      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00530-CR



                                      Luis Ruiz, Appellant

                                                v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
     NO. 9024004, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Luis Ruiz was convicted of aggravated robbery at a bench trial. See Tex.

Pen. Code Ann. § 29.03 (West 2003). The court imposed a forty-year prison sentence.

               Appellant’s court-appointed attorney filed a brief concluding that the appeal is

frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738

(1967), by presenting a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573

S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);

Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969).
                Appellant exercised his right to file a pro se brief in response to counsel’s Anders

brief. In the pro se brief, appellant contends the evidence is factually insufficient to sustain the

conviction, his trial attorney was ineffective, and portions of the trial were not recorded.

                On the day in question, a Hispanic man entered the residence of Jaime Dominguez

and Josefa Benitez and, at gunpoint, demanded money. Dominguez gave the man cash. The man

then ordered Dominguez down a hallway to a safe and demanded that he open it. Meanwhile, the

robber’s companion, an Anglo man, took Benitez to a bedroom and bound her hands and feet. After

going through the contents of the safe, the Hispanic robber took Dominguez to the bedroom. The

robbers tied up Dominguez and left the house.

                Dominguez and Benitez were shown photo spreads several weeks after the robbery.

Separately, they each identified photographs of appellant and Daniel Carpenter. Dominguez and

Benitez also identified appellant at trial. Carpenter separately pleaded guilty to the robbery, but he

did not testify at appellant’s trial.

                Appellant testified and denied committing the robbery, saying he was in Lubbock at

the time. Appellant said that he knew Dominguez and Benitez to be drug dealers, and that he had

purchased cocaine from them two or three weeks before the robbery. Appellant’s sister-in-law also

testified that he was living in Lubbock at the time of the robbery.

                In determining the factual sufficiency of the evidence to support a criminal

conviction, the question is whether, after viewing all the evidence in a neutral light, the jury was

rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004

Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004). Although due deference must



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be accorded the fact finder’s determinations, particularly those concerning the weight and credibility

of the evidence, the reviewing court may disagree with the result in order to prevent a manifest

injustice. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed

factually insufficient to sustain the conviction if the proof of guilt is too weak or the contrary

evidence is too strong to support a finding of guilt beyond a reasonable doubt. Zuniga, at *20; see

Johnson, 23 S.W.3d at 11.

               Appellant contends the evidence of guilt is factually insufficient because: neither

Dominguez nor Benitez gave a detailed description of the Hispanic robber; the description they gave

to the police was inaccurate as to appellant’s weight, and neither mentioned a prominent tattoo which

appellant has on his neck; Benitez testified that she had seen appellant previously, but her

recollection of appellant was inaccurate with respect to his age and weight; Benitez’s initial in-court

identification was uncertain, although she later said she was sure appellant was the robber; Benitez’s

recollection of the photo spread was inaccurate both as to its timing and as to the number of

photographs shown her; Dominguez gave conflicting testimony as to whether or not he had seen

appellant before the robbery; the admitted robber, Carpenter, did not testify; and appellant had an

alibi for the time of the robbery.

               The jury had to resolve the conflicts in the testimony and decide whether to believe

Dominguez and Benitez, who identified appellant as the robber, or to believe appellant. A decision

is not manifestly unjust simply because the fact-finder resolved conflicting views of the evidence in

the State’s favor. Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet. ref’d). The

finding of guilt is not manifestly unjust. Pro se point of error one is overruled.



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               Appellant contends his trial counsel was ineffective because he failed to subject the

State’s case to “meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).

Appellant asserts that his attorney “did not present any evidence in Appellant’s behalf, nor did he

challenge the State’s case in any way, form, or fashion.” The record does not support this assertion.

               Appellant seems to suggest that counsel should have called witnesses in addition to

appellant or otherwise present direct evidence that appellant was not guilty. Appellant does not,

however, identify any other witnesses who could have provided exculpatory testimony. As for

challenging the State’s case, counsel cross-examined the complainants and the other State’s

witnesses. On the record before us, we cannot say that appellant’s attorney was not functioning

effectively as counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State,

988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.

Crim. App. 1986). Pro se point of error two is overruled.

               Appellant’s last pro se point of error is that the court reporter failed to record portions

of the trial. See Tex. R. App. P. 13.1. In one instance, the reporter did not record a bench

conference. In two other instances, the reporter’s record reflects that the prosecutor had a

“discussion off the record,” apparently with his co-counsel. In each instance, the prosecutor asked

the court’s permission to go off the record. Appellant did not object, and thus any complaint was

not preserved for appeal. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Appellant

also notes that the witnesses were not identified by name at the time they were sworn, but does not

explain why this was significant. There is nothing in the record to support appellant’s assertion that

“vital information” was omitted from the record. Pro se point of error three is overruled.



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              We have reviewed the record, counsel’s brief, and the pro se brief. We find nothing

in the record that might arguably support the appeal. Counsel’s motion to withdraw is granted.

              The judgment of conviction is affirmed.




                                            __________________________________________

                                            David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 24, 2004

Do Not Publish




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