                                   NO. 07-08-0060-CR
                                   NO. 07-08-0061-CR
                                   NO. 07-08-0062-CR
                                   NO. 07-08-0063-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                      JULY 7, 2009

                          ______________________________


                            DAVEY ENRIQUEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

         NO. 7401, 7402, 7403 & 7404; HONORABLE LEE WATERS, JUDGE

                       __________________________________


                               MEMORANDUM OPINION


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, Davey Enriquez, appeals two convictions for aggravated robbery and two

convictions for aggravated assault. Appellant plead not guilty to all charges, but was found

guilty by a jury, which then assessed four concurrent 99 year sentences. Appellant
originally raised five issues; however, prior to submission, he waived issues one and two.

By issue three, Appellant contends the evidence was factually insufficient and by issues

four and five, he contends the trial court erred by admitting certain evidence. We affirm.


                                  Factual Background


       A somewhat detailed recitation of the factual background is necessary to our

discussion of Appellant’s factual sufficiency issue.     On Sunday, May 21, 2006, at

approximately 9:00 a.m., Layne Conner and his wife, Mae Conner, were the victims of a

home invasion robbery. Two masked men, one armed with a shotgun, and the other

armed with a handgun, burst through the backdoor of their residence and confronted the

Conners. The robbers’ accents indicated they were Hispanic. The shotgun bearing robber

was described as a “big heavyset guy” with distinctive dark eyes. He was the taller of the

two gunmen. The handgun bearing robber was described as being about five feet seven-

to-eight inches tall and weighing 175 to 180 pounds. During the robbery, Mr. and Mrs.

Conner were made to lie on the floor. The shotgun bearing robber (whom Mr. Conner

identified as “this defendant here”) held his gun to the back of Mrs. Conner’s head and the

handgun bearing robber held his gun to the back of Mr. Conner’s head. At one point, as

a means of intimidation, the handgun bearing robber discharged his firearm, however, no

one was injured.


       The robbers immediately focused on a filing cabinet containing three separate bags

of money containing approximately $35,000 in cash. After Mr. Conner handed over two

                                            2
of the three bags of money, the robbers left, grabbing Mrs. Conner’s purse on the way out.

Mr. Conner observed the two robbers flee the scene of the crime in a newer model gray

Jeep Cherokee with tinted windows; however, he was unable to read the vehicle tag

number. The robbers left no physical evidence or fingerprints which tied Appellant to the

scene of the crime.


       While the robbery was taking place, Jesse Conner, the Conners’ nine year old

grandson, hid under his grandparents’ bed. From there he observed one of the robbers

wearing a shoe, “kind of like a tennis shoe,” bearing an “S” on the side of the shoe.


       After the robbers left, but before calling 911, Mrs. Conner called her daughter, Mayla

Arreola. She suspected the robbers had gained information from Mayla pertaining to their

residence and the stash of money because, several days earlier, while the Conners were

out of town, Mr. Conner had contacted Mayla and asked her to count the cash which was

contained in the bags located in the filing cabinet.


        Initially, Mayla denied telling anyone about the money in the Conner home;

however, she later admitted telling a friend, Tiffeni Martinez, the substance of her

conversation with her father, including the existence and location of the money. Phone

records introduced by the State showed that in the days just prior to the robbery, there

were numerous cell phone conversations between Tiffeni’s husband, Andrew Martinez, and

his cousin, Carlos Cordova.




                                             3
       A police investigation, initiated by a Crime Stoppers tip, revealed that Appellant and

Cordova were close friends and that the two were often seen in the company of Appellant’s

cousin, Adam Aguilar. At trial, Danielle Holmes testified that on May 20, 2006, the evening

prior to the robbery, Appellant, Cordova, and an unidentified third person, came to her

residence to visit with Woody (last name unknown, but later identified as Dustin Lee Allen).

The three men had arrived in a gray, newer model Jeep Cherokee. After a conversation

with Cordova, Woody told Danielle that he was going to Pampa to get some money and

he would be back in a couple of hours; however, Holmes prevented Woody from leaving

with the others. The next morning, “before daybreak,” Cordova came back and told Woody

that “it just didn’t go as planned.” A few days later, Holmes learned that Appellant,

Cordova, and Aguilar were “irritated and agitated” because the police had questioned them

about what “happened in Pampa on May the 21st.” Holmes also testified that, after the 21st,

Carlos and Appellant were wearing “nice,” “flashy” clothes.


       Another witness, Priscilla Badillo, the mother of Adam Aguillar’s daughter, testified

that she overheard Appellant “talking about him and Carlos and something about Carlos’s

cousin and Pampa, money, guns, kids, stuff like that.” Based on this information and its

similarity to news reports about the Pampa home invasion, Priscilla made the Crime

Stoppers tip. Lorena Manriquez, the mother of Appellant’s children, testified that Appellant

owned a pair of Sketcher boots that had an “S” on the side of it. During the investigation,

none of the clothing the robbers wore was recovered and none of the money taken was




                                             4
recovered. No comparable fingerprints or shoeprints were found and no impressions of

the tire prints from the place where the Jeep Cherokee departed were taken.


          After the State rested, the defense offered testimony to the effect that Appellant

attended a Quinceañera1 in Amarillo for his cousin on the afternoon and evening of May

20, 2006. Testimony from Gilbert Maldonado, Appellant’s cousin and brother of the

Quinceañera honoree, indicated that Appellant stayed at the party “probably ‘til four o’clock

[a.m.],” the morning of May 21st. Manriquez testified that she and Appellant left the party

between 3:00 to 4:00 a.m. and that she was driving since he was drunk. She further

testified that Appellant stayed in bed that morning until approximately 10:00 to 10:30.


                                                   Discussion


                                      Issue Three - Factual Sufficiency


          By his third issue, Appellant contends the evidence is factually insufficient to sustain

the verdict against him. More specifically, Appellant contends that, not only is the State’s

evidence tending to connect him with the offenses extremely weak, his evidence tending

to establish an alibi is such that, when combined, they render the jury’s verdict manifestly

unjust.




          1
              A Quinceañera, in the Hispanic culture, is a “com ing of age” cerem ony held on a girl’s fifteenth
birthday.

                                                         5
                      Standard of Review-Factual Sufficiency Review


       When conducting a factual sufficiency review, we begin with the assumption that the

evidence is legally sufficient under Jackson v. Virginia. See Laster v. State, 275 S.W.3d

512, 518 (Tex.Crim.App. 2009). Evidence that is legally sufficient, however, can be

deemed factually insufficient in either of two ways: (1) the evidence supporting the

conviction is so weak that the jury’s verdict seems “ clearly wrong and manifestly unjust,”

“shocks the conscience,” or “clearly demonstrates bias,” or (2) considering contrary

evidence, the factfinder’s verdict is “against the great weight and preponderance of the

evidence.” Id.; See also Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008);

Watson v. State, 204 S.W.3d 404, 426 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d

126, 135 (Tex.Crim.App. 1996). In a factual sufficiency review, the reviewing court must

consider the probative weight of all of the evidence in a neutral light (i.e., without the prism

of “in the light most favorable to the prosecution”). Steadman v. State, 280 S.W.3d 242,

246 (Tex.Crim.App. 2009); Laster, 275 S.W.3d at 518.


       In reviewing a jury’s decision we are mindful that the jury is the sole judge of the

credibility of the witnesses and the weight to be given testimony, Lancon v. State, 253

S.W.3d 699, 705 (Tex.Crim.App. 2008). A jury is entitled to disbelieve some or all of a

witness’s testimony, even when that testimony is uncontradicted. Hernandez v. State, 161

S.W.3d 491, 501 (Tex.Crim.App. 2005). Therefore, appellate courts should afford almost

total deference to a jury’s decision when that decision is based upon an evaluation of


                                               6
credibility, Lancon, 253 S.W.3d at 705; because, being present to hear the testimony, as

opposed to relying upon a cold record, the jury is in the better position to judge the

credibility of the witness. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006).


       In conducting a factual sufficiency review, an appellate court must exercise its

factual sufficiency jurisdiction with great deference to the jury’s findings and we cannot

conclude that the conviction is factually insufficient simply because we might otherwise

disagree with the jury’s verdict. Watson, 204 S.W.3d at 416-17; Cain v. State, 958 S.W.2d

404, 407 (Tex.Crim.App. 1997). Basically, the only question to answer in a factual

sufficiency review is: “Considering all of the evidence in a neutral light, was a jury rationally

justified in finding guilt beyond a reasonable doubt?” See Grotti, 273 S.W.3d at 283 (citing

Watson, 204 S.W.3d at 415).


       As directed by the Court of Criminal Appeals, in conducting our analysis we are

guided by at least three “basic ground rules”: (1) we must consider all of the evidence in

a neutral light, as opposed to in a light most favorable to the verdict;2 (2) we may only find

the evidence factually insufficient when necessary to “prevent manifest injustice”;3 and (3)

in reversing a conviction we must explain why the evidence presented is too weak to




       2
           W atson, 204 S.W .3d at 414.

       3
           Cain, 958 S.W .2d at 407.

                                               7
support the verdict or why the conflicting evidence greatly weighs against the verdict.4

Laster, 275 S.W.3d at 518; Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


                                            Analysis


       Our analysis of Appellant’s factual sufficiency issue requires that we address both

ways in which evidence can be determined to be factually sufficient. On the one hand,

Appellant contends the evidence supporting the verdict is, in and of itself, too weak to

support the jury’s verdict; whereas, on the other hand, Appellant also argues there was

conflicting evidence that renders the jury’s verdict factually insufficient. We will address

each argument separately.


                              Evidence Supporting Verdict Too Weak


       Appellant contends the evidence was factually insufficient because the evidence

supporting the verdict was just too weak. In support of this argument, he contends the

verdict is “clearly wrong or manifestly unjust or against the great weight and preponderance

of the evidence” because there is no physical evidence tending to connect Appellant to the

crime. Circumstantial evidence is as probative as direct evidence in establishing the guilt

of the accused. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). While each

fact need not point directly and independently to the guilt of the accused, the cumulative

force of circumstantial evidence alone may be sufficient to support a conviction. Id.


       4
           W atson, 204 S.W .3d at 414.

                                               8
Although the Conners were unable to identify their robbers, Appellant never admitted his

guilt, and no physical evidence was ever obtained directly connecting him to this offense,

we find that the cumulative force of the above described circumstantial evidence is

sufficient to make that connection.


                                    Conflicting Evidence


       Appellant also contends that other evidence presented tended to cast doubt on the

jury’s verdict. Specifically, having conceded that the evidence tending to connect Carlos

Cordova to the offense was much greater, Appellant postulates the idea that he could not

have been the other robber because he and Cordova were not brothers and there was

testimony that when one of the robbers asked the other robber where the Conners’

grandchild went, the other robber responded, “I don’t know, brother, I don’t know.” He also

suggests that he could not have been at the residence of Danielle Holmes on May 20th,

because he was at the Quinceañera, and he could not have been at the Conners’

residence on May 21st, at 9:00 a.m., because he was at home in bed.


       “Uncontradicted testimony” is a concept totally different from “undisputed facts.”

Evans, 202 S.W.3d at 164. Merely because testimony is uncontradicted does not mean

that its opponent, in this case the State, has assumed or admitted the truth of that fact, or

that it concerns a physical fact that cannot be denied. A jury is entitled to determine which

uncontradicted facts it chooses to believe and what inferences it chooses to draw from

those facts, but it is not required to do either. Id. at 165.

                                               9
       Use of the term “brother” by one robber does not lead to the undeniable conclusion

that the two perpetrators were “brothers” by blood or marriage. Furthermore, Appellant’s

presence at the Quinceañera does not exclusively eliminate the possibility that he was also

at Danielle’s residence. Finally, as to his alibi defense, the jury was not required to accept

that testimony. Considering the conflicting evidence, and giving appropriate deference to

the jury’s verdict and its right to believe or disbelieve that evidence and the inferences to

be drawn therefrom, we cannot say that the jury’s verdict is “against the great weight and

preponderance of the evidence.”


       Considering all of the evidence in a neutral light, we conclude the jury was rationally

justified in finding guilt beyond a reasonable doubt. Issue three is overruled.


                                   Issue Four - Hearsay


       By his fourth issue, Appellant contends that three statements introduced into

evidence during Danielle’s testimony were hearsay: (1) that, after talking to Carlos Cordova

prior to the robbery, Woody told her “I’m just going to get some money,” (2) that when

Cordova later returned, Woody asked him “Did it go through?,” and (3) that in response to

that question, Cordova replied, “It just didn’t go as planned.” Appellant further contends

that these statements are not subject to the “in furtherance of a conspiracy” or the

“statement against interest” hearsay exceptions, and that their erroneous admission

substantially influenced the verdict. In response, the State contends the first statement

was a statement concerning future conduct, and thus not hearsay, and the second and

                                             10
third statements were statements against interest. The State also contends Appellant

waived any objection to the third statement by failing to make a contemporaneous

objection.


                                          Analysis


       Appellate courts review decisions regarding the admissibility of evidence under an

abuse of discretion standard.       See Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1991). Because the trial court is in the best position to decide questions

fo admissibility, appellate courts should uphold the trial court’s admissibility decision when

that decision is within the zone of reasonable disagreement. Id. An appellate court may

not reverse a trial court’s decision regarding the admissibility of evidence solely because

the appellate court disagrees with that decision. Id.; Cameron v. State, 241 S.W.3d 15,

19 (Tex.Crim.App. 2007).


       “Hearsay” is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” Tex. R. Evid. 801(d). A statement is not hearsay, by definition, if it is

offered against a party and is a statement by a co-conspirator of that party, made during

and in furtherance of the conspiracy. Tex. R. Evid. 801(e)(2)(E). Furthermore, a statement

which, at the time of its making, so far tended to subject the declarant to criminal

responsibility that a reasonable person in declarant’s position would not have made the

statement unless believing it to be true, is an exception to the general hearsay rule. Tex.

R. Evid. 803(23).

                                             11
       The relevance of Woody’s statement that he was going to get some money was

that, if true, it tended to prove that Woody had joined a conspiracy, consisting of Cordova,

Appellant, and an unidentified third person, to obtain some money, in Pampa, by some

method, on the night of May 20, 2006; thereby inferring that Appellant also intended the

same thing.     As such, it was the truth of his future intent that had any relevance.

Statements concerning a declarant’s then existing state of mind, including his future intent

or plan, is an exception to the hearsay rule. See Texas Rules of Evidence 803(3); Saldivar

v. State, 980 S.W.2d 475 (Tex.App.–Houston [14th Dist.] 1998, pet. ref’d).


       Concerning Woody’s question, “Did the deal go through?,” the challenged statement

is not hearsay because it was not offered in evidence to prove the truth of the matter

asserted. A purely contextual out-of-court statement that is nothing more than a question

is not hearsay. Fischer v. State, 207 S.W.3d 846, 850 n.5 (Tex.App.–Houston [14th Dist.]

2006, aff’d on other grounds 252 S.W.3d 375 (Tex.Crim.App. 2008).


       Finally, Cordova’s response, “It just didn’t go as planned,” inferentially tends to show

that Cordova committed or attempted to commit the offense that was the subject of the

previously discussed conspiracy, i.e., to obtain some money, in Pampa, by some method.

When combined with other evidence, the probative force of which was to show that an

aggravated robbery was committed, in Pampa, by Cordova, it can be said that, at the time

of its making, the statement so far tended to subject the declarant (Cordova) to criminal

responsibility that a reasonable person in declarant’s position would not have made the


                                             12
statement unless believing it to be true. Accordingly, the trial court did not err in admitting

the three challenged statements.


                         Issue Five - Witness’s “Sense” Testimony


       By his fifth and final issue, Appellant contends the trial court erred by allowing a

witness to testify as to the “sense” she had that a weapon was in the vehicle occupied by

Appellant on the evening prior to the robbery. Appellant further contends the error

substantially influenced the jury’s verdict, calling for a reversal of his conviction.


                                           Analysis


       Danielle Holmes testified that she was present the evening before the robbery when

Appellant, Carlos Cordova, and an unidentified third person came to her house and visited

with Woody about a “deal” in Pampa. When asked if she saw anyone with a gun, Holmes

replied:


       You can hear it but, you know, it could have been some change, it could
       have been whatever but you can, you know, – I don’t know how to explain it.


When then asked if she had a “sense” that there may have been weapons present, over

Appellant’s objection, she replied:


       What I’m trying to say is you couldn’t tell what it was but you can see, you
       know, it was something but you don’t know what it was, so I can’t really say
       if it was a gun or a knife or whatever, but you can tell it was something –


                                              13
       Here, Holmes was permitted to give her personal opinion (or “sense”) as to whether

there was a weapon present when Appellant, Cordova, and a third party visited with Woody

concerning a “deal” that was to take place in Pampa. Pursuant to Texas Rule of Evidence

701, a lay witness may testify in the form of an opinion or inference if that opinion is (1)

rationally based on the perception of the witness and (2) it is helpful to a clear

understanding of the witness’s testimony or the determination of a fact issue. Scott v.

State, 222 S.W.3d 820, 827 (Tex.App.–Houston [14th Dist.] 2007, no pet.). The challenged

testimony was nothing more than Holmes’s opinion as to whether a weapon was present,

rationally based upon her auditory perception. It was helpful to a clear understanding of

her reasons for persuading Woody not to become involved in the events of that evening.

The trial court’s decision to allow that testimony falls within the zone of reasonable

disagreement. Issue five is overruled.


                                       Conclusion


       Accordingly, the trial court’s judgments are affirmed.




                                                 Patrick A. Pirtle
                                                     Justice


Do not publish.




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