Leodegario Rueda v. State ( 2011 )

Affirmed and Memorandum Opinion filed June 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00849-CR

Leodegario Rueda, Appellant

v.

The State of Texas, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1230952

MEMORANDUM OPINION

            A jury found appellant Leodegario Rueda guilty of the felony offense of aggravated robbery, and the trial judge sentenced him to eleven years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  In one issue, Rueda contends the evidence is insufficient to establish beyond a reasonable doubt that he knew that his co-defendant was going to use or exhibit, or did use or exhibit, a firearm during the commission of the offense, and there is no evidence that Rueda himself used or exhibited a firearm during the commission of the offense.  We affirm.

I

            Two men approached Christina Alvarez as she began backing her Jeep Grand Cherokee out of her apartment complex parking spot.  She noticed a tan sport utility vehicle with dark-tinted windows parked behind her, blocking her path.  One man approached her on the driver’s side and the other came to her passenger’s side door.  Shortly after the crime, and later at trial, she identified the man approaching on the driver’s side as Ramon Penaloza, Rueda’s co-defendant. Penaloza tried to open the door, and when he failed, he motioned for her to roll down her window.  After Alvarez rolled down the window slightly, Penaloza ordered her to unlock the door.  When she complied, he opened the door and ordered her into the backseat.  He spoke to her through the open door while the man from the passenger side sat beside her.

            Penaloza demanded to know “where the money was at.”  Alvarez denied knowing of any money, and he called her a liar.  He questioned her about her job, her husband, and her husband’s place of employment, as well as the time she expected her husband to return home.  Penaloza believed that she or her husband dealt drugs and had a large amount of cash.  He demanded to know in which apartment she lived, and he took her keys to the apartment.  Alvarez felt threatened and feared she would be killed.

            Penaloza ordered Alvarez out of the Jeep, telling her he and Rueda were moving her to another vehicle.  He held her elbow while walking her to a tan SUV.  She attempted to memorize the license plate as she walked toward the vehicle.  She thought the plate number was 49H-NR8.  As she got into the SUV, she noticed Penaloza had a black gun in his pocket area and he may have held the gun as he demanded money.  When she first saw the gun, Alvarez feared the robbers planned to kill her if they did not find the money they were looking for.

            Penaloza had Alvarez enter the SUV from the passenger’s side and get into the backseat. As she got in she noticed Rueda sitting in the driver’s seat, and she identified him later that day and in court as the SUV’s driver.  Rueda drove the car to a parking spot, got out, took her keys, and went to her apartment to find the money he and Rueda believed she possessed.  During this time, Alvarez was kneeling on the floor of the SUV, where she saw a pair of orange shoes. Penaloza remained with Alvarez while Rueda ransacked her apartment. 

            About twenty minutes later, Rueda returned to the driver’s seat, but not until after Alvarez heard a loud noise as though someone was putting a television or stereo into the SUV.  One of the men told Alvarez they were taking her somewhere, and Rueda drove out of the complex while she remained in the backseat.  For about ten to fifteen minutes, Rueda drove the SUV while the men spoke with each other about what to do with her and determined that she was “the wrong girl.”  When they stopped, Penaloza told Alvarez to extend her hand, take her keys, open the door, and run straight ahead until she found her Jeep a short distance away. Penaloza also told her “not to look back or to look at the vehicle or [he was] going to shoot [her] from the back with the gun.”  Alvarez ran to her Jeep, which had been parked about an eighth of a mile away. 

            Because the men had taken her purse with her cell phone, Alvarez drove around for a short time until she stopped at a local business to use a telephone.  She called police and gave them the license-plate information she had memorized, along with a description of the SUV.  A short time later, a patrol officer saw a tan SUV with the license plate 48HHR9.  Because it was so similar to the description of the robbers’ SUV, the officer conducted a traffic stop.  The officer ultimately brought the vehicle and its occupants to the crime scene a short distance away.

            Alvarez identified Rueda as the driver and Penaloza as the man with the gun.  Police recovered the orange shoes from the tan SUV Rueda was driving.  Police also recovered two guns from the SUV hidden underneath the center console; both were loaded. Alvarez identified one of the guns that day and again at trial as the one with which Penaloza threatened her.  Police also found property belonging to Alvarez and her husband, including a television, digital camera, and jacket, in the back of the SUV.  

            In Rueda’s defense, a woman with whom Rueda was living at the time testified that he was at home with her until 4:00 p.m. on the date of his arrest, whereas Alvarez had testified the robbery began around 3:25 p.m.

II

A

            In a legal-sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether a 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 (1979).  This standard of review applies to cases involving both direct and circumstantial evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).   

            A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Tex. Penal Code § 29.02(a)(2). A robbery is aggravated if the person uses or exhibits a deadly weapon in the course of committing the robbery.  Id. § 29.03(a)(2).

            In this case, the jury was authorized to convict appellant either as a principal or a party to the offense of aggravated robbery.  A person may be found guilty as a party to an offense if he is criminally responsible for the conduct of the person who committed the offense.  Tex. Penal Code § 7.01(a). A person is criminally responsible for the offense committed by another's conduct if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.  Id. § 7.02(a)(2).  To convict appellant as a party to aggravated robbery, the State had to prove he was criminally responsible for the aggravating element.  See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App.1986) (in order to convict defendant as party to aggravated offense, State must prove defendant was criminally responsible for aggravating element).  Evidence that the appellant knew a deadly weapon would be used or exhibited in the commission of the offense is sufficient to support a deadly weapon finding.  See Johnson v. State, 6 S.W.3d 709, 713 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). 

            Under the law of parties, the evidence supports the conviction when the person “is physically present at the commission of the offense and encourages its commission by words or other agreement.”  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g).  To determine whether the defendant was a party, we may examine the events occurring before, during, and after the commission of the offense, and we may rely on the actions of the defendant that show an understanding of a common design to commit the offense.  King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000). 

B

            Rueda claims in his sole issue that the evidence was insufficient to prove he knew Penaloza used or exhibited a gun when robbing Alvarez.  He contends there is no evidence he saw the firearm or otherwise knew about it.  He claims Alvarez testified she did not see Penaloza with a gun until she was in the backseat of the SUV, and Penaloza did not brandish the firearm outside the vehicle’s backseat.  Rueda claims there is simply no evidence that he knew the gun was in the vehicle or that he aided or encouraged Penaloza to threaten Alvarez with the gun.  According to Rueda, it is apparent from Alvarez’s testimony that the gun was “barely visible” to her.

            Viewing Rueda’s actions in a light most favorable to the verdict, we conclude the evidence is sufficient to prove Rueda knew Penaloza used or exhibited a gun when robbing Alvarez.  The evidence establishes not only that Rueda participated as the driver throughout the offense, but also that he left the vehicle with Alvarez’s apartment key and returned a short time later after placing her property into the back of the SUV.  Rueda sat in the driver’s seat as Penaloza ordered Alvarez into the backseat while holding a gun which she believed he then placed against her back.  Rueda then drove Penaloza and Alvarez, clearly being held captive in the backseat after Penaloza forced her to keel on the floor with her head down, to an unknown location where Penaloza ordered her from the vehicle, but not before threatening to shoot her in the back if she turned around.  Further, when police discovered Rueda driving the SUV in the vicinity a short time later, they found not one, but two loaded guns beneath the center console, one of which Alvarez identified as the gun used by Penaloza. 

            The jury may make reasonable inferences from the evidence.  Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).  The Hooper court defined an inference as “a conclusion reached by considering other facts and deducing a logical consequence from them.”  Id. at 16.  Here, the jury could have reasonably inferred that Rueda knew Penaloza was going to use or exhibit, or did use or exhibit, a firearm during the robbery because, as the driver of the SUV, he knew that Penaloza was holding Alvarez captive in the backseat, he was a willing participant before, during, and after the premeditated robbery, the guns were within his reach in the center console of the SUV when he was arrested, and he heard Penaloza threaten to kill Alvarez by shooting her in the back.  Thus, contrary to Rueda’s suggestion, sufficient evidence existed from which the jury could reasonably infer that Rueda knew about the presence and use of a gun during the robbery, and that he aided Penaloza to commit the crime.  See Johnson, 6 S.W.3d at 713 (holding evidence was sufficient to warrant inference that appellant was aware of use of weapon in planned robberies when appellant scouted robbery locations, acted as driver, and worked with another man who had a gun strapped to his chest that matched the description of the firearm used in the robberies). 

            Moreover, like in Johnson, the evidence in this case “reveals a thoroughly[ ] planned robbery scheme in which [Rueda] played important roles.”  Id. The appellant in Johnson was responsible for scouting stores to rob and driving the getaway car afterward.  Id.  In this case, Rueda was responsible for both driving and for fetching from Alvarez’s apartment “the money” that he and Penaloza believed she had.  “This evidence warrants the inference that [both participants] were aware of the details of the well-planned robber[y], including the weapon used.”  Id.  (The fact that the robbers indentified “the wrong girl” does not mean the robbery was not “well-planned,” just imperfectly executed.)  After reviewing this evidence in the light most favorable to the verdict, “we conclude it shows [Rueda] was aware that a deadly weapon was used” to commit the robbery.  Id.

* * *

            We therefore overrule Rueda’s issue and affirm the trial court’s judgment.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Anderson, Brown, and Christopher.

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