Opinion
NO. 09-11-00034-CR
04-25-2012
OTTO CAULEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 1A District Court
Newton County, Texas
Trial Cause No. ND 6336
MEMORANDUM OPINION
A jury found Otto Cauley guilty of aggravated robbery and assessed punishment at forty years confinement. Cauley appeals, contending that the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Background
One afternoon in May 2009, two men robbed the Deweyville Branch Community Bank. According to one of the bank's tellers, J.C., Cauley and another man approached her and asked about opening a new account. Then, the man who had entered the bank with Cauley entered an office in the bank where several of the other bank employees were in a meeting. With Cauley's partner having confined most of the employees in a bank office, Cauley pointed a gun at J.C. and demanded that she give him money. According to J.C., after giving Cauley all the money from her station, Cauley demanded more money. When J.C. told Cauley that she did not have any more money, Cauley pushed the gun closer, and he again demanded that J.C. give him more money. J.C. insisted that she had no more money. When Cauley was unable to get any more money, he and the other man left the bank. According to J.C., she saw them leave the bank's property in a long, white suburban-type vehicle with its back license covered with tape.
To protect the tellers' privacy, we identify them by using their initials. See Tex. Const. art. I, § 30 (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
K.D., a teller who was being trained by J.C., testified that she was at the teller station during the robbery. K.D. identified Cauley as the person who threatened her and J.C. with a handgun. K.D. also testified that she heard Cauley say, "Give me your money." According to K.D., she saw the men leave in a white suburban-type vehicle with its back license covered with some type of tape.
During Cauley's trial, the trial court admitted the bank's surveillance videotape into evidence. Although the bank's videotape is of poor quality, Sheriff Joe Walker felt that the video depicts some of the features of the two men involved in the robbery. In his investigation, Sheriff Walker showed the bank's videotape to two persons who knew Cauley; each told Sheriff Walker that Cauley appeared (with a fair degree of certainty) to be one of the men in the bank's videotape. Each person who identified Cauley during Sheriff Walker's investigation testified at trial; at trial, these witnesses testified that he or she had identified Cauley as one of the robbers from the bank's videotape.
The trial court also admitted a videotape taken by a camera at a carwash located next door to the bank. The carwash videotape, which is a digital recording and of good quality, shows that a white sports-utility vehicle had stopped at the carwash shortly before the robbery. The carwash videotape shows that the white sports-utility vehicle's back license plate is covered so the numbers on the plate are not visible. The videotape also shows the vehicle's front license plate, which was not obscured. According to Sheriff Walker, the plate number assigned to the plate shown on the carwash videotape matches Cauley's assigned plate number.
When Cauley was arrested, he was driving a white sports-utility vehicle of the same make and color as the vehicle shown in the carwash videotape. The vehicle he was driving when arrested bears the same plate number as the vehicle shown in the carwash videotape. While there were differences between the rims, wheels, and trim of the vehicle in the videotape and those on Cauley's vehicle at the time of his arrest, Sherriff Walker testified at Cauley's trial that in his opinion the vehicles were the same. According to Sherriff Walker, the delay between the robbery and Cauley's arrest gave Cauley "ample time to get this stuff [on his vehicle] corrected."
Sheriff Walker also discussed the results of two separate photographic line-ups done as part of the County's investigation of the robbery. According to Sherriff Walker, no identification was made of anyone from a photographic line-up that Sheriff Walker's deputy conducted on the day of the robbery, and this line-up included a photo of Cauley. However, on May 21, six days later, J.C. and K.D. each indentified Cauley in a second photographic line-up.
Cauley's sister, Joyce Magee, testified in Cauley's defense. According to Magee, a still photo extracted from the bank's videotape does not depict her brother. Magee also testified that Cauley was at her house in Orange on the morning of the robbery, and that she understood that he was going to Houston to pick up some furniture. Magee identified photos of Cauley's vehicle, and stated that Cauley's vehicle was exactly like the one in three exhibits that show a vehicle with different rims than the one shown in the carwash videotape.
Cauley's older sister, Teresa Samuel, and Cauley's friend, Ronald Davis, also testified that Cauley was not depicted in the still photos extracted from the bank's videotape. Additionally, Julie Dickerson, an employee in the Jasper County tax office, explained that the tax office learned in July 2009 that Jasper County had distributed license plates bearing the same license plate numbers as plates distributed in another county. Dickerson, however, testified that there was no way for her to know which specific license plates were duplicates.
In a single issue, Cauley argues that the evidence is legally and factually insufficient to support his conviction and sentence. Although Cauley's issue encompasses both a legal and factual sufficiency challenge, the standard of review for both challenges, as clarified by the Court of Criminal Appeals in Brooks v. State, is now the same. 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). After concluding that there is no meaningful distinction between a legal sufficiency review and a factual sufficiency review, the Court in Brooks explained that "the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Id. at 902, 912.
Under Jackson, to determine a challenge complaining about whether the evidence is sufficient to support a conviction, appellate courts are required to review all of the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court gives full deference to the fact-finder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Cauley, in his brief, does not identify how he claims the evidence is insufficient to support his conviction; instead, he asserts that it is and asks this court to review the entire record to find the evidence introduced at the trial by the State to have been insufficient to support Cauley's conviction. Despite Cauley's failure to point us to specific facts to support his argument, as the evidence of Cauley's guilt is substantial, we will not require further briefing before reviewing Cauley's argument that the evidence is legally insufficient to support the jury's verdict. See Tex. R. App. P. 38.9(b) (permitting this Court to postpone submission of a case and require additional briefing if it concludes that the case has not been properly presented in the briefs).
A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (West 2011). A person commits a robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2) (West 2011). A firearm, by definition, is a deadly weapon. Id. § 1.07(a)(17)(A) (West Supp. 2011).
Cauley's statement of facts focuses on the poor quality of the bank's videotape and on the manner in which the police conducted the second photographic line-up. Therefore, we imply that the sufficiency challenge raised by Cauley primarily concerns whether there was sufficient evidence to connect Cauley to the robbery. Even if we disregard the two witnesses who identified Cauley from the bank's videotape, the two tellers, present during the robbery, testified that Cauley was the person who robbed the bank. It is well settled that the testimony of a single eyewitness may constitute legally sufficient evidence to support a conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding a conviction for assault with intent to murder where only one witness saw appellant with a gun); Davis v. State, 177 S.W.3d 355, 358-59 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming a conviction for aggravated robbery where central issue involved a single witness's credibility); see also Proctor v. State, 319 S.W.3d 175, 185 (Tex. App.—Houston [1st Dist.] 2010, pet. struck).
While the two tellers failed to identify Cauley on the day of the robbery using the first photo array, they did so several days later using a second photo array. Based on Cauley's statement of facts, we also imply that he is critical of the manner the police covered the parts of the image in each photo of the second array to simulate how the person would look with his eyes partly covered. In Cauley's case, the jury was aware that the tellers did not identify Cauley in the first line-up and that he was identified by them only when paper was placed over the eyes of each image in an effort to simulate the fact that the robber had worn sunglasses during the robbery. The fact that the tellers did not identify Cauley in the first photo array but did so later goes to the weight of the tellers' identification testimony. Hooper, 214 S.W.3d at 13. Nonetheless, we must place the identification testimony in the light most favorable to the verdict. Given the tellers' positive identification of Cauley at trial, as well as the circumstantial evidence that Cauley's vehicle was near the bank shortly before the robbery, there is legally sufficient evidence to prove that Cauley committed the robbery. See Williams, 235 S.W.3d at 750; Hooper, 214 S.W.3d at 13; see also Harmon v. State, 167 S.W.3d 610, 613-14 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (holding evidence sufficient to support aggravated robbery conviction in case where a single-victim witness identified robber in both a photographic line-up and in person at trial).
Cauley's brief, liberally construed, fails to raise a sufficiency challenge on a basis other than the strength of the identification testimony; nevertheless, the evidence in the trial court is also sufficient to show that Cauley, in the course of committing a theft with the intent to obtain and maintain control of the money, used a firearm to intentionally or knowingly place J.C. in fear of imminent bodily injury or death. Because the jury's determination is supported by legally sufficient evidence to show that Cauley robbed the bank by using a handgun to place a teller in fear of imminent bodily injury or death, we overrule Cauley's sole issue and affirm the trial court's judgment.
AFFIRMED.
HOLLIS HORTON
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.