No. 01-09-00630-CR
Opinion issued December 23, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 268th District Court, Fort Bend County, Texas, Trial Court Case No. 50,041.
Panel consists of Chief Justice RADACK, Justice MASSENGALE, and Justice MIRABAL.
The Honorable Margaret Garner Mirabal, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.
MARGARET GARNER MIRABAL, Justice.
A jury convicted appellant, Justin Jerome Alexander, of aggravated robbery and assessed punishment at fourteen years' confinement. See TEX. PENAL CODE ANN. §§ 29.02-.03 (Vernon 2003). Alexander challenges the sufficiency of the evidence for the identity and deadly weapon elements of aggravated robbery. We affirm.
Background
The complainant, Gene Bogan, managed a Taco Bell restaurant in Fort Bend County. As part of his morning routine, Bogan placed his bank deposit bag in the restaurant's drive-through cashier window and walked to his car so he could drive to the window, retrieve the bag, and then drive to the bank. Two men drove up and confronted Bogan before he could retrieve the deposit bag from the cashier window. Bogan described one man as approximately six feet tall, thin, with light brown skin, and some kind of dreadlocks in his hair. Bogan described the other as shorter, heavier, and with darker skin. Both suspects wore ski masks with the eyes, nose, and mouth cut out. Bogan identified Alexander as the tall and thin man, and testified that he saw Alexander's eyes, nose, and mouth "clear as day" because his mask was loose. Alexander was armed with a sawed-off twelve-gauge shotgun. He ordered Bogan to get on the ground and knocked him down with the shotgun. Alexander held the shotgun to Bogan's neck and threatened to "blow his head off." The other man broke the cashier window and took the bank deposit. Another employee, Sylvia Sanders, was present the morning of the robbery and she ran across the street to call the police. While in the parking lot, Sanders saw the perpetrator's vehicle. Both Sanders and Bogan described the car as an early-model green Mercury Grand Marquis or Ford Crown Victoria. Sanders also claimed to have seen yellow damage or paint on the car's back bumper. Sanders testified that she described the car to the police, but she did not mention the yellow paint at that time. Five weeks later, Sanders spotted the car used in the robbery based on the distinctive yellow paint. The license plate was registered to Alexander. Detective Preston Ousley created a photo line-up including Alexander. Bogan positively identified Alexander based on his eyes, nose, and mouth. After several days of searching, Ousley located Alexander and arranged to meet him at an apartment complex. Alexander told Ousley he had never been to Fort Bend County or to the area where Sanders had spotted his car. He stated he was in an accident in San Antonio at the time of robbery, though he produced no record of the accident. He also said he probably was at work at the time of the robbery or that maybe he fell asleep and someone took the car. Ousley returned a second time to the complex unannounced and found Alexander's car, a green Grand Marquis. Ousley took pictures of the vehicle, including the yellow paint on the bumper. Alexander again stated neither he nor his car was involved in the robbery. Ousley arranged to meet Alexander for a third time at the complex and arrested him for aggravated robbery at that meeting. Bogan, Sander, Ousley, and various law enforcement officers involved with the investigation testified at trial. The State admitted the following exhibits into evidence: (1) photos of the crime scene, (2) the surveillance video of the cashier window and the parking lot, (3) photos of Alexander's car taken by Ousley at the apartment complex, (4) the photo line-up initialed by Bogan, and (5) a map indicating where Sanders later saw Alexander's car. In response, Alexander testified that neither he nor his car was involved in the robbery. He claimed to be 5'7" in contrast to Bogan's description of the person who assaulted him as six feet tall. He testified that he has never been to Fort Bend County or the restaurant at issue, and that he had lost his keys at the time Sanders saw his car. Alexander stated he never saw his co-defendant or Bogan before trial. Alexander testified he called Ousley and initiated the meeting the day he was arrested. Alexander's mother and brother also testified as to Alexander's good character. Based on the above evidence, the jury convicted Alexander of aggravated robbery and assessed punishment at 14 years' imprisonment. Sufficiency of the Evidence
In two issues, Alexander contends the evidence at trial was not sufficient to establish the identity and deadly-weapon elements of aggravated robbery. I. Elements of Aggravated Robbery
A person commits the felony offense of robbery if, in the course of committing a theft, and with intent to obtain or to maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See TEX. PENAL CODE ANN. § 29.02. A robbery is aggravated if the robbery is committed and the offender (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon. See TEX. PENAL CODE ANN. § 29.03. A firearm is a "deadly weapon" as that term is defined in the Penal Code. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (Vernon 2003). II. Standard of Review
When reviewing the sufficiency of the evidence, we examine all 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); Williams v. State, 301 S.W.3d 675, 684-85 (Tex. Crim. App. 2009). The standard of review articulated in Jackson v. Virginia applies to both legal and factual sufficiency challenges to the elements of a criminal offense. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see Brooks v. State, PD-0210-09, 2010 WL 3894613, at *14, 21-22 (Tex. Crim. App. Oct. 6, 2010); see also Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at * 2-4 (Tex. App.-Houston [1st Dist.] Nov. 10, 2010, no pet. h.) (construing majority holding in Brooks). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn from the evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony and only the jury may resolve conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). III. Analysis
A. Sufficient Evidence of Identity Alexander contends the evidence is insufficient to establish his identity. First, Alexander asserts he did not match the physical description issued through the BOLO (be on the lookout) alert at the time of the robbery. However, two descriptions were issued and he matched the second one — tall, thin, with light brown skin and dreadlocks. Bogan testified as to both descriptions. Bogan also positively identified Alexander at trial and in a pre-trial photo line-up. Second, Alexander asserts that Bogan could not see the robber's entire face because of the mask. Bogan testified he could see Alexander's eyes, nose, and mouth because the mask was loose and open. Bogan was not required to see the entire face to make a positive identification. See Punch v. State, No. 14-01-00117-CR, 2002 WL 15887, at *3 (Tex. App.-Houston [14th Dist.] Jan. 3, 2002, no pet.) (mem. op. not designated for publication) (holding sufficient evidence included identification of appellant from half of his face visible as he adjusted his ski mask several times). Third, Alexander asserts that Sanders delayed in informing the police that the get-away car had distinctive yellow paint on the rear bumper. The delay may be a reason for the jury to doubt Sander's credibility, but such a determination is for the jury to make. See Wesbrook, 29 S.W.3d at 111. Sanders and Bogan saw the perpetrator's vehicle, and Alexander's car matched their description including the yellow paint reported by Sanders. The surveillance video also showed a car that matched Alexander's car, despite his arguments to the contrary. Fourth, Alexander asserts that his own testimony exonerates him. He testified that he had never been to Fort Bend County, that he was probably at work at the time, and had never seen Bogan or his co-defendant before trial. Again, Alexander's challenge goes to weight and credibility. See id. The testimony of one eyewitness is sufficient to uphold a jury's finding of guilt. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); see Davis v. State, 177 S.W.3d 355, 359 (Tex. App.-Houston [1st Dist.] 2005, no pet.) ("It is well established that a conviction may be based on the testimony of a single eyewitness."); see Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). Viewing the evidence in the light most favorable to the verdict, the State presented enough evidence of Alexander's identity so that a rational jury could find him guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. 2789; see also Williams, 301 S.W.3d at 684-85. B. Legal Sufficiency of Deadly Weapon Evidence
Alexander argues a rational fact-finder could not conclude that a gun was exhibited during the robbery. Bogan testified to Alexander's use and exhibition of a sawed-off twelve-gauge shotgun. He stated the robber held the barrel of a shotgun to his neck and he was placed in fear of imminent bodily injury and death. Since a shotgun is a type of firearm, it constitutes a deadly weapon. See TEX. PENAL CODE ANN. § 1.07(a)(17)(A). Viewing the evidence in the light most favorable to the verdict, the State presented enough evidence of Alexander's use and exhibition of a deadly weapon so that a rational jury could find he committed aggravated robbery. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams, 301 S.W.3d at 684-85. The evidence is therefore sufficient to support the jury's verdict. We overrule Alexander's first and second issues. Conclusion
We affirm the judgment of the trial court.