Jose Sorto, Jr. v. State

Opinion issued

May 26, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

———————————

NO. 01-10-00680-CR

———————————

Jose

Sorto Jr. ,

Appellant

V.

THE State of Texas , Appellee

On Appeal from the 412th

District Court

Brazoria County, Texas

Trial Court Case No. 61,645

MEMORANDUM

OPINION

Jose

Sorto Jr. appeals his conviction for the first degree felony offense of

aggravated robbery. [1] A jury found Sorto guilty and assessed his

punishment at 40 years’ confinement and imposed a fine of $10,000. In his sole issue, Sorto asserts that the

evidence is legally insufficient to support the jury’s finding of guilt.

We

affirm.

Background

On

the evening of December 13, 2009, Wayne Milone was at home with his friend

Wryan McCarty, his sister Tiffany, and her boyfriend Marshall Bevers. He and McCarty were in the front room;

Tiffany and Bevers were in her bedroom. The

State presented three witnesses who testified Sorto and three other men showed

up. Wayne knew Sorto, but not well. After a short visit, they all began playing

dominoes. According to Tiffany’s

testimony, McCarty, Sorto, and Sorto’s friends were smoking marijuana that

day.

A short

time later, Wayne’s friend Trey West arrived and joined the game of dominoes. After about 10 minutes, West saw that one of

the men with Sorto was holding a gun.

The gunman said, “Nobody move.”

The gunman and one other of the group that arrived with Sorto watched

West, Wayne, and McCarty, while Sorto grabbed a machete that was in the house and

the fourth man grabbed a baseball bat.

They headed to the back bedroom.

Sorto

kicked open the locked door to the bedroom.

Tiffany screamed. When West heard

Tiffany (his former girlfriend) scream, he turned to the gunman and said,

“That’s my girl,” and began struggling with him. West had noticed that the gun was not cocked

and the gunman did not have his finger on the trigger. Sorto came out from the bedroom and struck

West with the flat of the blade on his leg and on his side. Sorto raised the machete as if to strike West

in the head or neck area. West raised

his arm in defense and Sorto struck West’s arm near the wrist, ending the

struggle.

Sorto

and the three men told West to sit back down.

Sorto took the gun, checked to make sure a round was chambered, cocked

it, and gave it back to the gunman, telling him, “Now don’t let him move.” Sorto and the man who had grabbed the bat

began filling bags with property from the house, including electronics, cell

phones, jewelry, and clothing. They gathered

more items for close to an hour. During

this time West was sitting in a chair in the living room bleeding heavily. He testified that he was getting cold and

feared that he would die. Sorto and the

other men finally loaded the bags into a car and left.

After

Sorto and the three other men left, McCarty took West to the hospital. Tiffany called 911 on McCarty’s cell phone,

and Officer Fletcher with the Alvin Police Department was dispatched to Wayne’s

home. Officer Fletcher interviewed Wayne

and Tiffany and took photographs of the house, including the damaged bedroom

door and the blood spatter from West’s wound.

Fletcher testified that Wayne and Tiffany were intoxicated; they smelled

of alcohol and there were a number of empty beer cans lying around and in the

trash. Officer Muhl went to the hospital,

where he interviewed McCarty and West. Muhl

testified that he took photos of West, including the blood that was all over

his clothing and the wound to his arm.

According to Muhl, West told him that they were all sitting around

drinking during a “get together” at Wayne’s house when a fight broke out. West said he was struck with the machete

during the fight but that he did not know the person who struck him; West only

knew him as “Jose.”

At

trial, West identified Sorto as one of the men who stole property from Wayne’s

house. He also identified Sorto as the

person who had struck him with the machete.

West testified that as a result of his injury he had lost strength and

muscle tone in that hand. He also said

that he had no feeling in part of his hand and he consequently burned himself frequently. He testified that he may never regain feeling

in that hand. On cross-examination by

Sorto’s counsel, West stated that drugs could be purchased at Wayne’s house.

Wayne

also identified Sorto as one of the men involved in the robbery and the person

who had struck West with a machete.

Wayne denied being intoxicated. On

cross-examination, Wayne agreed that he might have been drinking that day, but asserted

that he was sober enough to identify Sorto and that he “will never forget that

face.”

McCarty

also testified that Sorto was one of the men who committed the robbery at Wayne’s

home and that Sorto was the person who had struck West with the machete. During cross-examination, McCarty admitted

that he initially lied to police, telling them he was not at the Milone house, because

he had an outstanding arrest warrant for traffic tickets. McCarty agreed that he lied to “protect his

rear end.” Sorto’s counsel also

attempted to impeach the credibility of McCarty by showing that McCarty smoked

marijuana, but McCarty testified that, although he smelled marijuana in the

house, he did not smoke any.

Tiffany

testified that Sorto kicked open the locked door to her bedroom and stole

property. She also said Sorto and one

other man threatened her boyfriend, Bevers, with a gun and the machete,

prompting her scream. After she

screamed, Sorto left the bedroom and came back with blood on the machete. Tiffany asked if her brother was okay. Sorto responded that he was okay, but “your

brother’s friend isn’t.” Tiffany

testified that Sorto and the other men grabbed pillowcases and began filling

them with jewelry, clothing, and other property. They took some pills and what looked like a

large amount of cash from Bevers. Tiffany

testified that Wayne, McCarty, Sorto, and Sorto’s three friends were all

smoking marijuana and admitted she had been previously convicted of possession

of a controlled substance.

The

State also called Bevers, who was in jail at the time of trial. Bevers, however, testified that he did not

remember being robbed or West being attacked with a machete.

In

his defense, Sorto presented evidence that he was in elsewhere when the robbery

occurred. A family friend, with whom

Sorto was living, testified that Sorto generally worked from about 7 p.m. until

2 a.m. as a valet at a nightclub. He had

an hour for lunch and would normally come home around 10 p.m. for 30 or 45

minutes to eat. The friend testified

that Sorto was working on the night in question and came home to eat around

10:30. A co-worker also testified that

Sorto worked that night.

Sufficiency of the Evidence

In

his sole issue, Sorto contends that the evidence is legally insufficient to

support the jury’s finding of guilt.

A. Standard of review

This court

reviews sufficiency-of-the-evidence challenges applying the standard of review

enunciated in Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781,

2789 (1979). See Ervin v. State , 331 S.W.3d 49 , 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing

holding of Brooks v. State , 323 S.W.3d 893, 912 , 927–28 (Tex. Crim. App.

2010)). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational factfinder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ;

Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams

v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold

evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence

conclusively establishes a reasonable doubt. See Jackson , 443 U.S.

at 314, 320 , 99 S. Ct. at 2786, 2789 ; see also Laster , 275 S.W.3d at

518 ; Williams , 235 S.W.3d at 750 .

The sufficiency-of-the-evidence

standard gives full play to the responsibility of the factfinder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson , 443

U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); see also Brown v. State ,

270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating jury is sole judge of

credibility of witnesses and weight to give their testimony) . An

appellate court presumes that the factfinder resolved any conflicts in the

evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson , 443 U.S. at 326 , 99 S.

Ct. at 2793 ; see also Clayton , 235 S.W.3d at 778 (reviewing court

must “presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination”).

The sufficiency of the evidence is measured by

the elements of the offense as defined by the hypothetically correct jury

charge for the case. Wooley v. State , 273 S.W.3d 260, 268

(Tex. Crim. App. 2008). This charge

accurately states the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or restrict the State’s

theories of liability, and adequately describes the particular offense. Grotti

v. State , 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

B. Sufficiency

of the evidence of aggravated robbery

The Texas

Penal Code provides, in pertinent part, that a person commits robbery if the

person, “in the course of committing theft . . . and with intent to obtain or

maintain control of the property, . . . intentionally, knowingly, or recklessly

causes bodily injury to another . . . .”

Tex. Penal Code Ann .

§ 29.02 (West 2003). The offense is

elevated to aggravated robbery when the person uses or exhibits a deadly

weapon. See Tex. Penal Code Ann .

§ 29.03(a)(2) (West 2003). Thus, the

hypothetically correct jury charge would contain these elements.

West

testified that, while Sorto and the three other men were stealing property from

Wayne’s house, Sorto struck him with a machete, causing a severe injury to his

arm and hand. The testimony of a

single eyewitness is sufficient to support a conviction for aggravated robbery. Johnson

v. State , 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d). West’s testimony is

corroborated by other testimony. Wayne

testified that Sorto was one of the group of men that stole property from his

home. He also said Sorto struck West

with the machete. McCarty also

identified Sorto as the man who robbed the house and stuck West with a

machete. Tiffany identified Sorto as the

man who kicked open her bedroom door and was holding a machete. He left the bedroom and returned with blood

on the machete. When Tiffany asked if

her brother was alright, Sorto responded that her brother was okay, but “your

brother’s friend isn’t.”

Sorto

impeached this testimony and on appeal asserts that these witnesses simply were

not credible. He identifies Tiffany’s

testimony that Wayne and McCarty were smoking marijuana. He also relies on Officer Fletcher’s

testimony that Wayne and Tiffany were intoxicated. In addition, Sorto points out McCarty’s

initial false statement to police and admission that he lied to “save his own

rear end.” Also, Bevers testified that

he had no recollection of a robbery or of West being struck with a

machete.

The impeachment of this testimony

goes to its weight. Brown , 270 S.W.3d at 568 .

Thus, the jury, as the exclusive judge of the credibility of the witnesses

and of the weight to be given their testimony, was entitled to resolve any

credibility determinations or conflicts in the evidence. See id. We presume that the jury made any such

determinations and resolutions in favor of its verdict. See Jackson , 443 U.S. at 326 ,

99 S. Ct. at 2793 ; Clayton , 235 S.W.3d at 778 .

We conclude that

a rational jury could have found that Sorto, in the course of committing theft,

caused bodily injury to West using a machete.

Thus, the evidence is legally sufficient. We overrule Sorto’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel consists of Chief

Justice Radack and Justices Sharp and Brown.

Do not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §§ 29.02, 29.03(a)(2) (West 2003).