      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00045-CR



                                    Bryan Ayala, Appellant

                                                v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. CR2014-227, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In two issues, appellant Bryan Ayala asserts that the evidence is insufficient to

support his conviction for aggravated robbery and that the jury’s answer to the special issue

undermines the validity of his conviction. For the following reasons, we will affirm.


                                        BACKGROUND

               The jury heard testimony from complainant Joel Desrosiers, who testified, in relevant

part, as follows:

               On May 15, 2013, Desrosiers received a call from an acquaintance,

Kelly Brown-Brannon, who asked if he would be willing to sell a large amount of pills to two men,

whom she did not identify by name. He agreed and, shortly thereafter, met the men at a gas station.

The two men suggested that they complete the transaction at a nearby hotel where Brown-Brannon

was staying. Desrosiers drove separately to the hotel. When he approached Brown--Brannon’s hotel
room, one of the men, who was later identified as Rumaldo Aguirre, was standing outside.

Desrosiers followed Aguirre into the room, where Brown-Brannon was lying on the bed. Desrosiers

then “noticed somebody come out of the shadows that had a gun on him and then closed the door

behind him.” Both men were standing by the door, and “[Aguirre] ended up with the gun.” Pointing

the gun at Desrosiers, Aguirre ordered Desrosiers to give him everything in his pockets, and

Desrosiers refused. Desrosiers tried to leave but was struck across the face by either a fist or a gun.

He was repeatedly hit, kicked, and choked by two different people. He recalled Brown--Brannon

saying, “choke him out,” and then he passed out. He awoke in the hotel parking lot with multiple

injuries.   The items from his pockets—his keys, wallet, two knives, and prescription

medication—had been taken. He spoke with police who had been called to the scene and was

airlifted to the hospital.

                At trial, Desrosiers positively identified Ayala as the other assailant. Aguirre and

Brown-Brannon also testified that Ayala was the other assailant. The jury found Ayala guilty, and

the trial court sentenced him to 11 years’ imprisonment. Ayala appealed.


                                           DISCUSSION

I.      Sufficiency of the evidence

                In Ayala’s first issue, he asserts the evidence is legally insufficient to support his

conviction for aggravated robbery. Specifically, he argues that insufficient evidence corroborated




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the accomplice-witness testimony provided by Aguirre and Brown-Brannon identifying Ayala as the

other assailant.1


        A.      Standard of review

                When reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the verdict to determine whether, based on the

evidence and reasonable inferences therefrom, any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19

(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The jury is the sole judge

of the weight and credibility of the evidence and may believe all, some, or none of a witness’s

testimony. Tex. Code Crim. Proc. art. 38.04; Brooks, 323 S.W.3d at 899. We may not reevaluate the

weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We defer to the jury’s resolution of any conflicting inferences from the evidence and presume that

it resolved such conflicts in favor of the judgment. Jackson, 443 U.S. at 326; Whatley v. State,

445 S.W.3d 159, 165 (Tex. Crim. App. 2014).


        B.      Aggravated robbery

                As alleged in the indictment in the present case, a person commits an aggravated

robbery if, while in the course of committing theft and with intent to obtain or maintain control of

the property, he uses or exhibits a deadly weapon and either (1) intentionally, knowingly, or


        1
          He also claims that the evidence is factually insufficient to support the conviction, but
evidentiary sufficiency is reviewed under a single standard. See Adames v. State, 353 S.W.3d 854,
859 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)).

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recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death. Tex. Penal Code §§ 29.02(a), 29.03(a)(2).


        C.      The accomplice testimony was sufficiently corroborated

                Ayala claims that the evidence is insufficient because, he contends, Desrosiers’s

testimony does not sufficiently corroborate the testimony of Ayala’s accomplices identifying Ayala

as the third perpetrator.

                The accomplice-witness rule provides that “[a] conviction cannot be had upon the

testimony of an accomplice unless corroborated by other evidence tending to connect the defendant

with the offense committed; and the corroboration is not sufficient if it merely shows the commission

of the offense.” Tex. Code Crim. Proc. art. 38.14. Under this rule, a reviewing court eliminates the

accomplice testimony from consideration and then examines the rest of the record for “any

evidence that tends to connect the accused with the commission of the crime.” Castillo v. State,

221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient

by itself to support the conviction; it need only “tend[] to connect” the defendant to the offense. Id.

                Ayala argues that Desrosiers’s testimony “was insufficient to support a finding of

guilt as to [Ayala] because of his inability to unequivocally identify [Ayala] as the second party with

[Aguirre] in the hotel room.” Ayala cites the fact that, in a photo lineup prior to trial, Desrosiers

identified Ayala as the second assailant, stating that he was “about 80, 85 percent sure that that’s

him.” First, corroborating evidence need only tend to connect the defendant to the offense; it need

not be sufficient by itself to support the conviction. See id. Desrosiers’s identification of Ayala from

a photo lineup with less than complete certainty satisfies that standard. Second, at trial, Ayala did

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unequivocally identify Ayala as the second assailant. The jury was free to find his testimony

credible, and we must defer to that finding. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d

at 899.

                 After a full review of the record, we conclude that the evidence was sufficient to

support Ayala’s conviction.2 We overrule Ayala’s first issue.


II.       The jury’s special-issue finding does not undermine the sufficiency of the evidence to
          support the conviction

                 As previously discussed, the jury found appellant guilty as charged in the indictment,

which alleged aggravated robbery based on the use of a deadly weapon. See Tex. Penal Code

§§ 29.02(a), 29.03(a)(2). On special-issue submission, the jury found that Ayala “did not” use or

exhibit a deadly weapon. In his second issue, Ayala claims that the jury’s answer to the deadly

weapon special issue undermined the validity of the jury’s verdict of conviction. The State argues

that the jury could have rationally found both that Ayala used or exhibited a deadly weapon “while

in the course of committing theft” as alleged in the indictment and not “during the commission of”

the aggravated robbery as alleged in the special issue, which the State contends encompassed a

narrower time frame than did the indictment.

                 Assuming without deciding that the jury’s answer to the special issue was inconsistent

with its finding that Ayala was guilty of aggravated robbery based on the use of a deadly weapon as

          2
         We conclude that the record contains evidence from numerous sources supporting Ayala’s
conviction and also note that Desrosiers’s testimony alone suffices. See Lee v. State,
176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim.
App. 2006) (“The testimony of a single eyewitness is sufficient to support a felony conviction.”);
Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming
conviction for aggravated robbery when central issue involved a single witness’s credibility).

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alleged in the indictment, that inconsistency did not undermine the validity of the conviction. An

affirmative deadly weapon finding affects a defendant’s eligibility for community supervision, not

his guilt or innocence of an offense. See Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2). The Texas

Court of Criminal Appeals has observed that “[i]f a deadly-weapon special issue is submitted to a

jury, the jury may answer that issue ‘no’ even in a case in which use of a deadly weapon is a

necessary element of the offense. Such a result in a jury trial would be internally inconsistent, but

the law does not bar inconsistent verdicts.” Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App.

2015). “When presented with seemingly inconsistent findings regarding a deadly weapon, the

appellate inquiry is limited solely to a determination of whether the evidence is legally sufficient to

support the jury’s verdict.” Lockett v. State, No. 14-03-00601-CR, 2004 WL 3202864, at *2 (Tex.

App.—Houston [14th Dist.] Nov. 24, 2004, no pet.) (mem. op., not designated for publication); see

also United States v. Powell, 469 U.S. 57, 68–69 (1984) (holding that any attempt to determine the

jury’s reasons for reaching inconsistent verdicts would require pure speculation and involve an

improper inquiry into jury’s deliberations); Dunn v. United States, 284 U.S. 390, 393 (1932)

(defendant may not attack conviction on one count if supported by sufficient evidence, even though

that conviction was inconsistent with an acquittal on another count in the same indictment); Ward

v. State, 113 S.W.3d 518, 522 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (internal

inconsistencies within jury verdicts are not bases for reversal; “the only issue on appeal is whether

there is sufficient evidence to support the verdict upon which the conviction is based”). We have

already concluded that the evidence supports Ayala’s conviction. The jury’s negative finding on the




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special issue does not affect the sufficiency of that evidence or the validity of the jury’s verdict of

conviction. See Guthrie-Nail, 506 S.W.3d at 6. We overrule Ayala’s second issue.


                                          CONCLUSION

               We affirm the judgment of conviction.



                                               _________________________________________
                                               Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: December 7, 2017

Do Not Publish




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