Lopez, Davis v. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2004
• Docket: 14-03-00652-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 11, 2004

Affirmed and Memorandum Opinion filed May 11, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00652-CR

DAVIS V. LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 896,407

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of the offense of aggravated sexual assault. On May 15, 2003, the jury assessed punishment at confinement for sixty years in the Institutional Division of the Texas Department of Criminal Justice plus a $10,000 fine, and appellant was sentenced accordingly.  Appellant filed a timely notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  A copy of the record was provided to appellant, and the court granted him an extension of time to file a pro se response to counsel=s brief.

On April 30, 2004, appellant filed a pro se response in which he asserts the evidence is factually insufficient to support a finding that he used a weapon in committing the offense.  In reviewing a factual sufficiency challenge, the verdict may be set aside only if the evidence 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). 

The complainant testified at trial that appellant put a knife to her neck and threatened her while sexually assaulting her.  The complainant=s sister-in-law walked by and saw appellant and complainant through the window.  She testified appellant looked as if she had been crying and asked her to call the police.  Appellant was identified as a suspect by the paint on his skin and in his hair that matched paint left at the scene.  Both complainant and her sister-in-law identified appellant from a photo array.  Subsequent DNA testing also confirmed a positive match to appellant.  Appellant did not testify at trial and put forward no defensive testimony. 

Appellant asserts the complainant=s testimony is not credible because only the complainant testified about the knife, and she acknowledged she only saw the weapon once during the assault.  The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, and it is the jury=s exclusive province to reconcile conflicts in the evidence.  Wesbrook v. State, 29 S.W.2d 103, 111 (Tex. Crim. App. 2000).  We conclude that a rational trier of fact could have found appellant guilty beyond a reasonable doubt of the offense as charged.  See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). 

We have carefully reviewed the record, counsel=s brief, and appellant=s response and agree the appeal is wholly frivolous and without merit.  Further, we find no reversible error in the record.  A discussion of the brief or appellant=s response would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 11, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).