Rent, Tony Raymond v. State

Affirmed and Memorandum Opinion filed May 12, 2005 Affirmed and Memorandum Opinion filed May 12, 2005. In The Fourteenth Court of Appeals ____________ NOS. 14-04-00382-CR 14-04-00383-CR ____________ TONY RAYMOND RENT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause Nos. 02CR2090; 02CR2712 M E M O R A N D U M   O P I N I O N Appellant was convicted in two cause numbers of the felony offenses of burglary of a habitation with intent to commit aggravated assault and of aggravated assault. After a jury found him guilty, appellant proceeded to punishment before the trial judge and was sentenced to twelve years’ confinement, to be served in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant challenges the legal and factual sufficiency of the evidence to support each conviction. We affirm. Factual and Procedural Background The events that gave rise to this proceeding began when several young men went to the home of the Castle family in August of 2002.[1] Before going to the home, the men were at a birthday party for appellant. The young men left the party and went to the Castle home because they suspected William Castle had tried to run one of them over with his vehicle earlier in the evening. Once the men arrived at the Castle home, a fight ensued. One of the men, Jesse Moore, punched William after William came to the door. The men then began fighting and entered the Castle home. Most of the fighting took place in the foyer area. Some of the men fighting had knives and guns; members of the Castle family, as well friends who were at their home, reported that the men pointed guns at them and threatened them. The witnesses at trial gave conflicting testimony about whether appellant was at the home or remained at his own birthday party, and also about the extent of appellant’s participation in the melee. It is undisputed, however, that during the course of the fight, William Castle was stabbed in the back and several people were held at gunpoint. The fight did not end, and the men did not leave the Castle home, until William’s mother intervened and Shayne Castle, William’s brother, announced that he was calling the police. Testimony at Trial Appellant was charged with burglary for entering the Castle home with the intent to commit aggravated assault (and with the lesser offense of simple assault) upon William Castle. Appellant was also charged with the aggravated assault of Amanda West.[2] At trial, appellant did not take the stand in his own defense, although his attorney did call several witnesses who testified appellant was not at the Castle home that night. Three of these men—Jesse Moore, William Alzate, and Geronimo Uriostegui—were charged and convicted for their roles in the altercation. They testified that appellant did not go with them to the Castle home, instead remaining at his own birthday party. Appellant’s girlfriend also gave testimony to the same effect. Contradicting this version of events, however, were the prosecution’s witnesses. William and Shayne Castle testified against appellant at his trial. Shayne identified appellant in court and testified that appellant pointed a gun at him. Tiffany Henson, who was Shayne’s girlfriend and was living with the Castles at the time of the assaults, also testified. She also stated that appellant was at the Castle home that evening and that she saw appellant pointing a gun at Shayne Castle and Amanda West. Amanda was a friend of the Castles and she testified that appellant cocked his gun and pointed it at her head when he was at the Castle home that night. Amanda testified she had known appellant as long as she could remember and she was able to identify appellant in court. Amber Findle, Shayne’s and William’s sister, also placed appellant at the Castle home that night. Amber, who also had known appellant for most of her life, made an in-court identification of appellant as well. Finally, William’s mother, Linda Findle, testified that she recognized appellant’s voice when he spoke to her just before leaving the Castle home. After hearing this conflicting testimony, the jury ultimately rejected the version of events as told by appellant’s alibi witnesses and found appellant guilty in both cause numbers. The trial judge assessed punishment at twelve years’ confinement in each cause number, to be served concurrently, and certified that appellant had the right to appeal in each cause number. Issues on Appeal On appeal, appellant challenges both of his convictions and asserts the evidence is legally and factually insufficient to support either one. Initially, appellant argues the State could not have proved his guilt beyond a reasonable doubt because of the weakness of the State’s evidence placing him at the Castle home and because of the strength of the alibi evidence he presented. Although the State characterizes appellant’s purported alibi as an affirmative defense, we interpret appellant’s complaints as legal and factual sufficiency challenges to the the evidence supporting identity, which is an essential element of the State’s case.[3] Second, appellant urges us to find the proof was legally and factually insufficient to show that he formed the requisite intent to commit aggravated assault before entering the Castle home. We address each of appellant’s contentions in turn. Analysis Standards of Review We utilize familiar standards of review for appellant’s legal and factual sufficiency challenges. In deciding appellant’s legal sufficiency challenges, we review all of the evidence in the light most favorable to the jury’s verdict to determine if any rational fact-finder could have found all of the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In deciding appellant’s factual sufficiency challenges, we view all of the evidence in a neutral light, without the ‘most-favorable-to-the-verdict’ prism. See Zuniga v. State, 144 S.W.3d 477, 484 (2004). The evidence is factually insufficient if a jury would not be rationally justified in finding guilt beyond a reasonable doubt. Id. The evidence may be factually insufficient in two ways. Id. First, the evidence that supports appellant’s guilty verdict may be so weak that the beyond-a-reasonable-doubt standard could not have been met. Id. Second, weighing both the evidence that supports the verdict and the evidence contrary to the verdict, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484–85. With the appropriate standards of review in mind, we turn to appellant’s contention that the evidence is legally and factually insufficient to establish identity. Evidence of Identity Appellant contends the State did not produce legally and factually sufficient evidence to prove that he was the person who committed the charged offenses. In connection with the burglary charge, the State was required to prove that appellant entered a habitation with the intent to commit aggravated assault. See Williams v. State, 505 S.W.2d 838, 841 (Tex. Crim. App. 1974) (“[T]o constitute the offense of burglary[,] the entry must be made with the intent to commit a felony . . . .”); see also Morris v. State, No. 14-00-01235-CR, 2001 WL 1575080, *2 (Tex. App.—Houston [14th Dist.] Dec. 6, 2001, no pet.) (not designated for publication) (citing Tex. Penal Code § 30.02(a)). For the aggravated assault charge, the State was required to prove that appellant intentionally, knowingly or recklessly exhibited a deadly weapon while committing an assault. Id. (citing Tex. Penal Code § 22.02). Assault occurs when one person threatens another person with imminent bodily injury. Id. (citing Tex. Penal Code § 22.01). Initially, we examine the evidence in the light most favorable to the verdict to determine if any rational fact-finder could have found all of the elements of the charged crimes beyond a reasonable doubt. See Jackson, 443 U.S. at 319. As mentioned above, numerous witnesses for the prosecution testified that appellant entered the Castle home and that he pointed a gun at Shayne Castle. Amanda West testified that, while the other men beat William Castle, the appellant held a gun to her head and threatened to shoot her if she moved. Both Amanda and Shayne made in-court identifications of appellant. Also, William’s mother testified that she recognized appellant’s voice. Viewed in the light most favorable to the verdict, this is legally sufficient evidence for a rational jury to find the State proved identity beyond a reasonable doubt. Next, we must view the same evidence in a neutral light. Viewing this evidence in a neutral light, we conclude the jury had factually sufficient evidence to find the State proved identity beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. Even when we balance this testimony against appellant’s alibi evidence, we cannot conclude that the evidence supporting the verdict was factually insufficient. Id. at 485. The jury was entitled to judge the credibility of all of the witnesses and to disbelieve the alibi testimony offered by appellant’s witnesses. See Tex. Code Crim. Proc. art. 38.04 (“The jury, in all cases, is the exclusive judge . . . of the weight to be given to the testimony . . . .”); Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc) (“[D]ue deference must be accorded to the fact finder’s determinations, particularly those determinations concerning the weight and credibility of the evidence.”) (citation omitted). Appellant relies heavily on the fact that many of the prosecution’s witnesses were under the influence of alcohol or drugs; appellant claims they could not have made a reliable identification of appellant. Again, the jury was entitled to make that determination and, as an appellate court, we cannot substitute our judgment for that of the jury. See Johnson, 23 S.W.3d at 9; Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996) (en banc). We find the evidence supporting identity to be both legally and factually sufficient to support appellant’s convictions and we overrule his first point of error. Evidence of Intent to Commit Aggravated Assault In his second issue, appellant contends the evidence is legally and factually insufficient to prove that he had formed the intent to commit aggravated assault at the time he entered the Castle home. One of the elements of burglary of a habitation is to enter a habitation with the intent to commit a felony. Tex. Penal Code § 30.02; Morris, 2001 WL 1575080 at *2. Initially, we view the evidence in the light most favorable to the verdict to determine if a rational jury could have found the State proved appellant’s intent to commit aggravated assault beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Appellant’s intent to commit aggravated assault can be inferred from his actions, words and conduct. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998) (en banc) (stating a defendant’s mental state can only be inferred from his words, act, and conduct); see also McCann v. State, No. 14-99-00842-CR, 2001 WL 699551, *3 (Tex. App.—Houston [14th Dist.] June 21, 2001, pet. dism’d as untimely filed) (not designated for publication) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. [Panel Op.] 1982)); Fewell v. State, 687 S.W.2d 807, 810 (Tex. App.—Houston [14th Dist.] 1985, no pet.). Shayne Castle testified that, when he went to the door of the Castle home, a man punched him. Shayne testified that appellant, holding a gun, then came into the Castle house, along with two other men. Shayne testified the three men pointed their guns at him once they were inside the home. Once inside the home, the men beat William Castle and stabbed him. Amanda West testified that appellant held a gun to her head to keep her from moving while the other men beat William Castle. We conclude this testimony is legally sufficient to permit a jury to rationally find beyond a reasonable doubt that appellant entered the Castle home with the intent to commit aggravated assault. See Jackson, 443 U.S. at 319. Appellant does not cite any evidence or testimony that demonstrates he lacked the intent to commit aggravated assault when he entered the Castle home. Even when we view the evidence that supports the verdict in a neutral light, we conclude it is factually sufficient under Zuniga. See Zuniga, 144 S.W.3d at 484–85; see also Williams v. State, No. 01-96-00607-CR, 1997 WL 351119, *2 (Tex. App.—Houston [1st Dist.] Jun. 26, 1997, no pet.) (holding evidence sufficient to prove appellant’s intent was to commit aggravated assault at the time of entry when evidence showed appellant broke into victim’s home at night and hit her on the head). We overrule appellant’s second point of error. Conclusion We have reviewed the evidence supporting appellant’s convictions for burglary of a habitation and aggravated assault. We have found the evidence to be legally and factually sufficient and, therefore, we affirm both of appellant’s convictions. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed May 12, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The exact date is unclear from the record; the men arrived either very late in the evening of August 2nd or very early in the morning of August 3rd, 2002. [2] In the first count of cause number 02CR2090, appellant was charged with entering a habitation with intent to commit aggravated assault and committing aggravating assault upon William Castle through the use and exhibition of a deadly weapon. See Tex. Penal Code § 30.02. In the second count of the same cause number, appellant was charged with entering a habitation with intent to commit assault and committing assault upon William Castle through the use and exhibition of a deadly weapon. See Tex. Penal Code § 22.01. In cause number 02CR2712, appellant was charged with intentionally and knowingly threatening Amanda West with imminent bodily injury through the use and exhibition of a deadly weapon. See Tex. Penal Code § 22.02. In each of the charges, the deadly weapon was alleged to be a handgun. [3] Giesberg v. State, 984 S.W.2d 245, 248 (Tex. Crim. App. 1998) (en banc) (“Alibi was excluded from the Revised Penal Code’s list of defenses and affirmative defenses because it only serves to negate a necessary element of proof in the State’s case—the defendant’s presence at the time and location of the commission of the crime.”).