Opinion issued July 26, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-17-00295-CR
                            ———————————
                     DARYL LEE SAAVEDRA, Appellant
                                             V.
                       THE STATE OF TEXAS, Appellee


               On Appeal from the 412th Judicial District Court
                           Brazoria County, Texas
                      Trial Court Case No. 76576-CR


                          MEMORANDUM OPINION

      A jury found appellant, Daryl Lee Saavedra, guilty of the offenses of

aggravated robbery1 and aggravated assault.2 After finding true the allegation in an


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
2
      See id. § 22.02(a)(2) (Vernon 2011).
enhancement paragraph in each indictment that appellant had been previously

convicted of a felony offense, the trial court assessed his punishment at

confinement for forty-eight years for the offense of aggravated robbery and

twenty-five years for the offense of aggravated assault. And it ordered that the

sentences run concurrently. In two issues, appellant contends that the evidence is

legally insufficient to support his convictions and the trial erred in instructing the

jury on the law of parties.

      We affirm.

                                    Background

      Javier Cruz-Tovias, the first complainant, testified that on June 26, 2015,

while he was preparing to vacuum the inside of his truck at a self-service car wash

with his sister, Maria Oviedo, the second complainant, he heard a noise, “turned

around,” and saw appellant was “pointing at [him] with a gun.”             Appellant

“hollered” at Cruz-Tovias to “give [him] the money, to give him [the] . . . money,”

saying it “in English and Spanish.”           He pointed a small “black handgun”

approximately six to eight inches from Cruz-Tovias’s head. At the same time,

appellant also noticed Oviedo and “hollered at her, hey, you girl, don’t move.” As

Cruz-Tovias reached for his wallet to give appellant money, appellant “grabbed”

the wallet from him. He also took Cruz-Tovias’s ring off of his finger and ripped a

chain from his neck. “After [appellant] took everything[,] he pointed and he fired


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a shot.” Cruz-Tovias did not know “if [the shot] was at [him] or the truck”

because, as appellant fired, Cruz-Tovias “threw [himself] in the truck.” Appellant

then “got in a car,” and it drove off.

      Soon after, a law enforcement officer arrived at the scene and took Cruz-

Tovias and Oviedo to another location to determine whether they recognized two

detained individuals. Of the two, Cruz-Tovias identified appellant as the assailant,

noting that he recognized appellant’s face and stating, “I don’t [sic] forget it. And

the tattoo.” He also identified appellant in court as the person with the firearm

who had robbed him. However, Cruz-Tovias “never saw” the driver of the car in

which appellant had fled.

      Oviedo testified that on June 26, 2015, she and Cruz-Tovias went to a self-

service car wash to “wash the[ir] truck.” As they prepared to vacuum the truck,

she heard appellant demanding money from Cruz-Tovias. Oviedo explained that

appellant pointed a “little . . . black” firearm at Cruz-Tovias. And when she “went

to get [her] wallet,” appellant saw her through the truck’s window. He then

pointed his firearm at Oviedo and told her not to move, which scared her and made

her nervous. Appellant did not take anything from Oviedo, but he took Cruz-

Tovias’s “ring,” “chain,” and wallet. She then “heard the shot that was fired,” a

“car came real fast,” and appellant got in the passenger side of the car, which drove

off. Oviedo further testified that a law enforcement officer subsequently arrived


                                         3
and took her and Cruz-Tovias to a parking lot where they both identified appellant

as the person with the firearm who had robbed Cruz-Tovias. And she identified

him again in court. Oviedo noted, however, that she and Cruz-Tovias could not

identify the driver of the car in which appellant had fled.

      Carrie Banuelos testified that, in June 2015, while she was at the self-service

car wash after lunch, she saw “a guy in a large Ford SUV vacuuming his car.” A

gray, four-door Honda Accord then drove up with a driver and a passenger. When

the car stopped, “the passenger got out with a gun,” “pulled his arm

up . . . sideways,” and “went towards that guy vacuuming his car.” As soon as she

saw the gun, Banuelos drove away. As she drove, she called for emergency

assistance and “hear[d] a gunshot.” Banuelos then drove to a school parking lot

where she met with a law enforcement officer and told him what she had seen. She

told the officer that the person with the firearm was a “[l]ight skinned Hispanic”

with “really short hair” and “the driver [of the car] and the passenger . . . looked

pretty similar.” Although Banuelos in court identified appellant as the person that

she had seen with the firearm at the car wash, she admitted that she was “not sure”

whether appellant was the driver of the car or the person with the firearm.

      Brazoria County Sheriff’s Department Deputy J. Staner testified that while

he was on patrol on June 26, 2015, “the City of Pearland . . . put out a be-on-the-

lookout for a suspect vehicle that was used in an [a]ggravated [r]obbery.” The


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description given for the car “was a four-door silver car with paper tags.” Staner

then heard over his radio that a “unit farther north” of him had located the car, so

he headed in that direction “to try to intercept them.”      Staner explained that

because the car did not stop for law enforcement officers, he “joined the pursuit,”

which included several patrol cars with activated emergency lights. Eventually the

car stopped when it “rear-ended” another car. “After the vehicle crashed[,] the

driver exited the vehicle and ran west or northwest across the southbound lanes of

Interstate 45 into a wooded area.”    However, the passenger of the car “stuck his

hands out of the window . . . and [Staner] made contact with the passenger and

took him into custody.”

      Deputy Staner further testified that appellant was the person he took into

custody on June 26, 2015, and although appellant did not have a firearm on him,

Staner saw one in the car “on the floor.” He also noted that Cruz-Tovias and

Oviedo positively identified appellant as the person who had robbed Cruz-Tovias

with a firearm. And Staner explained that a firearm is a deadly weapon capable of

causing serious bodily injury or death.

      Pearland Police Department (“PPD”) Detective J. Albin testified that on

June 26, 2015, he was the first law enforcement officer to arrive at the car wash

after the robbery. He met with Cruz-Tovias and Oviedo, and he collected a “shell

casing” near their truck. Albin also identified a “mark” on the ground, which


                                          5
indicated a bullet strike near where Cruz-Tovias had been standing when appellant

pointed a firearm at him.

      PPD Detective E. Morton testified that on June 26, 2015, he collected

evidence from the car in which appellant had been a passenger after the robbery.

Inside the car, he found items belonging to Cruz-Tovias, including a Texas driver’s

license with the name “Javier Cruz Tovias.” Morton also found a “white towel

with some bullets” in it and a “handgun . . . between . . . the passenger seat and the

door jamb.”

      PPD Detective S. Weaver testified that on June 26, 2015, he met Cruz-

Tovias and Oviedo at the car wash and then took them to another location to see

whether they could identify the person who, with a firearm, had robbed Cruz-

Tovias. Cruz-Tovias and Oviedo identified appellant as the passenger of the car

and the man with the firearm. Weaver also noted that law enforcement officers

recovered $282 from the driver upon his arrest and the following from the car in

which appellant was a passenger: $283 inside a wallet, “$8 in Mexican currency,”

a “gold ring, a gold necklace,” a “Texas driver’s license,” a “visa prepaid debit

card,” a “Mexican resident ID card,” and a “Western Union” card. These items

were consistent with Cruz-Tovias’s description of the items that had been stolen,

and Cruz-Tovias identified them as belonging to him upon viewing them.




                                          6
      Shane Windsor, a forensic scientist for the Texas Department of Public

Safety Crime Laboratory in Houston, testified that he performed an analysis of the

shell casing and firearm collected in this case. He concluded that the shell casing

recovered by Detective Albin from the car wash had been fired by the same

firearm recovered from the passenger seat of the car in which appellant had been a

passenger after the robbery.

                               Sufficiency of Evidence

      In his first issue, appellant argues that the evidence is legally insufficient to

support his convictions for aggravated robbery, as to Cruz-Tovias, and aggravated

assault, as to Oviedo, because “his intent to obtain and maintain control of

[Cruz-]Tovias’s wallet, at the time he turned toward him with [a] firearm was not

shown” and “the [S]tate had to prove [that] [a]ppellant, did then and there while in

the course of committing theft of property owned by . . . Oviedo, and with intent to

obtain or maintain control of said property, intentionally or knowingly threaten or

place . . . Oviedo in fear of imminent bodily injury or death, and said defendant did

use or exhibit a deadly weapon, namely, a firearm.”

      We review the legal sufficiency of the evidence by considering all the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789


                                          7
(1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role

is that of a due process safeguard, ensuring only the rationality of the trier of fact’s

finding of the essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference

to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at

750. However, our duty requires us to “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused. Id.

      In reviewing the legal sufficiency of the evidence, we treat direct and

circumstantial evidence equally because circumstantial evidence is just as

probative as direct evidence in establishing the guilt of a defendant. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence

constitutes “direct proof of a secondary fact which, by logical inference,

demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684

(Tex. Crim. App. 1984). And it alone can be sufficient to establish guilt. Clayton,

235 S.W.3d at 778. Further, the “cumulative force” of all the circumstantial

evidence in a case can be sufficient to support a jury finding of guilt beyond a

reasonable doubt. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).




                                           8
      “Intent is almost always proven by circumstantial evidence.” Trevino v.

State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet. ref’d); see also

Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the

requisite intent is not required.”); Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer intent from any facts

which tend to prove its existence, including the acts, words, and conduct of the

accused, and the method of committing the crime and from the nature of wounds

inflicted on the victims.” Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.

App. 1999).

Aggravated Robbery

      A person commits the offense of 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.” TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A person

commits the offense of aggravated robbery if he commits a robbery and “uses or

exhibits a deadly weapon.” Id. § 29.03(a)(2) (Vernon 2011).          A firearm is

considered a deadly weapon per se. Id. § 1.07(a)(17)(A) (Vernon Supp. 2017);

Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). “‘In the course of committing theft’ means conduct that occurs in an

attempt to commit, during the commission, or in immediate flight after the attempt


                                        9
or commission of theft.” TEX. PENAL CODE ANN. § 29.01(1) (Vernon 2011). Theft

is the unlawful appropriation of property with intent to deprive the owner of the

property. Id. § 31.03(a) (Vernon Supp. 2017).

      Here, Cruz-Tovias and Oviedo both, shortly after the robbery and again at

trial, positively identified appellant as the person with the firearm who had robbed

Cruz-Tovias. And they identified him in court as the assailant. Cruz-Tovias

testified that appellant held a firearm six to eight inches from his head and

demanded money. Appellant then took cash and other belongings from him, fired

a shot, and got into the passenger side of a car that drove away. Cruz-Tovias

recognized appellant by “[h]is face, I don’t [sic] forget it” and his “tattoo.”

Further, Oviedo testified that appellant pointed a firearm to Cruz-Tovias’s head

and took his wallet, ring, and chain necklace. And Banuelos testified that she saw

appellant approach Cruz-Tovias with a firearm. Additionally, Deputy Staner and

Detective Morton testified that, immediately following the robbery, law

enforcement officers recovered a firearm from the passenger side of the car in

which appellant was a passenger. And Windsor’s testimony links that firearm to

the shell casing recovered by Detective Albin at the car wash.

      Such evidence is sufficient to support appellant’s conviction for the

aggravated robbery of Cruz-Tovias. See Gilmore v. State, 397 S.W.3d 226, 240

(Tex. App.—Fort Worth 2012, pet. ref’d) (complainant unequivocally identified


                                        10
defendant as shooter and “jury could have reasonably concluded beyond a

reasonable doubt that [defendant] was the man in the park who shot [complainant]

based on th[is] identification testimony alone”); see also Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (complainant’s identification

of defendant “as the man who raped her” sufficient); Padilla v. State, 254 S.W.3d

585, 590 (Tex. App.—Eastland 2008, pet. ref’d) (“[T]he victim’s testimony alone

is sufficient to support a guilty verdict.”); Davis v. State, 177 S.W.3d 355, 359

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (“It is well established that a

conviction may be based on the testimony of a single eyewitness.”). We further

note that appellant’s possession of stolen property at the time of his arrest,

including a driver’s license bearing Cruz-Tovias’s name, and the fact that he fled

the scene of the crime permit inferences of guilt. Rollerson v. State, 227 S.W.3d

718, 724–25 (Tex. Crim. App. 2007) (“[A] defendant’s unexplained possession of

property recently stolen in a burglary permits an inference that the defendant is the

one who committed the burglary.”); Sosa v. State, 177 S.W.3d 227, 230 (Tex.

App.—Houston [1st Dist.] 2005, no pet.) (“[E]vidence of flight from a crime scene

is a circumstance from which an inference of guilt may be drawn.”).

      Although appellant asserts that “his intent to obtain or maintain control of

Tovias’[s] wallet, at the time he turned toward him with the firearm, was not

shown,” Cruz-Tovias testified that appellant grabbed his wallet from him as he was


                                         11
attempting to give appellant money from it. And Cruz-Tovias and Oviedo testified

that appellant approached them with a firearm and demanded money. See Edwards

v. State, 497 S.W.3d 147, 159 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)

(“The intent to obtain or maintain control of property may be inferred from

appellant’s actions and a verbal demand for money or property is not required.”).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have determined beyond a reasonable doubt that appellant

committed the aggravated robbery of Cruz-Tovias. Accordingly, we hold that the

evidence is legally sufficient to support appellant’s conviction for the offense of

aggravated robbery.

Aggravated Assault

      A person commits an assault if he “intentionally or knowingly threatens

another with imminent bodily injury.” TEX. PENAL CODE ANN. § 22.01(a)(2)

(Vernon Supp. 2017). A person commits the offense of aggravated assault if he

“commits assault as defined in [section] 22.01 and [he] . . . uses or exhibits a

deadly weapon during the commission of the assault.” Id. § 22.02(a)(2) (Vernon

2011). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A); see also Jones

v. State, 500 S.W.3d 106, 113 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

“‘Bodily injury’ means physical pain, illness, or any impairment of physical

condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon Supp. 2017). “The


                                        12
display of a deadly weapon of and within itself constitutes a threat of the required

imminent harm.” Sosa, 177 S.W.3d at 231 (quoting Robinson v. State, 596 S.W.2d

130, 133 n.7 (Tex. Crim. App. 1980)).

      As discussed above, Cruz-Tovias and Oviedo both positively identified

appellant as the person with the firearm who had robbed Cruz-Tovias.           And

Banuelos testified that she saw appellant approach them with a firearm. Windsor’s

testimony links the firearm recovered from the passenger side of the car, in which

appellant was a passenger immediately following the robbery, as described in the

testimony of Deputy Staner and Officer Morton, to the shell casing recovered by

Detective Albin at the car wash. Oviedo also testified that appellant pointed his

firearm at her and told her not to move while he was in the process of robbing

Cruz-Tovias and that she was scared. And Cruz-Tovias and Oviedo both testified

that appellant fired a shot from the firearm before fleeing the scene. “The act of

pointing a loaded gun at someone, by itself, is threatening conduct that supports a

conviction for aggravated assault.” Jones, 500 S.W.3d at 113; see also Robinson,

596 S.W.2d at 133 n.7 (“[T]he display of a deadly weapon of and within itself

constitutes a threat of the required imminent harm.”); Peterson v. State, 574

S.W.2d 90, 92 (Tex. Crim. App. [Panel Op.] 1978) (“[I]mplicit in the allegation

that a ‘Deadly Weapon’ was used to threaten the complainant is the possibility that

the complainant was threatened with death as well as bodily injury.”); Boston v.


                                        13
State, 373 S.W.3d 832, 840 (Tex. App.—Austin 2012) (“The act of pointing a gun

at an individual is, by itself, threatening conduct.”), aff’d, 410 S.W.3d 321 (Tex.

Crim. App. 2013); Sosa, 177 S.W.3d at 231 (“[D]isplay of a deadly weapon while

demanding money constitutes a threat of the required imminent harm.”).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have determined beyond a reasonable doubt that appellant

committed the aggravated assault of Oviedo.        Accordingly, we hold that the

evidence is legally sufficient to support appellant’s conviction for the offense of

aggravated assault.

      We overrule appellant’s first issue.

                                  Law of Parties

      In his second issue, appellant argues that the trial court erred in instructing

the jury, over his attorney’s objection, on law of parties in its charge because the

State’s evidence concerned appellant’s actions as a principal actor and not as only

a party to the offenses.

      A review of alleged jury-charge error is a two-step process. See Ngo v.

State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State, 871

S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether

error exists in the charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.

2013). Second, if there is error, the court must determine whether the error caused


                                         14
sufficient harm to require reversal of the conviction.       Id.   When there is an

objection to preserve the error, the appellate court will reverse if the defendant

demonstrates that he suffered “some harm.” Sakil v. State, 287 S.W.3d 23, 25–26

(Tex. Crim. App. 2009).

      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.” TEX. PENAL CODE

ANN. § 7.01(a) (Vernon 2011). A person is “criminally responsible” for an offense

committed by the conduct of another 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 to commit the offense.” Id. § 7.02(a)(2) (Vernon 2011). “In

general, an instruction on the law of parties may be given to the jury whenever

there is sufficient evidence to support a jury verdict that the defendant is criminally

responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex.

Crim. App. 1999).

      From our review of the record, the evidence presented at trial would support

a jury verdict that the appellant is criminally responsible under the law of parties.

At trial, appellant’s counsel questioned witnesses as to whether appellant was the

driver or passenger of the car in which he was found after the robbery. Testimony

from three witnesses established that the passenger of the car is the person who,


                                          15
while using a firearm, robbed Cruz-Tovias and assaulted Oviedo. The driver,

however, drove the person with the firearm to the car wash, waited for him to take

Cruz-Tovias’s belongings, and then led law enforcement officers on a lengthy

pursuit, at the end of which he attempted to flee on foot. “Courts have repeatedly

upheld convictions under the law of parties when the evidence establishes that the

defendant participated in the commission of the offense by driving the getaway

vehicle.” Rodriguez v. State, 521 S.W.3d 822, 828 (Tex. App.—Houston [1st

Dist.] 2017, no pet.). Accordingly, we hold that the trial court did not err in

submitting the law-of-parties instruction to the jury.

      However, we note that because there is, as previously discussed, sufficient

evidence to support appellant’s guilt as a principal actor, any error in submitting

the parties instruction would have been harmless. Black v. State, 723 S.W.2d 674,

675 (Tex. Crim. App. 1986) (“Where the evidence clearly supports a defendant’s

guilt as a principal actor, any error of the trial court in charging on the law of the

parties is harmless.”). “In other words,” if “there was no evidence tending to show

appellant’s guilt as a party, the jury almost certainly did not rely upon the parties

instruction in arriving at its verdict, but rather” would have “based the verdict on

the evidence tending to show appellant’s guilt as a principal actor.” Ladd, 3

S.W.3d at 565.

      We overrule appellant’s second issue.


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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Massengale, and Caughey.

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




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