Vega v. State , 521 S.W.3d 507 ( 2017 )

Cite as 2017 Ark. App. 259
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-912
Opinion Delivered April 26, 2017
HECTOR TORRES VEGA
APPELLANT APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. 72CR-15-1302]
V.
HONORABLE JOANNA TAYLOR,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
Hector Torres Vega was convicted by a Washington County jury of attempted murder
in the second degree and of being a felon in possession of a firearm. He was sentenced to a
combined total of fifty-five years’ imprisonment in the Arkansas Department of Correction.
He appeals, arguing that the identification evidence presented by the State was insufficient to
support his convictions. We affirm.
Vega is a member of a gang known as the Wicked Brown Suspects (WBS). On June
25, 2015, he and fellow gang member Jose Yanez were at a convenience store in Springdale,
Arkansas. While they were in the store, members of a rival gang, the Termite Loco Sureños
(TLS), entered the store, and an altercation ensued between the two gangs.1 Following the
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The altercation was recorded on surveillance cameras. In the video, Vega is seen
wearing a dark-colored custom t-shirt, dark-colored shorts, and white socks. The design on
the front of the shirt read “CHOLO,” which is Vega’s gang name, and WBS. The design on
the back of the shirt read “Suspects 479.” Springdale’s area code is 479.
Cite as 2017 Ark. App. 259
altercation, the members of TLS fled from the rear of the store on foot. Vega and Yanez
exited the front of the store and left in a silver car. Vega and Yanez pursued the TLS
members, who scattered in different directions. One TLS member ditched his bicycle and
fled between houses.2 The incident involving Vega at the convenience store was reported to
the police at 6:22 p.m.
At 6:25 p.m., Springdale police received notification that a boy riding his bicycle had
been shot several blocks from the convenience store. Responding to this emergency, the
police began to investigate. They determined that the victim, Joseph Garcia, was only fifteen
years of age. Garcia suffered gunshot wounds to his hand, thigh, and lower leg with one of
the bullets striking an artery at the knee. If left untreated, he could have lost his lower leg,
his foot, or some toes. Before being transported to the hospital, Garcia told officers at the
scene that he believed the person who shot him was wearing a gray shirt and blue shorts and
left in a silver car.
After Garcia left the scene, the police continued their investigation by interviewing
witnesses. One of the witnesses to the shooting, Ravae Baker, stated that she heard two
gunshots and saw a silver four-door car leaving the scene. She said that there were two,
possibly three, people in the car. Another witness, Jolene Stepp, stated that she saw Garcia
riding his bike, when someone got out of a silver or gray car and pushed him off his bike.
She then heard two shots. She was unable to get a good look at the person.
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The events that took place outside the store were also captured on surveillance
cameras.
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Cite as 2017 Ark. App. 259
Continuing their investigation, the police went to the hospital to obtain further
statements from Garcia. Garcia stated that he was riding his bike home when a car pulled up
and somebody asked, “Where are you from?” When he did not respond, a man exited the
vehicle, shoved him off his bike, pulled out a large semiautomatic black pistol, and started
shooting at him. The man then jumped back into the car and drove away. He described the
suspect as a Hispanic male approximately 5’11” to 6’2” tall, heavyset, with a shaved head and
no facial hair. Garcia was shown a photo lineup, and he selected Vega’s picture as the one
depicting the person who shot him. However, he stated he was only 75 percent sure of his
selection at the time. Garcia gave a different description of the vehicle. He described the car
as possibly a black Honda-type car with two people in it.
The next day, the police located a silver car in front of Yanez’s house. Vega was
subsequently taken into custody and interviewed. He admitted participating in the altercation
at the convenience store but denied participation in the shooting. The police found nothing
in the vehicle to connect it to the shooting.
Vega was initially charged with attempted capital murder; engaging in a continuing
criminal gang, organization, or enterprise; and being a felon in possession of a firearm. The
information was subsequently amended to charge attempted first-degree murder and being
a felon in possession of a firearm. The information was amended a second time to include a
firearm enhancement. The matter proceeded to trial. The jury ultimately convicted Vega of
the lesser-included offense of attempted second-degree murder, of being a felon in possession
of a firearm, and of the firearm enhancement. He was sentenced to a combined total of fifty-
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five years in the Arkansas Department of Correction. He now appeals, challenging the
sufficiency of the evidence.
The only element of the offenses Vega challenges on appeal is his identity as the
perpetrator. The identification of the defendant as the perpetrator of the crime is an element
of every criminal case. Stewart v. State, 88 Ark. App. 110, 195 S.W.3d 385 (2004). He alleges
that Garcia, the only person who could identify him, was unable to conclusively identify him
and that he gave conflicting, inconsistent testimony regarding the events surrounding the
shooting and in his identification of him.
During his testimony, Garcia was cross-examined about discrepancies in his testimony.
He admitted a discrepancy concerning the description of his assailant. He told the police his
assailant was wearing a black or dark gray t-shirt, dark blue or black shorts, and white tennis
shoes, but he told his uncle that one of his attackers was wearing a white t-shirt and blue jean
pants. He also admitted a discrepancy concerning the description of the vehicle. He described
the vehicle as silver on one occasion and black on another. He explained his previous
discrepancies were the result of being in shock from the incident. He went on to positively
identify Vega, saying he was 90 percent sure that Vega was the person who shot him. Vega
argues that because Garcia was unable to unequivocally identify him and had previously given
conflicting descriptions, his testimony was insufficient to support his convictions.
We find Vega’s argument unpersuasive. When we review the sufficiency of the
evidence, we consider the testimony in the light most favorable to the State. Taylor v. State,
2011 Ark. 10, 370 S.W.3d 503. Here, Garcia positively identified Vega as the person who
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shot him and explained his previous inconsistencies. When a witness makes a positive
identification of a suspect, any challenge to the reliability of the identification becomes a
matter of credibility for the fact-finder to determine. Mason v. State, 2013 Ark. 492, 430
S.W.3d 759. The circuit court is not to assess credibility or resolve conflicts in the testimony
in considering a directed-verdict motion. Id.; see also State v. Long, 311 Ark. 248, 251, 844
S.W.2d 302, 304 (1992) (“[W]hen a trial court exceeds its duty to determine the sufficiency
of the evidence by judging the credibility of the evidence, it commits an error that requires
correction.”). Any inconsistencies in testimony are for the jury to resolve, and the weight to
be given to witness-identification testimony is for the jury to decide. See, e.g., Davenport v.
State, 373 Ark. 71, 78, 281 S.W.3d 268, 273 (2008).
The jury clearly gave credence to Garcia’s testimony, and there was other
circumstantial evidence connecting Vega to the crime, including the video surveillance, the
timing and location of the shooting in relation to the altercation at the convenience store, and
the vehicle involved in the shooting. Because the evidence presented was sufficient to support
Vega’s convictions, we affirm.
Affirmed.
KLAPPENBACH and BROWN, JJ., agree.
The Burns Law Firm, PLLC, by: Jack D. Burns and Meagan Burns, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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