Marc Alexander Garcia v. State ( 2014 )


Menu:
  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-12-00027-CR
    MARC ALEXANDER GARCIA                                            APPELLANT
    V.
    THE STATE OF TEXAS                                                     STATE
    ----------
    FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 1227488D
    ----------
    MEMORANDUM OPINION1
    ----------
    Introduction
    A jury found Appellant Marc Alexander Garcia guilty of robbery by threats
    and assessed his punishment at 18 years’ confinement, and the trial court
    sentenced him accordingly.2     Appellant claims that the trial court erred by
    1
    See Tex. R. App. P. 47.4.
    2
    Appellant’s punishment was enhanced by a prior robbery conviction.
    (1) limiting his cross-examination of the complainant and (2) not instructing the
    jury on a lesser-included offense and that (3) the evidence is insufficient to
    support the verdict. We affirm.
    Facts
    Amberly Herrell was the sole employee working at the 7-Eleven on the
    corner of Las Vegas Trail and the West Freeway in Fort Worth when Appellant
    walked in late one night in January 2011. She greeted him when she heard the
    “beeping noise” that indicated that the door had opened, and then she returned
    to stocking merchandise.
    The store is equipped with three security cameras inside and two outside.
    State’s Exhibit 40 is a video recording showing what Appellant did to Amberly
    while he was in the store.
    Appellant approached her from behind, grabbed her shirt and the skin on
    her back, and shoved her from the stockroom, to the office, and toward the front
    of the store while pulling her shirt over her head.
    When he asked her about the safe, she replied that she could not open it.
    So he ordered her to open the cash register, but when she did, instead of taking
    the money, he picked her up and forced her back into the office, where he bound
    her wrists with a men’s undershirt. From the office, she once again heard the
    “beeping” sound indicating that someone had walked into the store. But whoever
    had come in left immediately and Amberly had stayed quiet, fearing that
    Appellant would do her harm.
    2
    He left her in the office, briefly, squatting down under the computer desk
    with her shirt halfway over her head. He had said that everything was going to
    be okay, but she did not believe him.      She assumed that he had gone to
    investigate whether anyone else was coming in.
    When Appellant returned to the office, he hoisted her back up by her shirt
    and forced her to the cash register, from which he withdrew cash and a roll of
    receipt tape.   But rather than leaving with the money, Appellant again re-
    deposited Amberly in the office. She testified that he continued to push her down
    and try to pull her shirt over her head, which scared her and made her nervous.
    Finally, a man whom she had seen several times before entered the store
    and did not immediately leave.     Heartened by his calling, “hello, hello,” she
    screamed for help. The man followed her screams into the office and chased
    Appellant out of the store. Amberly dashed to the register and hit the panic
    button.
    The police arrived within seconds, broadcast Appellant’s description and
    deployed a helicopter equipped with night-vision technology.      Officers in the
    helicopter detected Appellant’s “heat signature” east of the store, and he was
    arrested shortly thereafter.
    Later that night, Amberly identified Appellant from a photo spread.     As
    Detective Edward Raynsford interviewed her, she noticed a spot of blood on her
    sweatshirt, which the detective collected for analysis.     A forensic scientist
    compared a buccal swab taken from Appellant with cuttings from Amberly’s
    3
    sweatshirt and the undershirt used to bind her hands during the robbery. DNA
    profiles from the cuttings matched each other and matched Appellant’s DNA
    profile.
    Sufficiency of the Evidence
    In his third point, Appellant argues that the evidence is insufficient because
    there is none showing that he verbally or physically did anything to threaten or
    cause Amberly any type of harm. He also denies that there is any evidence that
    she was actually in fear of imminent bodily injury or death. He further asserts that
    it is uncontroverted that he had no weapon, never alluded to or claimed to have a
    weapon, and never attempted to use anything as a weapon. Finally, he claims
    that he did not cause her any pain and did not threaten, physically or verbally, to
    cause her pain.
    The Jackson v. Virginia standard is the sole standard for reviewing
    sufficiency of the evidence in criminal cases. 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    ,
    2789 (1979); Brooks v. State, 
    323 S.W.3d 893
    , 895 (Tex. Crim. App. 2010). In
    our due-process review of the sufficiency of the evidence to support a conviction,
    we view all of the evidence in the light most favorable to the verdict to determine
    whether any rational trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt. 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789;
    Wise v. State, 
    364 S.W.3d 900
    , 903 (Tex. Crim. App. 2012). This standard gives
    full play to the responsibility of the trier of fact to resolve conflicts in the
    testimony, to weigh the evidence, and to draw reasonable inferences from basic
    4
    facts to ultimate facts. 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; Blackman v.
    State, 
    350 S.W.3d 588
    , 595 (Tex. Crim. App. 2011).
    The trier of fact is the sole judge of the weight and credibility of the
    evidence. Tex. Code Crim. Proc. Ann. art 38.04 (West 1979); 
    Wise, 364 S.W.3d at 903
    . Thus, when performing an evidentiary sufficiency review, we may not re-
    evaluate the weight and credibility of the evidence and substitute our judgment
    for that of the factfinder. Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim. App.
    2010). Instead, we determine whether the necessary inferences are reasonable
    based upon the cumulative force of the evidence when viewed in the light most
    favorable to the verdict. Sorrells v. State, 
    343 S.W.3d 152
    , 155 (Tex. Crim. App.
    2011). We must presume that the factfinder resolved any conflicting inferences
    in favor of the verdict and defer to that resolution. 
    Jackson, 443 U.S. at 326
    , 99
    S. Ct. at 2793; 
    Wise, 364 S.W.3d at 903
    .
    The standard of review is the same for direct and circumstantial evidence
    cases; circumstantial evidence is as probative as direct evidence in establishing
    the guilt of an actor. 
    Isassi, 330 S.W.3d at 638
    ; Hooper v. State, 
    214 S.W.3d 9
    ,
    13 (Tex. Crim. App. 2007). In determining the sufficiency of the evidence to
    show an appellant’s intent, and faced with a record that supports conflicting
    inferences, we “must presume––even if it does not affirmatively appear in the
    record—that the trier of fact resolved any such conflict in favor of the prosecution,
    and must defer to that resolution.” Matson v. State, 
    819 S.W.2d 839
    , 846 (Tex.
    Crim. App. 1991).
    5
    Penal code section 29.02 provides, in pertinent part, that 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. Tex. Penal Code Ann. § 29.02(a)(2)
    (West 2011).
    Appellant argues that there is no evidence he made any overt threats or
    displayed any weapon. It is not necessary that threats be overt in order to place
    another in fear of imminent bodily injury. See Williams v. State, 
    827 S.W.2d 614
    ,
    616 (Tex. App.––Houston [1st Dist.] 1992, pet. ref’d) (“Under the ‘placed in fear’
    language in section 29.02 of the Texas Penal Code, the factfinder may conclude
    that an individual perceived or was ‘placed in fear,’ in circumstances where no
    actual threats were conveyed by the accused.”); Wilmeth v. State, 
    808 S.W.2d 703
    , 706 (Tex. App.—Tyler 1991, no pet.) (holding that the jury may find requisite
    fear from a menacing glance and a hand gesture, even where no verbal threats
    were made). The court of criminal appeals has explained that
    It is well established that threats can be conveyed in more varied
    ways than merely a verbal manner. A threat may be communicated
    by action or conduct as well as words.
    McGowan v. State, 
    664 S.W.2d 355
    , 357 (Tex. Crim. App. 1984).
    Although Amberly denied feeling any pain while Appellant dragged her
    around the store, she admitted that she feared being hurt, that she was “scared
    to death”, and that he grabbed her from the back of her shirt with “skin and shirt
    and yanked [her] back and pushed [her] where he wanted [her] to go.” Further,
    6
    she testified and audio from the surveillance video confirms that she screamed
    for help when she heard the man who eventually rescued her walking into the
    store. She also testified that after she got home from the police station that night,
    her boyfriend noticed scratches “all over [her] back.” The jury reasonably could
    have concluded from this evidence that Amberly was placed in fear of imminent
    bodily injury.
    Applying the appropriate standard of review, and considering the entire
    record, we hold the evidence sufficient to support the jury’s verdict as to each
    essential element of robbery under section 29.02 of the penal code. Accordingly,
    we overrule Appellant’s third point.
    Limit on Cross-Examination
    Relying on Easley v. State, Appellant notes in his first point that fear of
    imminent harm or death must be of such nature that in reason and common
    experience would likely induce a reasonable person to part with his property
    against his will. 199 S.W.476, 478 (Tex. Crim. App. 1917). That fear must arise
    from the conduct of the accused rather than the mere “temperamental timidity” of
    the victim. Cranford v. State, 
    377 S.W.2d 957
    , 959 (Tex. Crim. App. 1964).
    Appellant argues that the trial court denied his constitutional rights of
    confrontation and cross-examination by preventing his asking questions relevant
    to showing Amberly’s “temperamental timidity.”
    Appellant proffered to the trial court the questions he wanted to ask the
    witness. They dealt with Amberly’s prior knowledge of other similar robberies
    7
    that had occurred in the neighborhood and whether she had been or was under
    treatment for any kind of nervous disorder.
    It is well-established that the right of confrontation includes not only the
    right to face-to-face confrontation, but also the right to meaningful and effective
    cross-examination and that the main and essential purpose of confrontation is
    the opportunity for cross-examination through the process of putting direct and
    personal questions to the witnesses and the obtaining of immediate answers.
    Coronado v. State, 
    351 S.W.3d 315
    , 325 (Tex. Crim. App. 2011). Indeed, it is
    that personal presence of the defendant and the right to ask probing, adversarial
    cross-examination questions that lies at the core of an American criminal trial’s
    truth-seeking function. 
    Id. As the
    Supreme Court stated in California v. Green,
    the right of confrontation forces the witness to submit to cross-examination, the
    “greatest legal engine ever invented for the discovery of truth.” 
    399 U.S. 149
    ,
    158, 
    90 S. Ct. 1930
    , 1935 (1970).
    The State argues that Appellant failed to preserve his claim under rule of
    evidence 103 by making an offer of proof because the record does not reflect
    what answers he expected to get. But even if we were to assume for the sake of
    argument that Appellant preserved his claim, he would not prevail because he
    has not been harmed.
    Although Appellant now frames his point as a violation of the Confrontation
    Clause, he did not raise the issue of constitutional error before the trial court. He
    made no reference to the constitutional right of confrontation or to any other
    8
    constitutional claim in the trial court relative to this point on appeal. Therefore,
    were we to hold that the trial court erred, our review for harm would be governed
    by rule 44.2(b), which provides, “Any other error, defect, irregularity, or variance
    that does not affect substantial rights must be disregarded.” Tex. R. App. P.
    44.2(b).
    Thanks to the security system video, the jury had the opportunity see what
    transpired as the robbery was being committed. The jury had the opportunity to
    view Appellant’s conduct and demeanor and to view Amberly’s conduct and
    demeanor, as well. It also had the opportunity to view Amberly’s demeanor in
    court as she testified on the witness stand. Other than the inquiry into other
    influences that might have affected her perception of the events during the
    robbery, Appellant was not denied his right of personal confrontation and cross-
    examination of the witness who testified against him. The jury saw him grab,
    push, and drag her through the store. It heard testimony that she was afraid but
    felt no pain. The jury also heard testimony that she suffered scratches on her
    back that were visible when she returned home after the robbery.
    Considering the record as a whole, we hold that Appellant suffered no
    violation to his substantial rights as a result of the limitations the trial court
    imposed on cross-examination. Accordingly, we overrule Appellant’s first point.
    Lesser-Included-Offense Instruction
    In his second point, Appellant argues that the trial court erred by denying
    his requested jury instruction on the lesser-included offense of theft.          An
    9
    appellate court employs a two-step analysis to determine whether an appellant
    was entitled to a lesser-included offense instruction.      Ex parte Watson, 
    306 S.W.3d 259
    , 262–63 (Tex. Crim. App. 2009). First, the lesser-included offense
    must fall within article 37.09 of the code of criminal procedure. Second, some
    evidence must exist in the record that would permit a jury rationally to find that if
    the appellant is guilty, he is guilty only of the lesser offense. Hall v. State, 
    225 S.W.3d 524
    , 536 (Tex. Crim. App. 2007).
    Appellant was charged with the offense of robbery in the course of
    committing theft. Theft is a lesser-included offense of robbery when, as in this
    case, the facts at trial show a completed theft. Earls v. State, 
    707 S.W.2d 82
    ,
    84–85 (Tex. Crim. App. 1986).        We have addressed the sufficiency of the
    evidence to support those elements of robbery that distinguish that offense from
    the offense of theft. The jury was able to watch the video from the store
    surveillance camera, to examine still photographs from the video, to hear
    Amberly’s testimony about the robbery, and to assess its observations and the
    testimony in determining whether Appellant placed her in fear of imminent bodily
    injury. We find nothing in the record that would allow a rational juror hearing the
    facts adduced at trial and examining the evidence to conclude that Appellant’s
    actions did not place Amberly in fear of imminent bodily injury or to conclude that
    her fear was unreasonable.
    It is not enough that the jury may disbelieve crucial evidence
    pertaining to the greater offense. Rather, there must be some
    evidence directly germane to a lesser included offense for the
    10
    factfinder to consider before an instruction on a lesser included
    offense is warranted.
    Bignall v. State, 
    887 S.W.2d 21
    , 24 (Tex. Crim. App. 1994).
    We hold that the trial court did not err when it denied Appellant’s requested
    jury instruction. Accordingly, we overrule Appellant’s second point.
    Conclusion
    Having overruled Appellant’s three points, we affirm the trial court’s
    judgment.
    /s/ Anne Gardner
    ANNE GARDNER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: July 10, 2014
    11