                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00015-CR


DAVID AYALA                                                        APPELLANT

                                             V.

THE STATE OF TEXAS                                                      STATE


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           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1
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                                      I. Introduction

      In one point, Appellant David Ayala appeals his conviction for robbery. We

affirm.




      1
          See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      While driving in Fort Worth, Maria Gonzales, who had her three-year-old

daughter with her, noticed four Hispanic males in a Kia ―turning around and

looking at her.‖ As Gonzales sat at a stoplight, she saw the men jump from the

Kia and ―com[e] at her.‖    One of the men reached into her car through the

partially open window, rolled the window all the way down, unlocked and opened

the door, struck Gonzales in the face, ordered, ―Give me your shit, bitch‖ and

attempted to pull her from the car. Fearing for her daughter’s safety, Gonzales

stepped on the gas and sped away. After the incident, Gonzales told Fort Worth

Police Officer Tammy Robinson that her brother’s childhood friend, ―David,‖ was

one of the men in the Kia. Gonzales later identified Ayala in a photo lineup.

      At trial, Officer Robinson testified that on the night of the incident,

Gonzales’s left cheek was red and swollen and both Gonzales and her daughter

were upset and appeared to have been crying. Officer J.G. Wilson testified that

on the night of the incident, he dusted Gonzales’s car for fingerprints and

obtained ―ten lifts‖2 from the driver’s side of the car. Tammy McLean, a latent

print examiner employed by the Fort Worth Police Department, testified that a

mathematically-based computerized analysis identified Ayala as the strongest

possible match to the fingerprints lifted from Gonzales’s car and that she



      2
       A ―lift‖ consists of a single piece of fingerprint tape and may include more
than one individual fingerprint.

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compared and matched Ayala’s known prints to the prints lifted from the left rear

window of Gonzales’s car.

      Gonzales identified Ayala at trial and testified that on the night of the

incident, she recognized Ayala as the man in the Kia’s front passenger seat, that

she had not seen Ayala in several years, that there were no alternate reasons for

his fingerprints to be on her car, and that she believed the men were trying to

steal her car to obtain its decorative rims and sound system. Gonzales also

stated that she was unable to identify the other men involved or which of the four

men struck her.

      A jury found Ayala guilty of robbery and sentenced him to ten years’

confinement. This appeal followed.

                        III. Sufficiency of the Evidence

      Ayala challenges the legal and factual sufficiency of the evidence to

support his conviction. However, as the court of criminal appeals has recently

overruled Clewis v. State, 922 S.W.2d 126, 133–34 (Tex. Crim. App. 1996), we

review his sufficiency complaint under only the standard set out in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). See Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922

S.W.2d 126 (Tex. Crim. App. 1996)).

      The jury charge in this case authorized the jury to convict Ayala of robbery

as a principal or as a party. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon



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2003).    We review whether the evidence is sufficient to support Ayala’s

conviction under the law of parties.3

A. Standard of Review

      In reviewing the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99

S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009).       Thus, when performing a sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead,

we ―determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

      3
       The undisputed evidence presented at trial showed that Gonzales could
not identify which of the four men actually struck her.

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favorable to the verdict.‖ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.

2007). We must presume that the factfinder resolved any conflicting inferences

in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326,

99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Applicable Law

      A person commits robbery if in the course of committing theft and with

intent to obtain or maintain control of the property, he intentionally or knowingly

causes bodily injury to another. Tex. Penal Code Ann. §§ 29.02(a), 29.03(a)(1)

(Vernon 2003). A person commits theft if he unlawfully appropriates property

with intent to deprive the owner of the property.       See id. § 31.03(a), (b)(1)

(Vernon Supp. 2010).

      Under the law of parties, ―a person is criminally responsible as a party to

an offense if the offense is committed by his own conduct, by the conduct of

another for which he is criminally responsible, or by both.‖ See id. § 7.01(a)

(Vernon 2003); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App.

2005). A person is criminally responsible for the offense of another, and can thus

be convicted as a party, if, acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other

person committing the offense. See Tex. Penal Code Ann. § 7.02(a)(2). Though

mere presence does not automatically make one a party to a crime, it is a

circumstance tending to prove party status and, when considered with other

facts, may be sufficient to prove that the defendant was a participant. Porter v.

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State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel. Op.] 1982). In determining

whether the defendant acted as a party, we review events occurring before,

during, and after the offense and may rely on actions of the defendant that show

an understanding and common design to commit the offense. King v. State, 29

S.W.3d 556, 564 (Tex. Crim. App. 2000).

C. Discussion

      To convict Ayala as a party to robbery, the State had to prove that Ayala

was criminally responsible for the person striking Gonzales.       See Tex. Penal

Code Ann. § 7.02(a)(2); Childress v. State, 917 S.W.2d 489, 493 (Tex. App.—

Dallas 1996, no pet.) (finding defendant party to offense based on presence at

scene and witness testimony). In other words, the State had to prove Ayala

acted with intent to promote or assist the party committing robbery, by soliciting,

encouraging, directing, aiding, or attempting to aid the party that struck

Gonzales. See Tex. Penal Code Ann. § 7.02(a)(2).

      Here, the record reflects that Ayala and three other men followed

Gonzales’s car in the Kia; that at a stoplight all four men, including Ayala, exited

the Kia and approached Gonzales’s car; and that one of the men opened the

driver side door, demanded Gonzales’s property, and struck her in the face when

she failed to comply. Additionally, Ayala’s fingerprints were found on Gonzales’s

car window. The jury could have reasonably inferred that Ayala exited the Kia

and approached Gonzales’s car at the same time as the other three men and

that, by doing so, Ayala had agreed to be a party to using physical force to take

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Gonzales’s property. See Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d) (designated for partial publication)

(concluding that by driving passenger from scene after watching passenger

cause injury to another while trying to steal a purse, appellant-driver was party to

robbery). Viewing the evidence in the light most favorable to the prosecution and

considering the events before, during, and after the incident, we conclude that

the jury could have found beyond a reasonable doubt that Ayala was criminally

responsible for the offense of robbery.        Therefore the evidence is legally

sufficient to sustain his conviction. We overrule Ayala’s sole point.

                                 IV. Conclusion

      Having overruled Ayala’s sole point, we affirm the trial court’s judgment.



                                                    BOB MCCOY
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 6, 2011




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