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                                MEMORANDUM OPINION

                                        No. 04-08-00743-CR

                                       Juan Carlos FRAIRE,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CR-3320
                              Honorable Mary Román, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice

Delivered and Filed: June 10, 2009

AFFIRMED

           The trial court found defendant, Juan Carlos Fraire, guilty of robbery and assessed

punishment at ten years’ community supervision and a $1,500 fine. In two issues on appeal,

defendant asserts the evidence is legally and factually insufficient to support the judgment. We

affirm.
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                                         DISCUSSION

       On appeal, defendant contends the evidence is insufficient because the complainant, Ismael

Gaytan, never stated that defendant was the person who struck him and because Gaytan could not

remember if defendant asked him for any money. We review the sufficiency of the evidence under

the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)

(same); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency);

Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

       Gaytan testified he had just left a store, where he bought beer, when at least three men

suddenly came up to him and started “punching at” him. When asked if any of the men said anything

to him, Gaytan replied that he “was really drunk,” “really intoxicated,” and the “night it was like

really vague.” He also admitted to “seeing double vision,” being “all dazed out,” and being “pretty

messed up.” However, Gaytan specifically remembered defendant as one of the men who

approached him and he said defendant wore a black sweater with the hood up. After Gaytan

refreshed his memory by reading the statement he gave to police on the evening of the incident, he

testified defendant said something about his gang. Gaytan at first thought the confrontation ensued

because he was wearing blue and he “figured they thought I was a rival [gang member] or

something.” Gaytan said he told the men he wanted no trouble and he “just wanted to get out of

there,” but the men asked if he had any money and they started to beat him when he said he had

none. Gaytan could not remember which of the men asked him for money, stating “the more I think

about it, man, it could have been this guy. It could have been another guy. I don’t know. I really


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don’t remember that much.” However, Gaytan said he “distinctly” remembered seeing defendant

and another man. The beating stopped when “Superstar,” whom Gaytan described as “some

crackhead from the neighborhood,” intervened. Superstar asked Gaytan where the beer was, neither

man could find it, and Superstar helped Gaytan home. On the way to Gaytan’s home, he “stumbled

onto some officers” and told them he had been “jumped” and “got [his] ass kicked.” The police

officers put Gaytan in their patrol car and drove him a short distance to where two men had been

detained “in a robbery of an individual call.” Gaytan identified the men, one of whom was the

defendant, as the ones who beat him. San Antonio Police Detective Pruitt testified he was at the

scene when Gaytan identified the two men. Detective Pruitt told Gaytan not to identify anyone based

on their clothing, but instead to look only at their face. Detective Pruitt said Gaytan told him that

defendant initiated the robbery.

       Under both a legal and factual sufficiency review, the trier of fact is the exclusive judge of

the witnesses’ credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642,

647 (Tex. Crim. App. 1996). Gaytan was not the ideal witness; however, the trial court, as the trier

of fact, was the exclusive judge of the weight to give Gaytan’s testimony. Gaytan positively

identified defendant as one of the men who beat him and Detective Pruitt, who spoke with Gaytan

on the evening of the robbery, testified that Gaytan identified defendant as the one who initiated the

robbery. On this record, we cannot conclude no rational trier of fact could have found all of the

essential elements of the offense proven beyond a reasonable doubt or that the evidence is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See

Dewberry, 4 S.W.3d at 740; Clewis, 922 S.W.2d at 129.


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                                     CONCLUSION

     We overrule defendant’s issues on appeal and affirm the trial court’s judgment.



                                                  Sandee Bryan Marion, Justice

DO NOT PUBLISH




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