                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00629-CR


JUAN MANUEL DELEON                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1285696R

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                        MEMORANDUM OPINION1

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      Appellant Juan Manuel DeLeon appeals from his conviction for aggravated

robbery and forty-year sentence. We affirm.2



      1
       See Tex. R. App. P. 47.4.
      2
       This appeal was originally submitted without oral argument on September
30, 2013, before a panel consisting of Chief Justice Livingston, Justice Gardner,
and Justice Gabriel. See Tex. R. App. P. 39.8; 2nd Tex. App. (Fort Worth) Loc.
R. 3B(2). The court, on its own motion on June 10, 2014, ordered this appeal
                              I. BACKGROUND

      Aurelio Rodriguez lived with his girlfriend, Gardenia Torres. Aurelio and

Appellant were very close friends. In February 2011, Aurelio planned to rob

Travis and Virginia Waters with his brother Jose Rodriguez, Appellant,

Appellant’s brother Eddylberto DeLeon, and Ryan Garcia.         Eddylberto was

friends with the Waterses’ grandson, John Waters, who lived with the Waterses

and his mother in the same home.        Eddylberto had the code to open the

Waterses’ garage. Eddylberto assured the others that cash, jewelry, and gold

could be found in the Waterses’ home.3 Eddylberto drew a map of the home,

and the participants specified what each would do during the robbery, with

Aurelio agreeing to be the getaway driver. The night before the robbery, Aurelio

became sick; thus, Gardenia agreed to be the getaway driver.

      On February 15, 2011, Gardenia, Appellant, and Jose drove to Appellant’s

home to pick up Eddylberto. When they arrived, Appellant went into the house

and returned to the car with a gun. Gardenia, Appellant, Jose, and Eddylberto

then drove to Ryan’s house and picked him up. The five then ensured that John

Waters’s mother was at work and not at the Waterses’ home by checking the

parking lot where she worked. Gardenia then drove to the Waterses’ street and

resubmitted without oral argument on July 1, 2014; assigned the appeal to a new
panel, consisting of Chief Justice Livingston, Justice Dauphinot, and Justice
Gabriel; and assigned the undersigned to author the opinion.
      3
        The Waterses previously had owned a jewelry store and had kept some of
the leftover inventory.


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dropped off Appellant, Jose, Ryan, and Eddylberto. Gardenia saw the four enter

the Waterses’ garage, carrying sacks. Gardenia drove to the end of the street to

wait but stayed on the phone with Ryan so she would know when to return to

pick them up.

      Eighty-four-year-old Virginia, investigating a noise in her garage on

February 15, 2011, was confronted by a “boy” in dark clothes with a cap on his

head, a scarf over his face, and a gun in his hand. The man, who was short,

pointed the gun at Virginia and forced her to lie face down on the floor. 4 Virginia

was aware that four or five other men entered the house. One of the other men,

who seemed to know the location of the Waterses’ safe, demanded that Virginia

give him the combination. One of the robbers heeded Virginia’s pleas that she

was in pain, helped Virginia off the floor and tied her to a chair facing the wall.

The robbers could not get the safe open with the combination, so they untied

Virginia and made her open the safe. They then retied Virginia to the chair. The

robbers took jewelry, including Virginia’s wedding ring; $45,000 in gold coins;

loose diamonds and gems; and $700 in cash.           They also took Travis’s two

hunting rifles, watches, and fountain pens. Before fleeing, the robbers warned

Virginia that they would return and hurt her if she looked back at them. After




      4
      The record revealed that Appellant is significantly shorter than Jose,
Eddylberto, and Ryan.


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about five minutes, Virginia loosened the restraints and ran to a neighbor for

help, and the neighbor called the police.5

      After leaving the Waterses’ home, Ryan told Gardenia to come get them,

which she did. Jose, Eddylberto, Ryan, and Appellant threw “full” bags and two

rifles into the back of Gardenia’s car. As they pulled away, Jose took off his

gloves and threw them out of the car window. Gardenia drove the men to her

home. Appellant’s girlfriend picked up Ryan, Appellant, Eddylberto, and Jose

and took them to a pawn shop. Appellant pawned eight gold and diamond rings,

but in identifying himself, he used his middle name as his first name and provided

his correct driver’s license number and birthdate.     Appellant was paid $285.

Jose—using his correct full name, address, and driver’s license number—sold a

necklace and several diamond rings for $407. Appellant’s girlfriend then dropped

off the four men at a local mall.

      Meanwhile, Fort Worth Police Detective Ernie Pate arrived at the scene of

the robbery. A patrol officer discovered a pair of gloves abandoned in the street

near the Waterses’ home.       After speaking with the Waterses, including John

Waters, Pate suspected that Eddylberto had told the other men how to enter the

home through the garage based on his relationship with John Waters.              In

investigating   Eddylberto’s   known    associates,   including   Appellant,   Pate

discovered an outstanding arrest warrant for Ryan. Pate distributed descriptions

      5
       Virginia could not call the police from her house because the robbers had
taken her cell phone and the phone receiver for her land line.


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of the stolen items to local pawn shops and asked to be notified immediately

when Ryan’s warrant was executed.

      On March 8, 2011, Ryan was stopped for a traffic violation and arrested

based on the outstanding warrant. When the arresting officer stopped Ryan, he

noticed that Ryan had new rims on his car. The arresting officer notified Pate,

who interviewed Ryan and Ryan’s two passengers—Eddylberto and Appellant—

at the scene. Pate obtained all three men’s driver’s license numbers, and all

three consented to DNA tests. Pate later checked Appellant’s driver’s license

number against information provided by pawn shops about their sellers and

discovered Appellant’s pawn-shop sales the day of the robbery.6

      Pate asked Detective Jerry Cedillo to go to Appellant’s house where

Appellant consented to a search of his bedroom. Cedillo asked Appellant if there

were any weapons or drugs in the house. Appellant responded that there were

two handguns, which were found in a laundry basket and in the pocket of

Appellant’s shirt hanging in his closet.7 Appellant told Cedillo that he had some

coins and cash hidden in the room.           Cedillo discovered gold coins, loose

diamonds, and $3,140 in Appellant’s bedroom. Cedillo asked Appellant if the


      6
       Because Appellant did not use his first name when pawning the rings,
Pate’s earlier searches of pawn-shop information did not reveal that Appellant
had sold anything. Virginia later identified several of the items sold with
Appellant’s driver’s license number as having been stolen during the robbery.
      7
         Appellant’s fingerprints were not found on either gun but he later told his
girlfriend, who testified at trial, that he had possessed one of the guns “for a long
time.”

                                         5
coins were from the Waterses’ robbery, and Appellant nodded his head

affirmatively. After Appellant’s arrest, Appellant told his friend that he, Ryan,

Jose, and an unnamed fourth person had robbed the Waterses’ home, entered

the home armed, and tied up an old woman. The Waterses’ rifles were later

discovered in a dumpster near Gardenia’s home. Jose’s DNA was found on one

of the rifles and on the gloves found near the Waterses’ home.

      A grand jury indicted Appellant for the offenses of (1) aggravated robbery

by threatening or placing Virginia, who was sixty-five or older, in fear of imminent

bodily injury or death and (2) aggravated robbery by threatening or placing

Virginia in fear of imminent bodily injury or death and exhibiting a deadly weapon.

See Tex. Penal Code Ann. § 29.03(a)(2), (3)(A) (West 2011). At trial, the State

introduced the pawn-shop ticket of Appellant’s sale after the robbery, which the

trial court admitted over Appellant’s Confrontation-Clause objection. The State

also elicited Pate’s testimony regarding the records of the Department of Public

Safety showing Appellant’s driver’s license number, which the trial court admitted

over Appellant’s relevance objection. A jury found Appellant guilty of aggravated

robbery by threats of an elderly person and assessed his punishment at forty

years’ confinement.

                      II. SUFFICIENCY OF THE EVIDENCE

      In his first point, Appellant argues that the evidence was legally insufficient

to support his conviction because “no physical evidence links the Appellant to the




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home of Ms. Waters during the robbery. No prints, DNA, hair fibers, or witnesses

that are credible can put the Appellant at the scene of the robbery.”

                             A. STANDARD OF REVIEW

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the 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 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor.      Winfrey, 393 S.W.3d at 771;

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not assess

the sufficiency of the evidence by focusing on what evidence the State did not

introduce. Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986).

      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 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.


                                         7
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the fact-finder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

                                   B. APPLICATION

      Appellant is correct that no DNA or fingerprint evidence connects him to

the robbery. But we may not focus on what evidence is missing. See Chambers,

711 S.W.2d at 245. We must focus on the admitted evidence and determine

whether the inferences from that evidence are reasonable based upon the

evidence’s cumulative force when viewed in the light most favorable to the

verdict. Therefore, the absence of DNA or fingerprint evidence does not, ipso

facto, result in a conclusion that the evidence was insufficient to support the

jury’s verdict. Appellant next argues that no “witnesses that are credible can put

Appellant at the scene of the robbery.”             This argument strays from the

appropriate standard of review. We may not evaluate a witness’s credibility as

that is the sole province of the fact-finder. See Tex. Code Crim. Proc. Ann. art.

38.04; Winfrey, 393 S.W.3d at 768.             Thus, in accordance with this review

standard, we look to the cumulative force of the admitted evidence in the

deferential light most favorable to the jury’s verdict.

      The evidence admitted at trial showed that Appellant agreed to rob the

Waterses along with Eddylberto, Jose, Aurelio, and Ryan. Gardenia testified that

she dropped off Appellant, Eddylberto, Jose, and Ryan off at the Waterses’ home


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and that the four returned with full bags and two rifles. That same day, Appellant

and Jose used their driver’s license numbers to pawn several items, which

Virginia later identified as having been stolen from her home.         Although the

majority of the evidence implicating Appellant was introduced through Gardenia’s

testimony, we may not re-evaluate whether Gardenia was credible or not. We

may only view her testimony in the light most favorable to the verdict.          The

cumulative force of this evidence shows that the jury’s verdict was based on the

reasonable inference that Appellant participated in the robbery.          See, e.g.,

Woolridge v. State, No. 04-12-00402-CR, 2014 WL 667500, at *5 (Tex. App.—

San Antonio Feb. 19, 2014, no pet.) (mem. op., not designated for publication);

Landrum v. State, No. 10-08-00359-CR, 2010 WL 3342003, at *2–3 (Tex. App.—

Waco Aug. 25, 2010, pet. ref’d) (mem. op., not designated for publication);

Martinez v. State, 313 S.W.3d 358, 363 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d). Thus, the evidence was sufficient, and we overrule Appellant’s first

point.

                           III. ADMISSION OF EVIDENCE

         In his final two points, Appellant argues the trial court erred by admitting

the pawn-shop ticket of the sale and Appellant’s driver’s license information. We

review a trial court’s decision to admit evidence under an abuse-of-discretion

standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on

reh’g). If the trial court’s ruling falls within the zone of reasonable disagreement,


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we will affirm it. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003). Relevant evidence is presumed admissible. Montgomery, 810 S.W.2d at

389.

                               A. PAWN-SHOP TICKET

       In his second point, Appellant contends that the trial court erred by

admitting the pawn ticket, which showed what Appellant had pawned on

February 15, 2011, because it violated his right to confront and cross-examine

the pawn-shop employee who had bought the rings from Appellant and had filled

out the ticket—Zach Pope.

       At trial, Virginia identified several pieces of jewelry in photographs as

pieces that had been taken from her home on February 15, 2011. The State

then offered the pawn-shop ticket into evidence as a business record. See Tex.

R. Evid. 803(6). In response to Appellant’s Confrontation-Clause objection, the

State argued that Pope was “in fact, one of the witnesses that’s on deck to testify

today.” The trial court stated that the ticket was a business record not subject to

cross-examination, overruled Appellant’s objection, and admitted the pawn-shop

ticket during Virginia’s testimony.

       Pope testified later that same day and confirmed that he was the clerk who

had filled out the ticket for Appellant’s sale on February 15, 2011. Appellant

chose not to cross-examine Pope in open court. In an offer of proof, however,

Appellant renewed his Confrontation-Clause objection based on Pope’s

testimony that he had no independent recollection of the sale and that he did not


                                        10
enter the information on the ticket into the police database. The trial court again

overruled the objection. The owner of the pawn shop later testified that he was

present during Appellant’s sale and remembered several details of the purchase.

He also testified that the ticket was a regularly-kept business record. Neither

Pope nor the owner could positively identify Appellant.

      The Confrontation Clause is not offended if the declarant of a testimonial

statement is available and later testifies at trial. Crawford v. Washington, 541

U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); Zuniga v. State, No. 08-08-00314-CR,

2011 WL 1157555, at *5 (Tex. App.—El Paso Mar. 30, 2011, no pet.) (mem. op.,

not designation for publication); Marzek v. State, No. 06-10-00087-CR, 2011 WL

238347, at *2 (Tex. App.—Texarkana Jan. 25, 2011, no pet.) (mem. op., not

designated for publication); Thompson v. State, No. 2-04-496-CR, 2005 WL

3343872, at *3 (Tex. App.—Fort Worth Dec. 8, 2005, no pet.) (mem. op., not

designated for publication). Pope and the owner of the pawn shop, who were

both present at the time of Appellant’s sale, testified about the ticket and were

subject to cross-examination. The Confrontation Clause was not violated, and

we overrule Appellant’s second point.

                B. APPELLANT’S DRIVER’S LICENSE INFORMATION

      In his final point, Appellant argues the trial court erred by allowing Pate to

testify that Appellant’s driver’s license number matched the number on the pawn-

shop ticket because it was not relevant. During Pate’s testimony, and in an effort

to establish that Appellant’s driver’s license number was the same number that


                                        11
was used to pawn the rings identified by Virginia as hers, the State offered into

evidence a redacted copy of Appellant’s driving record. 8       Appellant objected

because “there’s not been a witness that’s testified to [link Appellant to the

pawning of the jewelry], so it’s not relevant.” The trial court overruled Appellant’s

objection and admitted Appellant’s drivers’ license picture and number into

evidence.

      To the extent Appellant’s argument is based on his contention that the

driver’s license information was not relevant because of the inadmissibility of the

pawn-shop ticket, we have concluded that admission of the pawn-shop ticket did

not violate the Confrontation Clause. Further, the driver’s license information

was relevant and admissible. See Tex. R. Evid. 401, 402. The information in

Appellant’s driver’s license record confirmed that Appellant’s driver’s license

number was used to pawn several of Virginia’s rings on the day of the robbery.

Further, it showed Appellant’s height, which indicated he was the person who

had held a gun to Virginia based on her testimony that a shorter man guarded

her. The evidence supported a fact of consequence—that Appellant participated

in the robbery of the Waterses—and was admissible. See Tex. R. Evid. 401; see

also Waldrop v. State, 133 S.W.2d 969, 970 (Tex. Crim. App. 1939) (“[I]t is

relevant to put in evidence any circumstance which tends to make the proposition

at issue either more or less probable.”); Condarco v. State, No. 03-12-00572-CR,

      8
       The State redacted all “extraneous” information—“a laundry list of
extraneous” offenses included in Appellant’s driving record.


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2013 WL 4822939, at *4 (Tex. App.—Austin Aug. 27, 2013, no pet.) (mem. op.,

not designated for publication) (holding statutory-warning form admissible

because it contained identifying information of defendant, which was relevant for

purposes other than to bolster police officer’s testimony). The trial court did not

abuse its discretion by admitting the evidence, and we overrule point three.

                               IV. CONCLUSION

      Having overruled Appellant’s points, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).



                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

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

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

DELIVERED: August 14, 2014




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