Opinion issued December 20, 2012.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00039-CR
                          ———————————
                  LUIS ALONZO ZAMBRANO, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 209th District Court
                          Harris County, Texas
                      Trial Court Case No. 1279002



                        MEMORANDUM OPINION

      A jury convicted Luis Alonzo Zambrano of aggravated robbery, and the trial

court sentenced him to forty years’ confinement. See TEX. PENAL CODE ANN. §

29.03 (West 2011). Zambrano presents two issues on appeal: (1) the evidence was
legally insufficient to show that he committed the offense of aggravated robbery

and (2) the trial court erred by failing to suppress evidence obtained pursuant to an

unlawful arrest. We affirm the trial court’s judgment.

                                   Background

      A grand jury indicted Zambrano for the offense of aggravated robbery,

alleging that Zambrano, “while in the course of committing theft of property

owned by ISAIAH BALDERAS, and with intent to obtain and maintain control of

the property, INTENTIONALLY AND KNOWINGLY cause[d] bodily injury to

ISAIAH BALDERAS, and . . . did then and there use and exhibit a deadly weapon,

namely a knife.” To secure Zambrano’s conviction, the State presented the

testimony of two witnesses: the complainant, Balderas, and the arresting officer, C.

Nguyen of the Houston Police Department.

      Balderas testified that he used a city bus to travel to and from evening

classes at the University of Houston Downtown. One night around 10:30 p.m.,

Balderas got off the bus a couple of blocks from his apartment. As he walked home

from the bus stop, Balderas was approached by a man wielding a knife. The man

instructed Balderas to hand over his wallet. The wallet was not easily accessible

because it was located in a backpack Balderas was wearing on his shoulders. As

Balderas struggled to remove the backpack and retrieve his wallet, the man became

upset and attempted to stab Balderas in the chest. Balderas blocked the knife with


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his arm and suffered a deep cut. The man then knocked Balderas’s glasses askew

and ran toward a nearby apartment complex. Balderas, still in possession of his

wallet, walked home and called for police and medical assistance.

      Officer Nguyen responded. Balderas described his assailant to Nguyen: a

“tall skinny Hispanic” male having a “circular” tattoo under his eye and wearing

dark clothing and a black hat embellished with the logo of a Houston athletic team

and a red brim. During a search of the surrounding area, Nguyen came across

Zambrano and another man walking near the apartment complex where the robbery

suspect had fled. Nguyen noticed that Zambrano’s dark clothing and black and red

hat matched Balderas’s description of the assailant, and Nguyen instructed the men

to come closer to his patrol car. When he saw the spiral tattoo under Zambrano’s

eye, Nguyen handcuffed Zambrano. According to Nyugen, the handcuffs were

necessary because Nguyen was outnumbered by Zambrano and his companion and

Nguyen feared Zambrano had a weapon.

      As Officer Nguyen began to search Zambrano for weapons, Balderas passed

by the scene en route to an area hospital and stopped to identify Zambrano.

Zambrano, still handcuffed, ran from Nguyen. Zambrano’s companion also fled. A

foot chase ensued, but Nguyen caught Zambrano when he tripped on a curb.

Zambrano disclosed to Nguyen that he had an open knife in his pocket. Nguyen

recovered the knife, which he described for the jury as being approximately three

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and one half inches in length; in his arrest report, Nguyen described the knife as a

switchblade having a two and one half inch blade but totaling six and one half

inches in length.1 Nguyen did not see any blood on the knife or on Zambrano’s

clothing. Nguyen then placed Zambrano in the patrol car. Once Zambrano was

secured, Balderas positively identified him at the scene as the assailant. Balderas

also identified Zambrano in court.

      Both the knife recovered by Officer Nguyen and Balderas’s at-the-scene

identification of Zambrano were the subject of pretrial evidentiary disputes.

Zambrano argued that Nguyen’s investigation exceeded the limits of a temporary

detention and amounted to an arrest when Nguyen handcuffed Zambrano. Arguing

further that the arrest was made without a warrant or probable cause and therefore

was unlawful, Zambrano moved to suppress the evidence. The trial court denied

Zambrano’s motion, and the complained-of evidence was admitted at trial.

      After the close of the evidence, the jury convicted Zambrano of aggravated

robbery, and the trial court sentenced him to forty years in prison. Zambrano

appeals from the conviction.




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      Balderas later received pain medication and stitches for the injury he sustained to
      his arm. Although both Balderas and Officer Nguyen described the knife used in
      the attack as a pocketknife, Balderas’s hospital records identified the “mechanism
      of [Balderas’s] injury” as a “steak knife with a 6-inch blade.”

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                           Sufficiency of the Evidence

      In his first issue, Zambrano argues that the evidence of his identity as the

person who committed the aggravated robbery was legally insufficient because (1)

Balderas’s identification was not credible, (2) there was conflicting evidence

regarding whether the knife used during the aggravated robbery and the knife

recovered from Zambrano were the same size, (3) Officer Nguyen did not conduct

any forensic testing of Zambrano’s knife or his clothing, and (4) Officer Nguyen

did not prepare a photo spread or lineup for Balderas’s review.

A.    Standard of Review

      When reviewing the legal sufficiency of the evidence, we examine all of the

evidence in the light most favorable to the verdict and determine whether a rational

trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Ervin v. State, 331 S.W.3d 49, 54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). Our review includes both direct

and circumstantial evidence, as well as any reasonable inferences that may be

drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). Although we consider all evidence presented at trial, we do not reevaluate

the weight and credibility of the evidence and substitute our judgment for that of

the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).


                                         5
Because the jury is the sole judge of the credibility of witnesses and of the weight

given to their testimony, any conflicts or inconsistencies in the evidence are

resolved in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000).

B.    Identity Evidence

      As is relevant to Zambrano’s legal sufficiency challenge, the State had the

burden to prove that Zambrano, in the course of committing theft and with the

intent to obtain or maintain control of property, intentionally or knowingly caused

bodily injury to Balderas and used or exhibited a deadly weapon. See TEX. PENAL

CODE ANN. §§ 29.02(a)(1), 29.03(a)(2) (West 2011). Zambrano does not argue that

the State failed to prove an aggravated robbery occurred. Instead, Zambrano

contends there is legally insufficient evidence identifying him as the person who

committed the aggravated robbery. The identity of the person committing the

offense is an element of the crime that must be proved. See Greene v. State, 124

S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that

identity is element of offense and may be proven by direct or circumstantial

evidence). Courts have found sight identification alone to be legally sufficient to

establish identity. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d) (holding eyewitness identification was factually

sufficient to support conviction when complainant saw appellant only on night that


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he robbed her, but complainant testified she recognized appellant by his face and

eyes); Walker v. State, 180 S.W.3d 829, 832−33 (Tex. App.—Houston [14th Dist.]

2005, pet. ref’d) (holding identification by only one eyewitness was legally

sufficient to support conviction when appellant robbed complainant at gunpoint

and robbery lasted less than one minute).

      Here, Balderas twice identified Zambrano as the individual who robbed him

at knife-point: first, at the scene of Zambrano’s arrest not long after the robbery

occurred and second, during trial. Zambrano complains that Balderas’s

identification was not credible because (1) the lighting in the area where the

robbery occurred was dim; (2) Balderas had never seen Zambrano before the

robbery; and (3) Balderas only gave a general description of the assailant, which

description did not include the faint goatee Officer Nguyen described Zambrano as

having. However, Balderas testified that he was “as positive as [he had] ever been

in his life” that Zambrano was the person who committed the robbery. Balderas

explained that the overhead lighting where the robbery occurred enabled him to

clearly see Zambrano’s face, including a uniquely identifying physical

characteristic―a circular tattoo under Zambrano’s eye. Zambrano was in the area

where the robbery occurred not long after Balderas reported the incident to police.

At the time he was detained by Officer Nguyen, Zambrano was dressed in the

manner described by Balderas―dark clothing and a black hat embellished with a

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Houston athletic team’s logo and a red bill. A knife generally matching the one

described by Balderas at trial was found on Zambrano’s person.

      Because the jury, as the sole judge of the weight to be given the conflicting

evidence regarding the size of the knife used during the robbery, was free to

disregard the hospital records indicating that the “mechanism of [Balderas’s]

injury” was a “steak knife with a 6-inch blade,” this Court is required to resolve

any inconsistencies in favor of the verdict. See Wesbrook, 29 S.W.3d at 111.

Balderas’s testimony alone, as the testimony of an eyewitness to the robbery, was

sufficient to support Zambrano’s conviction. See Johnson, 176 S.W.3d at 78

(observing that testimony of single eyewitness can be factually sufficient to

support a felony conviction). Based on Balderas’s testimony, a rational jury could

have concluded that Zambrano was the robber. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789. The lack of additional identification or forensic evidence does not

render the evidence of Zambrano’s guilt legally insufficient. See Johnson, 176

S.W.3d at 77−78 (holding that lack of forensic evidence will not overturn guilty

verdict based on insufficiency of evidence where other evidence connects

defendant to crime). We therefore hold that the evidence is legally sufficient to

support the jury’s verdict, and we overrule Zambrano’s first issue.




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                               Motion to Suppress

      In his second issue, Zambrano argues that the trial court erred by denying his

motion to suppress evidence―the knife recovered from his pocket and Balderas’s

at-the-scene identification―because the evidence was the product of an unlawful

arrest. Zambrano contends that Officer Nguyen’s investigative detention evolved

into an unlawful arrest because no reasonable person would have believed that he

was free to leave after being handcuffed.

A.    Standard of Review

      In reviewing the trial court’s ruling on a motion to suppress evidence, we

apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000). We review the evidence in the light most favorable to the

trial court’s ruling and give “almost total deference” to the trial court’s

determinations of historical facts and rulings on mixed questions of law and fact

that depend on an evaluation of credibility and demeanor. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012); Carmouche, 10 S.W.3d at 327. But we

apply a de novo standard of review to the application of search and seizure law and

to mixed questions of law and fact that do not depend on credibility and demeanor.

Gonzales, 369 S.W.3d at 854; Carmouche, 10 S.W.3d at 327.




                                            9
B.    Restraint during Investigative Detention

      A law enforcement officer may conduct a brief investigative detention, or

“Terry stop,” when he has a reasonable suspicion that an individual is involved in

criminal activity. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968);

Carmouche, 10 S.W.3d at 327−28. Here, Zambrano does not dispute that Officer

Nguyen could reasonably suspect that Zambrano had robbed Balderas. The robbery

had occurred less than an hour before Nguyen encountered Zambrano, who

matched the description of the assailant. Zambrano was dressed in dark clothing,

wore a black and red hat, and had a circular tattoo under his eye. Rather,

Zambrano’s argument is that because Nguyen placed him in handcuffs at that time,

he was under arrest.

      Zambrano is correct that he was not free to leave once he was placed in

handcuffs; however, it was not because he was under arrest―it was because he

was temporarily detained while Nguyen conducted his investigation. That is

precisely what Terry permits—a temporary detention, in which the suspect is not

free to leave, while the police officer investigates whether a crime has been

committed. See 392 U.S at 30–31, 88 S. Ct. at 1884−85. The use of handcuffs does

not automatically convert a temporary detention into an arrest. See Balentine v.

State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (holding that police officers

who temporarily handcuffed and detained suspect in their patrol car had not


                                       10
“arrested” him for purposes of the Fourth Amendment and stating, “There is no

bright-line test providing that mere handcuffing is always the equivalent of an

arrest. Instead, when evaluating whether an investigative detention is unreasonable,

‘common sense and ordinary human experience must govern over rigid criteria.’”)

(citation omitted) (quoting Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App.

1997)); Rhodes, 945 S.W.2d at 117−18 (holding that officer handcuffed defendant

“primarily out of concern for his safety, based on the circumstances: it was dark;

the area was a high-crime location; the officers had just concluded a car chase

which was initiated due to commission of a traffic violation and during which a

bag was dropped from the car; and, his partner was chasing the driver, leaving [the

officer] alone with the suspect”; and that handcuffing was reasonable under the

circumstances and did not constitute an arrest); Mays v. State, 726 S.W.2d 937,

943–44 (Tex. Crim. App. 1986) (holding that officer’s conduct in handcuffing two

men was not an arrest and was reasonable under circumstances as temporary

investigative detention: lone police officer arrived at scene of possible burglary and

saw two men in front of door; officer told men that he would have to frisk them; he

did so; and then handcuffed them for his own protection, “[d]ue to the nature of the

call and the way they were acting scared like maybe they had been caught at

something, and I was all alone, and two of them, and they [were] both bigger than I

was.”). An officer may handcuff a suspect during an investigative detention if it is

                                         11
reasonably necessary to continue the investigation, maintain the status quo, or

ensure the officer’s safety. See Rhodes, 945 S.W.2d at 117.

      Officer Nguyen testified that he handcuffed Zambrano because he feared for

his safety. Nguyen’s safety concerns were reasonable under the circumstances: it

was late at night; Zambrano matched the description of the assailant; Nguyen

believed Zambrano might be in possession of a knife, which he had already used to

injure Balderas; and Nguyen was alone and outnumbered by Zambrano and his

companion. By handcuffing Zambrano, Nguyen did only that which was

reasonably necessary to ensure his own safety while investigating Zambrano’s

possible involvement in the aggravated robbery. See Ballentine, 71 S.W.3d at 771;

see also Turner v. State, 252 S.W.3d 571, 580 (Tex. App.—Houston [14th Dist.]

2008, pet. ref’d) (holding that suspect was not in custody when officer handcuffed

him for officer safety while transporting him to police station).

      We therefore conclude that Nguyen’s investigative detention in this case did

not evolve into an arrest when he handcuffed Zambrano, and the trial court did not

abuse its discretion in denying Zambrano’s motion to suppress evidence obtained

as a result of the detention and search. Zambrano’s second issue is overruled.




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                                  Concluding

      Having overruled both of Zambrano’s issues on appeal, we affirm the

judgment of the trial court.




                                            Harvey Brown
                                            Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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