Opinion filed June 13, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00162-CR
                                  __________

                   TOMAS SALINAS BAEZA, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR46606


                      MEMORANDUM OPINION
       Appellant, Tomas Salinas Baeza, appeals from his conviction for the first-
degree felony offense of aggravated robbery. Upon Appellant’s plea of true to an
enhancement allegation, the trial court assessed Appellant’s punishment at
confinement for twenty-five years and sentenced him accordingly. In one issue on
appeal, Appellant argues that the evidence presented at trial was legally insufficient
to support his conviction. We disagree. We affirm the trial court’s judgment.
                                 Background Facts
      Appellant was indicted with one count of aggravated robbery with a deadly
weapon. At trial, Cody Loveless testified that, on the day of the alleged offense, he
was working as a car salesman at his family’s business when Appellant approached
him and inquired about a car. Although Appellant asked to test-drive one of the cars,
Loveless told Appellant that Appellant would have to sit in the passenger seat while
Loveless drove the car. Loveless admitted that, at the time, he did not trust Appellant
because Appellant had not driven, but had walked up, to the car lot. After test-
driving the first car, Loveless took Appellant out for a test-drive in two other
vehicles. During the test-drive of the second vehicle, Loveless switched seats with
Appellant partway through the test-drive and allowed Appellant to drive. Likewise,
during the test-drive of the third vehicle, a 2002 Dodge Dakota pickup, Loveless
again exited the vehicle to switch seats with Appellant so that Appellant could drive.
However, this time, Appellant “jumped straight from the passenger seat to the driver
seat,” “threw [the pickup] into gear,” and “floored it” while Loveless was walking
behind the pickup to switch seats. Loveless testified that he jumped onto the back
of the pickup and held onto the bed rail as Appellant drove off. Loveless explained
that, while he was holding onto the side of the pickup, Appellant “started swerving
all over the road.” Eventually, Loveless let go of the pickup and “slid down the
street”—breaking his leg and ankle and suffering road rash in the process. Loveless
also testified that the pickup might have run over his ankle. Michael McCurdy, a
bystander, testified that he observed Loveless go underneath the pickup.
      Although Loveless admitted that Appellant never threatened him before
stealing the pickup and that he did not believe Appellant was attempting to run over
him, Loveless testified that he did believe Appellant was trying to get him off the
pickup by swerving. Loveless further testified that his leg required surgery, he still


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suffers pain to this day, and his doctors have informed him that his physical condition
is likely to deteriorate as he ages.
      Officer April Chandler and Sergeant Anthony Corson of the Midland Police
Department and Deputy Chet Thatcher of the Midland County Sheriff’s Department
also testified at trial. Officer Chandler explained that she was able to gather
photographs of Appellant’s face from surveillance footage obtained from
neighboring businesses. Following dissemination of Appellant’s photograph to the
public, the police received a tip that the suspect in the photograph was Appellant.
Based on the tip, Sergeant Corson conducted a photo lineup with Loveless, who
identified Appellant’s picture as the man who had stolen the pickup. The police then
tracked Appellant’s phone and apprehended Appellant driving the stolen pickup.
Deputy Thatcher noted that the VIN numbers on the pickup had been partially
scratched off.
      After hearing the evidence, the jury found Appellant guilty. The trial court
assessed punishment at confinement for twenty-five years and sentenced Appellant
accordingly. This appeal followed.
                                       Analysis
      In one issue on appeal, Appellant argues that the evidence against him was
legally insufficient to support his conviction for the offense of aggravated robbery.
Specifically, Appellant argues that the evidence failed to prove the requisite mental
state and causation elements of the offense. Appellant insists that Loveless’s injuries
were the result of his own actions in deciding to grab, hold onto, and attempt to stop
the pickup and that Appellant did not know, and could not have foreseen, that
Loveless would attempt to do so. As such, Appellant argues that the evidence was
insufficient to prove that Appellant intentionally, knowingly, or recklessly caused
bodily injury to Loveless. We disagree.


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      We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the
weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard
accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
      As relevant to this case, a person commits the offense of aggravated robbery
if, during a robbery, the person uses or exhibits a deadly weapon. TEX. PENAL CODE
ANN. § 29.03(a)(2) (West 2019). A person commits robbery when, in the course of
committing theft—the unlawful appropriation of property with intent to deprive the
owner of the property—the person either (1) intentionally, knowingly, or recklessly
causes bodily injury to another or (2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death. Id. §§ 29.02(a), 31.03(a). A
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“[d]eadly weapon” is “anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury” or “anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury.” Id.
§ 1.07(a)(17). A motor vehicle is not a deadly weapon per se, but it may be found
to be one if it is used in a manner that is capable of causing death or serious bodily
injury. Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014). “A defendant
uses his motor vehicle in a manner that is capable of causing death or serious bodily
injury, even when no actual death or serious bodily injury occurs and regardless of
his intent, when there is more than a hypothetical potential for danger if others are
present.” Brown v. State, No. 02-18-00105-CR, 2019 WL 1179395, at *2 (Tex.
App.—Fort Worth Mar. 14, 2019, no pet.) (mem. op., not designated for publication)
(citing Moore v. State, 520 S.W.3d 906, 913 (Tex. Crim. App. 2017)).
      Here, Appellant was charged with aggravated robbery by means of using a
deadly weapon—a motor vehicle. See PENAL § 29.03(a)(2). Appellant does not
contest that the motor vehicle was a deadly weapon. Instead, Appellant focuses on
the causation and intent elements of the underlying offense of robbery and argues
that the State failed to prove that he “intentionally, knowingly, or recklessly caused
bodily injury to Cody Loveless.” See id. §§ 29.02(a)(1), .03. Appellant points to
Loveless’s testimony that he did not believe Appellant was trying to run over him
with the pickup as evidence that Appellant did not have the requisite mental state to
injure Loveless. However, Loveless also testified that he believed that Appellant
was attempting to throw him off the pickup by swerving. Furthermore, McCurdy
testified that Appellant appeared to have run over Loveless with the pickup. Thus,
the jury could have reasonably inferred that, at a minimum, Appellant drove the
pickup in a reckless manner, thereby inflicting bodily injury on Loveless, or, more
likely, that Appellant knew that Loveless was holding onto the pickup and that
Appellant was attempting to throw him off the pickup by swerving. See Jackson,
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443 U.S. at 319; Clayton, 235 S.W.3d at 778. Likewise, although Appellant argues
that Loveless’s injuries were the result of Loveless’s own actions in attempting to
grab onto the pickup as Appellant drove off, it is not unforeseeable that the owner
of property would attempt to protect his property from a theft. See, e.g., Brown,
2019 WL 1179395, at *2–3 (evidence was sufficient to find defendant guilty of the
offense of aggravated assault with a deadly weapon where defendant stole a vehicle
during a test-drive and a car salesman gave chase on foot, grabbed ahold of the
vehicle, and was subsequently thrown into a parked car). In fact, a property owner
is often justified in the use of force, including, in some cases, deadly force, to prevent
or terminate another’s unlawful interference with property. See PENAL §§ 9.41, .42.
As such, a reasonable jury could have found that, notwithstanding Loveless’s
attempt to retain possession of his property, Appellant’s theft of the pickup was the
cause of Loveless’s injuries.              See, e.g., Brown, 2019 WL 1179395, at *2–3.
Therefore, we believe the jury could have reasonably found each element of the
offense of aggravated robbery beyond a reasonable doubt. See PENAL § 29.03(a)(2).
We overrule Appellant’s sole issue.
                                               Conclusion
        We affirm the judgment of the trial court.



                                                                   KEITH STRETCHER
June 13, 2019                                                      JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.
        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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