Opinion
No. 05-08-00468-CR
Opinion Filed April 21, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-51206-LN.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Appellant appeals his conviction for aggravated robbery. After finding appellant guilty, the jury assessed punishment at thirty-five years' confinement. In three points of error, appellant contends (1) the evidence is legally and factually insufficient to support his conviction and (2) the trial court erred in overruling his extraneous offense objection. At trial, the State presented evidence that Simon Bazbaz was robbed at gunpoint in the carport of his apartment complex. Bazbaz identified appellant as the perpetrator. Appellant pointed a gun at Bazbaz and Bazbaz dropped his keys. Appellant took the keys and told Bazbaz he wanted money. Bazbaz gave appellant the twenty dollar bill he had in his pocket. Appellant then told Bazbaz to turn around and start running. Bazbaz ran to another complex and hid until he heard his car drive away. The following day Officer Michael Royal answered a call for another aggravated robbery that occurred at "the Village," an area in Dallas containing several apartment complexes. Royal had information that Bazbaz's stolen vehicle had been involved in the robbery. Royal went to the Village in a marked car. When he saw Bazbaz's stolen car, he began to follow it. The car began to speed up, Royal activated his lights and siren, and a chase ensued. The vehicle crashed, and Royal saw at least two men running from the vehicle. Royal followed the driver, who was later identified as Elton Smith. About an hour later, Village security officers found appellant hiding, balled up behind a bush, near the crash location. After appellant was taken into custody, police asked Bazbaz to view a photographic lineup. Bazbaz was shown two separate lineups, each containing one of the two suspects. Bazbaz identified appellant in one of the line-ups. Bazbaz made the identification just over twenty-four hours after he was robbed. Appellant presented an alibi defense. Specifically, appellant called his friend, Joshua Anderson, who testified that on the night Bazbaz was robbed, he was with appellant from about 11:30 p.m. Friday night until about 2:00 a.m. Saturday morning. Appellant and Anderson spent the evening at the Anderson house playing videogames. Anderson's wife, Dominque, also testified that appellant was at their house at the time of the offense. In rebuttal, the State presented evidence of the details of the extraneous robbery that had occurred at the Village. The victim of that robbery testified he was robbed by two men, but could not identify either robber. After hearing the evidence the jury found appellant guilty of aggravated robbery. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. Specifically, he attacks the evidence proving identity. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment 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 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The jury, as trier of fact, is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. At trial, Bazbaz identified appellant in open court as the man that robbed him. He testified that he saw the majority of the perpetrator's face, and that his eyes stuck in his mind. The man had very prominent lips and a very thin mustache. The State also presented evidence that Bazbaz identified appellant in a pretrial line-up. Appellant nevertheless contends the evidence was legally insufficient because Bazbaz's testimony was unreliable because his identification was tainted by an unduly suggestive pretrial lineup. Appellant did not object at trial to either the pretrial line-up or the in-court identification. Thus, both were before the jury for its consideration. It was for the jury to determine whether Bazbaz's identification testimony was reliable. We conclude the evidence is legally sufficient to support appellant's conviction. Appellant also asks that we consider his complaint about the tainted line-up in our factual sufficiency review. In reviewing the factual sufficiency of the evidence, we can consider any factors that affect the strength of the State's case, including any factors that might cast doubt on identification evidence. However, we do this in the context of reviewing all of the evidence before the jury, not in the context of whether the trial court should have sustained a timely objection to a pretrial identification procedure. See Bledsoe v. State, 21 S.W.3d 615, 621 (Tex.App.-Tyler 2000, no pet.); Cate v. State, 124 S.W.3d 922, 928-29 (Tex.App. Amarillo, pet ref'd). Here, appellant asserts the lineup was tainted because it included some middle aged men and a female. Appellant has directed us to some factors that may have made appellant stand out in the line-up. However, there was also evidence that Bazbaz had ample opportunity to observe appellant at the time of the offense. He testified before the jury clearly, positively, and directly that appellant was the person that robbed him. Further, appellant was found hiding from police shortly after another aggravated robbery in which Bazbaz's vehicle was used. After reviewing the entire record, we cannot conclude (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt is greatly outweighed by contrary proof. We overrule appellant's first and second points of error. In his third point of error, appellant contends the trial court erred in admitting evidence of an extraneous offense. After appellant presented his alibi defense and rested, the State was permitted to call the victim of the extraneous robbery, Facundo Marancenbaum, to testify before the jury. Marancenbaum testified he and his wife were robed at gunpoint by two men at the Village. He was able to give police the licence plate of the getaway car the robbers used, but could not identify the perpetrators. A trial court's erroneous admission of evidence will not require reversal if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998). At the time the State introduced the complained-of evidence, evidence had already been presented without objection that Bazbaz's vehicle had been used in an extraneous aggravated robbery and that appellant was found hidden in the bushes near the scene of that robbery. The complained-of testimony did nothing further to link appellant with that robbery. Appellant presents no reversible error. We affirm the trial court's judgment.