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                                     MEMORANDUM OPINION

                                               No. 04-09-00467-CR

                                              Lucas HERNANDEZ,
                                                    Appellant

                                                           v.

                                              The STATE of Texas,
                                                    Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-2914
                               Honorable Sid L. Harle, Judge Presiding1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 17, 2010

AFFIRMED

           A jury found appellant Lucas Hernandez guilty of aggravated robbery. After Hernandez pled

true to an enhancement allegation based on a prior conviction, the trial court sentenced Hernandez

to forty-five years confinement in the Texas Department of Criminal Justice-Institutional Division.



           1
          … The Honorable Sid L. Harle, judge of the 226th Judicial District Court, was sitting by assignment in the
186th Judicial District Court for purposes of the felony reduction plan, which used any available trial judge to hear the
next available felony case.
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On appeal, Hernandez contends the evidence was factually insufficient to support his conviction for

aggravated robbery. We affirm the trial court’s judgment.

                                           BACKGROUND

       Lucio Blake, the complainant, testified that he and two female companions, Jennifer Cuellar

and Christina Dominguez, went out around 8:00 or 9:00 p.m. in the evening. They first went to the

Silverado bar, but around 11:00 p.m., decided to go to Club Movida. At Club Movida, the three

drank for a while, but when Blake noticed a waitress, who was in the company of Hernandez, staring

at him and his companions, he became bothered and they left. It was approximately 1:00 a.m. when

the three left Club Movida.

       Blake testified he went to his vehicle, opened the door, got the women inside, and turned the

ignition. Before he could close the door to his vehicle, Hernandez grabbed the gear shift and told

Blake, “Give me all your sh–.” Blake told Hernandez to “chill,” “get back.” In response, Hernandez

pulled out a gun and hit Blake in the head with it. After hitting Blake in the head, Hernandez

grabbed a chain from Blake’s neck–the chain was given to Blake by his deceased brother, and it was

very important to Blake. Blake said that the hit to his head dazed him, and caused a little pain. After

taking the chain, Blake said Hernandez walked away.

       Blake said he decided to follow Hernandez, who by this time had gotten into a car. While

following Hernandez, Cuellar called 911, but gave the phone to Dominguez, who gave the operator

the license plate and description of the car driven by Hernandez. At some point, Hernandez realized

Blake was following him. According to Blake, Hernandez stopped his vehicle, got out, and fired at

Blake’s vehicle. Blake believed they were going to be hit because Hernandez was pointing the gun

toward them. Blake testified he quickly drove past Hernandez’s vehicle to a cousin’s house.


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Dominguez remained on the phone with 911 the entire time the group was following Hernandez.

By the time Blake reached his cousin’s house, officers were arriving as well.

       Cuellar testified she was standing beside the passenger door of Blake’s vehicle when she saw

Hernandez walk up to Blake. Cuellar said she heard Hernandez tell Blake to give him the chain.

She stated she saw Hernandez pull out a gun and hit Blake in the head with it. Cuellar was scared

because Hernandez had a gun, and she headed back toward the bar. Cuellar stated she did not enter

the bar, but called her father and asked him to meet them–she was crying. She said she then saw

Hernandez leave, and Blake pulled up to where she was standing and told her to get in. She got into

the vehicle and called 911. However, she testified she was “too scared and panicking” to talk, so she

passed the phone to Dominguez.         Cuellar confirmed Blake’s testimony that they followed

Hernandez, and Hernandez shot at them.

       Dominguez also testified. She testified that as the three of them were leaving Club Movida,

she noticed Hernandez talking to a waitress. She exchanged “hellos” with Hernandez as she and her

friends walked out the door. Dominguez said Hernandez followed them out of the club. Dominguez

testified it seemed as though Hernandez believed Blake was talking to him, but in fact Blake was

talking to Cuellar and Dominguez. Hernandez approached Blake, asking Blake if Blake knew him.

Almost immediately, Hernandez told Blake to give him everything he had. Dominguez, who was

in the backseat of Blake’s vehicle behind the driver’s seat, then heard Hernandez order Blake to give

him his necklace. Blake refused, and Hernandez took out a gun and hit Blake in the head with it.

Dominguez testified Hernandez showed the gun to her, and she was scared.




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        Dominguez confirmed that the three of them followed Hernandez, calling 911 and relaying

a description of the vehicle and the plate number. It was Dominguez, in fact, who was talking to the

911 operator. She confirmed that they stopped following Hernandez after Hernandez shot at them.

        After the 911 call was received, San Antonio Patrol Officer Roger Young received a dispatch

describing Hernandez’s vehicle. When Officer Young spotted a vehicle matching the description,

he followed it to a bar. The officer approached Hernandez, placed him in handcuffs, and searched

him. Officer Young found a gold necklace in Hernandez’s pocket, and police ultimately recovered

a handgun from Hernandez’s vehicle. Blake later identified the necklace as the one pulled from his

neck.

        After Hernandez was apprehended, officers placed Blake, Cuellar, and Dominguez in

separate police cars and took them from Blake’s cousin’s house to the bar where police had captured

Hernandez. The three were independently asked to identify Hernandez, and all three told police

Hernandez was the robber. Eventually, all three gave statements to police, and all three identified

Hernandez at trial as the person who committed the robbery.

                                              ANALYSIS

        Hernandez raises one issue on appeal, arguing the evidence is factually insufficient to support

his conviction for aggravated robbery. Specifically, Hernandez contends the evidence is insufficient

to establish Blake was in fear of imminent bodily injury or death. We disagree.

        In reviewing the factual sufficiency of the evidence, the evidence is reviewed in a neutral

light rather than in the light most favorable to the verdict, giving almost complete deference to the

jury’s determinations of credibility. Williams v. State, No. AP-75,811, 2009 WL 4825039, at *6

(Tex. Crim. App. Dec. 16, 2009) (citing Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.),


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cert. denied, 552 U.S. 920 (2007)); Caballero v. State, 292 S.W.3d 152, 154 (Tex. App.—San

Antonio 2009, pet. ref’d). Evidence is factually insufficient when the evidence supporting the

verdict is so weak that the verdict is clearly wrong and manifestly unjust, or the supporting evidence

is outweighed by the great weight and preponderance of the contrary evidence so as to render the

verdict clearly wrong and manifestly unjust. Williams, 2009 WL 4825039, at *6 (citing Young v.

State, 283 S.W.3d 854, 862 (Tex. Crim. App. 2009)); Caballero, 292 S.W.3d at 154.

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

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

causes bodily injury to another or knowingly threatens or places another in fear of imminent bodily

injury or death. TEX . PENAL CODE ANN . § 29.02 (Vernon 2003). A person commits the offense of

aggravated robbery if the person commits the offense of robbery and uses or exhibits a deadly

weapon. Id. § 29.03(a)(2).

       Hernandez argues Blake was not in fear of imminent bodily injury or death because Blake

admitted that when Hernandez hit him on the head with the gun it caused only “a little pain, not

major.” Moreover, Hernandez contends Blake’s decision to follow Hernandez instead of waiting

for police, proves Blake was not in fear of injury of death. Hernandez also suggests that Blake’s

alcohol consumption before the robbery might have affected his ability to remember correctly the

events of that evening.

       The evidence showed Hernandez pulled out a handgun and hit Blake in the head with it when

Blake did not immediately comply with his request to give Hernandez “his sh–.” Hernandez also

forcibly removed a necklace from Blake’s neck. When he discovered he was being followed,

Hernandez fired at Blake’s vehicle while Blake and his companions were inside. Blake testified that


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when Hernandez pulled out the gun it was “scary . . . I could have lost my life there.” Blake said the

gun made him fearful, and he felt like he had to fight for his life. He reiterated that he feared he was

going to lose his life. As for why he would follow an armed suspect who had just robbed him, Blake

made it clear that the necklace taken by Hernandez had strong sentimental value because it was given

to him by his deceased brother. And, Blake and his companions did call police, giving them crucial

information that allowed police to apprehend Hernandez.

       It was the jury’s province to determine whether it believed Blake feared imminent bodily

injury or death. See Caballero, 292 S.W.3d at 154. Whether the jury believed this was based solely

Blake’s credibility. Given its verdict, the jury obviously believed Blake feared imminent bodily

injury or death, and they were entitled to believe that based on Blake’s testimony. Giving deference,

as we must to the jury’s credibility determinations, we hold the evidence was factually sufficient to

prove Blake was in fear of imminent bodily injury or death so as to support Hernandez’s conviction

for aggravated robbery. The evidence pointed to by Hernandez–Blake’s drinking, de minimis pain,

and decision to follow Hernandez after the robbery–does not outweigh the supporting evidence by

the great weight and preponderance so as to render the verdict clearly wrong and manifestly unjust.

See Williams, 2009 WL 4825039, at *6 (citing Young, 283 S.W.3d at 862). Accordingly we overrule

Hernandez’s sole issue, and affirm the trial court’s judgment.



                                                        Marialyn Barnard, Justice

Do Not Publish




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