                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00088-CR


                                   JOEY BALERO, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 364th District Court
                                     Lubbock County, Texas
            Trial Court No. 2011-431,252, Honorable Bradley S. Underwood, Presiding

                                            April 9, 2014

                                 MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Joey Balero, was indicted for the offense of aggravated robbery1

enhanced by a prior felony conviction.2 The jury found appellant guilty of the offense of

aggravated robbery. Appellant elected to have the trial court determine punishment.

The trial court found the allegations contained in the enhancement paragraph “True”

and sentenced appellant to confinement in the Institutional Division of the Texas


      1
          See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
      2
          See id. § 12.42(c)(1) (West Supp. 2013).
Department of Criminal Justice (ID-TDCJ) for 45 years. Appellant appeals contending

that the evidence was insufficient to support the jury’s verdict. We will affirm.


                           Factual and Procedural Background


       On April 24, 2011, Daniel Castaneda was driving on Buddy Holly Avenue when a

white SUV passed him on the passenger side of his vehicle. As Castaneda attempted

to enter a turn lane, the white SUV suddenly veered in front of him and stopped

abruptly. Castaneda attempted to stop, but ended up colliding at slow speed with the

rear of the SUV. The driver of the SUV got out and came to the driver’s window

demanding money from Castaneda.           Appellant, who was a passenger in the SUV,

exited the vehicle with a rifle, later identified as an “assault type weapon.” Castaneda

testified that the driver told appellant to shoot them. Castaneda testified that he heard

the weapon click as if appellant had attempted to fire it. Appellant eventually got the

rifle operational and fired a shot over the top of the car. During this time, the driver was

demanding money from Castaneda. Eric Paez was a passenger in Castaneda’s vehicle

and testified he did not recall a shot being fired. After the shot was fired, the driver of

the SUV and appellant got back in the SUV and left the area.


       Castaneda followed the SUV, obtained the license plate number, and called 911

to report the incident. Castaneda was advised to stop following the vehicle and pull

over and await the police. Castaneda subsequently was advised to go to the police

station and did so. At the station, he was advised that the SUV had been stopped and

was directed to the scene to talk to the investigating officers.




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       Corporal Jimmy Fair of the LPD had heard the call about the incident and located

the SUV. A short chase ensued until the SUV crashed into a used car lot at the corner

of 19th Street and Avenue N. The driver and appellant both abandoned the vehicle, and

a foot chase resulted in both being captured shortly thereafter. After both suspects

were taken into custody, a semi-automatic rifle was located in the SUV. Also located in

the SUV were two red bandanas. Castaneda later testified that both the driver and

appellant were wearing red bandanas at the time of the incident.


       At the scene of the incident, the LPD located a witness, Jimmy Sandoval, who

saw part of the incident and heard the shot fired. He assisted an LPD officer in locating

a spent shell casing that, later testing revealed, had been fired by the semi-automatic

rifle that was recovered from the SUV. Sandoval also alerted the police to the fact that

the security cameras from a night club located at the scene might have recorded the

incident. The security camera footage was recovered by the LPD and was played

before the jury. The security camera footage showed Castaneda’s vehicle and the

SUV. The footage also showed some sort of interaction with the occupants of the SUV

and the occupants of Castaneda’s vehicle. However, the security camera footage did

not record any audio and the shot could not be heard. Yet, patrons of the club could be

seen scurrying for cover, indicative of a shot having been fired.


       Appellant pointed out, during cross-examination of Castaneda, that Castaneda

had never told the police that Paez was a passenger in the vehicle. In fact, he denied

that anyone was in the vehicle with him, both at the time of his initial interview at the

scene of the apprehension of appellant and later in a recorded statement to a detective.

Paez testified that he had outstanding warrants for his arrest for traffic offenses and had

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told Castaneda that he could not be involved. All of these facts were testified to before

the jury.


       After hearing all of the evidence, the jury convicted appellant of the offense of

aggravated robbery. Appellant elected to have punishment determined by the trial court

and, after hearing the punishment evidence, the trial court assessed appellant’s

punishment at confinement in the ID-TDCJ for a period of 45 years.


       Appellant appeals his conviction in a single issue. Appellant contends that the

evidence was insufficient to support the jury’s verdict of guilty.     We will affirm the

judgment of the trial court for the reasons hereinafter set forth.


                                Sufficiency of the Evidence


Standard of Review


       In assessing the sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

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question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


Analysis


       To prove the allegations in the indictment, the State had to prove that: 1)

appellant, 2) in the course of committing theft, with intent to obtain or maintain control of

said property, 3) intentionally or knowingly, 4) placed Daniel Castaneda, 5) in fear of

imminent bodily injury or death, and 6) while using or exhibiting a deadly weapon, to-wit:

a firearm.


       Appellant’s sole argument against the sufficiency of the evidence is based upon

inconsistencies in Castaneda’s reports to the police about whether anyone was with him

on the night of the incident. Relying on this fact, appellant contends that Castaneda’s

testimony was not believable. The testimony reveals that this fact was pointed out to

the jury during both the testimony of Paez and Castaneda. As such, it was then up to

the jury to determine whether they thought either witness was a credible witness. See

Brooks, 323 S.W.3d at 899.       We defer to the jury’s determination on questions of

credibility. See id.


       Further the record reveals that a minor collision occurred involving Castaneda’s

vehicle and the SUV, and that:


                                              5
1) Appellant and the driver of the SUV approached Castaneda’s vehicle. The driver
   immediately started demanding money.

2) Appellant approached the vehicle carrying a semi-automatic weapon.

3) When Castaneda told the driver he did not have any money to give him, the
   driver told appellant to shoot them.

4) Appellant apparently pulled the trigger once but nothing but a click was heard.

5) Appellant then chambered a round and fired over the top of Castaneda’s vehicle
   while the driver continued demanding money.

6) Both the driver and appellant were wearing red bandanas over their faces.

7) The driver’s bandana slipped and Castaneda was able to notice certain
   distinguishing features of his face, to-wit: gold teeth, small tattoos, and short
   dread-lock type hairstyle.

8) The driver and appellant fled the scene and Castaneda was able to obtain the
   license plate number of the SUV.

9) Corporal Fair spotted a vehicle matching the description and began trying to stop
   it.

10) The SUV crashed and the driver and appellant were both apprehended, almost
   immediately.

11) Located in the SUV was a semi-automatic weapon and two red bandanas.

12) The driver’s appearance matched the description that Castaneda provided, to
   include: gold teeth, small tattoos, and short dread-lock type hairstyle.

13) Sandoval, witness at the scene of the aggravated robbery, assisted police in
   finding the spent shell casing.

14) Sandoval testified about hearing the shot being fired.

15) Test of the shell casing revealed it had been fired by the semi-automatic rifle
   found in the SUV.

16) The security cameras located at the scene showed the confrontation between
   the driver, appellant, and the passengers in the Castaneda vehicle.




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         Based upon this evidence, we find that the jury’s verdict is supported by sufficient

evidence. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. Appellant’s

argument to the contrary is overruled.


                                           Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.




                                                   Mackey K. Hancock
                                                       Justice


Do not publish.




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