Silvestre Cortez Romero v. State

406 S.W.3d 695, 2013 WL 2489961, 2013 Tex. App. LEXIS 7023
Court of Appeals of Texas·Decided June 11, 2013·No. 14-12-00674-CR·Published·Cited by 18 cases

Opinion

OPINION

JEFFREY V. BROWN, Justice.

Appellant Silvestre Cortez Romero was convicted of murder and sentenced to twenty years in the Institutional Division of the Texas Department of Criminal Justice. The appellant challenges his conviction, asserting that the evidence was insufficient to support the verdict, and challenging the trial court’s assessment of a particular amount of court costs. We modify the trial court’s judgment to delete the specific amount of costs, and affirm the judgment as modified.

I

On January 17, 1990, Nivar Romero, the complainant, along with his wife and two children, his brother Mario Romero Aguirre, and his father, Mario Romero Maldonado, were driving to Aguirre’s home to visit with other members of their family. They were preparing to depart when two brothers, Enrique and Bolivar Perez, approached the car from both sides. The complainant, who was in the driver’s seat, tried to exit the car. But before he could open the door, the appellant walked up from an unseen location and fatally shot the complainant in the head. The appellant and the Perez brothers then fled.

On the night of the killing, Maldonado spoke to the police and identified the appellant by name as the shooter. The appellant was not arrested until 2011. When Maldonado was asked to identify the appellant in court twenty years after the murder, he was unable to do so.

Aguirre testified that he had known the appellant since childhood. Aguirre explained that on the night his brother was killed they were driving Enrique’s car because the complainant’s truck was too small. Enrique had permitted Aguirre’s aunt to hold the car as collateral for a debt, and Aguirre’s aunt lent the car to Aguirre. When Enrique and Bolivar saw Aguirre and Maldonado in Enrique’s car, *697 they ran toward the car and began beating on the windows. While they were yelling and beating on the windows, the appellant shot and killed the complainant. At the time of the police investigation in 1990, Aguirre identified the appellant by name as the man who killed his brother.

When the appellant was apprehended, he was living in California under a different name. The appellant was brought to trial in Harris County, and Maldonado and Aguirre both testified. The jury found the appellant guilty of murder and sentenced him to confinement for twenty years.

II

In his first issue, the appellant contends the evidence is insufficient to support a finding that he was the person who shot the complainant. When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We may not substitute our judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Rather, we defer to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences. Id.

An individual commits murder if he intentionally or knowingly causes the death of another person or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of another. Tex. Penal Code § 19.02(b)(1). In this case, the appellant challenges the sufficiency of the evidence to support his identity. Specifically, the appellant argues that Maldonado and Aguirre were not credible eyewitnesses.

The appellant contends that Maldonado’s testimony was not credible because, at the time of trial, twenty years after the offense, Maldonado could not remember certain details about the incident, such as the time the shooting occurred, his son’s age at the time he died, or the ages of his grandchildren at the time of the murder. The appellant further questions Maldonado’s credibility because he was unable to identify the appellant in the courtroom. In addition, the appellant contends Aguirre’s testimony was not credible because, as he was distracted by the Perez brothers beating on the car, he saw the shooter for only an instant. The appellant further argues that the police investigation was “hardly thorough.”

The testimony of a single eyewitness can be enough to support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971). The jury alone decides whether to believe eyewitness testimony, and the jury resolves any conflicts or inconsistencies in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App.1998). Likewise, the jury weighs the evidence, and it may find guilt without physical evidence linking the accused to the crime. Harmon v. State, 167 S.W.3d 610, 614 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Inconsistencies in witness testimony do not render the evidence insufficient. See Davis v. State, 177 S.W.3d 355, 359 (Tex.App.-Houston [1st Dist.] 2005, no pet.).

The appellant contends that he is the victim of mistaken eyewitness identification, and the testimony of Maldonado and Aguirre failed to satisfy “the factors pro *698 vided in Perry to evaluate a witness’s ability to make an accurate identification.” In Perry v. New Hampshire, — U.S. -, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), the United States Supreme Court declined to require trial courts to screen eyewitness testimony before allowing it at trial in cases in which the police did not use suggestive circumstances to influence the testimony. See 132 S.Ct. at 720-21. The Court held that when no improper law-enforcement activity is involved, reliability is sufficiently tested “through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 721. Despite the appellant’s suggestion to the contrary, we do not find in Perry a set of factors the trial court must employ to determine the reliability of eyewitness testimony. Instead, the Perry Court underscored the role of the jury in making credibility determinations, just as Texas courts have done. See id.; see also, e.g., Davis,

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Silvestre Cortez Romero v. State, 406 S.W.3d 695, 2013 WL 2489961, 2013 Tex. App. LEXIS 7023 (Tex. Ct. App. 2013).

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