                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00403-CR
                            NO. 02-11-00404-CR
                            NO. 02-11-00405-CR
                            NO. 02-11-00406-CR
VICTOR CANTU JR.                                                APPELLANT
                                      V.
THE STATE OF TEXAS                                                    STATE
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         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY


                                   ----------


                       MEMORANDUM OPINION 1

                                   ----------


     Appellant Victor Cantu Jr. appeals his convictions for two counts of

aggravated robbery and two counts of unlawful restraint, all four of which

included deadly weapon findings.   In twelve issues, Appellant challenges the



     1
      See Tex. R. App. P. 47.4.
legal sufficiency of the evidence and the propriety of the deadly weapon findings.

We affirm.

                                I. BACKGROUND

                              A. FACTUAL BACKGROUND

      Rebekah Davis (“Rebekah”) and her husband, Festus Davis (“Festus”),

had a business posting items for sale on craigslist.org.      On May 13, 2010,

Rebekah posted a television for sale and arranged to meet an interested buyer at

her home. While Rebekah was inside the house, Festus stayed in the garage to

meet the prospective buyer.

      Festus heard a car horn and raised the garage door. Two Hispanic men

got out of a white SUV parked outside the garage, “one from each side.” One of

the men was wearing a hat, and “one of them at least had sunglasses on.” Both

were approximately five feet, nine inches tall, but one had a bigger body than the

other. Festus could not tell if there was another person in the SUV. As soon as

Festus showed the men the television, one of the men pulled a gun and pointed it

at Festus’s head. The other man also brandished a gun and closed the garage

door. One of the men forced Festus into the house, while the other looked for

Rebekah.

      Meanwhile, Rebekah had heard two men yelling at Festus and threatening

to shoot him and had called 911 while hiding in a bathroom. One of the men

(“Suspect One”) broke into the bathroom and led Rebekah upstairs at gunpoint to

Festus’s office. Suspect One was wearing a white vest and long pants. Both

                                        2
Rebekah and Festus stated the other man (“Suspect Two”) was wearing a

baseball cap and sunglasses. Rebekah believed Suspect One and Suspect Two

were Hispanic.

      In the office, Rebekah saw that Festus’s hands and feet were bound with

zip ties and that Suspect Two was pointing a gun at Festus. Suspect One bound

Rebekah’s hands and feet with zip ties while she begged for her life. Suspect

One received a phone call at this point and he directed the caller to “come

around to the back.” Festus believed this meant “there was more, more of them,

and someone was going to drive around the back with a truck to take everything.”

      Suspect One told Suspect Two to go downstairs and then began “ripping

out the TVs, the computer systems, laptops, everything . . . [and] started to go

through all the drawers, all the cupboards . . . in the office.” A few minutes later,

Suspect One’s phone began to ring again. Suddenly, police sirens could be

heard closing in on the neighborhood, and Suspect One and Suspect Two ran

out of the home, leaving the Davises bound on the floor. They also left behind

one of the guns. They took Festus’s wallet, which had been in the office.

      Sergeant Jesse Hunter, a Lewisville police officer, arrived at the house,

walked around to the garage, and saw a still running white SUV in the driveway.

Sergeant Hunter then saw a Hispanic male coming out of the garage wearing a

dark shirt, dark hat, denim shorts, and black tennis shoes. Sergeant Hunter,

after looking at the man “directly in the face,” thought the man looked like

baseball player Ivan Rodriguez. Sergeant Hunter identified himself as a police

                                         3
officer, which caused the man to begin running. As he ran away from Sergeant

Hunter, he dropped a pair of dark gloves and jumped over a wall. Sergeant

Hunter stated that it is “not unusual” for suspects to have clothing underneath the

“initial outer” layer and to shed clothes later. Sergeant Hunter abandoned the

chase and returned to the house. A pair of sunglasses was found near where

Sergeant Hunter saw the man coming out of the Davises’ garage.

      Two men near the Davises’ house told Sergeant Hunter that another man

in a white tank top had also fled the house. Other police officers in the area

caught this man, who was later identified as Esteban Hernandez. Meanwhile,

Michael Guenther, a neighbor of the Davises’, heard a noise on his roof and saw

a man in a dark shirt on the roof. Detective Richard Anders saw the man on

Guenther’s roof, who was wearing a baseball cap, and ran over. Once the man

saw Detective Anders, the man jumped off the roof and began running.

Detective Anders began chasing the man, who was no longer wearing a baseball

cap, but Detective Anders lost him. Officer Michael Hernandez, who was with

Detective Anders, also saw the man on the roof and noted that he was wearing

dark clothes and a hat, but that he was no longer wearing the hat once he began

running. Officer Hernandez identified Appellant as the man he saw on the roof

after Appellant was arrested.

      Shortly thereafter, Officer Joel Baker began searching a nearby gas station

for the man who had been seen on Guenther’s roof.            Officer Baker found

Appellant crouched in the bushes surrounding the gas station. He was out of

                                        4
breath, dirty, and “very, very, very sweaty.” Appellant was wearing a light purple

shirt, denim shorts, and black shoes.        Appellant had a loaded .40 caliber

magazine in his pocket, which fit the gun left at the Davises’ home. Appellant

gave the arresting officers a false name and incorrect birthdate.

      On the other side of a wall next to the bushes, Officer Baker found a black

T-shirt that had not been there earlier when officers had searched the area

looking for Suspect Two. A black baseball cap with a “P” logo later was found on

Guenther’s roof. Forensic testing on the cap revealed that Appellant was “the

major contributor of the DNA for the baseball cap.” Appellant’s DNA profile also

was the same as the DNA profile on the sunglasses found outside the Davises’

garage. The DNA on the gun and the gloves could not be “associated” with

Appellant or Hernandez; however, Appellant could not be eliminated as a

contributor to the DNA found on the gun. Additionally, Festus’s wallet was found

in Guenther’s yard.

                          B. PROCEDURAL BACKGROUND

      Appellant was indicted for two counts of aggravated robbery and two

counts of unlawful restraint. Further, each contained enhancement paragraphs

alleging that Appellant previously had been convicted of the felony offenses of




                                         5
burglary of a habitation and theft. Appellant pleaded not guilty to the indicted

offenses and not true to the enhancement paragraphs. 2


      At trial, Appellant testified that he was not with Hernandez in the Davises’

home at the time of the robbery and named Paul Santoy, Hernandez’s

roommate, as Hernandez’s accomplice. Appellant admitted that he was with

Santoy and Hernandez on May 13, 2010, and went with them to the Davises’

house in a white SUV. 3 Appellant testified that Santoy was wearing Appellant’s

dark baseball cap that day because Santoy routinely borrowed Appellant’s

“accessory items.”      Further, Appellant claimed Hernandez was wearing

Appellant’s sunglasses the day of the robbery. Before they arrived, Appellant

stated that he texted his girlfriend to ask her to pick him up at the gas station

near the Davises’ house because he was “suspicious” of what Santoy and

Hernandez were planning. Appellant told his girlfriend to “watch out for the laws

[sic]” because he had a warrant out for his arrest.

      Appellant further claimed that before Santoy and Hernandez got out of the

car at the Davises’ house, Appellant handed a gun to Santoy, but removed the



      2
       Appellant admitted to the prior convictions, however, during his trial
testimony.
      3
         The SUV was owned by Santoy’s girlfriend’s mother; but Santoy’s
girlfriend refused to talk to the police after the robbery.




                                         6
ammunition magazine and put it in his pocket. After Santoy and Hernandez

entered the garage, Appellant claimed he left the SUV and walked to the gas

station to wait for his girlfriend. He hid in the bushes when he heard sirens

because of an outstanding arrest warrant. He asserted this also was the reason

he gave officers false identification information and why he was “going into a

panic mode.” Appellant stated he did not begin to sweat until after he was placed

in the back of the police car: “[I]t didn’t take me long to start sweating after they

put me in the back of the cop car.” Appellant admitted he lied to police about

why he was at the gas station, who he was meeting, the possible identity of one

of the robbers, and why he was out of breath in order to “help [his] situation” and

to protect his girlfriend. Appellant never told police about Santoy’s involvement

because he did not want to be considered a “snitch.”

      The jury found Appellant guilty of all four offenses, found the enhancement

paragraphs true, and sentenced him to fifty years’ confinement, to run

concurrently. Each judgment contained a deadly weapon finding. This appeal

followed.

                                   II. DISCUSSION

      In twelve issues, Appellant raises two main arguments: (1) the evidence

was legally insufficient to convict him as a party or a principal and to support the

deadly weapon findings and (2) the deadly weapon findings were erroneous

because the jury charges either wholly failed to submit the issue separately to the

jury or failed to instruct the jury properly. We address each in turn.

                                          7
                                    A. SUFFICIENCY

      In his first four issues, Appellant asserts that the evidence is insufficient to

support his convictions either as a party or as a principal. In short, Appellant

relies on the victims’ failure to positively identify him and his claim that he left the

area before the offenses occurred to support his legal insufficiency argument.

      In our due process review of the sufficiency of the evidence to support a

conviction, we view all of 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. See Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903

(Tex. Crim. App. 2012). 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. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex.

Crim. App. 2011). We must presume that the fact-finder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903. The standard of review

is the same for direct and circumstantial evidence cases; circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor. See Isassi

v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007).



                                           8
      As shown by the facts recited above, the evidence implicating Appellant

was, by and large, circumstantial. In a circumstantial evidence case, it is not

necessary that every fact point directly to the accused’s guilt. Livingston v. State,

739 S.W.2d 311, 329–30 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210

(1988); see Temple v. State, 390 S.W.3d 341, 360–63 (Tex. Crim. App. 2013)

(holding circumstantial evidence allowed jury reasonably to infer guilt); Dorsey v.

State, 940 S.W.2d 169, 174 (Tex. App.—Dallas 1996, pet. ref’d) (recognizing

evidence sufficient if conviction “warranted by the combined and cumulative force

of all the incriminating circumstances”). The fact that a witness cannot positively

identify a suspect is an issue to be weighed by the jury. Livingston, 739 S.W.2d

at 329-30; see Valenciano v. State, 511 S.W.2d 297, 299 (Tex. Crim. App. 1974)

(stating lack of positive identification is jury issue). When the State relies on

circumstantial evidence, identification of the defendant is sufficient when,

considered in relation to all the testimony, the conclusion is warranted by the

combined and cumulative force of all the circumstances.          See Temple, 390

S.W.3d at 360–63; Livingston, 739 S.W.2d at 330.

      The Davises and Guenther, as pointed out by Appellant, were unable to

positively identify Appellant as Suspect Two. However, Sergeant Hunter was

“immediately” able to identify Appellant at trial as the man he saw running from

the Davises’ house because he looked like Ivan Rodriguez. Officer Hernandez

also was able to identify Appellant as the man he saw on Guenther’s roof after

Appellant was arrested based on the “bottom half” of Appellant’s clothing and

                                         9
because Appellant was “sweating very heavily, as someone who would have

been running.” Appellant’s hat was found near the scene where Suspect Two

was seen hiding and his sunglasses were found outside the Davises’ garage

where Suspect Two was seen leaving the premises. A dark T-shirt matching

what Suspect Two was seen wearing was found near where Appellant was

hiding. When Officer Baker found Appellant, he was out of breath, “very dirty,”

and “very, very, very sweaty” even though Appellant denied he was sweating

when he was found hiding in the bushes.

      The facts presented reveal a mosaic of evidence that, when viewed

together as a whole, would allow a rational trier of fact to find beyond a

reasonable doubt that Appellant was a principal of the aggravated robbery and

unlawful restraint charges and that he used a deadly weapon during the

commission of the offenses.       Cf. Beall v. State, 237 S.W.3d 841, 850 (Tex.

App.—Fort Worth 2007, no pet.) (holding affirmative links to contraband

established by totality of circumstances). We must take these pieces, which form

the full picture of the offense, and determine if the evidence presented was

sufficient for the rational trier of fact to find all the essential elements of the four

offenses alleged.

      The evidence showed Appellant’s presence at the Davises’ home before

the offenses were committed and hiding nearby within a short time after the

crimes, as well as his apparent flight from the scene. The description of Suspect

Two’s clothing matched the shorts and shoes Appellant was wearing when he

                                          10
was apprehended and the shirt found on the path Appellant took from the

Davises’ house to his hiding place. See Livingston, 739 S.W.2d at 330 (holding

clothing description combined with other evidence of the circumstances of

offense legally sufficient in circumstantial evidence case); Bickems v. State, 708

S.W.2d 541, 543 (Tex. App.—Dallas 1986, no pet.) (holding victim’s positive

identification coupled with circumstantial evidence placing defendant near the

scene and wearing clothes similar to those described sufficient to support

conviction). The DNA evidence connected Appellant to the baseball cap found

where Suspect Two was seen and the sunglasses discarded by Suspect Two at

the Davises’ home. See Williamson v. State, 104 S.W.3d 115, 117–18 (Tex.

App.—Texarkana 2003, pet. ref’d) (holding DNA evidence connecting defendant

to offense combined with other circumstantial evidence sufficient to support jury’s

verdict). At the time of his arrest, Appellant possessed the magazine from the

gun left at the Davises’ house, which contained ammunition. See Schroeder v.

State, 543 S.W.2d 382, 383–84 (Tex. Crim. App. 1976) (holding defendant’s

possession of the same type of ammunition as that used in shooting combined

with other evidence sufficient to prove identity).

      During the course of the offenses, Suspect One received a phone call from

a third individual whom he instructed to “come around to the back”—the place

where the running SUV was discovered. The Davises testified that the phone

call made it appear that there were more people involved than the two in their

house. The evidence is uncontested that three, and only three, people were in

                                         11
the SUV when it originally arrived at the home. But although Appellant gave the

jury an explanation for his presence in the area of the robbery, his possession of

the ammunition magazine, and his attempt to hide from the police, the jury was

free to disbelieve this testimony and rely on the DNA evidence, the implausibility

of Appellant’s explanations, and the identification evidence.    See Tex. Code

Crim. Proc. Ann. art. 38.04 (West 1979); Gear v. State, 340 S.W.3d 743, 747

(Tex. Crim. App. 2011); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004).

      Regarding the sufficiency of the evidence to show Appellant used a deadly

weapon, the Davises testified that both Hernandez and Suspect Two used a gun

during the offenses. See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App.

1985) (holding witness testimony that defendant used gun during commission of

offense sufficient to support deadly weapon finding). Although the Davises could

not identify Appellant as Suspect Two, Sergeant Hunter was able to

“immediately” identify Appellant as the man he saw running from the Davises’

home. Similarly, Officer Hernandez was able to identify Appellant as the man he

saw on Guenther’s roof.     Further, Appellant was found with an ammunition

magazine in his pocket that fit the gun found at the Davises’ house. See Carter

v. State, 946 S.W.2d 507, 511 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d)

(holding victims’ testimony that defendant threatened them with gun similar to

gun showed at trial sufficient to support finding defendant used deadly weapon).



                                       12
      The cumulative evidence presented here was sufficient for the rational trier

of fact to find all the essential elements of each count of aggravated robbery and

each count of unlawful restraint and to find that Appellant participated in each as

a principal and, in doing so, personally used and exhibited a deadly weapon.

Because the evidence is sufficient to support Appellant’s convictions as a

principal, we will not address whether the evidence is sufficient to show Appellant

was a party to the offenses. See Gilmore v. State, No. 02-11-00273-CR, 2012

WL 6632920, at *13 (Tex. App.—Fort Worth Dec. 21, 2012, no pet. h.) (declining

to address evidentiary sufficiency to support conviction as a party when evidence

sufficient to support conviction as principal). 4 We overrule Appellant’s first four

issues.

                   B. DEADLY WEAPON FINDINGS AND JURY CHARGE

      The parties address Appellant’s remaining eight issues together “because

they involve the same relevant facts”; thus, we shall do the same. Appellant

argues that the trial court erred by entering deadly weapon findings in the

judgments because no or insufficient special issues were submitted, rendering

the jury charge inaccurate, misleading, and confusing. See Tex. Code Crim.

Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2012). Appellant admits he did not

object to the trial court’s failure “to submit the proper special issues at trial.”

      4
       Even if we were to address this argument, we would agree with the
State’s arguments that the evidence was legally sufficient to convict Appellant as
a party.

                                           13
      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. See id. If error

did occur, whether it was preserved determines the degree of harm required for

reversal. See id. If there is error in the court’s charge but the appellant did not

preserve it at trial, we must decide whether the error was so egregious and

created such harm that appellant did not have a fair and impartial trial—in short,

that “egregious harm” has occurred. Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

                              1. Aggravated Robbery

      On the aggravated robbery charges, the trial court informed the jury that it

could find Appellant guilty of aggravated robbery, as charged in the indictments,

if

      you believe from the evidence beyond a reasonable doubt that
      [Appellant] . . . either by his own conduct, or by acting with intent to
      promote or assist the commission of the offense of Aggravated
      Robbery, as charged in the indictment[s] . . ., solicited, encouraged,
      directed, aided or attempted to aid [Hernandez] and/or . . . Santoy in
      committing the offense by threatening or placing [the Davises] in fear
      of imminent bodily injury or death, and [Appellant] did then and there
      use or exhibit a deadly weapon . . . and [Hernandez] and/or . . .
      Santoy did commit [aggravated robbery].

The charges also included a separate special issue directing the jury to

determine if Appellant “did use a deadly weapon” during the aggravated

robberies. The jury charges allowed the jury to find Appellant guilty if he acted as

                                        14
a principal or a party to the robberies and actually used or exhibited a deadly

weapon himself during the robberies.

      Appellant asserts that the deadly weapon special issues were erroneous

because they only addressed Appellant’s use of a deadly weapon as a principal

and did not include the parties language required by article 42.12, section

3g(a)(2): “[W]hen a defendant is alleged to have committed an offense as a

‘party’ (or as either a party and/or a principal), an affirmative deadly weapon

finding can only be entered if the defendant ‘knew that a deadly weapon would

be used or exhibited.’”

      “In general, an instruction on the law of parties may be given to the jury

whenever there is sufficient evidence to support a jury verdict that the defendant

is criminally responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547,

564 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). But when, as

here, “the evidence clearly supports a defendant’s guilt as a principal actor, any

error of the trial court in charging on the law of parties is harmless.” Black v.

State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986); see Cathey v. State, 992

S.W.2d 460, 466 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082 (2000). 5

As discussed above, the evidence was legally sufficient to allow the jury to find

that Appellant was a principal in the aggravated robberies and that he actually

      5
        The jury charge, as given, required the jury to find Appellant personally
used or exhibited a deadly weapon, which effectively negated any possibility of
finding Appellant guilty as a party.

                                       15
used or exhibited a deadly weapon. Therefore, even if we assumed that the jury

charge contained error, that error would be harmless. See Gilmore, 2012 WL

6632920, at *14. We overrule Appellant’s fifth, sixth, ninth, and tenth issues.

                                2. Unlawful Restraint

      Regarding the unlawful restraint charges, the trial court charged the jury

that it could find Appellant guilty of unlawful restraint if

      you believe from the evidence beyond a reasonable doubt that
      [Appellant] . . . either by his own conduct, or by acting with intent to
      promote or assist the commission of the offense of Unlawful
      Restraint, as charged in the indictment[s] . . ., solicited, encouraged,
      directed, aided or attempted to aid [Hernandez] and/or . . . Santoy in
      committing the offense by restricting the movements of [the
      Davises], and [Appellant] did then and there recklessly expose [the
      Davises] to a substantial risk of serious bodily injury by pointing a
      firearm at or in the direction of [the Davises].
      Once again, the charge requires proof beyond a reasonable doubt that

Appellant pointed a firearm at the Davises. In our prior analysis, we found the

evidence sufficient to support the verdict of guilty in each unlawful restraint case

and that Appellant participated as a principal. That same evidence is sufficient to

support the deadly weapon finding.

      Appellant argues that the trial court could not enter deadly weapon findings

on these charges because there were no separate deadly weapon special

issues. The State admits that deadly weapon special issues were not submitted

to the jury and that the trial court entered deadly weapon findings, but it asserts

that the deadly weapon findings were “essentially” elements of the offenses.



                                            16
      Both Appellant and the State agree that a trial court may enter an

affirmative deadly weapon finding if the jury (1) found the defendant guilty as

charged in the indictment and the indictment alleged the use of a deadly weapon,

(2) found the defendant guilty as charged in the indictment and the indictment

alleged the use of a per se deadly weapon, or (3) affirmatively answered a

special issue on deadly weapon use. See Vasquez v. State, 56 S.W.3d 46, 47

(Tex. Crim. App. 2001). Here, the jury found Appellant guilty of unlawful restraint

“as charged in the indictment[s],” which alleged that Appellant “recklessly

expose[d] [the Davises] to a substantial risk of serious bodily injury by pointing a

firearm at or in the direction of [the Davises].” A gun is a per se deadly weapon;

thus, the deadly weapon affirmative findings arose as a matter of law upon the

jury’s findings of guilt. See Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp.

2012); Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); see also Ex

parte Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988). Therefore, the trial

court was authorized to enter the affirmative findings in the judgment on the use

of a deadly weapon. See Henricks v. State, 293 S.W.3d 267, 278 (Tex. App.—

Eastland 2009, pet. ref’d). We overrule Appellant’s seventh, eighth, eleventh,

and twelfth issues.




                                        17
                               III. CONCLUSION

      Having overruled Appellant’s issues, we affirm the trial court’s judgments.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 2, 2013




                                       18
