11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Damon Lee Maize

Appellant

Vs.                   Nos. 11-00-00340-CR and 11-00-00341-CR B Appeals from Dallas County

State of Texas

Appellee

The jury convicted Damon Lee Maize of capital murder and attempted capital murder and assessed his punishment at life imprisonment for each offense; and, in the attempted capital murder conviction, a fine of $10,000 was also imposed.  We affirm.

In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence to prove that Aappellant killed [Rogelio Rios] in the course of robbing [him].@  Specifically, appellant claims that the evidence is both legally and factually insufficient to show that he or his codefendant robbed, or attempted to rob, Rios. 

When an appellant raises both legal and factual sufficiency challenges, we first evaluate the legal sufficiency.  See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996).  We review all of 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 crime beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979).  See also Clewis v. State, supra at 132.  In reviewing the factual sufficiency of the evidence, we conduct a neutral review of the trial court=s findings and determine whether the proof of guilt is so weak as to undermine the confidence in the jury=s determination or whether the proof of guilt is heavily outweighed by contrary proof.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000).

Maria Martinez owned the El Taquito Restaurant.  She employed Rogelio Rios as a cook.  Martinez knew appellant=s codefendant, Derick Logan.  Logan normally came into the restaurant on weekends from Martinez=s brother=s bar.  Logan not only worked for Martinez=s brother at a nearby bar but was also the brother=s friend.

On the morning of the offenses, Martinez attempted to lock the front door to the restaurant, but the door did not lock.  Logan came into the restaurant and demanded money from Martinez at gunpoint.  Logan was accompanied by another man identified by Martinez as appellant.  Logan forced Martinez into her office at gunpoint.  Appellant also brought Rios to the office at gunpoint.  Again, Logan demanded money from Martinez.  Martinez offered the men the money bag containing money for daily expenses, but Logan demanded to get into the safe.  Martinez told Logan that she did not have the key to the safe.  Logan then shot her in the shoulder.  She heard another shot and heard someone say:  AShoot >em.@  The pair then beat her on the head.  She passed out; and, when she regained consciousness, Martinez saw that Rios had been shot in the head.  The assailants had also taken the money bag.

Martinez first identified Logan as one of the perpetrators when she had a conversation with Dallas County Deputy Sheriff Michael Ramirez in the emergency room.  Deputy Ramirez was not on duty at the time.  Later, Martinez identified Logan to the police as one of the gunmen, and she also described the second gunman.  She identified Logan from a photo lineup, and she viewed other photo lineups in an attempt to identify the second gunman.  Later, Martinez identified appellant from a photo lineup.

The casings and bullets recovered from the scene were all fired from the same .380 caliber weapon.  Before the date of the offenses, Logan had asked Deputy Ramirez about a .380 caliber weapon.  Deputy Ramirez had never seen Logan with a gun while he worked as a security guard at Martinez=s brother=s bar but had seen him with a gun in the restaurant.  Martinez=s brother also testified that he and Logan went to gun shows together and that he had seen Logan purchase and possess guns, but never a .380 caliber weapon.  We have reviewed the entire record. The evidence is both legally and factually sufficient to support the verdict. 

The evidence shows that appellant and Logan took money from the restaurant while holding the owner and an employee at gunpoint in the course of the offense shooting both of them.  The owner survived, but the employee was killed.  Both Martinez and Rios, as owner and as employee, had a greater right to the restaurant=s money than appellant or Logan.  A property Aowner@ is any Aperson who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.@  TEX. PENAL CODE ANN. ' 1.07(a)(35)(A) (Vernon 1994).  A Aspecial owner@ is an individual, such as an employee, who is in  the care, custody, or control of the property belonging to another person or a corporation.  Harrell v. State, 852 S.W.2d 521, 523 (Tex.Cr.App. 1993); Liggens v. State, 50 S.W.3d 657, 660 (Tex.App. B Fort Worth 2001, pet=n ref=d).  AA store employee has sufficient interest in property taken during the course of a robbery to qualify as an owner of the property.@  Liggens v. State, supra at 660.  Because Rios had a greater interest than appellant or Logan in the restaurant=s money, Rios was the victim of a robbery; and it was appropriate for the State to plead that Rios, instead of Martinez, was the victim of the robbery.  See Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.Cr.App. 1999).  Appellant=s first and second points of error are overruled.

In his third and final point of error, appellant argues that the evidence is Afactually insufficient to prove appellant=s identity as one of the gunmen involved@ in the robbery and shooting.  Specifically, appellant argues that the identifications made by Martinez and Calandra Bell are not credible.

Martinez was shot and beaten on the head during the offenses.  When the first officer arrived at the scene, Martinez stated that she did not know her attackers but described them to the officer.  When first interviewed at the hospital, Martinez again described her attackers while she came in and out of consciousness.  She first identified Logan in a conversation with Deputy Ramirez in the emergency room.  Deputy Ramirez was a friend of Martinez.

Logan was arrested during the investigation of an anonymous phone call placed from an apartment shared by Brenda Thompson and Bell.  Martinez identified appellant from a photographic lineup. 

At the pretrial identification hearing, Martinez identified appellant from the photographic lineup but was unable to recognize him within the courtroom.  Martinez was experiencing dizziness as a result of her injuries at the time of the hearing.  At trial, Martinez identified appellant as the second gunman and explained the dizzy spell at the pretrial hearing. 

Bell had a criminal record for check forgery, which she admitted was a crime of deception.  She had approximately ten forged check cases.  At the time of trial, she had the following cases pending:  a check forgery, organized crime, and escape.

Bell first contacted the police after the arrest of Logan and then gave the information she had to Crime Stoppers.  Bell provided a statement connecting appellant to the offenses.  There are discrepancies between her statement to the police and her trial testimony in regard to the dates that events occurred.  At trial, Bell testified that she had heard appellant and Logan discussing the crime and that they laughed about appellant vomiting in the alley behind the restaurant following the commission of the offenses. 

Appellant produced witnesses who testified that he wore his hair short, not down to his shoulders or collar as described by Martinez.  The murder weapon was never recovered; and there was no physical evidence, such as fingerprints at the restaurant, connecting appellant to the offenses.  The only evidence connecting appellant to the offenses was the testimony of Martinez and Bell.

We have reviewed the entire record according to the standard stated in response to appellant=s first and second points of error.  The weight to be given to testimonial evidence is within the sole province of the jury because the weight turns on the jury=s evaluation of witness credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Cr.App. 1997).  It is clear that the jury here chose to accept the testimony proffered by Martinez and Bell and to reject the testimony proffered by appellant=s witnesses and that that testimony is sufficient to sustain the verdict.  Edwards v. State, 344 S.W.2d 687, 689 (Tex.Cr.App. 1961).  The evidence connecting appellant to the offenses is not so obviously weak as to undermine the jury=s determination, and the evidence of appellant=s guilt in connection with the offenses is not greatly outweighed by contrary proof.  Johnson v. State, supra at 11.  Appellant=s third point of error is overruled.

The judgments of the trial court are affirmed.

JIM R. WRIGHT

JUSTICE

February 28, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.