed of a pickup truck. As he got up to
investigate, he noticed that the hoses attached to the air compressor had deflated.
Martinez saw appellant Harvey Smith, a man he recognized, having seen him
speaking with the manager of the trucking company in the past. Martinez saw that
Smith had put tools and the air compressor in the back of a brown Chevy pickup
truck.
Martinez approached the truck and attempted to remove the air compressor.
Smith began yelling angrily, and Martinez responded, saying, “It’s mine, it’s
mine.” Smith then pulled a black semiautomatic pistol from his waistband and
pointed it at Martinez’s chest, causing him to fear that he would be killed or
injured. Martinez backed away, and Smith shot twice toward his feet. Smith then
got into the truck and sped away.
Houston Police Department Officer J. Gomez responded to a call about the
robbery. Martinez told him that someone who had previously worked for the
2 trucking company had fired a gun at him and taken an air compressor. Officer
Gomez later testified that Martinez was nervous and rattled, and he had difficulty
hearing. Officer Gomez canvassed the area but did not find any spent shell casings.
However, he testified that shell casings are not always recovered after a gun is
fired.
Michael Tyler, the manager of the trucking company, confirmed the
shooter’s identity and provided his name and date of birth to patrol officers. During
the investigation of this robbery, Houston police officers drove past Smith’s house,
where they saw a brown Chevy pickup truck that matched the description of the
truck used to take the compressor.
Smith was charged with aggravated robbery. Martinez testified at trial,
saying that Smith held him at gunpoint, took an air compressor he had been using,
and fired two shots at his feet. According to Martinez, the robbery occurred at
about 2:00 p.m. or 3:00 p.m. Martinez testified that he had identified Smith from a
photographic array, and he also identified him in open court as the person who
took the air compressor and fired shots at him.
Another mechanic, Jose Portillo, testified that he had loaned the air
compressor to Martinez. He did not witness the robbery, but he heard a sound that
Martinez later told him was a gunshot. However, he testified that the shot was fired
around 11:00 a.m. or 11:30 a.m. This was consistent with the police department
3 incident report. However, Portillo also testified that other activities that occur on
the premises make noises similar to gunshots, such as pallet repair and hammering.
Tyler also identified Smith in open court as someone who had worked
briefly for him as an independent trucker. Tyler admitted that he owed Smith $200
around the time of the robbery.
Smith testified in his own defense, agreeing that he had worked briefly for
Tyler as an independent trucker. He said that Tyler owed him $421, and a $200
check from him had bounced due to insufficient funds. Smith testified that Tyler
was indignant when told about the bounced check. Smith said he called Tyler
many times to attempt to recover the money owed, but he was unable to connect
with him.
Smith admitted that he went to the trucking company around 11:00 a.m. on
the day of the robbery. He admitted taking the air compressor and conceded that it
did not belong to him. He intended to use his possession of the compressor to
persuade Tyler to pay the $421 that he allegedly was owed. Smith testified that the
compressor was not in working order, and he later sold it for $65.
Smith’s testimony differed sharply from Martinez’s on the issue of the gun.
Smith denied having, brandishing, or firing a gun. Smith testified that he was 64
years old, and he had never robbed anybody.
The jury found Smith guilty of aggravated robbery, and he appealed.
4 Analysis
In his sole issue, Smith argues that the evidence was legally insufficient to
support the jury’s verdict because the State did not prove that he used or exhibited
a deadly weapon as he was taking the air compressor. Specifically, he argues that
the absence of shell casings and the testimony about other loud noises that could
have sounded like a gunshot injected reasonable doubt sufficient to undermine the
jury’s verdict.
When evaluating a legal-sufficiency challenge, we consider all of the
evidence in the light most favorable to the verdict and determine whether 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, 319, 99 S. Ct. 2781, 2789
(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The
standard is the same for both direct and circumstantial evidence cases. Carrizales
v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d
701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of any witnesses, as this is the function of
the trier of fact. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d).
5 A person commits aggravated robbery if he commits robbery and uses or
exhibits a deadly weapon. TEX. PENAL CODE § 29.03. A person commits 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.” Id. § 29.02; see id. § 31.03(a) (theft);
§ 31.03(b)(1) (unlawful appropriation).
On appeal, we consider the evidence in the light most favorable to the
factfinder’s decision. Martinez testified that Smith threatened him with a firearm
and caused him to fear for his life while taking the air compressor he had been
using. Portillo testified that the compressor belonged to his girlfriend, and he had
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Opinion issued July 7, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00312-CR ——————————— HARVEY SMITH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1421605
MEMORANDUM OPINION
A jury convicted appellant Harvey Smith of aggravated robbery and found
that he used a deadly weapon in the commission of the offense. See TEX. PENAL
CODE § 29.03. The jury assessed punishment at 28 years in prison. On appeal he
challenges the legal sufficiency of the evidence to support the conviction, arguing that the State failed to prove beyond a reasonable doubt that he used or exhibited a
deadly weapon in the commission of the charged offense. We affirm.
Background
Juan Carlos Martinez worked as a mechanic for a trucking company. He was
working alone on a Saturday afternoon, repairing a transmission, which required
the use of an air compressor. While he was working, he heard a noise that sounded
like a person throwing items into the bed of a pickup truck. As he got up to
investigate, he noticed that the hoses attached to the air compressor had deflated.
Martinez saw appellant Harvey Smith, a man he recognized, having seen him
speaking with the manager of the trucking company in the past. Martinez saw that
Smith had put tools and the air compressor in the back of a brown Chevy pickup
truck.
Martinez approached the truck and attempted to remove the air compressor.
Smith began yelling angrily, and Martinez responded, saying, “It’s mine, it’s
mine.” Smith then pulled a black semiautomatic pistol from his waistband and
pointed it at Martinez’s chest, causing him to fear that he would be killed or
injured. Martinez backed away, and Smith shot twice toward his feet. Smith then
got into the truck and sped away.
Houston Police Department Officer J. Gomez responded to a call about the
robbery. Martinez told him that someone who had previously worked for the
2 trucking company had fired a gun at him and taken an air compressor. Officer
Gomez later testified that Martinez was nervous and rattled, and he had difficulty
hearing. Officer Gomez canvassed the area but did not find any spent shell casings.
However, he testified that shell casings are not always recovered after a gun is
fired.
Michael Tyler, the manager of the trucking company, confirmed the
shooter’s identity and provided his name and date of birth to patrol officers. During
the investigation of this robbery, Houston police officers drove past Smith’s house,
where they saw a brown Chevy pickup truck that matched the description of the
truck used to take the compressor.
Smith was charged with aggravated robbery. Martinez testified at trial,
saying that Smith held him at gunpoint, took an air compressor he had been using,
and fired two shots at his feet. According to Martinez, the robbery occurred at
about 2:00 p.m. or 3:00 p.m. Martinez testified that he had identified Smith from a
photographic array, and he also identified him in open court as the person who
took the air compressor and fired shots at him.
Another mechanic, Jose Portillo, testified that he had loaned the air
compressor to Martinez. He did not witness the robbery, but he heard a sound that
Martinez later told him was a gunshot. However, he testified that the shot was fired
around 11:00 a.m. or 11:30 a.m. This was consistent with the police department
3 incident report. However, Portillo also testified that other activities that occur on
the premises make noises similar to gunshots, such as pallet repair and hammering.
Tyler also identified Smith in open court as someone who had worked
briefly for him as an independent trucker. Tyler admitted that he owed Smith $200
around the time of the robbery.
Smith testified in his own defense, agreeing that he had worked briefly for
Tyler as an independent trucker. He said that Tyler owed him $421, and a $200
check from him had bounced due to insufficient funds. Smith testified that Tyler
was indignant when told about the bounced check. Smith said he called Tyler
many times to attempt to recover the money owed, but he was unable to connect
with him.
Smith admitted that he went to the trucking company around 11:00 a.m. on
the day of the robbery. He admitted taking the air compressor and conceded that it
did not belong to him. He intended to use his possession of the compressor to
persuade Tyler to pay the $421 that he allegedly was owed. Smith testified that the
compressor was not in working order, and he later sold it for $65.
Smith’s testimony differed sharply from Martinez’s on the issue of the gun.
Smith denied having, brandishing, or firing a gun. Smith testified that he was 64
years old, and he had never robbed anybody.
The jury found Smith guilty of aggravated robbery, and he appealed.
4 Analysis
In his sole issue, Smith argues that the evidence was legally insufficient to
support the jury’s verdict because the State did not prove that he used or exhibited
a deadly weapon as he was taking the air compressor. Specifically, he argues that
the absence of shell casings and the testimony about other loud noises that could
have sounded like a gunshot injected reasonable doubt sufficient to undermine the
jury’s verdict.
When evaluating a legal-sufficiency challenge, we consider all of the
evidence in the light most favorable to the verdict and determine whether 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, 319, 99 S. Ct. 2781, 2789
(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The
standard is the same for both direct and circumstantial evidence cases. Carrizales
v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d
701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of any witnesses, as this is the function of
the trier of fact. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d).
5 A person commits aggravated robbery if he commits robbery and uses or
exhibits a deadly weapon. TEX. PENAL CODE § 29.03. A person commits 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.” Id. § 29.02; see id. § 31.03(a) (theft);
§ 31.03(b)(1) (unlawful appropriation).
On appeal, we consider the evidence in the light most favorable to the
factfinder’s decision. Martinez testified that Smith threatened him with a firearm
and caused him to fear for his life while taking the air compressor he had been
using. Portillo testified that the compressor belonged to his girlfriend, and he had
given Martinez permission to use it. Smith himself testified that he took the
compressor, which he did not own. Based on this evidence, the jury could have
found the essential elements of aggravated robbery beyond a reasonable doubt. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525.
Smith contends that the jury should have credited his testimony and
discounted Martinez’s testimony. He argues that he was credible and viewing his
testimony in a positive light—and rejecting Martinez’s testimony—there is
insufficient evidence to support the jury’s verdict. First, this approach is
inconsistent with our standard of review on appeal, which requires us to view the
evidence in the light most favorable to the verdict. See Jackson, 443 U.S. at 319,
6 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525. Second, this case was tried before a
jury that was tasked with assessing the credibility of the witnesses and determining
all issues of fact, including resolving inconsistencies in the testimony. The jury
was free to draw its own conclusions about the witnesses’ credibility, and the
verdict reflects the jury’s implicit conclusion that Martinez was credible and the
contrary testimony offered by Smith was not. In any case, the credibility
determination is purely the province of the jury, and it may not be second-guessed
on appeal. See Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Similarly,
Smith’s argument that the absence of shell casings and the other loud noises that
could have sounded like a gunshot injected reasonable doubt into this case is
unavailing. As with the determination of witness credibility, the resolution of
conflicting facts is also the province of the factfinder. See Adames, 353 S.W.3d at
860; Wiley, 388 S.W.3d at 813.
We hold that the evidence was legally sufficient to support the jury’s verdict,
and we overrule Smith’s sole issue.
7 Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).