## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 14

- 00057

- CR

OSBALDO VALDEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1317 982D

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### MEMORANDUM OPINIO N 1

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A jury convicted Appellant Osbaldo Valdez of aggravated robbery with a

deadly weapon and assessed his punishment at ninety

- nine years’ confinement.

The trial court sentenced him accordingly. Appellant brings a single point on

appeal, challe nging the sufficiency of the evidence to support the conviction.

1 See Tex. R. App. P. 47.4.2 Because the evidence is sufficient to support the jury’s verdict, we affirm the trial

court’s judgment.

Brief Facts

The robbery occurred at a Metro PCS store in Fort Worth, Texas. The

compl ainant, a store employee who was robbed

, testified at Appellant’s trial. She

described the person who robbed her as a Hispanic man who looked like he was

probably in his twenties

, wearing a gray hoodie, gray s weat pants, and a black

mask. The robber was carrying an automatic pistol, and at one point, he pointed

the gun at the employee. The man asked for a Samsung Galaxy S3 phone and

money. The complainant gave him the money in the register, but the store did

not have a Galaxy S3, so he took an LG phone instead. Because the robber had

been wearing a mask, the complainant could not identify him.

The store is located in a strip shopping center owned by R.H. At the time,

R.H.’s office was across the street, and he was driving by the building when the

robbe ry occurred. He saw a person wearing a gray hoodie and sweat pants

come out of the building. R.H. decided to follow the man because he thought it

was strange for someone to wear sweats on a hot day, and when the man saw

R.H., “he started a fast trot. ” A t the end of the building, the man took off the

hoodie and threw it in the back of a car parked there. The man had on a T

- shirt

underneath the hoodie. The man’s car was parked on a cul

- de

- sac, and R.H.

waited until the man drove out of the cul

- de sac. R .H. observed that the man

dr o v e a black car similar to a F irebi rd, with a spoiler on the back.3 As the car drove past, R.H. saw the man, who m he described as a “good

built” Hispanic man with short hair. The man looked to be about thirty. He had a

rounded face and no tattoos or other distinguishing features. ( Appellant has

tattoos on his arm th at can be seen when he wears a T

- shirt. ) R.H. was able to

see part of the license plate, which he gave to the police.

The police showed R.H. a photo lineup . He ini tially picked out both

Appellant’s photograph and one that he believed was similar but ultimately ch ose

the picture of Appellant. In court, he identified Appellant as the man he had

seen

.

The LG phone that was stolen during the robbery was activated the d ay

after the robbery

, and calls were made on it. Fort Worth police officers obtained

a warrant for the phone records of the phone, which showed that the calls

connect ed to Appellant’s home, girlfriend

, and mother.

Officers watched the house where Appellan t lived and saw a car similar to

the one that R.H. had described. The officers then obtained a search warrant

and an arrest warrant for Appellant. The police did not find the stolen phone or

the gu n that was used in the robbery.

Sufficiency of the Eviden ce

In his sole point, Appellant argues that the evidence is insufficient to

support his conviction. In his brief, he summarizes his complaint:

There are three significant problems with the evidence

. . . . The

primary problem with the state of the evide nce

. . . is the

inconclusive identification by R.H. The second problem

. . . is that4 the primary witness failed to note [Appellant’s] obvious identifying

factor

— his tattoos. The third problem

. . . is the lack of any physical

evidence connecting him to the robbery. Therefore, under the facts

of this case, a rational fact finder could not have found beyond a

reasonable doubt that [Appellant] c ommitted the offense of

aggravated robbery as alleged in the indictment. Therefore, there is

insufficient eviden ce to support his conviction. As a result, the

submitted evidence [is] insufficient to support his conviction and this

Court should reverse his conviction.

In our due

- process review of the sufficiency of the evidence to support a

conviction, we view all o f 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. 2 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 facts to

ultimate facts. 3

The trier of fact is the sole judge of the weight and credibility of the

evidence. 4 Thus, when performing an evidenti ary sufficiency review, we may not

re

- evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 5 Instead, we determine whether the necessary

2 Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 19 79);

Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014)

.

3 Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs , 434 S.W.3d at 170.

4 See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979 ); Dobbs , 434

S.W.3d at 170.

5 Isassi v. State , 330 S.W.3d 633, 638 ( Tex. Crim. App. 2010)

.5 inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. 6 We must presume that

the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. 7

The State summarizes the evidence supporting the conviction: 8

• The robbery occurred between 1:30 p.m. and 1:40 p.m. on

February 14, 2013.

• R.H. saw a suspicious man exit the Metro PCS store after

1:00 p.m

. on February 14, 2013.

• R.H. ’ s description of the man running from the Metro PCS

store matched [the complaina nt’s ] description of the robber.

• Appellant matched the general description of the robber.

• Someone activated the telephone stolen in the robbery using

a false name and an address on the same street

as Appellant’s residence.

• The phone stolen in the rob bery placed several calls to and

received several calls from Appellant’s mother a nd his

girlfriend.

• Based on his analysis of the call records of the stolen phone,

FBI Agent Mark Sedwick testified, “ it’s very likely ( Appellant )

was using ( the stolen ) phon e at ( his home ) address. ”

• Appellant’s car matched the car R.H. described in his

testimony.

6 Sorrells v. State , 343 S.W.3d 152, 155 ( Tex. Crim. App. 2011) ; see

Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)

.

7 Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170.

8 We have omitted all record re ferences provided by the State and replaced

the witness’s name with “R.H.” throughout the quoted passage.6 • Appellant’s license plate number corresponded with the partial

plate number R.H. reported.

• Appellant’s license plate’s appearance corresponded with the

license plate R.H. described.

• In Appellant’s residence, the police found a hoodie [,] sweat

pants [,] and shoes similar to those worn by the robber.

• In a pre

- trial photo lineup, R.H. identified Appellant as the

man he saw running from the crime scene.

• During trial, R.H. positively identified Appellant as the man he

saw fleeing the Metro PCS store after the robbery.

Although R.H.’s original identification of Appellant’s photograph was

tentative, he was not at all tentative when he identified Appellant in court

.

Photographs offered by Appellant and admitted into evidence during trial reveal

Appellant’s tattoos on his arms and on the right side of his neck. But t he T

- shirt

he is wearing in the admitted photographs cover s his chest and back, so it is

impossible to determine whether he has additional tattoos. While inside the

Metro PCS store, the robber was wearing a hoodie that covered his upper body

.

The complainant mentioned no tattoos, but they would have been covered during

the robbery. R.H. stated that he did not see any tattoos on the man he saw.

Employing the appropriate standard of review, we hold that the evidence is

sufficient to support the jury’s verdict that the State had proved Appellant’s guilt

beyond a reasonable doubt. A ny incon s istencies in R .H. ’s identification of7 Appellant were a matter for the jury to weigh in its determination of guilt and do

not render the evidence irrational or insufficient. 9

Conclusion

We therefore overrule Appellant’s sole point and affirm the trial court’s

judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 19, 2015

9 See Wesbrook v. State

, 29 S.W.3d 103, 111 (Tex

. Crim

. App

. 2000)

( holding jury determines weight and credibility of testimony and it is within jury ’ s

province to reconcile conflicts )

, cert. denied

, 532 U.S. 944 (2001) ; Montejano v.

State

, No. 08

- 12

- 00235

- CR, 2014 WL 4638911, at *5 (Tex. App.

— El Paso Sept.

17, 2014, no pet.) (not designated for publication)

.