Affirmed and Memorandum Opinion filed April 24, 2012.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-01196-CR


                        FRANCISCO CERVANTES, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 338th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1244022


                   MEMORANDUM OPINION

       In two issues, appellant, Francisco Cervantes, contends (1) the evidence is legally
insufficient to support his conviction for aggravated robbery with a deadly weapon and
(2) the trial court erred by admitting certain evidence. We affirm.

                                    I. BACKGROUND

       According to the State’s evidence, at approximately 5:30 p.m. on November 16,
2009, complainant Jimmy Sanchez was vacuuming his truck at a carwash. A vehicle
occupied by two men was driven into a nearby carwash stall. Although the men first
seemed suspicious to Sanchez, he resumed vacuuming after the men appeared as though
they intended to wash their vehicle. Then, Sanchez was suddenly struck in the back of
his neck. He turned to see one of the men, whom Sanchez later identified as appellant,
pointing a revolver at Sanchez. Appellant instructed Sanchez to place his wallet, keys,
and phone inside his truck. Sanchez complied except for retaining his wallet. Appellant
ordered Sanchez to start the ignition, but Sanchez refused based on fear appellant might
drive off while Sanchez was inside the vehicle. When appellant entered the truck,
Sanchez was about to run, but appellant’s accomplice pushed Sanchez against the back of
the truck. Once Sanchez realized the accomplice did not have a gun, Sanchez tried to
escape. Appellant then exited the truck and approached, pointed the revolver at Sanchez,
and ordered, “give me your wallet or I’m going to shoot you.” Sanchez threw his wallet
several feet away hoping to divert appellant from Sanchez. Appellant retrieved the
wallet. The accomplice then ordered Sanchez to leave. Sanchez ran toward his nearby
home where his family called 9-1-1.

       The incident was recorded on the carwash surveillance camera, but those
photographs lacked sufficient quality for identification of the perpetrators. From the
photographs, police officers obtained the license number of the perpetrators’ vehicle.
Officers traced the vehicle to the mother of appellant’s accomplice, located the
accomplice in possession of Sanchez’s truck, and eventually discovered appellant’s
identity as a suspect.

       Within a few weeks after the robbery, the police showed Sanchez two separate
photograph arrays, each including six photographs of men with similar appearances. In
the first array, Sanchez identified the accomplice. In the second array, Sanchez “kept
fixating” on appellant’s photograph and then narrowed identification of the gunman to
two photographs, including appellant’s, but could not make a conclusive identification.
Subsequently, Sanchez viewed a live lineup of six persons with similar appearances and
immediately identified appellant as the gunman. At trial, Sanchez identified appellant as
the gunman and then testified he was “pretty certain” of this identification.



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      A jury found appellant guilty of aggravated robbery, and the trial court sentenced
him to twenty-five years’ confinement.

                          II. SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends the evidence is insufficient to support his
conviction.

A.    Standard of Review

      When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We
do not sit as thirteenth juror and may not substitute our judgment for that of the fact
finder by re-evaluating weight and credibility of the evidence.       Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the
fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. This standard applies equally
to both circumstantial and direct evidence. Id. Our duty as reviewing court is to ensure
the evidence presented actually supports a conclusion that the defendant committed the
crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B.    Analysis

      A person commits aggravated robbery “if, in the course of committing theft . . .
and with intent to obtain or maintain control of the property, he . . . intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death” and
“uses or exhibits a deadly weapon.” Tex. Penal Code Ann. §§ 29.02(a)(2); 29.03(a)(2)
(West 2011). Appellant does not dispute that Sanchez was the victim of an aggravated
robbery. Rather, appellant argues there is no evidence identifying him as one of the
robbers.

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       Appellant emphasizes Sanchez’s testimony that he was “pretty certain” appellant
was one of the robbers and Sanchez’s failure to conclusively identify appellant in a
photograph array. We disagree that Sanchez’s “pretty certain” statement necessarily
demonstrates he did not positively identify appellant at trial. On a cold record, it is
impossible for us to ascertain the inflection in Sanchez’s voice when he made this
statement. Depending on the inflection, the statement may have reflected he was fairly
certain or alternatively he was very certain. We cannot foreclose the possibility that the
jury believed Sanchez was very certain.

       We also disagree with the suggestion that the jury was required to entirely
discount the result of the photograph array.        The officer conducting this procedure
testified the result was characterized as “negative” because of Sanchez’s failure to
identify only one person. However, the jury could have assigned some weight to the fact
that Sanchez was “fixating” on appellant’s photograph and narrowed his identification to
two persons, including appellant. Although appellant emphasizes that the officer did not
note this information on the array or in the police report, the jury was free to believe the
testimony concerning this information.         Moreover, the jury could have considered
Sanchez’s “pretty certain” statement at trial and the result of the array together with his
positive identification of appellant in the live lineup.

       Nonetheless, the jury could have found beyond a reasonable doubt that appellant
was one of the robbers based solely on Sanchez’s identification in the live lineup.
However, appellant seems to challenge this identification, noting he was the only person
in the lineup whose photograph was included in the array and Sanchez immediately
identified appellant before hearing him speak. However, it was the jury’s role to decide
whether these factors affected credibility of the lineup identification. The jury could have
reasonably reached the following conclusions: (1) Sanchez’s failure to conclusively
identify one perpetrator in the array increased credibility of his lineup identification by
demonstrating he was unwilling to identify a suspect unless he was positive; (2) Sanchez
correctly identified appellant in the lineup based solely on appearance without the

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necessity of hearing his voice because the robbery scene was “well lit” and Sanchez
testified he had a “good look” at appellant during the incident and appellant exhibited the
same smirk during the lineup and the robbery; and (3) the lineup identification carried
greater weight than appellant’s “pretty certain” statement at trial because appellant’s
physical appearance at the time of the robbery and his arrest (when he was mostly bald)
differed from his appearance at trial (when he had more hair).

       Additionally, appellant relies on the following facts, apparently to challenge all
identification evidence: the robbery lasted only a few minutes; Sanchez was scared
during the incident; and Sanchez described appellant to an investigating officer as 5'7'' to
5'9'' tall and weighing between 200 and 220 pounds, whereas a “criminal history check”
performed by officers after the robbery reflected appellant stood 6'1'' and weighed 240
pounds. Again, the jury was free to consider these facts when evaluating credibility of
the identifications and could have reasonably concluded (1) despite his fear, Sanchez
correctly recalled details of the incident, including appellant’s appearance, because
Sanchez maintained sufficient composure to avoid being abducted in his truck, attempt an
escape, and throw his wallet, and (2) appellant’s weight may have changed between the
time it was previously recorded in police records and the robbery, and (3) any variance
between Sanchez’s description and appellant’s actual height and weight was not so
significant that it negated Sanchez’s subsequent identification because he clearly viewed
appellant’s face during the robbery.
       Finally, appellant relies on the following facts when arguing there was no other
evidence connecting appellant to the offense: ownership of the vehicle occupied by the
robbers was traced to the accomplice’s mother—not appellant; officers found Sanchez’s
truck in the accomplice’s possession after the robbery; the carwash surveillance
photographs lacked sufficient quality for positive identification of the gunman; and there
was no fingerprint evidence obtained at the scene that linked appellant to the offense.
However, lack of surveillance footage or fingerprint evidence linking appellant to the
offense does not render the evidence insufficient to support his conviction, in light of


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Sanchez’s positive identification. See Harmon v. State, 167 S.W.3d 610, 614 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d) (recognizing complainant’s identification
was alone sufficient to support conviction despite lack of fingerprints or DNA evidence
connecting appellant to robbery and fact that gun used in robbery and victim’s stolen
currency were not recovered from appellant). Moreover, the fact that appellant did not
own the vehicle occupied by the robbers or maintain possession of Sanchez’s truck after
the robbery did not negate evidence proving appellant’s participation in the offense. See
id.

       In sum, the evidence is legally sufficient to support the conviction. We overrule
appellant’s first issue.

                                 III. ADMISSION OF EVIDENCE

       In appellant’s second issue, he contends the trial court erred by admitting
testimony from a police officer that he observed appellant and the accomplice sitting
together at a park approximately one month before the robbery. Consistent with his trial
objections, appellant contends this testimony was irrelevant or alternatively any relevance
was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 402,
403. With respect to both contentions, appellant suggests that, in light of evidence
“solidly link[ing]” the accomplice, but not appellant, to the robbery, the trial court
improperly permitted the State to rely solely on testimony the men were observed
together a month before the robbery to prove appellant was also a party.
       Assuming, without deciding, that the trial court erred by admitting the testimony,
we conclude any error was harmless. We must disregard non-constitutional errors that do
not affect a criminal defendant’s “substantial rights.” See Tex. R. App. P. 44.2(b). Under
this standard, an error is reversible only when it had a substantial and injurious effect or
influence in determining the jury’s verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex.
Crim. App. 2008). We should not overturn the conviction if we have fair assurance from
an examination of the record as a whole that the error did not influence the jury, or had
but slight effect. Id. In assessing the likelihood that a jury’s decision was adversely

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affected by the error, we consider the entire record, including any testimony or physical
evidence admitted, nature of the evidence supporting the verdict, character of the alleged
error, and how it might have been considered in connection with other evidence. Motilla
v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider jury
instructions, the State’s theory, any defensive theories, closing argument, voir dire, and
whether the State emphasized the error. Id. at 355–56.
       We recognize the State mentioned the testimony at issue during closing argument,
but only briefly among evidence showing appellant committed the robbery. Further, the
State mentioned the testimony only after appellant first referenced it during his closing
argument. Regardless, when the State presented the testimony, the jury had already heard
evidence regarding Sanchez’s emphatic identification of appellant in the live lineup, other
facts discussed above reflecting this identification was credible, Sanchez’s statement at
trial regarding identification of appellant, and results of the photograph array.
Significantly, there is no indication in the record that, when Sanchez made his separate,
emphatic pre-trial identifications of both the accomplice and appellant, Sanchez knew
these men had been observed together before the robbery. Therefore, we have fair
assurance that the error did not have a substantial and injurious effect or influence in
determining the jury’s verdict. Accordingly, we overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                          /s/       Charles W. Seymore
                                                    Justice




Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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