Guillermo Olmos Munoz v. State ( 2015 )

Opinion issued March 5, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00810-CR
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GUILLERMO OLMOS MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 13CR0151
MEMORANDUM OPINION
A jury found appellant, Guillermo Olmos Munoz, guilty of the offense of
aggravated robbery. 1 After appellant pleaded true to the allegation in an
1
See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011).
enhancement paragraph that he had previously been convicted of a felony offense,
the trial court assessed his punishment at confinement for thirty years. In his sole
issue, appellant contends that the evidence is legally insufficient to support his
conviction.
We affirm.
Background
The complainant, Sanjula Jain, testified that at around noon on March 8,
2012, she was at work behind the counter at her convenience store, Ocean Food
Store, on Galveston Island. A man came into the store while she had several
customers, and he “took his time” choosing a frozen sandwich, heating it in a
microwave, and choosing a canned beverage. Once the man and the complainant
were alone in the store, the man placed the sandwich, the canned beverage, and a
bag of potato chips on the counter. He then showed her a “small, black handgun”
and “loudly” said, “Give me the F money. Otherwise, I will shoot you.” When the
man started coming around the counter and towards her, the complainant picked up
a chair and started screaming. The man then left the store, abandoning his
merchandise on the counter. And the complainant called for emergency assistance.
Galveston Police Department (“GPD”) Officer B. Kiamar testified that at
around noon on March 8, 2012, he was dispatched to the store to investigate. The
complainant described the person who had robbed her as a Hispanic male, five-
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feet-ten-inches to six-feet-two-inches in height, weighing 200 to 250 pounds, and
wearing a “long-sleeved gray shirt, blue jeans, dark navy-colored baseball-style
cap, sunglasses, . . . black boots, and a goatee.” Kiamar viewed the store’s
surveillance videotape, which was published to the jury, and he noted that it
corroborated the complainant’s testimony and showed a man holding a “small,
black, semi-automatic handgun.”
GPD Detective S. Pena testified that he reviewed the store surveillance
video and obtained fourteen latent fingerprint cards from the items that the robber
had touched. Connie Pearson, a GPD fingerprint expert, testified that she
submitted the fingerprint cards to “AFIS,” an automated fingerprint identification
system, and determined that fingerprints found on the sandwich box and beverage
can matched those of appellant.
GPD Detective M. Sollenberger, assigned to investigate the robbery,
testified that she determined that appellant lived less than two miles from the store,
his place of employment was located “less than two minutes” by car from the store,
and the total time appellant would have been absent from work, including his time
in the store, would have been less than fifteen minutes. Further, Sollenberger
noted that there is free access at appellant’s place of employment to come and go
without being noticed. Finally, she noted that appellant’s physical traits were
“very similar” to those of the robber in the store surveillance videotape, and she
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“eliminated the possibility” that appellant had “any business affiliations” with the
store.
GPD Officer T. Maffei testified that on the evening of March 8, 2012, he
saw appellant driving a blue Ford Explorer, and he initiated a traffic stop. After
appellant stopped, he “took off,” leading “at least ten” officers and state troopers
on a “high risk pursuit.” Appellant exceeded the speed limit, ran multiple red
lights and stop signs, and continued until a spike strip damaged a tire of the
Explorer. Detective Pena, in earlier testimony, noted that a subsequent police
search of the Explorer revealed a blue baseball cap, sunglasses, a pair of brown and
black boots, and a gray long-sleeved shirt, which “appear[ed] to be the items that
[the man] was wearing in the video,” along with a shaving kit.
James Moreno, appellant’s employment supervisor, testified that on the day
of the robbery, appellant was at work at 8:00 a.m. and ended the workday at 4:30
or 5:00 p.m. He noted that the lunch hour began at noon. However, he could not
remember whether appellant had remained at work during the lunch hour on the
day of robbery.
Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond
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a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,
2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Our role is that of a due process safeguard, ensuring only the rationality of the trier
of fact’s finding of the essential elements of the offense beyond a reasonable
doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We
give deference to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from the facts.
Williams, 235 S.W.3d at 750. However, our duty requires us to “ensure that the
evidence presented actually supports a conclusion that the defendant committed”
the criminal offense of which he is accused. Id.
Sufficiency of the Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to
support his conviction because the complainant “was not able to identify [him] as
the individual who robbed [her],” there is “no evidence that [he] possessed a
weapon shortly before the robbery occurred” and “[n]o weapon was ever
recovered,” and the only evidence linking him to the robbery was “fingerprints
obtained from items handled by the robber; but, the items were also available to be
handled by anyone entering the [store].”
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 . . .
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intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.” TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A person
commits the offense of aggravated robbery if he commits robbery and “uses or
exhibits a deadly weapon.” Id. § 29.03(a)(2). A firearm is considered a deadly
weapon. Id. § 1.07(a)(17)(A) (Vernon Supp. 2014). Theft is the unlawful
appropriation of property with the intent to deprive the owner of the property. Id.
§ 31.03(a) (Vernon Supp. 2014).
The complainant testified that a man, after lingering in her store until he was
alone with her, showed her a “small, black handgun” and “loudly” said, “Give me
the F money. Otherwise, I will shoot you.” She noted that when the man appeared
to be coming around the counter toward her, she feared for her life, picked up a
chair, and screamed. Officer Kiamar, who viewed the store surveillance videotape,
which captured the robbery, testified that it corroborated the complainant’s
testimony and showed a man holding a “small, black, semi-automatic handgun.”
Further, the jury saw the store’s surveillance video.
Detective Pena testified that he obtained fingerprints from the items that the
robber had touched in the store. And Pearson testified that the fingerprints
obtained from the beverage can and sandwich box that were left on the counter by
the robber matched those of appellant. It is well established that fingerprints alone
are sufficient to sustain a finding of guilt if the evidence shows that the fingerprints
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must necessarily have been made at the time of the offense. Nelson v. State, 505
S.W.2d 271, 273 (Tex. Crim. App. 1974); Washington v. State, 721 S.W.2d 502,
503 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d). Although appellant
asserts that he may have touched these items on another occasion, the jury could
have reasonably concluded that it was extremely unlikely that multiple items
bearing appellant’s fingerprints were placed on the counter by another actor.
Further, Detective Pena testified that a search of appellant’s Ford Explorer
conducted during the evening of March 8, 2012, revealed a blue baseball cap,
sunglasses, a pair of brown and black boots, and a gray long-sleeved shirt, which
“appear[ed] to be the items that [appellant] was wearing in the video.” We note
that the complainant testified that appellant had a goatee at the time of the robbery,
Detective Sollenberger testified that appellant “was clean-shaven” at the time of
his arrest, and Moreno testified that appellant did not have facial hair at any time
during his employment. However, Detective Pena explained that a shaving kit was
found in appellant’s Explorer at the time of his arrest.
In regard to appellant’s assertion that there is “no evidence that [he]
possessed a weapon shortly before the robbery occurred” and “[n]o weapon was
ever recovered,” we note that proof that he possessed a weapon before the robbery
and recovery of the weapon itself were not required to support his conviction. See
Price v. State, 227 S.W.3d 264, 266–67 (Tex. App.—Houston [1st Dist.] 2007, pet.
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dism’d) (holding testimony defendant used “gun” legally sufficient to support
aggravated robbery conviction); see also Carter v. State, 946 S.W.2d 507, 510
(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d) (“Testimony using any of the
terms ‘gun,’ ‘pistol,’ or ‘revolver,’ is sufficient to authorize the jury to find that a
deadly weapon was used.”).
Finally, we note that Officer Maffei testified that appellant evaded arrest,
leading “at least ten” officers and state troopers on a “high risk pursuit,” during
which appellant exceeded the speed limit, ran multiple red lights and stop signs,
and did not stop until a second spike strip damaged a tire on his Ford Explorer.
“Evidence of flight evinces a consciousness of guilt.” Clay v. State, 240 S.W.3d
895, 905 n.11 (Tex. Crim. App. 2007).
The jury is the sole judge of the facts, the credibility of the witnesses, and
the weight to be given the witness’s testimony. Williams, 235 S.W.3d at 750.
Again, we act only to ensure that the jury reached a rational decision. See Moreno,
755 S.W.2d at 867. From the evidence presented, the jury could have reasonably
concluded that appellant, in the course of committing a theft from the store, and
with intent to obtain or maintain control of the store’s money, intentionally
threatened or placed the complainant in fear of imminent bodily injury or death and
that appellant used or exhibited a deadly weapon. See TEX. PENAL CODE ANN.
§ 29.03(a)(2); Cruz v. State, 238 S.W.3d 381, 387–88 (Tex. App.—Houston [1st
8
Dist.] 2006, pet. ref’d). Accordingly, we hold that the evidence is legally sufficient
to support appellant’s conviction.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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