No. 09-09-00495-CR
Submitted on September 16, 2010.
Opinion Delivered October 6, 2010. DO NOT PUBLISH.
On Appeal from the 284th District Court Montgomery County, Texas, Trial Cause No. 96-05-00704 CR.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
STEVE McKEITHEN, Chief Justice.
Appellant Cleon Evan Ashworth was convicted of aggravated robbery with a deadly weapon. The jury assessed punishment at life imprisonment and a fine of $10,000. In this appeal, Ashworth complains that the evidence was legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
THE EVIDENCE
The victim, Larry Cahill, testified that on the date in question, he was employed as a long haul truck driver, and he and his co-driver had stopped in New Caney, Texas, where his co-driver resided. At approximately 11:45 p.m., Cahill decided to walk a few blocks to a tavern that he had learned about from his co-driver. As Cahill began walking, a car approached him, and Ashworth asked Cahill if he wanted a ride. Cahill testified that the car had two doors and was either black or dark gray, and that it was either a Firebird or a Camaro. According to Cahill, the vehicle's other occupants included a woman, a child, and a male that Cahill later learned was Kris Campbell. Cahill declined the offer and continued on to the tavern. When Cahill arrived at the tavern, the black car was in the parking lot, and the men were pouring fluid into the transmission. Upon arriving at the tavern, Cahill discovered that it was closed, and he again walked past the car. Cahill testified that as he passed the vehicle, Ashworth told Cahill that they were having trouble with the transmission, and Ashworth offered Cahill a ride to a club. Cahill accepted the ride and got into the car. Ashworth and Campbell indicated that they wanted to stop at a friend's home to collect a $20 debt, so they turned off the highway and drove into an undeveloped wooded subdivision. When they reached the house, the men told Cahill that their friend was not home, and they said that the transmission was slipping, so they pulled out of the driveway. Campbell stopped the vehicle, and Ashworth got out of the vehicle and said he needed to urinate, and Cahill did the same. Cahill went into the bushes, urinated, and began walking back to the car while tying the drawstring on his beach shorts. Cahill testified that as he turned toward the front of the vehicle, Ashworth struck him on the back of the head with a beer bottle. Cahill explained that after Ashworth hit him with the bottle, Cahill turned around and saw that Ashworth was holding the neck of the bottle in his hand. Cahill testified, "I didn't want to get stabbed, so I knew I'd better run." Cahill ran past Ashworth, and Ashworth began to chase him. Cahill was still attempting to tie the drawstrings on his shorts when he was struck with the beer bottle, so his shorts began to loosen as he ran. Cahill decided to stop running, remove his shorts, and prepare to fight. Cahill flipped onto his back, kicked off his shorts, and attempted to get to his feet to fight. Ashworth caught Cahill and attempted to put Cahill in a headlock. Cahill attempted to free himself, but he fell, and Campbell then struck Cahill in the back with a gun and put the gun to Cahill's head. Cahill explained that Campbell then struck him on the back of his head and neck, and Ashworth began kicking Cahill's face. Campbell instructed Cahill to lie face down in the dirt and threatened to shoot Cahill if Cahill did not comply. Cahill explained that he refused to lie down because he feared that he would be shot, and he testified that Ashworth continued kicking him in the face, and Ashworth instructed Campbell several times to shoot Cahill. Cahill estimated that Ashworth kicked him forty or fifty times, mostly on his head. According to Cahill, the woman screamed and told Campbell not to shoot Cahill. Cahill testified that he was struck with the shotgun approximately twenty times, but he was "mainly concentrating on the kicks, because those were the most consistent, and I was concentrating on him not pulling that trigger." Cahill testified that Ashworth asked him where his money was, and Cahill told Ashworth the money was in his shorts. Cahill testified that Ashworth retrieved Cahill's shorts and continued beating Cahill for what "seemed like an eternity." Ashworth again instructed Campbell to shoot Cahill, and Cahill begged them not to shoot him. According to Cahill, Ashworth continued kicking him and told Campbell seven or eight times to shoot Cahill. Cahill eventually pulled the gun away from his head, knocked Campbell off balance, broke free, and ran toward the tree line. While Cahill was still running, the gun discharged, and Cahill ran behind a tree. Cahill then continued to run, and he heard the car speed away. Cahill returned to the location and searched for his wallet and shorts, but was unable to find them. Cahill began walking back to his co-driver's house. Cahill explained that he wanted to shower before calling the police. Upon arriving at the house, Cahill drank a beer, showered, and drank another beer and then called the police. Cahill testified that he was not intoxicated when the police officer arrived. Cahill was transported to the hospital and photographed. Cahill testified that he identified both Campbell and Ashworth from photo spreads. The photo spread that contained Ashworth's photograph was presented to Cahill at the police department in Chippewa Falls, Wisconsin, by Detective Gunderson. Cahill explained that the photograph of Ashworth "looked like him, facial features and everything except — the picture itself, he had long hair and a beard and a moustache. And when I was robbed he had short hair, no beard or moustache." Cahill testified that he was "certain" that the photo depicted Ashworth, but he wanted to be "absolutely positive[,]" so he requested a live lineup in Texas. Cahill explained, "I was 99% sure, but I wanted to be 110% positive." The next day, Cahill returned to the police station in Chippewa Falls and identified Ashworth as one of his assailants. Cahill explained that he was subsequently presented with another photo spread, and he identified Ashworth "within ten seconds[.]" Cahill testified that the photograph of Ashworth in the second photo spread more closely resembled Ashworth's appearance on the date of the offense. When asked at trial whether he had any doubt that Ashworth assaulted and robbed him, Cahill testified, "There's absolutely no doubt in my mind." Deputy Joseph Senn of the Montgomery County Sheriff's Office testified that he was dispatched to meet Cahill. Deputy Senn described Cahill as extremely beaten, and he explained that Cahill's right eye was swollen shut, and Cahill had red marks "all over his body[.]" Cahill told Deputy Senn that he had consumed two beers, and Deputy Senn explained that Cahill appeared to be slightly disoriented, but Deputy Senn was initially unsure whether Cahill's disorientation was due to alcohol or to his injuries. After hearing Cahill's account of what transpired, Deputy Senn believed Cahill's injuries caused his disorientation. Deputy Senn went to the scene, and he recovered a full beer bottle, a broken beer bottle, and a lighter that Cahill later identified as belonging to him. After investigating the scene, Deputy Senn returned to the hospital and photographed Cahill. David Strouse testified that he owns a business near the Kroger store in Porter, Texas, which is two or three miles from New Caney. On the weekend in question, Strouse went to Kroger. Strouse saw a dark-colored two-door car driving up and down the aisles in the Kroger parking lot, and the car eventually parked beside him. According to Strouse, two white males were in the car, and he identified Ashworth as one of the occupants. Strouse explained that he did not see either male's haircolor. Strouse testified that he did not know the men, so he did not know on the date of his observations that Ashworth was the name of one of the individuals in the car. According to Strouse, the police officer to whom he gave the license plate number told him the identity of the person to whom the vehicle was registered. Strouse testified that "[t]he passenger got out, opened up the trunk and grabbed a pistol grip sawed off shotgun, threw a jacket over it[,] and got back in the car and left." Strouse was not certain whether it was Ashworth or the other male who got out of the car. Strouse reported his observations, including the vehicle's license number, to an officer inside the Kroger store. Strouse was presented with a photo lineup, but he did not identify anyone. David Miller, a corporal with the Montgomery County Sheriff's Office, testified that on the date in question, he was working an off-duty job as a security officer for the Kroger Store in Porter. Corporal Miller explained that a man came into the store and reported suspicious activity by two white males in a vehicle. According to Corporal Miller, he and the man went outside and observed the car. When the car left the parking lot, Corporal Miller chased it, but the occupants saw him, accelerated, and the vehicle disappeared. Corporal Miller testified that the man provided the license plate number of the vehicle, and upon checking the vehicle's registration, Corporal Miller learned that the vehicle was registered to Campbell. Corporal Miller knew Campbell, and was aware that Campbell "hung out" with Ashworth. Corporal Miller testified that he saw two white males in the vehicle, but he could not identify Ashworth as one of the occupants. John Stephenson, an investigator for the Montgomery County District Attorney's Office, testified that the prosecutor assigned to the case involving the aggravated robbery of Cahill asked him to prepare a photo spread for Cahill to view. Stephenson explained that he obtained a photograph of Ashworth, and he then obtained photographs of other individuals whose general appearance resembled Ashworth's appearance. According to Stephenson, he has handled hundreds of photo spreads, and he has seen people who failed to identify someone return the next day and identify someone at that time. Stephenson explained that Cahill contacted him two or three days after the photo spread and expressed concern about the photo spread. Cahill requested a live lineup because Cahill believed there were differences in the hair and facial hair. Stephenson testified that Cahill said that he was "99% sure, but not positive." Detective Eugene Gunderson testified that prior to his retirement, he was employed as a detective with the Chippewa Falls Police Department. Gunderson explained that John Stephenson asked him to contact Cahill concerning a photo lineup. Cahill came to the police station and viewed the photo spread sent by Stephenson. Detective Gunderson testified that all of the photographs were in color, were taken with the same type of background, depicted white males of approximately the same age and approximately the same type of facial hair and head hair. Detective Gunderson opined that the photo spread was fair. According to Detective Gunderson, Cahill studied each photograph intently, and Cahill eventually identified one. Detective Gunderson told Cahill to sign his name on the back of the photo if he had a reasonable identification, and Cahill said that he would rather contact the Montgomery County District Attorney's Office before signing his name. Cahill told Detective Gunderson that he was "like 99% sure, but he . . . was not absolutely positive." Cahill told Detective Gunderson that he was concerned about differences in the head hair and the facial hair. Cahill returned the following day, reviewed all of the photographs again, identified the same photograph he had selected the previous day, and signed the photograph. Cahill again told Detective Gunderson that he was reasonably certain, approximately 99%, of his identification, so Detective Gunderson sent his report and the photo spread to Stephenson. Leonard Mikeska, an investigator with the District Attorney's Office, testified that he prepared a photo spread in preparation for Ashworth's trial and presented it to Cahill. Mikeska explained that the photographs were collected at random by the Sheriff's Department Identification Section based upon identification similarities. According to Mikeska, Cahill identified a photograph "without hesitation, immediately." Mikeska testified that he was not aware that Cahill hesitated during the first photo spread. Campbell testified he has known Ashworth for approximately nine years, and that they socialized when Campbell was younger. Campbell testified that he was not close friends with Ashworth, and he did not see Ashworth at all during the month in which the offense occurred. Ashworth's half-brother, Shane Rawlinson, testified that he gave Ashworth a job at his vinyl siding business during the year in which the offense occurred. According to Rawlinson, he had a vinyl siding job in San Leon on the date in question, and Ashworth worked with him. Rawlinson explained that on the date of the offense, he resided at a motel in San Leon, and Ashworth stayed there with him. Jim Truitt testified that he was prosecuted on a felony case, for which he was incarcerated in the county jail for six months as a condition of probation. While Truitt was incarcerated, he became acquainted with Campbell. According to Truitt, Campbell talked on several occasions about robbing a man with Ashworth. Campbell told Truitt that the victim was walking near New Caney, and Campbell and Ashworth decided to rob the man. Campbell told Truitt that he and Ashworth offered the man a ride, but the man would not get in the car the first time they offered. Campbell told Truitt that when they returned to the man, the man accepted a ride. According to Truitt, Campbell also gave a detailed description of beating the man. Truitt testified that Campbell told him that Ashworth "was urging him to shoot the man." ASHWORTH'S ISSUES
In his first issue, Ashworth argues that the evidence was legally insufficient to support his conviction. In his second issue, Ashworth contends the evidence was factually insufficient to support his conviction. "In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When conducting a factual-sufficiency review, we view the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). "Only one question is to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. In conducting a factual-sufficiency review, an appellate court must afford almost complete deference to a jury's decision that is based upon an evaluation of a witness's credibility, and bear in mind that the jury is the sole judge of the weight to be given to a witness's testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). An appellate court may not reverse for factual insufficiency when the evidence preponderates in favor of conviction. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009) (citing Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). The jury heard evidence that Ashworth beat Cahill and stole Cahill's money from his shorts. In addition, the jury heard evidence that Cahill identified Ashworth from two separate photo spreads, and that Cahill was 99% certain that Ashworth was one of his assailants when he identified Ashworth's photos. Cahill testified at trial that there was "absolutely no doubt" in his mind that Ashworth was one of his assailants. The jury also heard evidence that Campbell had discussed the offense in some detail with another prisoner, and that Campbell identified Ashworth as his co-actor in the aggravated robbery. Viewing the evidence in the light most favorable to the verdict, a reasonable juror could have found the essential elements of the crime beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13. In addition to the evidence discussed above, the jury heard evidence that Campbell did not see Ashworth at all during the month in which the offense occurred, and that Ashworth was working on an out-of-town job with his half-brother on the date of the offense. The jury also heard evidence that after the first photo spread, Cahill expressed concern about head hair and facial hair differences between the photo he had selected and his recollection of Ashworth's appearance at the time of trial, and Cahill requested a live lineup, but instead Cahill returned the following day and identified the photograph that depicted Ashworth. Viewing all of the evidence in a neutral light, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. See Grotti, 273 S.W.3d at 283. It is the province of the jury to evaluate the credibility of witnesses and the weight to be given to their testimony. See Lancon, 253 S.W.3d at 705. The evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor is the supporting evidence outweighed by the great weight and preponderance of the contrary evidence. See Grotti, 273 S.W.3d at 283. Accordingly, we overrule issues one and two and affirm the trial court's judgment. AFFIRMED.