Opinion
No. 05-11-00586-CR No. 05-11-00587-CR
06-29-2012
RODERICK EDWIN BRANTLEY, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 29, 2012.
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F-0871160-Q, F-0872152-Q
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice O'Neill
A jury convicted appellant Roderick Edwin Brantley of aggravated robbery and aggravated kidnapping. He received a twenty-five year sentence for the aggravated robbery conviction and a sixty-year sentence for the aggravated kidnapping conviction. On appeal, he argues the evidence is legally insufficient to support his convictions because the complainant's eyewitness testimony is unreliable. We affirm the trial court's judgments.
Background
On December 28, 2007, around 10 p.m., Rose Mungai left the Veranda, a retirement home and assisted living facility where she worked. As she approached her gray Toyota in the parking lot, she felt something pushing on her back and heard a male voice say, "Don't do anything stupid. Get inside the car." She turned around and saw a man, later identified as appellant, with a gun. He continued pushing her from behind and told her to get in the passenger side of her car. He took her cell phone and threw it in the parking lot.
Appellant then got in the driver's side and pulled out of the parking lot. Mungai offered the money in her purse, which was about three hundred dollars. She also offered to go to her bank and withdraw more money from the automatic teller machine in hopes that he would let her go.
Appellant drove to a nearby Washington Mutual and told Mungai to withdraw eight hundred dollars. The machine denied the requested amount so she tried a second time and withdrew six hundred dollars for appellant. Mungai said she got a second good look at appellant's face when she turned to tell him the first amount was denied. She also said the two were in close proximity during the interaction and surveillance photos from the machine corroborate the proximity.
After withdrawing money, appellant then drove Mungai to an abandoned house. Appellant reached over her, opened her door, and told her to get out. Again, appellant was in close proximity to Mungai when he leaned over her. She saw his face when the car's dome light turned on.
He pushed her inside the house. Once inside, he told her to take off her clothes because "I'm going to have some sex." She begged for him to let her go, but he kept pointing the gun at her and telling her to remove her clothes.
Before Mungai removed all her clothing, appellant heard dogs barking outside and decided they needed to leave. He led her back outside. When they reached her car, appellant accidentally dropped the keys. As he leaned over to reach them, Mungai took the opportunity to run away. She saw two men in the area and ran towards them screaming for help. The men provided her clothes and allowed her to use the phone to call her family. They did not want her to call the police from the home so they took her to a Race Trac gas station.
Mungai's boyfriend and a female Dallas Police officer met her at the gas station. Mungai agreed to take the officer back to the abandoned home. Inside the house, she found her pants, socks, shoes, and jacket. No evidence was recovered from the scene and no one dusted for fingerprints.
On January 8, 2008, around 1 a.m., Officer Lester Page was working under cover. He observed a gray Toyota with an African-American male and female inside. When the male driver saw Officer Page, he began driving erratically. The man pulled the car into a 7-Eleven and Officer Page followed. He ran the license plate number and learned the car had been reported stolen. The car was later identified as belonging to Mungai.
When uniformed officers arrived at the 7-Eleven, the male driver of the car was nowhere to be found, but the female was inside. Officers took her to the station for an interview. She identified the male driver as Kevin Payne.
Detective J.L. Stone later interviewed Payne. Payne denied any involvement with the crime, but explained he had "rented" the car in exchange for drugs from "Rocky" and another woman referred to as "Mimi." Payne denied knowing the car was stolen. Detective Stone later obtained information that "Rocky" was appellant.
Around this time, Mungai met with Detective Stone. She provided a description of her attacker. She said he was male, between 5'6" and 5'9", in his forties or fifties, rough looking, and was bald or with little hair. He weighed between 140 and 160 and wore a gold tone "winter-type outfit that had a hood with it."
Detective Stone compiled a photographic line up. Mungai reviewed the line up on January 8, 2008. She did not identify anyone from this line up. Her notation from the line up said, "I do not want to commit at this time. Not sure." Payne's picture was included in this first line up. On January 17, 2008, she was shown a second photo line up and identified appellant. The notation on the second line up said, "That's him!"
During trial, she said she picked appellant out of the line up "Because of the face. That's the face I remember. . . ." She also positively identified appellant as the man who forced her to withdraw money from the bank and took her to an abandoned house. She based her identification on what she remembered from December 28, 2007 and not based on her previous identification from the photo line up. She testified she was "positive" appellant was the man involved in the incident.
The defense's strategy was to sway the jury that Mungai misidentified appellant, and Payne was her attacker. Despite Mungai being with appellant for some length of time, defense counsel emphasized that she was under stress, focused on the gun and not her attacker's face, and did not get a good, long look at her attacker because of the hooded jacket.
Counsel also focused on the fact that the brown-hooded jacket, which Mungai positively identified as the one worn by her attacker, was recovered from Mungai's car when the car was in Payne's possession. Payne denied ownership or knowledge of the jacket.
DNA samples from the jacket showed a mixture of DNA from at least three people. The major profile was from a single unknown female. The minor contribution was from at least two people. The jury heard testimony that "the genetic markers that you would expect to see if Roderick Brantley were a contributor were not detected, so he was excluded from being a contributor to the mixture." A lower level profile of genetic markers attributed to Payne were detected in the mixture so he was included as a possible contributor. However, the jury also heard testimony that just because appellant was excluded from the "wearer DNA profile" did not mean that he did not wear the jacket. As explained, it is possible to wear a jacket and not leave any DNA.
Defense counsel also questioned Detective Stone's investigation. He honed in on the fact no one tried to recover Mungai's cell phone, which appellant tossed in the Veranda parking lot, to lift fingerprints. Moreover, no one tried to lift prints from her car or from anywhere in the abandoned home. Counsel further questioned Detective Stone's attempts to find "Mimi."
Counsel also brought forth evidence that photographs from the ATM showed a man's lower left wrist with no tattoos. However, appellant's wrist at trial revealed a tattoo that would have been plainly visible on the photograph. Payne, on the other hand, had no tattoos. The jury heard testimony that it was unknown when appellant got his tattoo, and the easiest way to alter one's appearance would be getting a tattoo.
Despite the lack of physical evidence linking appellant to the crime and the possibility that Payne was Mungai's attacker, the jury believed the State's evidence and found appellant guilty of aggravated kidnapping and aggravated robbery. This appeal followed.
Standard of Review
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.). This standard gives full play to the responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319. When the record supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict and defer to that determination. Id. at 326. An appellate court will not reassess credibility because the factfinder is the sole judge of witness's credibility and the weight to be given the testimony. Id. at 319.
Discussion
While appellant argues at length regarding the pitfalls of eyewitness identification and the steps that states, including Texas, are taking to revamp the system to make identifications more reliable, we are bound to review the evidence of this case under the law as it currently stands.
The testimony of a single eyewitness can be enough to support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). The jury alone decides whether to believe eyewitness testimony, and the jury alone resolves conflicts or inconsistencies in the evidence. Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.-Houston [14th Dist.] 2012, pet. ref'd). Likewise, the jury may find guilt without any physical evidence linking the accused to the crime. Id.
To obtain a conviction for aggravated robbery, the State must prove beyond a reasonable doubt that the accused (1) unlawfully appropriated property with the intent to deprive it from its owner, (2) intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death, and (3) used or exhibited a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
To obtain a conviction for aggravated kidnapping, the State must prove beyond a reasonable doubt that the accused "intentionally or knowingly abduct[ed] another person" and committed an aggravating element. Laster v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009); see also Tex. Penal Code Ann. 20.04 (West 2011). "Abduct" means to restrain a person with intent to prevent her liberation by (a) secreting or holding her in a place where she is not likely to be found; or (b) using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2) (West 2011). Using or exhibiting a deadly weapon during the commission of the offense is an aggravating element. Tex. Penal Code Ann. 20.04(b).
Mungai testified appellant forced her at gunpoint into her car and then drove to an ATM where she withdrew six hundred dollars. She also gave appellant three hundred dollars from her purse. She testified she first looked at appellant when he put the gun to her back and forced her to her car. She made eye contact with him and got another good look at him when she was retrieving money from the ATM. She further testified she looked at him when he reached across her to open the car door at the abandoned house and the dome light of the car turned on. Appellant then forced her into the abandoned house where he ordered her to take off her clothes, despite her pleas for him to let her go. She escaped only after appellant dropped the car keys and she was able to run away.
Mungai identified appellant in a photo line up and positively identified him again in court. On these facts alone, a rational jury could find appellant guilty of aggravated robbery and aggravated kidnapping. We defer to that determination. See,e.g., Bradley, 359 S.W.3d at 917 (holding eyewitness testimony sufficient when complainant testified defendant took items from his person and car and threatened to shoot him with his own gun).
We acknowledge that appellant, as part of his legal sufficiency challenge, asserts the photo line ups were impermissibly suggestive. Appellant's argument is irrelevant under these facts. Even if we assume, without deciding, that Detective Stone created the arrays without the proper safeguards, Mungai's in-court testimony was sufficient to support the convictions.
She specifically testified her identification of appellant was based on her memory of the events on December 28, 2007 and not on the photo line ups. She testified to three separate instances when she looked at appellant: (1) when she turned around to look at him in the parking lot; (2) when she withdrew money from the ATM and made eye contact with him; and (3) when he reached across her to open the car door upon their arrival at the abandoned house and the dome light turned on. She also testified she was in close proximity to appellant during these times. Thus, the record clearly indicates her prior observations of appellant were sufficient to serve as an independent origin for her in-court identification. See Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983); Lesso v. State, 295 S.W.3d 16, 25 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (holding in-court identification was of sufficient independent origin when victim saw defendant under a bright light and viewed him for several minutes before assault began). We overrule appellant's challenge to the sufficiency of the evidence.
In reaching this conclusion, we are unpersuaded by appellant's arguments regarding the "sloppy" investigation, the faulty photo line up, the lack of corroboration, the difference in the physical description and tattoos between appellant and Payne, and the DNA evidence linked to the jacket. These claims all relate to conflicts in the evidence the jury resolved in favor of the State. Jackson v. Virginia, 443 U.S. at 326 (requiring this court to presume the jury resolved conflicts in the evidence in favor of the verdict and deferring to that determination); see also Bradley, 359 S.W.3d at 917 (stating jury may find guilt without any physical evidence linking the accused to the crime).
Conclusion
Having overruled appellant's sole issue, the judgments of the trial court are affirmed.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110586F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RODERICK EDWIN BRANTLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00586-CR
Appeal from the 204th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F- 0871160-Q).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers, participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 29, 2012.
MICHAEL J. O'NEILL
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RODERICK EDWIN BRANTLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00587-CR
Appeal from the 204th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F- 0872152-Q).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers, participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 29, 2012.
MICHAEL J. O'NEILL
JUSTICE