Opinion issued July 7, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00312-CR
                           ———————————
                         HARVEY SMITH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1421605


                         MEMORANDUM OPINION

      A jury convicted appellant Harvey Smith of aggravated robbery and found

that he used a deadly weapon in the commission of the offense. See TEX. PENAL

CODE § 29.03. The jury assessed punishment at 28 years in prison. On appeal he

challenges the legal sufficiency of the evidence to support the conviction, arguing
that the State failed to prove beyond a reasonable doubt that he used or exhibited a

deadly weapon in the commission of the charged offense. We affirm.

                                    Background

         Juan Carlos Martinez worked as a mechanic for a trucking company. He was

working alone on a Saturday afternoon, repairing a transmission, which required

the use of an air compressor. While he was working, he heard a noise that sounded

like a person throwing items into the bed of a pickup truck. As he got up to

investigate, he noticed that the hoses attached to the air compressor had deflated.

Martinez saw appellant Harvey Smith, a man he recognized, having seen him

speaking with the manager of the trucking company in the past. Martinez saw that

Smith had put tools and the air compressor in the back of a brown Chevy pickup

truck.

         Martinez approached the truck and attempted to remove the air compressor.

Smith began yelling angrily, and Martinez responded, saying, “It’s mine, it’s

mine.” Smith then pulled a black semiautomatic pistol from his waistband and

pointed it at Martinez’s chest, causing him to fear that he would be killed or

injured. Martinez backed away, and Smith shot twice toward his feet. Smith then

got into the truck and sped away.

         Houston Police Department Officer J. Gomez responded to a call about the

robbery. Martinez told him that someone who had previously worked for the



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trucking company had fired a gun at him and taken an air compressor. Officer

Gomez later testified that Martinez was nervous and rattled, and he had difficulty

hearing. Officer Gomez canvassed the area but did not find any spent shell casings.

However, he testified that shell casings are not always recovered after a gun is

fired.

         Michael Tyler, the manager of the trucking company, confirmed the

shooter’s identity and provided his name and date of birth to patrol officers. During

the investigation of this robbery, Houston police officers drove past Smith’s house,

where they saw a brown Chevy pickup truck that matched the description of the

truck used to take the compressor.

         Smith was charged with aggravated robbery. Martinez testified at trial,

saying that Smith held him at gunpoint, took an air compressor he had been using,

and fired two shots at his feet. According to Martinez, the robbery occurred at

about 2:00 p.m. or 3:00 p.m. Martinez testified that he had identified Smith from a

photographic array, and he also identified him in open court as the person who

took the air compressor and fired shots at him.

         Another mechanic, Jose Portillo, testified that he had loaned the air

compressor to Martinez. He did not witness the robbery, but he heard a sound that

Martinez later told him was a gunshot. However, he testified that the shot was fired

around 11:00 a.m. or 11:30 a.m. This was consistent with the police department



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incident report. However, Portillo also testified that other activities that occur on

the premises make noises similar to gunshots, such as pallet repair and hammering.

      Tyler also identified Smith in open court as someone who had worked

briefly for him as an independent trucker. Tyler admitted that he owed Smith $200

around the time of the robbery.

      Smith testified in his own defense, agreeing that he had worked briefly for

Tyler as an independent trucker. He said that Tyler owed him $421, and a $200

check from him had bounced due to insufficient funds. Smith testified that Tyler

was indignant when told about the bounced check. Smith said he called Tyler

many times to attempt to recover the money owed, but he was unable to connect

with him.

      Smith admitted that he went to the trucking company around 11:00 a.m. on

the day of the robbery. He admitted taking the air compressor and conceded that it

did not belong to him. He intended to use his possession of the compressor to

persuade Tyler to pay the $421 that he allegedly was owed. Smith testified that the

compressor was not in working order, and he later sold it for $65.

      Smith’s testimony differed sharply from Martinez’s on the issue of the gun.

Smith denied having, brandishing, or firing a gun. Smith testified that he was 64

years old, and he had never robbed anybody.

      The jury found Smith guilty of aggravated robbery, and he appealed.



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                                      Analysis

       In his sole issue, Smith argues that the evidence was legally insufficient to

support the jury’s verdict because the State did not prove that he used or exhibited

a deadly weapon as he was taking the air compressor. Specifically, he argues that

the absence of shell casings and the testimony about other loud noises that could

have sounded like a gunshot injected reasonable doubt sufficient to undermine the

jury’s verdict.

       When evaluating a legal-sufficiency challenge, we consider all of the

evidence in the light most favorable to the verdict and 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, 2789

(1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The

standard is the same for both direct and circumstantial evidence cases. Carrizales

v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); King v. State, 895 S.W.2d

701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh

any evidence, or evaluate the credibility of any witnesses, as this is the function of

the trier of fact. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d).




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      A person commits aggravated robbery if he commits robbery and uses or

exhibits a deadly weapon. TEX. PENAL CODE § 29.03. A person commits robbery if

“in the course of committing theft” and “with intent to obtain or maintain control

of the property,” he “intentionally or knowingly threatens or places another in fear

of imminent bodily injury or death.” Id. § 29.02; see id. § 31.03(a) (theft);

§ 31.03(b)(1) (unlawful appropriation).

      On appeal, we consider the evidence in the light most favorable to the

factfinder’s decision. Martinez testified that Smith threatened him with a firearm

and caused him to fear for his life while taking the air compressor he had been

using. Portillo testified that the compressor belonged to his girlfriend, and he had

given Martinez permission to use it. Smith himself testified that he took the

compressor, which he did not own. Based on this evidence, the jury could have

found the essential elements of aggravated robbery beyond a reasonable doubt. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525.

      Smith contends that the jury should have credited his testimony and

discounted Martinez’s testimony. He argues that he was credible and viewing his

testimony in a positive light—and rejecting Martinez’s testimony—there is

insufficient evidence to support the jury’s verdict. First, this approach is

inconsistent with our standard of review on appeal, which requires us to view the

evidence in the light most favorable to the verdict. See Jackson, 443 U.S. at 319,



                                          6
99 S. Ct. at 2789; Merritt, 368 S.W.3d at 525. Second, this case was tried before a

jury that was tasked with assessing the credibility of the witnesses and determining

all issues of fact, including resolving inconsistencies in the testimony. The jury

was free to draw its own conclusions about the witnesses’ credibility, and the

verdict reflects the jury’s implicit conclusion that Martinez was credible and the

contrary testimony offered by Smith was not. In any case, the credibility

determination is purely the province of the jury, and it may not be second-guessed

on appeal. See Adames, 353 S.W.3d at 860; Wiley, 388 S.W.3d at 813. Similarly,

Smith’s argument that the absence of shell casings and the other loud noises that

could have sounded like a gunshot injected reasonable doubt into this case is

unavailing. As with the determination of witness credibility, the resolution of

conflicting facts is also the province of the factfinder. See Adames, 353 S.W.3d at

860; Wiley, 388 S.W.3d at 813.

      We hold that the evidence was legally sufficient to support the jury’s verdict,

and we overrule Smith’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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