Francisco Cervantes v. The State of Texas--Appeal from 338th District Court of Harris County (Memorandum Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 14-10-01196-CR

Case Date: 04/24/2012

Plaintiff: Francisco Cervantes

Defendant: The State of Texas--Appeal from 338th District Court of Harris County (Memorandum Opinion )

Preview:Affirmed and Memorandum Opinion filed April 24, 2012.

In The

Fourteenth Court of Appeals
NO. 14-10-01196-CR FRANCISCO CERVANTES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1244022

MEMORANDUM OPINION
In two issues, appellant, Francisco Cervantes, contends (1) the evidence is legally insufficient to support his conviction for aggravated robbery with a deadly weapon and (2) the trial court erred by admitting certain evidence. We affirm. I. BACKGROUND According to the State's evidence, at approximately 5:30 p.m. on November 16, 2009, complainant Jimmy Sanchez was vacuuming his truck at a carwash. A vehicle occupied by two men was driven into a nearby carwash stall. Although the men first seemed suspicious to Sanchez, he resumed vacuuming after the men appeared as though

they intended to wash their vehicle. Then, Sanchez was suddenly struck in the back of his neck. He turned to see one of the men, whom Sanchez later identified as appellant, pointing a revolver at Sanchez. Appellant instructed Sanchez to place his wallet, keys, and phone inside his truck. Sanchez complied except for retaining his wallet. Appellant ordered Sanchez to start the ignition, but Sanchez refused based on fear appellant might drive off while Sanchez was inside the vehicle. When appellant entered the truck, Sanchez was about to run, but appellant's accomplice pushed Sanchez against the back of the truck. Once Sanchez realized the accomplice did not have a gun, Sanchez tried to escape. Appellant then exited the truck and approached, pointed the revolver at Sanchez, and ordered, "give me your wallet or I'm going to shoot you." Sanchez threw his wallet several feet away hoping to divert appellant from Sanchez. Appellant retrieved the wallet. The accomplice then ordered Sanchez to leave. Sanchez ran toward his nearby home where his family called 9-1-1. The incident was recorded on the carwash surveillance camera, but those photographs lacked sufficient quality for identification of the perpetrators. From the photographs, police officers obtained the license number of the perpetrators' vehicle. Officers traced the vehicle to the mother of appellant's accomplice, located the accomplice in possession of Sanchez's truck, and eventually discovered appellant's identity as a suspect. Within a few weeks after the robbery, the police showed Sanchez two separate photograph arrays, each including six photographs of men with similar appearances. In the first array, Sanchez identified the accomplice. In the second array, Sanchez "kept fixating" on appellant's photograph and then narrowed identification of the gunman to two photographs, including appellant's, but could not make a conclusive identification. Subsequently, Sanchez viewed a live lineup of six persons with similar appearances and immediately identified appellant as the gunman. At trial, Sanchez identified appellant as the gunman and then testified he was "pretty certain" of this identification.

2

A jury found appellant guilty of aggravated robbery, and the trial court sentenced him to twenty-five years' confinement. II. SUFFICIENCY OF THE EVIDENCE In his first issue, appellant contends the evidence is insufficient to support his conviction. A. Standard of Review When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318

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